Filed 12/13/19 P. v. Osegueda CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE OSEGUEDA,

Defendant and Appellant.

E071711

(Super.Ct.No. FVA1301777)

OPINION

APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Bridgid M. McCann, and John Nho Trong,† Judges. Affirmed.

Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Following a search warrant executed at a third-party residence, defendant and appellant Jose Osegueda was found with a nine-millimeter semiautomatic handgun and a separate magazine with ammunition. Defendant claimed the handgun and the magazine were planted on him by law enforcement, and filed a pretrial Pitchess motion, seeking discovery of information concerning complaints, investigations, and disciplinary proceedings in the personnel files of the officer who patted him down and a second officer who was present during the frisk. Two judges conducted separate in camera hearings and determined that there were no relevant materials to disclose.

The jury rejected defendant’s contention the handgun and ammunition were planted on him and found defendant guilty of unlawfully possessing a firearm as a felon (Pen. Code, § 29800, subd. (a); count 1) and unlawfully possessing ammunition as a felon (§ 30305, subd. (a)(1); count 2). In a bifurcated proceeding, the trial court found true that defendant had suffered one prior serious or violent felony strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). After the trial court denied defendant’s motion to dismiss his prior strike conviction, it sentenced defendant to a total term of four years in state prison.

On appeal, defendant requests this court to review the sealed transcripts of the in camera hearings independently, and to determine whether those judges abused their discretion. The People do not oppose the request. After reviewing the confidential documents presented at the Pitchess proceedings, we conclude the trial courts did not abuse their discretion and appropriately ordered that none of the two officers’ confidential records were discoverable.

II

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

On October 4, 2013, Officer Michael D. was on duty in charge of the narcotics unit when he and his team of officers executed a search warrant at a mobile home located in Fontana. For safety reasons, the officers detained and performed a patdown search of the individuals who were present, including defendant. Officer Michael D. contacted defendant while his team contacted other members of the group. Officer Michael D. asked defendant to turn around and conducted a patdown search of defendant. During the search, the officer found an ammunition clip containing 10 rounds in defendant’s left front pocket. Officer Michael D. also found a nine-millimeter semiautomatic handgun in the front waistband of defendant’s shorts. One round was chambered in the gun, and its attached clip contained nine rounds.

Officer Michael D. gave the magazine found in defendant’s pocket and the handgun with the attached clip to Officer Kyle G., who was assigned to the unit. Officer Kyle G. testified that he saw Officer Michael D. find the handgun on defendant’s person, but he did not see him find the magazine. Officer Michael D. did not write a report of the investigation, but Officer Kyle G., who was a team member and the “case agent responsible for the investigation of the case” did write a report. Generally, the “case agent” writes the report of the execution of a search warrant.

Defendant’s fiancée testified that at the time of the underlying events defendant was unable to use his dominant right hand due to an industrial injury he had suffered. She further noted defendant had also lost the use of his left hand as a result of surgery that had been performed on his right hand. Defendant’s fiancée had never seen defendant in possession of ammunition or a gun, including on the day of the incident.

Defendant’s fiancée’s son, A.E., also testified that he had not seen defendant with a gun or ammunition at any time on the day of the incident. A.E. recalled that he was standing next to defendant while defendant was being searched and that both he and defendant were handcuffed with their hands behind their backs at that point. A.E. stated that before the officers handcuffed him, they had placed a gun to his head. A.E. watched as a police officer walked towards an area where some pool equipment was kept. A.E. continued watching as the officer retrieved a gun from that spot, walked back to where defendant was standing, and said to defendant, “this is yours.” A.E. heard defendant deny the gun belonged to him.

In rebuttal, Officer Michael D. testified that the officers did not point guns at the heads of persons who were present. Rather, the police practice was to hold firearms in “a low ready position, which is simply out extended in my hand, pointed down range or away from me toward any potential threats.” Officer Michael D. acknowledged that some people could assume the guns were being pointed at them.

