P. v. Ledesma

Filed 12/31/09 P. v. Ledesma 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Jerold L. Turner, Judge.

Mark John Shusted, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Albert Ledesma III, pled no contest to transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)) in the instant case. In case No. BF122472A Ledesma pled no contest to evading a police officer (Veh. Code, 2800.2) and admitted a prior prison term enhancement.

On November 25, 2008, the court sentenced Ledesma to the lower term of two years in the instant case, which the court ordered to run concurrent with the aggregate four-year term it imposed in case No. BF122472A. On appeal, Ledesma contends the court abused its discretion when it denied his Pitchess^[1]motion. We will find merit to this contention and remand the matter for further proceedings. In all other respects, we will affirm.

FACTS

On May 8, 2008, at approximately 12:05 p.m., California Highway Patrol Officer Amedee Irey was on patrol in Kern County when he saw a Pontiac Grand Am driven by Ledesma, traveling in the opposite direction at a high rate of speed in an area where the posted speed limit was 40 miles per hour. Officer Irey used his radar unit to determine that the car was traveling 61 miles per hour.

Officer Irey made a U-turn to follow the car and saw it turn abruptly, without signaling, into a residential neighborhood. The car traveled 40-45 miles an hour in the neighborhood, even though the posted speed limit was only 25 miles per hour.

Officer Irey activated his siren and front red lights to stop the car. The car ran a stop sign and then pulled over to the curb. Ledesma moved around inside the car and appeared to be hiding something. Officer Irey contacted Ledesma who told him his license had been suspended. He searched the car and found a piece of white plastic containing .20 grams of methamphetamine inside a package of cigarettes.

On June 10, 2008, Ledesma filed a motion to suppress alleging Officer Irey unlawfully detained him on May 8, 2008.

On July 22, 2008, Ledesma filed a Pitchess motion seeking discovery of documents relating to any incidents, reports or complaints against Officer Irey involving the giving of false testimony and/or lying. In a supporting declaration, Ledesmas defense counsel alleged that on February 28, 2008, Ledesma was involved in a police pursuit that ultimately resulted in Ledesma being beaten by several officers, including Officer Irey, requiring that Ledesma be hospitalized. Defense counsel also alleged that on May 8, 2008, Ledesma was not speeding, that Officer Irey lied about the incident, and that the requested records were relevant to his preparation for the motion to suppress and for the trial in the instant matter because they would impeach Ireys credibility. Defense counsel averred on information and belief that complaints had been filed against Officer Irey alleging that he had committed acts involving the giving of false testimony and/or lying on reports.

On August 25, 2008, during a hearing on Ledesmas Pitchess motion, counsel for the California Highway Patrol told the court,

Your Honor, as a side note, through my investigation of this matter, I have discovered that Officer Irey was not even present at the scene of the earlier incident, your Honor, and I have that document here whether or not its appropriate to raise at this point and just bring it to the Courts attention. Therefore, that would eliminate the entire protectoral [sic] theory .

After hearing counsels arguments, the court denied Ledesmas discovery motion without examining Officer Ireys personnel records.

DISCUSSION

Ledesma contends the court abused its discretion in denying his Pitchess motion without examining Officer Ireys personnel file because defense counsels declaration established good cause for the court to conduct an in camera inspection of the records. Respondent contends Ledesmas defense counsels declaration did not establish good cause for the court to conduct an in camera inspection of Officer Ireys personnel records because it did not establish a plausible scenario of officer misconduct. Alternatively, respondent contends that even if the court erred in not conducting the requested examination, Ledesma did not carry his burden of showing the error prejudiced him. We agree with Ledesma.

Pitchess v. Superior Court, supra, 11 Cal.3d 531, which provided for the disclosure of a police officers personnel records in certain situations, has since been codified in sections 1043 through 1045 of the Evidence Code. [Citation.] Section 1043 of this code outlines the procedure for requesting such disclosure. It requires the party seeking the records to submit affidavits showing good cause for their discovery, setting forth the materiality of the requested documents and stating upon reasonable belief that the governmental agency actually has them. [Citations.] Once good cause has been established, the trial court must examine the material in camera to determine its relevance to the case according to guidelines set out in Evidence Code section 1045. The statutory scheme thus carefully balances two directly conflicting interests: the peace officers just claim to confidentiality, and the criminal defendants equally compelling interest in all information pertinent to his defense. [Citation.] The relatively relaxed standards for showing good cause are offset by the protective provisions for in camera review. [Citation.] (People v. Hustead (1999) 74 Cal.App.4th 410, 416 (Hustead).)

To show good cause as required by Evidence Code section 1043, defense counsels declaration in support of a Pitchess motion must: 1) propose a defense or defenses to the pending charges, 2) articulate how the discovery sought might lead to relevant evidence, and 3) describe a plausible scenario supporting the claimed misconduct. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024-1025 (Warrick).)

