P. v. Jacome

Filed 12/30/08 P. v. Jacome CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Melvin Estiwar Jacome led three Sanger police officers on a high speed chase, which culminated when he opened fire on them with a semi-automatic weapon and they returned fire and wounded him. He was convicted of premeditated attempted murder of a police officer and sentenced to life with the possibility of parole plus 20 years for a firearm enhancement.

In his first appeal, we found the trial court improperly denied his posttrial motion to discharge his retained counsel and remanded the matter. In his second appeal, we found the trial court improperly denied the request of his new attorney to file a motion for disclosure of personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), in support of a new trial motion based on ineffective assistance of his trial counsel, and again remanded the matter.

On the third remand, the trial court partially granted appellants Pitchess motion, reviewed certain personnel records and ultimately denied disclosure. In doing so, the court relied upon People v. Nguyen (2007) 151 Cal.App.4th 1473 (Nguyen), which held that the proper standard to evaluate a posttrial Pitchess motion filed in support of a motion for new trial based upon ineffective assistance was whether a reasonable probability existed that disclosure of the requested records would have led to a different result at trial. (Id. at p. 1478.)

The instant appeal marks appellants third appearance before this court. He contends the trial court should have provided discovery of the personnel records of the three officers involved in the pursuit and shooting--Sanger Police Officers Sanders, Johnson and Theile--for prior complaints of excessive force, fabrication and destruction of evidence, and theft. He also contends the court should have reviewed the personnel records of a fourth officer--Fresno County Sheriffs Deputy Epperly--who arrived at the scene after the shooting and was present when appellant was taken into custody, for conspiracy to fabricate and destroy evidence. We will review the factual and procedural history of this case and affirm.^[1]

FACTS

At 12:30 a.m. on March 24, 2002, Sanger Police Officer Noel Johnson was working the night patrol shift in his community. Johnson was dressed in uniform and was operating a marked City of Sanger police car. While Johnson was stopped at a red traffic signal, a citizen pulled up next to his squad car and reported an apparent drunk driver. The citizen saw the driver at the nearby intersection of Annadale and Academy Avenues and said the driver was proceeding eastbound on Annadale in a pickup truck. Officer Johnson immediately headed eastbound on Annadale in an attempt to locate the vehicle. A few seconds later, the officer saw the taillights of the pickup truck ahead of him.

Officer Johnson attempted to overtake the pickup truck by accelerating the speed of the patrol car. He observed the pickup was swerving from side to side and was repeatedly crossing over into the westbound (oncoming) lane of traffic. Johnson activated the siren and light bar of his vehicle and the pickup responded by accelerating, requiring Johnson to accelerate to 80 miles per hour to close the gap. The pickup continued to swerve into the westbound lanes despite the presence of oncoming traffic. To avoid creating a collision between the pickup and oncoming traffic, Johnson turned off his siren and emergency signals but continued to pursue the pickup truck at speeds from 70 to 80 miles per hour. The pickup finally came to a stop in a rural area outside of the Sanger city limits. Officer Johnson pulled up behind the truck and began to get out of his patrol vehicle. Before Johnson was completely out of his car, the pickup started moving again, made a U-turn using both lanes of traffic and then headed back in the direction of Sanger.

By this time, two other Sanger police officers in marked police vehicles joined the pursuit. Officer Johnsons vehicle was first in pursuit. Sergeant Fred Sanders directed the pursuit from his position behind Johnson. Officer Robert Theile drove in the number three position. After the U-turn, the pickup proceeded westbound on Annadale with the three police vehicles in pursuit. All of the police vehicles had activated sirens and emergency signals. When the pickup reached a three-way intersection at Riverbend Avenue, it came to a skidding stop and locked its brakes for several seconds. The pickup then proceeded northbound on Riverbend into a rural ranching area. The police units followed the pickup at about 45 miles per hour. After traveling a half mile on Riverbend, the pickup turned westbound and traveled onto the Hedrick Ranch. The pickup went 100 to 150 yards on a private road and then stopped near a trailer and gate.

Officer Johnson began to step out of his police unit and made eye contact with the driver, the appellant. He saw that appellant was pointing a black pistol at him. Johnson moved to the rear of his police car and yelled gun several times to warn his fellow officers. Appellant almost instantly discharged his weapon. The volley lasted about four seconds and Sergeant Sanders and Officer Theile observed multiple muzzle flashes coming from the drivers side window of the pickup truck. From his vantage point, Theile could see appellant pointing the weapon at Officer Johnson before discharging it. All three officers returned fire with their .40-caliber Glock service pistols. Johnson yelled about 10 times, both in English and in Spanish, and ordered appellant to put his hands up and open his truck door. However, appellant did not comply.

After a 10- to 15-minute wait, Sergeant Sanders approached appellant in the pickup truck and took him into custody. Appellant had sustained a gunshot wound in the ribcage and injury to two fingers of his left hand. Officers examined the interior of the pickup cab and seized a nine-millimeter assault weapon from the seat. The weapon had been struck by a bullet during the exchange of gunfire. They also found cartridge casings, blood and broken glass inside the truck. Officer Johnson noted three holes in the drivers side door of his police car and saw that another round had shattered the passenger side window of that car.