Detective Antonio G. testified that he had contacted defendant’s fiancée on June 29, 2012, about six years before trial. At that time, she had acknowledged that defendant possessed “some firearms.” Defendant’s fiancée testified that she could not remember ever having spoken with Detective Antonio G.

B. Relevant Procedural Background

On September 26, 2017, defendant filed a pretrial Pitchess motion, seeking discoverable information concerning officers Michael D. and Kyle G. Specifically, defendant’s motion sought information contained in the two officers’ personnel files concerning: “1. The names, addresses, and telephone numbers of all persons who filed complaints with, or who were interviewed by investigators or other personnel from the Fontana Police Department (hereafter “Investigating Department”) regarding Officer [Kyle G.] . . . and [Officer Michael D.] . . . relating to acts of falsification of police reports, excessive use of force, and dishonesty, the dates and locations of the incidents complained of, as well as the date of the filing of such complaints. [¶] 2. Disclosure of the discipline imposed upon named Deputies as a result of the Investigating Department’s investigation of any citizen complaint described in item one, above. [¶] 3. Disclosure of all complaints of Deputies’ misconduct amounting to moral turpitude, including, but not limited to, allegations of false arrest, planting evidence, fabrication of police reports, fabrication of probable cause, false testimony, and perjury. [¶] 4. Disclosure of complaints of false arrest, illegal search and seizure, fabrication of charges and/or evidence, planting of evidence, fabrication of probable cause, dishonesty and improper tactics.”

On September 29, 2017, the People filed an opposition to defendant’s Pitchess motion.

On November 3, 2017, Judge Nguyen granted the Pitchess motion, conducted an in camera review of the materials produced by the custodian of records, and ordered the transcripts of the hearing sealed.

On April 6, 2018, after a chambers’ conference, Judge Umeda ordered “Law enforcement agency not to change/destroy any documents in the officers personal file” and set the case “for further in camera hearing re: Pitchess.”

On June 26, 2018, Judge Umeda conducted a further in camera review hearing, ordered the transcripts of the in camera hearing sealed, and denied defendant’s request for discovery of any records pertaining to the officers.

On April 16, 2019, this court directed the clerk of the superior court, appeals division, to transmit to this court in a confidential envelope the items produced by the custodian of records and reviewed by Judge Nguyen at the in camera hearing held November 13, 2017, and the material reviewed by Judge Umeda at the in camera hearing held June 26, 2018.

III

DISCUSSION

Defendant filed the instant appeal for the sole purpose of requesting this court to conduct an independent review of the sealed records of the in camera hearings to determine whether either of the trial courts abused their discretion pursuant to Pitchess, supra, 11 Cal.3d 531. The People agree that this court may conduct an independent review of the trial courts’ in camera Pitchess hearings, and the sealed transcripts and confidential documents presented at the hearings.

Under Pitchess, supra, 11 Cal.3d 531, “a criminal defendant has a limited right to discovery of peace officer personnel records in order to ensure ‘a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.’” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1037, fn. 3; in accord, Chambers v. Superior Court (2007) 42 Cal.4th 673, 679.) In 1978, the California Legislature codified Pitchess motion privileges and procedures “through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, fns. omitted; Chambers, at p. 679.)

The trial court is vested with broad discretion when ruling on a Pitchess motion seeking discovery of police officer personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827.) We review a trial court’s Pitchess motion rulings for an abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)

Based on our independent, in camera review of the sealed record, which includes the in camera Pitchess hearing transcripts and documents presented at the Pitchess hearings on November 13, 2017 and June 26, 2018, we conclude the trial court properly reviewed the documents produced by the custodian of records and adequately described and discussed those documents on the record. We also find none of the produced documents constitute relevant discoverable Pitchess material.

Finding no disclosable evidence in the sealed record provided to this court, we conclude the trial court did not abuse its discretion in declining to release any of Officer Michael D.’s and Officer Kyle G.’s confidential records from the sealed record reviewed by this court and the trial courts. Accordingly, defendant is not entitled to the release of any of Officer Michael D.’s and Officer Kyle G.’s confidential records.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

MENETREZ

J.