P. v. Windley
Filed 7/5/12 P.
v. Windley CA2/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES WINDLEY,
JR.,
Defendant and Appellant.
B227580
(Los Angeles County
Super. Ct. No.
PA061792)
APPEAL from a judgment of
the Superior Court of
County, Cynthia L. Ulfig, Judge. Modified and, as so modified, conditionally
reversed in part and remanded with directions.
David L. Polsky,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Daniel C. Chang and Rama R. Maline, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A
jury found defendant and appellant James Windley, Jr. guilty of three counts of
assault with a firearm on a peace officer and of
convictions must be reversed because (1) there is insufficient evidence of
either his intent to shoot his gun or that he knew one of the victims was a
peace officer; (2) the prosecutor committed misconduct by misstating the
law on intent; and (3) the trial court misinstructed the jury on the law
of assault. He also contends that the
trial court abused its discretion by denying his Pitchess
name="_ftnref1" title="">[1]
officers he assaulted, and he asks us to independently review the in camera
hearing concerning the records of the other two officers. We conditionally reverse the judgment and
remand so that the trial court can conduct an in camera hearing under
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
On
December 17, 2008, around 9:20 a.m., Sigrid Kodama was in her car when she saw
Black men in a bluish-purple small sedan.
“Creeped†“out†because the men stared at her, Kodama followed them. After stopping to talk at a park, one man got
back into the car and drove to the neighborhood while the other two men, who
wore backpacks, walked toward Oak Ridge Drive.
Kodama called the police.
Around
the same time, D’ette Corona was driving on Oak Ridge Drive when she saw two
Black men wearing hooded sweatshirts looking at houses as a blue sedan slowly
trailed behind. Corona saw the driver’s
profile, but she did not see the faces of the two men walking, one of whom wore
a yellow sweatshirt. At trial, she
identified Windley as the driver. Corona
called the police.
Detectives
Mike McPheeters, Jeffrey Jackson, and Sammy Soehnel responded to the
calls. Detective McPheeters wore a green
raid jacket with a sheriff’s star, “ ‘Sheriff’ †on the back, and
patches on the shoulders. Detective
Jackson wore a bulletproof vest with a “Sheriff’s Department†patch on the back
and an embroidered star on the front.
Detective Soehnel wore a badge on his belt. The detectives drove a dark gray Crown
Victoria with a red light in the center of the windshield and yellow amber
lights in the rear window. McPheeters
drove, Jackson sat in the front passenger seat, and Soehnel sat in the back.
As
the detectives approached an apartment complex, McPheeters saw a blue, four-door
Kia. In the Kia were three Black men,
who saw the detectives. The men looked
scared or startled. To follow the Kia,
Detective McPheeters made a U-turn, at which time the Kia sped up. The Kia swerved and crashed into parked
cars. Lonnell Diggs got out from the
front passenger seat and ran. M.V. (a
juvenile) got out of the back seat, and Detective Jackson saw a gun in his
hand. Detective McPheeters saw Windley,
a black revolver in his left hand, get out of the driver’s seat and run.
Detective
Jackson yelled, “Gun[!]†Detective
McPheeters pulled his gun out and moved to his car’s front fender, saying,
“Sheriff’s Department, stop†several times.
Windley and Diggs ran and jumped a fence. Windley ran up the stairs in an apartment
complex. At the top of the stairs, his
upper body spinning to the right as he ran, Windley turned towards Detective
McPheeters. As Windley turned, the
detective saw the barrel of Windley’s gun point at the detective and his partners. Windley was looking at Detective McPheeters
and in his direction. With his left
hand, Windley held the gun between his belly button and nipples. At this time, Detective McPheeters was
standing at the car, Detective Jackson was on the car’s other side, and
Detective Soehnel was in the back seat of the car.
Fearing
for his and his partners’ lives, and believing that the gun was pointed at
them, Detective McPheeters fired his gun four times. The gun flew out of Windley’s hand. Windley turned away and ran into a breezeway,
disappearing from sight. The detectives
tried to pursue him, but Jackson ran into a tree and injured himself. McPheeters called for assistance and, within
minutes, backup units arrived.
name="_ftnref2" title="">[2] Windley, Diggs, and the juvenile were found
in the area in and around the apartment complex and were arrested.