We accept respondents concession that defense counsels declaration satisfied the first two requirements. Further, in Hustead an officer testified at trial that he was stopped at a stoplight when a car passed by with its tires screeching. The officer followed the car and attempted to stop it as it traveled over the speed limit and ran stop signs and a red light. (Hustead, supra, 74 Cal.App.4th at pp. 413-414.) The defendant ran from the car and was arrested after the car crashed into a center divider. (Id. at p. 414.)

Prior to trial, the trial court denied an in camera inspection of the officers personnel records pursuant to the defendants Pitchess motion wherein he claimed, in pertinent part, that the officers police report contained many misstatements. In reversing the trial courts denial of the defendants motion, this court noted:

As noted above, appellant must make an initial showing that the information he is seeking is material to the case at hand. [Citation.] In the present case, appellants counsel asserted in his declaration that the officer made material misstatements with respect to his observations, including fabricating appellants alleged dangerous driving maneuvers. He also stated that appellant asserted that he did not drive in the manner described by the report and that his driving route was different from that found in the report. In addition, he claimed that a material and substantial issue in the trial would be the character, habits, customs and credibility of the officer. These allegations were sufficient to establish a plausible factual foundation for an allegation that the officer made false accusations in his report. It demonstrated that appellants defense would be that he did not drive in the manner suggested by the police report and therefore the charges against him were not justified. (Hustead, supra, 74 Cal.App.4th at pp. 416-417, italics added, cited with approval in Warrick, supra, 35 Cal.4th 1101, 1021.)

Here, in a supporting declaration, Ledesmas defense counsel: 1) asserted that Officer Irey made material misstatements with respect to his observations, including fabricating statements regarding Ledesmas driving; 2) denied that Ledesma drove in the manner described by Officer Irey; and 3) asserted that Officer Ireys credibility would be a material and substantial issue at the suppression motion hearing and at trial. In accord with Hustead, we conclude that by doing so, defense counsel satisfied the requirement of alleging a plausible factual scenario of officer misconduct.

Respondent contends Ledesma did not present a plausible scenario of officer misconduct because there was no evidence that Officer Irey recognized or knew Ledesma before he arrested him. According to respondent, although Ledesma claimed that Officer Irey had been one of several officers who beat Ledesma during an incident on February 28, 2008, counsel for the officer told the court that he had a report which showed that Officer Irey was not present during that incident. Additionally, respondent contends it is unlikely Officer Irey would have recognized Ledesma prior to stopping him on May 8, 2008, because he only saw him for a second. However, the documents that counsel for Officer Irey referred to were not presented to the trial court when it heard the motion. Nor was there any evidence before the court indicating that Officer Irey was able to observe the driver of the speeding car for only a second or that this was an insufficient amount of time to allow Irey to recognize the driver. In any event, there is no merit to respondents contention because a defendant does not have to show a motive for officer misconduct in order to get the requested Pitchess discovery. (Warrick, supra, 35 Cal.4th at p. 1025.)

Finding the trial court erred in failing to provide an in camera review does not end the analysis; appellant must also demonstrate he was prejudiced from the denial of discovery. [Citation.] (Hustead, supra, 74 Cal.App.4th at p. 422.)

In Hustead, this court remanded the matter for limited proceedings after noting there might or might not be complaints in the officers personnel file of the type of misconduct sought by the defendant and concluding that we were unable to tell from the record whether the defendant was prejudiced by the denial of his Pitchess Motion. (Hustead, supra, 74 Cal.App.4th at p. 418.) Here, as in Hustead, we are unable to tell from the record whether Ledesma was prejudiced by the denial of his Pitchess motion without an in camera inspection.

Respondent, however, contends that we can conclude that Ledesma was not prejudiced by the denial of his Pitchess motion because counsel for Officer Irey represented that Irey was not involved in beating Ledesma during the earlier incident and Irey did not see the driver long enough to recognize him prior to stopping him. We disagree. As noted earlier, these circumstances are relevant to show motive, which a defendant is not required to show. Further, they do not eliminate the possibility that Officer Ireys personnel file will contain other relevant documents. Accordingly, we will remand the matter to the trial court for further proceedings.

DISPOSITION

The judgment is reversed and the cause is remanded with directions to the trial court to conduct an in camera hearing on Ledesmas discovery motion consistent with this opinion. If the hearing reveals no discoverable information in Officer Ireys personnel file that could lead to admissible evidence helpful to Ledesmas defense, the trial court shall reinstate the original judgment and sentence which shall stand affirmed. If the in camera hearing reveals discoverable information bearing on the officers honesty that could lead to admissible evidence helpful to appellant in defense of the charge at the suppression hearing or trial, the trial court shall grant the requested discovery, allow appellant an opportunity to demonstrate prejudice, and order a new suppression hearing if prejudice is demonstrated.

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^*Before Vartabedian Acting P.J., Levy, J., Gomes, J.

^[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531.