District Attorney Investigator Lee Cotter testified the seized weapon was an Intratec AB-10 nine-millimeter semi-automatic weapon. Cotter said the weapon was self-loading but not self-firing. In other words, the firing of each round required a separate pull of the trigger. Cotter explained the weapons magazine holds at least 18 nine-millimeter rounds but the magazine had been rendered inoperable by the bullet that struck the weapon. Officer Johnson testified this assault weapon uses a detachable magazine as well as a second handgrip.

Jose Guerrero, an identification technician with the Fresno County Sheriffs Department, said he examined Officer Johnsons police car and found three bullet holes in the drivers side door and recovered three spent bullets inside the vehicle. He determined the bullet holes were made by shots fired from outside the vehicle. Nine expended casings were found at the scene. The casings and the spent projectiles were of nine-millimeter caliber. Michael Giborson, a criminalist with the Fresno County Sheriffs Department Forensics Laboratory, examined the expended projectiles found in Johnsons vehicle and said they had been fired from appellants assault weapon. Jose Guerrero further testified the trajectory of the bullets was consistent with having come from appellants position in the pickup truck.

There was also evidence that Officer Johnsons patrol car (No. 251) was equipped with a video camera. A videotape was removed from the video recorder in the trunk. There was no visible damage to the video recorder. It was stipulated that the videotape showed a series of traffic stops, with an end-date of February 25, 2002. The rest of the tape was blank and the videotape did not contain any images from the pursuit, exchange of fire, or apprehension of appellant.

A subpoena was served on the Sanger Police Department as to the status of the video camera in Officer Johnsons car. The department responded that the video camera was inoperable on the date of the incident. The department did not have any documents or records to indicate that Officer Johnsons patrol car was equipped with a video camera, that anyone had reported the video camera was not working or needed repair, or that the video camera was subsequently tested and found inoperable. After this incident, however, a verbal report was made that the video camera was not working and it was replaced.

At trial, Officer Sanders testified that he was aware that the video camera in Officer Johnsons patrol car did not work.

Q Okay. Do you know if the vehicle that Officer Johnson was driving was equipped with a video camera?

A It was equipped with a non-functioning video camera.

Q How do you know it was non-functioning?

A Because it didnt work.

Q And how do you know it didnt work? Did you operate that vehicle?

A No, it was a few days prior to that that I was contacted and said there was a problem with it and we passed that on up to see about having it fixed.

Defense

Fresno County Sheriffs Deputy Daniel Epperly testified as a defense witness that he was on patrol when he responded to a dispatch that Sanger police officers were in pursuit of a vehicle. As he headed to the scene, the dispatch requested backup officers for an officer-involved shooting. Epperly did not hear any radio traffic between the Sanger police officers because his radio could not switch to their channel.

Deputy Epperly testified he arrived at the scene and found the patrol cars positioned around the drivers side and rear of the pickup truck. The other officers had their guns drawn and they had taken cover. Epperly got out of his patrol car, drew his weapon and took cover behind one of the Sanger police cars. He asked one of the officers about the situation. The officers communicated without looking at each other, and Epperly was not sure who he was speaking to.

Deputy Epperly moved to a different position to get a better view of the drivers side of the pickup truck. He saw movement through the trucks rear window but it was dark and he could not determine what was going on. Epperly testified that appellant eventually sat up in the drivers seat, opened the door and got out of the pickup truck. Appellant stood up, showed his hands and walked toward the rear of the truck. Appellant was kind of in a slumping over position, took a few steps and fell onto the ground. Epperly testified that the Sanger officers did not approach the truck prior to appellant getting out, and they did not force him to the ground.

Deputy Epperly testified what happened after appellant fell down.

One--one Sanger PD officer grabbed his arm, two other Sanger PD officers, one was yelling at him in Spanish and Im not fluent enough in Spanish to understand exactly what he was saying, there was another officer there that was yelling at him in English to show his hands. He had this--[appellant] had one hand concealed underneath his body. [] [] One Sanger PD officer grabbed one arm, after the other Sanger officers didnt grab the other arm, I did.

Epperly pulled appellants left arm out from underneath his body, and moved appellants arm behind his back so he could be placed in handcuffs.

Deputy Epperly testified that he was not involved in the shooting and no shots were fired while he was at the scene. After appellant was taken into custody, Epperly maintained the perimeter and obtained the names of the three Sanger officers so he could write his report. He had not met Officer Thiele before the incident and just spoke with him briefly at the scene. He might have previously met Officer Johnson but he did not know him very well at all. As for Officer Sanders, Epperly had previously spoken with him on a number of occasions, brief conversations Ive seen him around Sanger. These other two officers, I dont know. Epperly testified he had not spoken to any of the three officers regarding the incident.