Items
found in the Kia or at the location where Windley, Diggs, and the juvenile were
taken into custody belonged to the Montes family, whose house on Oak Ridge
Drive had been burglarized earlier that morning.
II. Procedural background.
On
September 8, 2010, a jury found Windley guilty of counts 1 to 3, assault with a
firearm on a peace officer (Pen. Code, § 245, subd. (d)(1)),
and of count 4, first degree residential burglary (§ 459). As to counts 1 to 3, the jury found true
personal gun-use enhancements under sections 12022.5, subdivisions (a) and (d),
and 12022.53, subdivision (b).
On September 9, 2010, the jury found
that Windley had two prior convictions, within the meaning of the Three Strikes
law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). The jury also found true enhancements under
sections 667.5, subdivision (b), and 667, subdivision (a)(1). That same day, September 9, the trial court
sentenced Windley, on count 1, to 25 years to life plus 10 years for the gun
enhancement, plus a consecutive 25 years to life on count 4. Based on a prior prison term and conviction,
Windley was sentenced to five-year (§ 667.5, subd. (b)) and one-year
(§ 667, subd. (a)) terms. Sentences on
counts 2 and 3 were ordered to run concurrent to the sentence on count 1.
III. Assault
with a firearm on a peace officer.
Windley raises several contentions
concerning counts 1 to 3, assault with a firearm on a peace officer. He first contends there is insufficient
evidence of intent and of knowledge that Detective Soehnel (one of three
victims) was a peace officer. Next, he
contends that the prosecutor committed misconduct by misstating the law on
assault. Finally, he contends that the
jury was misinstructed on the law of assault.
We disagree with these contentions.
A.
Sufficiency of the evidence.
“In
assessing a claim of insufficiency of evidence, the reviewing court’s task is
to review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citation.]
The federal standard of review is to the same effect: Under principles of federal due process,
review for sufficiency of evidence entails not the determination whether the
reviewing court itself believes the evidence at trial establishes guilt beyond
a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. [Citation.]
The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence.
[Citation.] ‘ “Although it is the
duty of the jury to acquit a defendant if it finds that circumstantial evidence
is susceptible of two interpretations, one of which suggests guilt and the
other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify
the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the
judgment.†’ [Citations.]†’ [Citation.]â€
(People v. Rodriguez (1999)
20 Cal.4th 1, 11.)
“Any
person who commits an assault with a firearm upon the person of a peace officer
or firefighter, and who knows or reasonably should know that the victim is a
peace officer or firefighter engaged in the performance of his or her duties,
when the peace officer or firefighter is engaged in the performance of his or
her duties, shall be punished by imprisonment in the state prison for four,
six, or eight years.†(§ 245,
subd. (d)(1).)
Assault
is “an unlawful attempt, coupled with a present ability, to commit a violent
injury on the person of another.†(§
240.) Assault is a general intent
crime. (People v. Williams (2001) 26 Cal.4th 779, 782; People v. Colantuono (1994) 7 Cal.4th 206, 215-216.) Assault, therefore, does not require a
specific intent to injure the victim. (
established upon proof the defendant willfully committed an act that by its
nature will probably and directly result in injury to another, i.e., a
battery.†(Colantuono, at p. 214.) “The
pivotal question is whether the defendant intended to commit an act likely to
result in such physical force, not whether he or she intended a specific
harm.†(Id. at p. 218, fn. omitted; see also Williams, at pp. 788, 790 [assault does not require a specific
intent to injure the victim or a subjective awareness of the risk that injury
might occur].) Thus, assault with a
deadly weapon can be committed by pointing a gun at another person even if the
gun is not pointed directly at the victim and the victim is in a protected
place. (People v. Raviart (2001) 93 Cal.App.4th 258, 263;
[the drawing of a weapon is usually evidence of an intent to use it].)
The
evidence here is more than sufficient to establish the intent element of the
crime. Detective McPheeters testified that
after Windley crashed his car, Windley got out of the car with a gun in his
hand. Ignoring the detective’s directive
to stop, Windley ran up stairs, turned his body, and pointed the gun at the
detective and his fellow peace officers.
