Filed 1/13/20 P. v. Castaneda CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

LORENZO JUAN CASTANEDA,

Defendant and Appellant.

A155747

(San Francisco County

Super. Ct. No. SCN228682)

A jury convicted Lorenzo Juan Castaneda of transportation of methamphetamine for sale (Health & Saf. Code § 11379, subd. (a)) and multiple other offenses. He appeals, seeking review of the trial court’s denial of his request to disclose information from the personnel records of the police officers who arrested him. He also contends that the trial court’s imposition of a restitution fine and court fees without holding a hearing on his ability to pay them violates his due process rights. We hold that, because the trial court abused its discretion in connection with Castaneda’s discovery request, the judgment must be conditionally reversed. We further conclude that Castaneda’s challenge to the fines and fees imposed at sentencing lacks merit.

BACKGROUND

San Francisco police officers arrested Castaneda during a traffic stop in January 2018. Officers asked Castaneda, a passenger, to step out of the vehicle after they found a methamphetamine pipe on the driver during a pat down search. When Castaneda did not comply and was observed reaching toward his waistband, the officers pulled him out of the car and took him down to the ground. After searching his pockets and backpack, officers found an airsoft gun, 27 rounds of airsoft ammunition, a nine-millimeter bullet, a digital scale, and plastic bags containing 7.2 grams of methamphetamine and 2.2 grams of heroin.

A jury convicted Castaneda of transportation of methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a)); possession of methamphetamine for sale (Health & Saf. Code, § 11378); possession of ammunition by a felon (Pen. Code, § 30305, subd. (a)(1)); resisting, delaying, or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)); and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). After Castaneda admitted a prior felony conviction, the trial court sentenced him to a prison term of eight years, suspended execution of the sentence, and placed him on five years of probation. The court also imposed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)), a $40 court operations fee (Pen. Code, § 1465.8), and a $30 court facilities fee (Gov. Code, § 70373).

This appeal followed.

DISCUSSION

A.

Castaneda requests that this court independently review the record to determine whether the trial court abused its discretion in denying his request for disclosure of police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The People concede he is entitled to such review. We conclude the trial court erred.

In Pitchess, our Supreme Court ruled that a criminal defendant may compel the discovery of confidential peace officer personnel files after showing that information in them is material to the defense. (Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40-41 (Association for Los Angeles Deputy Sheriffs); People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220 (Mooc); see also Evid. Code, §§ 1043-1047; Pen. Code, §§ 832.5, 832.7, 832.8.) If the defendant’s discovery motion demonstrates good cause, the trial court holds an in camera hearing to determine whether the personnel files contain records relevant to the issues presented in the litigation. (Mooc, supra, 26 Cal.4th at pp. 1226-1227; Evid. Code, § 1045.)

The custodian of the records “is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself.” (Mooc, supra, 26 Cal.4th at pp. 1228-1229.) Where the custodian does not produce the entire personnel file, “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.” (Mooc, supra, 26 Cal.4th at p. 1229) Further, “[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.” (Id.; see also Association for Los Angeles Deputy Sheriffs, supra, 8 Cal.5th at pp. 42-43 [“Questioning the custodian of records under oath regarding which documents were produced helps both to facilitate appellate review and to ensure that information is not withheld from the movant improperly.”])

After reviewing the file in camera, the trial court has discretion to determine which documents, if any, should be disclosed. (Association for Los Angeles Deputy Sheriffs, supra, 8 Cal.5th at p. 43; see also Mooc, supra, 26 Cal.4th at p. 1227 [upon review, trial court must “order[] disclosed to the defendant [] those records that are found both relevant and otherwise in compliance with statutory limitations”].) Accordingly, we review the trial court’s decision for an abuse of discretion. (Mooc, supra, 26 Cal.4th at p. 1228.)

Here, Castaneda filed a motion to obtain the names and contact information of individuals who filed complaints of misconduct against the officers involved in his arrest, and of any witnesses to the misconduct described in such complaints. He sought such information in connection with complaints of dishonesty, excessive force, unlawful arrest, unlawful detention, or unlawful searches by the relevant officers. Castaneda and the San Francisco Police Department (the Department) stipulated that the Department would produce responsive personnel records for review by the trial court and that information bearing on the above categories would be disclosed to defense counsel subject to a protective order.

With only a court reporter present, the trial court reviewed in camera the documents produced by the Department on March 28, 2018. The court properly made a record of the documents reviewed and ordered the disclosure of certain information. The court then sealed the record of the hearing. No disclosures were made to the defense. We have reviewed the sealed transcript of the hearing, as well as the sealed personnel files reviewed by the trial court.

We conclude the trial court erred in two respects. First, it failed to obtain sworn testimony from the custodian of records explaining what documents in the personnel files were withheld and why they were deemed nonresponsive. (See Association for Los Angeles Deputy Sheriffs, supra, 8 Cal.5th at pp. 42-43; Mooc, supra, 26 Cal.4th at p. 1229.) The custodian did not attend the hearing but instead provided a subset of the personnel files along with a conclusory affidavit that failed to establish what documents were included in the complete personnel files or allow the trial court to test the legitimacy of the custodian’s decision to exclude some of them. (See People v. Wycoff (2008) 164 Cal.App.4th 410, 415 (Wycoff) [conditional reversal where custodian failed to provide information sufficient for trial court to “adequately assess the completeness of the custodian’s review of the personnel files” and “establish the legitimacy of the custodian’s decision to withhold documents contained therein”]; accord Sisson v. Superior Court (2013) 216 Cal.App.4th 24, 39 (Sisson); People v. Guevara (2007) 148 Cal.App.4th 62, 69; cf. People v. White (2011) 191 Cal.App.4th 1333, 1339-1340 (White) [conditional reversal where custodian’s testimony at Pitchess hearing was unsworn]). As a result, the record is insufficient for our review. (See Sisson, supra, 216 Cal.App.4th at p. 39; Wycoff, supra, 164 Cal.App.4th at p. 415; Guevara, supra, 148 Cal.App.4th at pp. 68-69.)