On the evening of the shooting, appellant went to the home of a former coworker, Antonio De La Cruz, had three shots of tequila and left between 9:45 and 10:00 p.m. Appellant later arrived at Tops Bar in Sanger and drank five double tequilas over a 90-minute period. Appellants friend, Ishmael Vargas Menera, met appellant at the bar and saw him drink at least three tall glasses of tequila. Sonia Lopez, a bartender at Tops, testified appellant started to bother people and his friend took him out of the bar. Appellant and Menera left Tops and Menera drove the pickup truck because appellant was drunk. Menera saw appellants gun on the seat in the pickup truck. The gun was located underneath a jacket. Appellant and Menera went to the El Abril bar and Menera saw appellant drink two more double shots of tequila at that establishment.

At one point, appellant went outside of the El Abril bar for 30 minutes and Menera offered to take him home. Appellant declined and explained his wife was going to pick him up. After hearing that explanation, Menera returned the pickup keys to appellant. Appellant then drove away from the El Abril.

Appellant testified on his own behalf. He said he began working at the Hedrick Ranch in 1999 and aspired to become a jockey. However he had trouble getting his weight sufficiently low and began taking two or three Metabolite pills a day over a period of 17 months in order to lose weight. The pills occasionally caused him to hear noises. He took Metabolite on March 23, 2002. Appellant recalled the early part of that evening but could not remember anything after giving Ishmael Menera his pickup keys at Tops Bar. Appellant said he woke up in a hospital, had difficulty breathing and noticed his left hand was bandaged.

Appellant purchased the Intratec weapon in 1999. When he left his house on March 23, 2002, he put the Intratec in his truck because he had been arguing with his wife and because he intended to go hunting. He had one or two drinks of tequila before leaving his house and then drove to Antonios house, where he consumed three or four more tequila drinks. From Antonios house, appellant went to Tops Bar.

Appellants employer, William Hedrick, testified he had hired appellant to break horses on his ranch and had a high opinion of appellants character for truthfulness. Appellants common-law wife, Evelin Palma, testified appellant was never violent with her. Palma said appellant began drinking more after the birth of their second child on December 26, 2001. She also said appellant was taking Metabolite three times a day during the two weeks preceding the shooting. Hedrick foreman Andreas Hernandez lived on the ranch and said he did not hear any police car sirens before he heard the gunshots on March 24, 2002.

The parties stipulated that appellants blood was drawn at 1:54 a .m. on March 24, 2002, and the blood alcohol level was 0.193. They also stipulated that his blood was drawn at 2:50 a.m. that same day and the blood alcohol level was 0.14. No illicit drugs were found in appellants system. Raymond Deutsch, M.D., a specialist in addiction medicine, testified about the effect of ephedrine and alcohol on the human brain. Dr. Deutsch said Metabolite contains ephedrine and that appellant met the criteria for addiction to alcohol. Dr. Deutsch said a .19 blood alcohol level would reduce a persons inhibitions such that the person could not make deliberate judgments. He also said ephedrine ingestion has been associated with psychosis when taken in fairly high doses and can cause hallucinations.

Appellant was convicted of count I, willful, deliberate and premeditated attempted murder of a peace officer/firefighter (Pen. Code,^[2] 187, subd. (a); 664, subds. (e), (f)); count II, use of a machine gun/assault weapon on a peace officer/firefighter ( 245, subd. (d)(3)); and count III, evading an officer with willful disregard (Veh. Code, 2800.2, subd. (a)). As to counts I and II, the jury found appellant personally used and intentionally discharged a firearm ( 12022.53, subd. (c)); personally used a firearm in a statutorily specified offense ( 12022.53, subd. (b)); and personally used a firearm in the attempted commission of a felony (then 12022.5, subd. (a)(1)).

At the sentencing hearing, the court denied appellants motion to discharge his retained counsel and sentenced appellant to life in state prison with the possibility of parole, with an additional term of 20 years for the firearm discharge enhancement ( 12022.53, subd. (c)).

The first appeal (F044115)

In appellants first appeal, this court rejected appellants various challenges to his convictions and clarified the manner in which the firearm enhancements could be imposed.

We further held the trial court should have granted appellants motion to discharge his retained counsel at the sentencing hearing. We found the trial court improperly advised appellant that he had to retain another attorney in order to discharge his retained counsel. Instead, the court should have advised appellant of his right to appointed counsel given his statements that he lacked the financial means to hire another attorney.

We held that remand was appropriate for the trial court to reconsider appellants request to discharge his retained counsel, but such a remand did not require reversal of the jurys findings on the substantive offenses and the special allegations.

... [A]ppellants statements at the sentencing hearing represented his first request to discharge his retained counsel. During the trial, appellant did not previously express any dissatisfaction with his attorney, or make any comments which could be interpreted as an attempt to discharge his attorney. Thus, the courts error has no effect upon appellants trial on the substantive offenses and special allegations, and the jurys findings on those issues will not be disturbed. Instead, the courts failure to properly respond to appellants request to discharge his attorney will only result in the vacation of the sentence imposed herein. [] We will thus vacate the sentence imposed and remand the matter to the trial court for further proceedings consistent with the views expressed in this opinion.