Windley held the gun in his left hand, at a level between his belly
button and nipples. In immediate
response, Detective McPheeters fired four shots at Windley, who dropped the
gun. Windley’s act of getting out of the
car openly armed with a gun and, in the course of trying to escape, turning and
pointing a gun at the detectives evidences an intent to commit “an act that by
its nature will probably and directly result in injury to another.â€
Windley
counters that this evidence is insufficient to establish intent because he
didn’t take a “position consistent with getting ready to fire his weapon†in
that he didn’t turn around completely to face the detectives; he didn’t raise
the gun to shoulder level; he didn’t take cover in anticipation of return fire;
he issued no verbal threat to shoot; and he didn’t try to shoot the detectives
when he was in closer range. This view
of the evidence is akin to asking us to reweigh it. But it is not the function of an appellate
court to reweigh the evidence. “In
deciding the sufficiency of the evidence, a reviewing court resolves neither
credibility issues nor evidentiary conflicts.
[Citation.] Resolution of
conflicts and inconsistencies in the testimony is the exclusive province of the
trier of fact.†(People v. Young (2005) 34 Cal.4th 1149, 1181.) “Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine the credibility
of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.]†(People
v. Maury (2003) 30 Cal.4th 342, 403.)
Windley’s
second contention is there is insufficient evidence he knew that Detective
Soehnel was a peace officer. Relying
primarily on evidence that the only identifying item Detective Soehnel wore was
a badge on his belt and that the detective remained in the back seat of the car
during the relevant events, making it impossible for Windley to see the badge,
Windley argues he could not have known the detective was a peace officer, an
element of the crime. (§ 245, subd.
(d)(1) [to be guilty of assault on a peace officer, the defendant must know or
reasonably should know that the victim is a peace officer engaged in the
performance of his duties].)
The
detectives, however, were in a Crown Victoria with a red light on the front
windshield and amber lights in the rear windshield. When they drove past the Kia driven by
Windley, the Kia’s occupants looked surprised or startled, which suggests they
knew that the Crown Victoria’s occupants were peace officers. And when the detectives began to follow the
Kia, Windley sped up, ultimately losing control and crashing the car. Immediately on crashing, all of the car’s
occupants, including Windley, got out and ran.
Windley could certainly have seen that there were three people in the
detectives’ car. From his attempt to
flee in the car and on foot, it is reasonable to infer that Windley knew that
peace officers were pursuing him.
Moreover, if Windley didn’t know peace officers were pursuing him, he
knew this soon after crashing his car.
Detective McPheeters wore a green raid jacket identifying him as a
member of the sheriff’s department. And
when the detective exited his car, he yelled at Windley to “stop,†“Sheriff’s
Department.â€
This
evidence is sufficient to establish that Windley knew or reasonably should have
known that Detective Soehnel was a peace officer.
B.
Windley
next contends that the prosecutor committed misconduct by arguing he did not
have to prove defendant intended to shoot the gun.
“The
applicable federal and state standards regarding prosecutorial misconduct are
well established. ‘ “A prosecutor’s . .
. intemperate behavior violates the federal Constitution when it comprises a
pattern of conduct ‘so egregious that it infects the trial with such unfairness
as to make the conviction a denial of due process.’ †’ [Citations.] Conduct by a prosecutor that does
not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it
involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.’ †’
[Citation.]†(People v. Samayoa
(1997) 15 Cal.4th 795, 841.) “As a
general rule a defendant may not complain on appeal of prosecutorial misconduct
unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard
the impropriety. [Citation.]†(Ibid.;
see also People v. Thompson (2010) 49
Cal.4th 79, 126.) Misconduct that
infringes upon a defendant’s constitutional rights mandates reversal of the
conviction unless the reviewing court determines beyond a reasonable doubt that
it did not affect the jury’s verdict. (
18.) A violation of state law only is
cause for reversal when it is reasonably probable that a result more favorable
to the defendant would have occurred had the district attorney refrained from
the untoward comment. (
Counsel
has “broad discretion in discussing the legal and factual merits of a case,â€
but “it is improper to misstate the law.â€
(People v. Bell (1989) 49
Cal.3d 502, 538, cited in People v.
Mendoza (2007) 42 Cal.4th 686, 702.)