Second, it appears the court’s order to disclose some information was not communicated to the parties. The court correctly issued an order during the in camera hearing with respect to the records the custodian did produce, the custodian was not present to hear the order, the hearing transcript was sealed, and the record transmitted on appeal contains no public record disclosing the order. Given Castaneda’s representation on appeal that no disclosures were ordered, it is apparent the trial court’s order was never effectuated.

We therefore conditionally reverse the judgment and remand for a new Pitchess hearing in which the proper procedures are followed. (See People v. Gaines (2009) 46 Cal.4th 172, 180-181 (Gaines).)

B.

Castaneda asserts that the trial court’s imposition of fines and fees without a hearing concerning his ability to pay them violates his due process rights, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Without deciding whether his rights were violated by the lack of a hearing, we hold that any potential error was harmless.

Relying on the principle that “a state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty,” Dueñas held that “due process of law requires [a] trial court to . . . ascertain a defendant’s present ability to pay before it imposes” fines and assessments. (Duenas, supra, 30 Cal.App.5th at pp. 1164, 1166.) The facts presented in Dueñas were unusually compelling. Dueñas, an unemployed, homeless woman with cerebral palsy, supported her two children while living on public aid. (Id., at pp. 1160-1161.) Dueñas lost her driver’s license because she could not afford to pay her juvenile citations, then acquired three misdemeanor convictions for driving without a license because the accumulating criminal assessments and fines prevented her from recovering her license. (Id., at p. 1161.) “Key to the [Dueñas] holding was its concern for ‘the cascading consequences of imposing fines and assessments that a defendant cannot pay,’ which ‘[t]he record in this matter [Dueñas] illustrates.’” (People v. Caceres (2019) 39 Cal.App.5th 917, 924, citing Dueñas, supra, 30 Cal.App.5th at p. 1163.) After Dueñas, our Supreme Court recently granted review to resolve the question of whether a trial court must hold a hearing on the defendant’s ability to pay before imposing fines or fees. (See People v. Kopp, review granted November 13, 2019, No. S257844, 2019 Cal.LEXIS 8371.)

Without addressing whether due process compels such a hearing, we find no prejudicial error here. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1075-77 (Aviles) [rejecting Dueñas claim where, although no ability to pay hearing was held, existing record showed any error was harmless]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [same]; People v. Johnson (2019) 35 Cal.App.5th 134, 139-140 (Johnson) [same].) Castaneda challenges a $300 restitution fine and $70 in court fees. The record indicates he was homeless, had substance abuse and mental health issues, provides some child support, and qualified for appointed counsel. However, Castaneda has some college education, is in his thirties and physically healthy, earned $20 per hour just before his arrest, and represented he would be able to continue working upon release. (See, e.g., Johnson, supra, 35 Cal.App.5th at p.139 [future “income-earning capacity” relevant to determining ability to pay restitution fines and court fees]; People v. Douglas (1995) 39 Cal.App.4th 1385, 1397 [defendant qualifying for appointed counsel may nonetheless be able to pay restitution fine].) In any event, because he is on probation for five years, he has five years during which to pay $370, which comes out to approximately $6 per month. (See Pen. Code §§ 1202.4, subd. (m) [payment of restitution fine is mandatory condition of probation], 1202.43, subd. (a) [restitution judgment forwarded to Controller for enforcement if probationer is unable to pay fine “within the period of probation” and outstanding amount is $1,000 or more]). We are unpersuaded that Castaneda could establish his inability to pay the fines and fees assessed by the trial court during his five-year probation term.

Further, unlike in Dueñas, Castaneda’s offense was not a crime closely tied to poverty. He was convicted of transportation of methamphetamine for sale (Health & Saf. Code §11379, subd. (a)). This offense “is not a crime either ‘driven by’ poverty or likely to ‘contribut[e] to’ that poverty such that an offender is trapped in a ‘cycle of repeated violations and escalating debt.’” (Caceres, supra, 39 Cal.App.5th at p. 928, citing Dueñas, supra, at p. 1164 & fn. 1; see also Johnson, supra, 35 Cal.App.5th at p. 139 [noting the challenged fines “did not saddle [the defendant] with a financial burden anything like the inescapable, government-imposed debt trap Velia Dueñas faced”].)

In short, any error was harmless.

DISPOSITION

The judgment is conditionally reversed. (See Gaines, supra, 46 Cal.4th at pp. 180-181.) On remand, the trial court shall review the record of the March 28, 2019 in camera hearing and conduct a new Pitchess hearing, consistent with this decision, in which the custodian’s decision to withhold documents from the personnel files is evaluated, and after which any resulting order is properly communicated and effectuated. The trial court shall order disclosure of any appropriate material consistent with the joint stipulation by Castaneda and the Department; allow Castaneda 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. (See Gaines, supra, 46 Cal.4th at pp. 180-182.) If the court determines a new trial is not required, the judgment shall be reinstated as of the date of that determination. (See White, supra, 191 Cal.App.4th at pp. 1341-1342.)

 

_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.

A155747