We thus affirmed appellants convictions for the substantive offenses and special allegations, noted that the terms imposed for the firearm enhancements should be corrected, but vacated the sentence and remanded the matter with the following disposition:

[] With the sole exception of the two Penal Code section 12022.5, subdivision (a)(1) enhancements, the convictions of the substantive crimes in counts I, II and III and each of the attendant findings and enhancements are affirmed. The sentence imposed is vacated and the matter is remanded to the trial court for consideration of any request of appellant pertaining to representation of counsel, any appropriate posttrial motions and resentencing as may be applicable, and all in accord with the views expressed in this opinion. (Fn. omitted.)

The first remand

Upon remand, the trial court granted appellants request for new counsel, relieved his retained counsel and appointed the public defender. Thereafter, appellant requested to file a motion for disclosure of police personnel records pursuant to Pitchess, in support of a possible motion for new trial based on ineffective assistance of his trial counsel.

Appellants newly-appointed counsel, Deputy Public Defender Garrick Byers, filed a declaration in support of his request to file a Pitchess motion, argued a Pitchess motion was necessary in order to prepare a new trial motion and set forth a scenario to support a Pitchess motion, even though appellant claimed he blacked out and had no memory of the pursuit, shooting, or arrest:

There was no Pitchess motion in this case. Even though [appellant] has no memory of the events here, this case cries out for a Pitchess motion: the videotape recorders on one or more of the police cars in this case did not work. [Italics added.] In my view, the explanation for that given at trial was not adequate. Even if it were in an officer-involved shooting, even the most honorable of people have at least a motive to shade the truth or even outright lie.

Counsel therefore requests an opportunity to present a Pitchess motion at which he demonstrate[s] [a] scenario of alleged officer misconduct [that] could or might have occurred.... That motion might disclose evidence of prior officer misconduct that might be sufficient to show that, had it been introduced at this trial, the jurys verdict might have been different.

The trial court denied appellants Pitchess motion as beyond the scope of this courts remand, which was limited to simply allowing appellant to discharge his retained counsel and for the court to appoint the public defender to represent him at the sentencing hearing. The trial court thought it required a tortured reading of this courts opinion to allow appellant to completely reopen the case. Instead, the public defender was limited to filing appropriate posttrial motions, which would include any motion for new trial based on the current state of the trial record, or any other motion requesting that the Court dismiss any counts under [section] 1385, or otherwise take some action on the state of the current trial record. And I am limiting my action on the case at this point to that; that being the current trial record. The court continued:

[] I dont believe theres a sufficient basis to order that discovery under Pitchess be allowed under the possibility that it may yield evidence that may have been admissible at trial that may support a conclusion that Counsel was ineffective in having failed to obtain that information, and having failed to introduce that evidence at trial. I think that is beyond the scope of this remand. I think it would be an inappropriate exercise of the Courts discretion to allow that. I think the appropriate course is for Defense to bring whatever motions it wishes with respect to the current state of the trial record, and Ill decline a request for Pitchess discovery.... (Italics added.)

The court resentenced appellant to life with the possibility of parole plus a 20-year determinate term under section 12022.53, subdivision (c).

The second appeal

In his second appeal, appellant argued the court committed reversible error when it denied the request of his new attorney to file a Pitchess motion as part of a motion for new trial. This court agreed and held the trial court should have allowed appellant to file a Pitchess motion as part of the remand. We noted that the matter was remanded for the court to allow appellant to discharge his retained counsel, and for the court to appoint the public defender to represent him at the sentencing hearing. We also noted that a new trial motion may be filed at the time of sentencing, and such a motion may be based upon ineffective assistance of trial counsel.

On remand in the instant case, appellant sought the opportunity to present a Pitchess motion to the trial court to (a) disclose evidence of possible prior misconduct by the Sanger police officers involved in the March 24, 2002, shooting [italics added]; (b) identify ineffective assistance of original trial counsel due to actions and/or omissions with respect to a Pitchess inquiry; and (c) establish a constitutional basis for a new trial motion based on inadequacy of trial counsel. The trial court, on remand, concluded the request was outside the scope of our dispositional language. The trial court erred.

The primary purpose of the requirement that counsel render effective assistance is to ensure a fair trial. Thus, the benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. [Citation.] Here, this assessment cannot be made absent an appropriate inquiry pursuant to Pitchess and related statutory principles (Evid.Code, 1043-1045). To hold otherwise would fail to carry out the letter and spirit of the dispositional language of our prior opinion and would essentially neutralize or undermine an available constitutional ground-the effectiveness of counsel under the Sixth Amendment-for a posttrial motion for new trial. (Fn. omitted.)

We held that [g]iven the substantial passage of time since the events underlying the instant appeal, the most expeditious, practical, and definitive resolution of this matter can be accomplished by a remand to the superior court for a hearing under Pitchess.

The matter must again be remanded to the superior court with instructions to vacate the judgment of sentence and allow appellant to file, within 30 days of the date of remittitur, a motion pursuant to Pitchess, supra, 11 Cal.3d 531. If appellant fails to timely file such a motion or if adjudication of such a motion fails to yield relevant information in the personnel files of the police officers in question [italics added], then the court may simply reinstate the sentence imposed on May 9, 2006. If such a motion yields relevant information in the personnel files of the police officers, then the trial court must exercise its broad statutory discretion to determine whether a new trial should be granted. Before ordering a case retried, the trial court must make its independent determination, under article VI, section 13 of the California Constitution, both that error occurred and that the error prevented the complaining party from receiving a fair trial. [Citation.] If the superior court declines to order the case retried, then it may reinstate the sentence imposed on May 9, 2006.