Windley contends that the prosecutor misstated the law on assault when
he said Windley didn’t need to “think in his head: I’m going to fire the gun. . . . Just the mere act of him pointing the gun is
all that is required.†This could be
interpreted to imply that Windley could merely brandish the gun (see, e.g., §
417) and not intend to use the gun. This
seems to contravene the law on assault, namely, that assault occurs when the
defendant commits an act that by its nature will probably and directly result
in injury to another. (
p. 788.) Windley need not have intended
to harm the detectives to commit assault.
But Windley must have intended to engage in an act that might result in
a battery, even if he thought his actions would not harm the victim. (Ibid.
& fn. 3.) To the extent the
prosecutor was suggesting that defendant was guilty of assault even if he never
intended to use the gun in a way that might result in a battery, that is not
the law.
When
a claim of misconduct focuses on comments the prosecutor made before the jury,
the question is whether there is a reasonable likelihood the jury construed or
applied any of the complained of remarks in an objectionable fashion. (People
v. Samayoa, supra, 15 Cal.4th at p. 841.)
We must place the challenged statement in context and view the argument
as a whole. (People v. Cole (2004) 33 Cal.4th 1158, 1203.) The challenged statement was made in the
course of the prosecutor discussing the elements of assault with a firearm on a
peace officer. After correctly stating
the elements, the prosecutor added: “And
defendant Windley pointed the barrel in the direction of all three of them or
in the vicinity of all three of them.
And that was the act that’s, by its nature, would directly and probably
result in the application of force to someone because when you point a gun at
someone, it’s one of the strongest applications of force you can have without
actually hitting them, without actually physically touching them.†He continued:
“It’s pointed right at the detectives.
And that was on purpose. That was
willful. [¶] Now, when the defendant acted, he was aware
of the facts that would lead a reasonable person to realize that his act, by
its nature, would directly and probably result in the application of force to
someone. [¶] The defendant Windley pointed the gun, he did
so for a reason. It wasn’t [an]
accident. It was willful, as I have
shown, but there was also a reason behind it, a motive. He was trying to scare the deputies. He was trying to buy himself some time, and
his partners who were also trying to escape so they could get––out of the view
of these detectives, they could go and hide and hopefully get away so they
wouldn’t find them, and they could get away and not be caught with the burglary
they committed. [¶] . . . [¶] . . . [H]e’s telling the detectives proceed
with caution, watch out, don’t run so fast because I got this. And if you are going to come after me, you
need to know that I have this. That’s
the message he is trying to convey. [¶] When the defendant acted, he had the present
ability to apply force with a firearm, and a lot of this kind of overlaps a
little bit, but––Windley was at the top of the stairs, again, looking down at
the detectives. He had the gun in his
hand, and the gun was loaded. [¶] He had all the present ability in the world
to apply force. All he had to do was
turn, which he did, and point that barrel of the gun at the detectives. [¶]
Now, remember––and this is also said in the jury instruction,
prove that the defendant actually intended to use the force against someone
when he acted, meaning that the defendant doesn’t have––actually have to fire the gun.
He doesn’t even need to think in his head: I’m going to fire the gun. It’s irrelevant. It doesn’t matter. Just the mere act of him pointing the gun is
all that is required.†(Italics
added.)
Because
assault is an “unlawful attempt,†the prosecutor correctly stated he didn’t
need to prove that Windley actually fired the gun. (§ 240.)
And when the prosecutor added that Windley didn’t have to think he was
going to fire the gun and that pointing it was enough, the prosecutor might
have been inartfully emphasizing that assault is not a specific intent crime,
namely, Windley need not have a specific intent to injure the victim or have a
subjective awareness of the risk that injury might occur.
Even
if we were to find that the prosecutor misstated the law, it was not
prejudicial. The comments were
isolated. And, as we discuss below in
Section C, the jury was properly instructed with CALCRIM No. 860, which told
the jury Windley had to have committed an act with a firearm “that by its
nature would directly and probably result in the application of force to a
person.†We must presume the jury
followed the instructions. (
231.) To find Windley guilty of assault,
the jury had to find that pointing the gun would result in a use of force. If the jury believed that Windley was simply
trying to scare the detectives, then there was no “act†that would directly and
probably result in the use of force against the detectives. Because the jury was properly instructed, we
conclude that it is not reasonably probable that a more favorable outcome would
have resulted in the absence of any error.
Windley’s
trial counsel did not object to the prosecutorial misconduct; and therefore, he
alternatively contends that his trial counsel provided ineffective assistance.