This courts disposition stated:

The convictions of the substantive crimes in counts I, II and III and each of the attendant findings and enhancements are affirmed. The sentence imposed is vacated and the matter is remanded to the trial court to allow appellant to file within 30 days of the date of remittitur a motion pursuant to [Pitchess]. If appellant fails to timely file such motion or if adjudication of such motion fails to yield relevant information in the personnel files of the three police officers in question [italics added] resulting in the filing by appellant within the next succeeding 30 days of a renewed motion for new trial based on such relevant information, then the trial court may simply reinstate the sentence imposed on May 9, 2006. If such a motion for new trial is filed, the trial court shall proceed accordingly exercising its broad statutory discretion to determine whether a new trial should be granted. If the superior court declines to order the case retried it shall reinstate the sentence imposed on May 9, 2006.

The third remand

The instant appeal involves the trial courts rulings on the third remand, when appellant filed a motion for disclosure of peace officer personnel records pursuant to Pitchess.

Appellants Pitchess motion sought disclosure of the personnel records for the three Sanger police officers who were involved in the pursuit and shooting--Officers Johnson, Sanders and Theile. Appellant also sought disclosure of the records of a fourth officer, Fresno County Sheriffs Deputy Epperly, who was only involved in the arrest of appellant at the scene. Appellant acknowledged that Deputy Epperly was not involved in the pursuit or mentioned in this courts disposition from the second appeal, but argued that his presence was material to two issues--whether he conspired with the three officers to tamper with the video camera on one of the patrol cars, and whether he took a substantial amount of cash from appellant when he was taken into custody.

Appellants motion was supported by a declaration from his newly-appointed defense counsel, Garrick Byers, who alleged that one or more of the three Sanger police officers either failed to activate, or tampered with, the video camera in Officer Johnsons patrol car No. 251, and such conduct was done deliberately and maliciously to prevent making a record about the incident. Byers further alleged that one or more of the four officers took over $1,000 from appellants wallet.^[3] Byers alleged that Epperly may have conspired with the three other officers to settle on a simple consistent fabricated story--that appellant fired first--and Epperly did nothing to hinder the three Sanger officers from tampering with the video camera in Officer Johnsons patrol car or taking money from appellants wallet.^[4]

Appellants motion was further supported by Deputy Epperlys police report about the incident, which stated that when he arrived at the scene there were three Sanger police vehicles parked around the pickup truck, and the three officers were taking cover. One officer told him that the suspect in the truck was armed and had fired. Epperly stated he saw someone sit up in the drivers seat of the truck, another officer shouted directions in Spanish, and the suspect got out of the car and lay down on the ground. His upper body was covered with blood. Epperlys report continued:

Two Sanger officers cleared the Chevrolet while Officer Theile approached the suspect. I covered Officer Theile while he placed the suspects right arm behind his back. The suspects left hand was concealed under his abdominal area. I heard someone shouting at the suspect to put his hands behind his back. I am unsure if the su[s]pect was able to remove his left arm from underneath his body since Officer Theile was holding him down. I placed the suspects left arm behind his back and the suspect was handcuffed behind his back. [] I then moved to a position of [sic] outer perimeter along the driveway leading to the shooting scene, where I stayed until I was relieved by Deputy Simonson ....

The County of Fresno (County) filed opposition to the Pitchess motion and argued Deputy Epperly arrived at the scene after the shooting, he merely assisted in arresting appellant and appellant failed to establish the materiality of the requested information because he did not allege Epperly engaged in excessive force. The County further argued appellant failed to articulate a specific factual scenario of misconduct as to his claim that Epperly took money from him, aside from a vague statement in Byerss declaration that one of the four officers took money from appellants wallet. As for the video camera, the County noted that appellant failed to claim a specific factual scenario where Epperly had access to the camera or took any actions to prevent the recording of the incident. Finally, the County argued that appellant failed to offer any specific allegations to support his claim that Epperly conspired to conceal misconduct, particularly since Epperly arrived after the shooting ceased and his role was limited to assisting in appellants arrest.

The City of Sanger and County of Tulare also filed opposition to the Pitchess motion as to disclosure of the records of Officers Johnson, Sanders and Theile.

Pitchess Hearing

On October 25, 2007, the court conducted a hearing on appellants Pitchess motion and announced its tentative ruling to grant the Pitchess motion as to the three Sanger police officers. It found defense counsels declaration set out a plausible factual scenario with sufficient specificity so that the court could potentially conclude there might be relevance to similar instances of conduct as to those three officers.