(See generally, People v. Hill (1998)
17 Cal.4th 800, 819; People v. Ledesma
(2006) 39 Cal.4th 641, 745-746; Strickland
v. Washington (1984) 466 U.S. 668, 687.)
Because we have concluded that any error due to prosecutorial misconduct
was harmless, Windley’s ineffective assistance of counsel claims also fails,
because he cannot establish prejudice. (
704, 746.)
C. Instructional
error.
Windley
argues that any prosecutorial misconduct was compounded by CALCRIM No. 860,
which was ambiguous and should have been modified, sua sponte by the trial
court, to clarify that Windley had to intend to shoot the detectives. We disagree.
“An instruction
can only be found to be ambiguous or misleading if, in the context of the
entire charge, there is a reasonable likelihood that the jury misconstrued or
misapplied its words.†(
1228, 1237.) Thus, a single jury
instruction that alone “could [be] confusing†may not constitute error if an
accompanying instruction clarifies any potential confusion. (People
v. Simpson (1954) 43 Cal.2d 553, 566.)
We consider the instructions as a whole and “ ‘ “assume that the jurors
are intelligent persons and capable of understanding and correlating all jury
instructions which are given.†’ â€
(People v. Holmes (2007) 153
Cal.App.4th 539, 545-546.)
The
jury was instructed that the People had to prove: “1. The defendant did an act with a
firearm that, by its nature, would directly or probably result in the
application of force to a person; [¶] 2. The defendant did act willfully;
[¶] 3. When the defendant acted, he was aware of facts that would lead a
reasonable person to realize that his act by its nature would directly or
probably result in the application of force to someone; [¶] 4. When the
defendant acted, he had the present ability to apply force with a firearm to a
person; [¶] 5. When the defendant acted, the person assaulted was lawfully
performing his duties as a peace officer; and, [¶] 6. When the defendant
acted, he knew or reasonably should have known that the person assaulted was a
peace officer who is performing his duties.
[¶] Someone commits an act
willfully when he or she does it willingly or on purpose. It is not required that he or she intend to
break the law, hurt someone else, or gain any advantage. [¶]
The People are not required to prove the defendant actually intended to
use force against someone when he acted.
No one needs to actually have been injured by the defendant’s act, but
if someone was injured, you may consider that fact along with all the other
evidence in deciding whether the defendant committed an assault.†(CALCRIM No. 860.)
This
instruction informed the jury that merely pointing the gun, with no additional
intent to use it in some manner (e.g, shooting it or hitting someone with it),
is insufficient to constitute assault.
Twice, the instruction told the jury that Windley had to do an act with
a firearm “that by its nature would directly and probably result in the
application of force†to a person.
Pointing a gun with no intent to use it would not be such an act. We therefore do not agree that the jury could
have misapplied the instruction.
IV. Pitchess.
Windley
filed a Pitchess motion requesting
Detectives McPheeters’s, Jackson’s, and Soehnel’s records. The trial court granted the motion and held
an in camera hearing as to Detectives Jackson and McPheeters only and denied
the motion as to Detective Soehnel.
Windley contends that the trial court abused its discretion by denying
the motion as to Detective Soehnel.
Windley also asks us to review independently the in camera hearing
regarding Detectives McPheeters’s and Jackson’s records.
A. Denial
of the Pitchess motion as to Detective Soehnel.
Additional facts.
Windley
filed a Pitchess motion seeking all
complaints “relating to acts of aggressive behavior, violence, excessive force,
or attempted violence of excessive, [sic]
racial bias, gender bias, ethnic bias, sexual orientation bias, coercive
conduct, violation of constitutional rights, fabrication of charges,
fabrication of evidence, fabrication of reasonable suspicion and/or probable
cause, illegal search/seizure; false arrest, perjury, dishonesty, writing of
false police reports, writing of false police reports to cover up the use of
excessive force, planting of evidence, false or misleading internal reports
including but not limited to false overtime or medical reports, and any other
evidence of misconduct amounting to moral turpitude†against Detectives
McPheeters, Jackson and Soehnel.
In
support of the Pitchess motion,
Windley’s trial counsel stated in her declaration: “In this case, it is the information and
belief of the defense that Mr. Windley accompanied a friend, who was driving
his girlfriend’s car to an apartment complex in Santa Clarita. His friend collided with a car in the parking
lot and Mr. Windley got out and went to locate a person known to him in the apartment
complex. Mr. Windley denies possessing
or pointing a gun at the sheriff deputies.