However, the court denied the Pitchess motion as to Deputy Epperly because he was not identified in this courts second remand order. The court also found defense counsels declaration was defective:

[T]he declaration of counsel doesnt really set out any particular plausible factual scenario that would lead to a conclusion that Deputy Epperley [sic] either was a witness to any misconduct, or in any way conspired with the other officers, or in any way was a participant in the process of covering up or fabricating with respect to misconduct.

In fact, the facts suggest he came on the scene after the shooting, and, because of that, and because of the description of the alleged misconduct in defense counsels declaration, which relates to misconduct of the involved Sanger officers, there is no plausible factual scenario as described by [defense] counsel in his declaration that would include Deputy Epperley [sic] being involved in any acts of misconduct or any acts to cover up or fabricate with respect to acts of misconduct; nor is there any plausible factual scenario that suggests Deputy Epperley [sic] would have been witness to any such misconduct, would have been witness to any taking of money or property, because he wouldnt have been on scene at the time the alleged acts occurred.

The court intended to conduct an in camera review of all records, complaints, or information as to the three Sanger officers pertinent to (1) the use of force or allegations of excessive force, specifically including the discharge of any weapons; (2) the failure to gather evidence, specifically including the failure to activate video or audio recorders; (3) tampering with evidence or recording devices; (4) acts of theft from parties placed in custody; (5) fabrication, falsification, concealment, or making false or fraudulent statements; and (6) conspiring among themselves to frame, blame, or cast in a negative light other persons in a false or fraudulent manner. The court limited the scope of the inquiry to five years before and up to the actual trial date, since the underlying basis of the Pitchess motion was based on ineffective assistance of trial counsel.

Defense counsel argued the court should review all records in the five-year period before the shooting. The court agreed and modified its order so that disclosure would include records from five years before the actual incident.

Defense counsel advised the court of the recent opinion in Nguyen, supra, 151 Cal.App.4th 1473, which addressed a posttrial Pitchess motion brought in support of a claim of ineffective assistance of trial counsel. Counsel argued Nguyen was wrongly decided and should not be followed. The court thought Nguyen was well reasoned and relevant as to the evaluation of personnel records in the context of an ineffective assistance claim.^[5]

Defense counsel also challenged the courts decision to exclude Deputy Epperly from the Pitchess disclosure and argued he was obviously on the scene before all of the misconduct was done, and at least observing misconduct and not reporting it would be relevant. Counsel for the Fresno County Sheriffs Department replied that defense counsels declaration was insufficient because he failed to suggest that Epperly observed any misconduct. Defense counsel replied that his declaration alleged that Epperly failed to hinder the three Sanger officers from tampering with evidence or taking appellants money and he knowingly failed to report such misconduct. Defense counsel argued we wouldnt be here if the officers had not tampered with the videotape.

The court again declined to grant the Pitchess motion as to Deputy Epperly because there was no evidence that anyone tampered with any videotape, and the trial testimony established that the video camera was not operable.

... I am not presented with anything other than Counsels declaration on information and belief that somehow the officers either intentionally failed to activate it, or intentionally shut it off, or intentionally destroyed or tampered with the tape recording from the report. There is no set of facts alleged here that establish that even if that happened, Deputy Epperley [sic] might have even been a witness to it, much less been a party to it. Quite the contrary. [] The allegations are that these three Sanger officers conspired amongst themselves. The allegations are that Epperley [sic] either conspired with them or failed to take action to report their conspiracy, but there is no factual basis to conclude that he was on-scene in time to have observed any misconduct counsel claims occurred or that he had any information on which to either report misconduct or attempt to correct misconduct by the officers.

I think again, more importantly, though, the Court of Appeal told me to look at the issue of whether the discovery of the Sanger police officers, the three police officers involved, is the language of the remand order, whether that would have been relevant at trial and might have affected the outcome.

The court indicated the in camera review would be recorded by the court reporter, placed under seal and transmitted to the appellate court. The court acknowledged it was required to follow case law on Pitchess motions, and that defense counsels declaration had to set forth a plausible factual scenario of what might possibly have happened, but it was ludicrous to think that there is a plausible factual scenario as to what happened [in this case] when the only witness other than the officers has no recollection of the events and testifies to that under oath ....

Pitchess disclosures

Thereafter, the court conducted the in camera review of the personnel records of Officers Johnson, Sanders, and Theile.

After the in camera review, the court reconvened the hearing and generally advised the parties as to the contents of the personnel records. As to Officer Sanders, there were no complaints of any kind against him provided by the custodian of records for the Sanger Police Department. As to Officer Theile, there were no records of any complaints against him in the possession of the Tulare County Sheriffs Department.

As to Officers Theile and Johnson, the court noted two complaints had been filed against them with the Sanger Police Department. One complaint included an allegation of excessive force against Theile and Johnson. The court summarized the first complaint:

I am concluding without question that had that record been available to counsel at the time of trial, counsel would logically not have called a single witness regarding that, because the complaint was so completely lacking in credibility that no reasonable juror would have believed for a moment that the conduct as complained of occurred.

In fact, the single individual making the complaint was at the time being arrested [for Welfare and Institutions Code section] 5150. He was in possession of a weapon, had been just described by an eyewitness as having brandished it and made threats with it. And even by his own statements, he impeaches his characterization of the events, and by his own later statements did not relate any conduct that could be considered excessive force by the officers.

My finding is that there is no probability or even remote possibility that disclosure of those records in advance of the trial would have led to a different result at trial, that counsel would have chosen not to even call a witness on that subject because it would have looked so desperate and had so little to do with the case, had been such a meritless complaint that it would not have benefitted the defense at all. (Italics added.)

The court turned to the second complaint against Officers Theile and Johnson, and described it as a hearsay complaint that was very remotely relevant and that it would arguably fall within the bounds of the conduct that I determined would be relevant.

That hearsay was from an individual, by his own statements to law enforcement--or rather, by his own statements to medical professionals, an EMT, a nurse, and an ambulance driver, his statements to them were so inconsistent with the complaint of actions that I think his credibility would have been entirely suspect. Nearly every witness to the scene, including, of course, all the officers, contradicted his statements.

The court found the first complaint was not similar to the instant case, and it was so far removed that the officers restraint in that situation would have bolstered their credibility. It would have shown that the officers were particularly restrained in dealing with difficult subjects and went out of their way not to use excessive force. However, the court took the second complaint under submission to determine whether disclosure would have led to a different result at trial. The court asked for supplemental briefing as to the application of Nguyen in determining whether trial counsel was ineffective in failing to make a Pitchess motion, and whether there was a reasonable probability that disclosure of the records would have led to a different result at trial.

Denial of Pitchess motion

On November 1, 2007, the court held the continued Pitchess hearing and reviewed the parties supplemental briefs as to the application of Nguyen to a posttrial Pitchess motion. The court again stated the first complaint against Officers Theile and Johnson was so obviously false and unbelievable that no reasonable defense counsel would have even inquired about the event in cross-examining the officers.

As to the second complaint against Officers Theile and Johnson, the court found the events alleged by the complaining witnesses were substantially dissimilar from appellants case.

There was no weapon fired, even according to the witnesses most favorable to the defense. It is not likely, in my view, that competent counsel would have inquired about that event in cross-examining the officers, nor that he would have called witnesses to that event if the trial court had allowed him to do so, again, for tactical reasons. My belief is that if the jurors heard even just the witnesses most favorable to [appellants] case with respect to the officers conduct on that previous occasion, the jurors most likely would have concluded that the officers showed some restraint in that circumstance consistent with their testimony at [this] trial that they had pulled weapons on [appellant] after the chase ended and after he failed to exit the vehicle or show his hands, but that they only fired after he fired on them. Further, even if defense counsel had decided to call those witnesses, and even if defense had been allowed to call those witnesses and even if they had only called witnesses favorable ... and even if the Court had permitted that little trial within a trial about this prior shooting--which I think is unlikely because of the dissimilarity of the events and the lack of sufficient relevance to the case before the Court--I believe there is no reasonable probability that the outcome of the trial would have been different, and heres why: First of all, [appellants] testimony at trial was that he blacked out, that he had no recollection of the events, that he remembers leaving the bar and he remembers waking up in the hospital. There were no other witnesses to the event ... so there could have been ... no affirmative evidence that the officers fired their weapons first or that they used excessive force either in pulling or firing their weapon.

Additionally I think the forensic evidence at trial was compelling, and that forensic evidence at trial proved, without question, that at a minimum [appellant] pointed a loaded, fully-automatic firearm at these officers, in a dark, remote location, after having led them on a high-speed chase.... The evidence, however, is that--more compelling at trial, that the bullet holes from the Tech-9 both in the officers passenger side door .... The forensic evidence showed [appellant] was able to strike the passenger side door of one of the officers vehicles three times, and there were a number of bullet holes as well in [appellants] car consistent with the officers testimony that he fired on them, that they returned fire, and that as they returned fire, he continued to fire. And then consistent with his having fallen across the seat, injured and bleeding, he continued to fire as he fell .... That is absolutely and unquestionably consistent with the officers testimony that that weapon was first pointed at them and fired at them before they returned fire. Defense had ... a qualified forensic expert with considerable experience on the subject of firearms and the forensic evidence that can be gathered from the discharge of weapons and bullet holes .... That expert was unable to opine that there was any real reason to believe that the officers fired first and that somehow [appellant], in the face of this hail of bullets, could have then pulled a weapon, not otherwise trained ... pointed it out the window, and fired with sufficient accuracy to strike the door of one of the officers three times.

... I am confident that under any set of circumstances that [had] any one or more of these witnesses to the events described [in the second complaint] have testified at trial, or had Defense Counsel effectively and aggressively attempted to impeach officers in cross-examination with a description of events of that prior incident that there would not have been any reasonable probability that the outcome at trial would have changed, and for that reason Ill deny disclosure of either report. (Italics added.)

Issues in the instant appeal

In his third appeal, appellant contends the trial court should have found good cause to conduct an in camera review of Deputy Epperlys personnel records. Appellant further contends the court should have provided disclosure of the two complaints contained in the records of Officers Theile and Johnson. Appellant asserts the court improperly denied disclosure based on its evaluation of the credibility of the witnesses who filed the complaints, and the nature and circumstances of the events surrounding those complaints.