Mr. Windley alleges falsification of an arrest report in this case. Mr. Windley also alleges racial profiling as
he and the driver of the car are black and were in a predominately white
community. [¶] Defendant also alleges that Detective
McPheeters used excessive force by firing his weapon into the apartment complex
in defendant’s direction.†(Underlining
in original omitted.)
At
the hearing on the Pitchess motion,
counsel for the Los Angeles County Sheriff’s Department argued that Detective
Soehnel, in his police report, did not state he saw Windley fire a gun (a key
issue being who was the shooter), and therefore the motion did not support
discovery of his records. Defense
counsel responded that Windley, among other things, was denying he possessed or
pointed a gun at the detectives, that an arrest report was falsified, and that
Detective McPheeters used excessive force.
The court said: “Right, but there
does not appear, again, to be any information––I’m looking at the report
written by Detective Soehnel, and he makes no statements regarding that
[Windley] holding a weapon. He did
not––he does not indicate he saw a weapon.
[¶] . . . [¶] So as to
Detective Soehnel, I do not think an adequate basis has been proven to have an
in-camera regarding him, as it does not appear there’s any conflict in his
statement with respect to what the defense is claiming.â€
The
trial court proceeded to conduct an in camera hearing as to Detectives
McPheeters and Jackson only, after which the court concluded there was no
discoverable information as to either detective.
law.
On
a showing of good cause, a criminal defendant is entitled to discovery of
relevant documents or information in the confidential personnel records of a
peace officer who is accused of misconduct against the defendant. (People
v. Gaines (2009) 46 Cal.4th 172, 179; Evid. Code, § 1043 et seq.) “To initiate discovery, the defendant must
file a motion supported by affidavits showing ‘good cause for the discovery,’
first by demonstrating the materiality of the information to the pending
litigation, and second by ‘stating upon reasonable belief’ that the police
agency has the records or information at issue.
[Citation.]†(
Cal.4th 1011, 1019.) If a defendant
shows good cause, the trial court examines the material sought in camera to
determine whether disclosure should be made and discloses “only that information
falling within the statutorily defined standards of relevance.†(Ibid.)
“There is a ‘relatively low threshold’ for
establishing the good cause necessary to compel in camera review by the
court. [Citations.]†(People
v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) To establish good cause, “defense counsel’s
declaration in support of a Pitchess
motion must propose a defense or defenses to the pending charges†and
articulate how the discovery sought might lead to relevant evidence. (Warrick
v. Superior Court, supra, 35 Cal.4th at p. 1024.) The defense must present “a specific factual
scenario of officer misconduct that is plausible when read in light of the
pertinent documents.†(
is one that might or could have occurred.
Such a scenario is plausible because it presents an assertion of
specific police misconduct that is both internally consistent and supports the
defense proposed to the charges.†(
the denial of facts described in the police report may establish a plausible
factual foundation.†(
when ruling on Pitchess motions (
832), and we review a trial court’s ruling for abuse of discretion (
1228).
made a showing of good cause as to Detective Soehnel.
Windley
presented a specific factual scenario of officer misconduct that is plausible
when read in light of the pertinent documents.
(Warrick v. Superior Court, supra,
35 Cal.4th at p. 1025.) In the
declaration submitted in support of the Pitchess
motion, defense counsel said that Windley was not the driver of the car that crashed; he was the passenger. He also denied possessing or pointing a gun
at the sheriff’s deputies. Detective
Soehnel, in his report, identified Windley as the driver. Because Detective McPheeters identified the
driver of the car as the man who pointed the gun, the driver’s identity was a
key issue. By denying he was the driver,
Windley suggested that the police reports were false. This constituted a specific factual scenario
of officer misconduct, and therefore, Windley met his burden of establishing
good cause. The trial court abused its
discretion by not granting the motion as to Detective Soehnel.
A
trial court’s erroneous denial of a defendant’s Pitchess motion is not reversible error per se. (People
v. Gaines, supra, 46 Cal.4th at p. 176.)
Instead, “the failure to disclose relevant information in confidential
personnel files, like other discovery errors, is reversible only if there is a
reasonable probability of a different result had the information been
disclosed.†(Ibid.) The proper remedy is
to conditionally reverse the judgment and remand the matter for an in camera
review of the relevant records. (
the officer’s records, the trial court is to reinstate the judgment and
sentence. (Id. at p. 181; People v.
Hustead (1999) 74 Cal.App.4th 410, 419; People
v. Johnson (2004) 118 Cal.App.4th 292, 304-305.)
If the trial
court determines that relevant discoverable information exists, it must order
disclosure, allow Windley an opportunity to demonstrate prejudice, and order a
new trial if there is a reasonable probability the outcome would have been
different had the information been disclosed.
(People v. Gaines, supra, 46
Cal.4th at pp. 181, 182; People v.
Hustead, supra, 74 Cal.App.4th at p. 419.)
If Windley is unable to show prejudice, the trial court is to reinstate
the judgment and sentence. (
at p. 422.) We therefore remand the
case to the trial court for an in camera review of the relevant records as to
Detective Soehnel. As further guidance
for the trial court, the in camera hearing should be limited to issues of
honesty. Windley’s Pitchess motion alleged no excessive force against Detective
Soehnel and the specific factual scenario appears limited to issues concerning
false reports and honesty. The trial
court shall determine relevance and discoverability under Evidence Code section
1045, based on the complaint and not on whether an investigating agency
determined it was unfounded. (See
B.
Independent review of the in camera review of Detectives
McPheeters’s and Jackson’s records.
Windley
asks us to conduct an independent review of the in camera hearing of Detectives
McPheeters’s and Jackson’s records to determine whether the trial court
provided all discoverable material to the defense. (See generally, People v. Mooc, supra, 26 Cal.4th 1216.)
pages 1228 through 1229, sets forth the procedure a trial court should follow
in conducting an in camera hearing after the trial court has concluded a
defendant has made a showing of good cause for discovery of relevant evidence
contained in a law enforcement officer’s personnel files. The custodian of records shall produce all
potentially relevant documents for the trial court to review. “The custodian
should be prepared to state in chambers and for the record what other documents
(or category of documents) not presented to the court were included in the
complete personnel record, and why those were deemed irrelevant or otherwise
nonresponsive to the defendant’s Pitchess
motion. A court reporter should be
present to document the custodian’s statements, as well as any questions the
trial court may wish to ask the custodian regarding the completeness of the
record. [Citation.]†(Mooc,
at p. 1229.)
We
have reviewed the sealed reporter’s transcript of the in camera hearing and
conclude that the trial court did not fail to disclose discoverable information
from the detectives’ personnel files.
V. Sentencing
Based on a prior robbery conviction in case No. LA037015, the trial
court sentenced Windley to a five-year term for a prior prison term under
section 667, subdivision (a), and to a one-year term under section 667.5, subdivision
(b). But only the enhancement carrying
the greater term may be imposed when the prior offense qualifies as an
enhancement under both sections 667, subdivision (a), and 667.5, subdivision
(b). (People v. Jones (1993) 5 Cal.4th 1142, 1150-1152.) The one-year term imposed under section
667.5, subdivision (b), must be stricken.
The one-year term imposed under
section 667.5, subdivision (d), is stricken.
The clerk of the superior court is ordered to modify the abstract of
judgment and to forward the modified abstract of judgment to the
reversed and remanded with directions to the trial court to conduct an in
camera inspection consistent with the opinions expressed herein and as to
Detective Soehnel only.
If
the trial court’s inspection on remand reveals no discoverable information,
then the trial court must reinstate the original judgment and sentence. If the inspection reveals discoverable
information, the trial court shall order disclosure of the names, addresses,
and telephone numbers of individuals who have witnessed, or have previously
filed complaints about, similar misconduct, that is, falsifying police reports,
planting evidence, or perjury; allow Windley an opportunity to demonstrate
prejudice; and order a new trial if there is a reasonable probability the
outcome would have been different if the information had been disclosed. If Windley is unable to demonstrate prejudice,
then the judgment and sentence must be reinstated.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
KLEIN, P. J.
CROSKEY, J.
Cal.3d 531.
this time, 9:45 a.m., Susan Wilkin was parked in her car at the Oak Tree
apartment complex. She saw defendant
crouching near a car and Diggs standing, holding a gun.