DISCUSSION

I.                   Pitchess motions

We begin with the basic principles as to Pitchess motions and the distinction between pretrial and posttrial Pitchess motions.

The California Supreme Court has recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officers personnel file that is relevant to the defendants ability to defend against a criminal charge. (People v. Mooc (2001) 26 Cal.4th 1216, 1219 (Mooc).)^[6] The Pitchess discovery procedure has two steps. First, the party must file a written motion describing the type of records sought, supported by [a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records. (Evid. Code,  1043, subd. (b)(3), italics added; Mooc, supra, 26 Cal.4th at p. 1226.) This good cause showing is a relatively low threshold for discovery. [Citation.] (Garcia v. Superior Court (2007) 42 Cal.4th 63, 70 (Garcia).)

Assertions in the affidavits may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendants simply casting about for any helpful information [citation]. (Mooc, supra, 26 Cal.4th at p. 1226.) As such, a declaration by counsel on information and belief is sufficient to state facts to satisfy the materiality component of that section. [Citation.] (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 51.)

In Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick), the California Supreme Court clarified the materiality showing required for discovery for personnel records at trial.

Although the standard of good cause has a relatively low threshold (Warrick, supra, 35 Cal.4th at p. 1019), the materiality element nonetheless requires a specific showing that there is a logical link between the defense proposed and the pending charge, and an explanation of how the discovery being sought would support such a defense or how it would impeach the officers version of events. (Id. at p. 1021.) The showing of materiality must also include presentation of a plausible factual foundation for the proposed defense, that is, a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents (id. at p. 1025); one that might or could have occurred ... because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. (Id. at p. 1026.) (Hurd v. Superior Court (2006) 144 Cal.App.4th 1100, 1111-1112 (Hurd); see also People v. Hustead (1999) 74 Cal.App.4th 410, 417 [Pitchess motion proper for issue relating to officer credibility].)

The second step in a Pitchess motion occurs if the trial court finds good cause for discovery of personnel records. Thereafter, the court conducts an in camera review of the pertinent documents to determine which, if any, are relevant to the case, typically disclosing only identifying information concerning those who filed complaints against the officers. (Warrick, supra, 35 Cal.4th at p. 1019; Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 414.)

The trial court may not disclose complaints more than five years old, the conclusions of any officer who investigates a citizen complaint of police misconduct, or facts so remote as to make [their] disclosure of little or no practical benefit. [Citations.] Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer. [Citation.] That practice imposes a further safeguard to protect officer privacy where the relevance of the information sought is minimal and the officers privacy concerns are substantial. [Citation.] (Warrick, supra, 35 Cal.4th at p. 1019.)

Absent a showing of good cause, an officers personnel records are not relevant to any issue in the case. (People v. Collins (2004) 115 Cal.App.4th 137, 151.) Even upon a showing of good cause, the defendant is only entitled to information that the court, after the in camera review, concludes is relevant to the case. (People v. Johnson (2004) 118 Cal.App.4th 292, 300.)

The relatively relaxed standards for a showing of good cause under [Evidence Code] section 1043, subdivision (b)--materiality to the subject matter of the pending litigation and a reasonable belief that the agency has the type of information sought--insure the production for inspection of all potentially relevant documents. The in camera review procedure and disclosure guidelines set forth in [Evidence Code] section 1045 guarantee, in turn, a balancing of the officers privacy interests against the defendants need for disclosure. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84; Brant v. Superior Court (2003) 108 Cal.App.4th 100, 106.)

The trial court has broad discretion in ruling on both the good cause and disclosure components of a Pitchess motion, and its ruling will not be disturbed absent an abuse of that discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086.) However, even if the defendant made a sufficient showing of good cause such that the trial court abused its discretion in denying the Pitchess motion, reversal is not required unless the defendant can show the error was prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Samuels (2005) 36 Cal.4th 96, 110.)

Most Pitchess motions are brought as part of a pretrial process as defense counsel is preparing defenses for trial. However, a Pitchess motion may be brought in the context of posttrial motions, and a posttrial Pitchess motion is subject to a different analysis of good cause and materiality. For example, in Hurd, supra, 144 Cal.App.4th 1100, the defendant filed a posttrial Pitchess motion in support of a petition for writ of habeas corpus. (Id. at p. 1105.) Hurd held such a motion was statutorily authorized, but the defendant was required to show the requested records were material to his habeas corpus petition, rather than to his defense to the underlying prosecution. (Id. at pp. 1105, 1108.) Hurd held a Pitchess motion must set[] forth the materiality [of the desired personnel records] to the subject matter involved in the pending litigation .... (Id. at p. 1110, italics omitted.)

We deem the litigation to which the discovery must be material within the meaning of [Evidence Code] section 1043 to be the habeas corpus proceeding that has been or will be initiated by petitioners habeas corpus petition. We deem the scope of the Pitchess discovery available ... to be that justified by such current materiality to claims cognizable on habeas corpus. (Id. at p. 1111.)

Hurd held the defendant was not entitled to discovery because the desired personnel records were immaterial to