Filed 8/26/13 P. v. Escarsega CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C072349
Plaintiff and Respondent, (Super. Ct. No. SF110946A)
v.
HENRY REYES ESCARSEGA,
Defendant and Appellant.
Appointed counsel for defendant Henry Reyes Escarsega has asked this court to
review the record to determine whether there exist any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no errors, we shall affirm the
judgment.
BACKGROUND
1
After the partial denial of his Pitchess motion and the denial of his motion to
suppress made pursuant to Penal Code2 section 1538.5, defendant pled guilty to
1
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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possession for sale of methamphetamine (Health & Saf. Code, § 11378) and child
endangerment (§ 273a, subd. (a)) and admitted a prior strike conviction and that he had
served a prior prison term (§§ 667, subds. (b)-(i), 667.5, subd. (b), 1170.12). The trial
court sentenced defendant to the stipulated term of 10 years, four months in prison.
Defendant appealed his conviction to this court in case No. C064565, challenging
the denial of his motion to suppress and the partial denial of his Pitchess motion as to one
peace officer and asking us to review the records of another. Defendant‟s Pitchess
motion had sought to discover the personnel records of Officers Huff and McCutcheon,
the officers involved in the challenged search. The trial court summarily denied the
motion as to Huff, finding the threshold for an in camera review of the records had not
been met. The trial court conducted an in camera review of McCutcheon‟s file and
ordered two of three incidents disclosed.
In case No. C064565, we agreed to review the partial denial of the Pitchess motion
(despite defendant‟s failure to obtain a certificate of probable cause) to the limited extent
that the Pitchess claims were directed to the legality of the search. (See People v. Collins
(2004) 115 Cal.App.4th 137, 149.) We held the trial court erred in not reviewing Huff‟s
file in camera. Because the records reviewed from McCutcheon‟s file were not
maintained by the trial court, we were unable to review them. Accordingly, we
conditionally reversed with directions to the trial court to conduct further proceedings
regarding defendant‟s Pitchess motion. Specifically, we directed the trial court to
conduct an in camera inspection of Huff‟s personnel records and to obtain and keep the
previously reviewed records of McCutcheon.
Defendant‟s case was set for hearing on the remitittur; he was not brought to court
for that hearing. The trial court conducted an in camera review of Huff‟s personnel
2 Further undesignated statutory references are to the Penal Code.
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records. The court also obtained copies of the records originally reviewed from
McCutcheon‟s file. Finding no discoverable materials from the review of Huff‟s records,
the trial court ordered the judgment reinstated.
DISCUSSION
Counsel filed an opening brief that sets forth the facts of the case and requests this
court to review the record and determine whether there are any arguable issues on appeal.
(Wende, supra, 25 Cal.3d 436.) Counsel advised defendant of his right to file a
supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief asserting he had a right to be present at the
Pitchess hearing we ordered on remand. We disagree.
A criminal defendant has the right to be present at certain pretrial proceedings
“only if his or her appearance „is necessary to prevent “interference with [his]
opportunity for effective cross-examination”‟ or if the proceeding represents a „“stage
. . . that is critical to [the] outcome” and “his presence would contribute to the fairness of
the procedure.” [Citation.]‟ [Citation.]” (People v. Clark (2011) 52 Cal.4th 856, 1003-
1004.) A criminal defendant has no right to be personally present in chambers on
“matters as to which his presence bears no reasonable, substantial relation to his
opportunity to defend the charges against him.” (People v. Harris (2008) 43 Cal.4th
1269, 1306.) The Pitchess procedure requires the trial judge to examine “the personnel
records in camera, away from the eyes of either party, and [to order] disclosed to the
defendant only those records that are found both relevant and otherwise in compliance
with statutory limitations. In this manner, the Legislature has attempted to protect the
defendant's right to a fair trial and the officer's interest in privacy to the fullest extent
possible.” (People v. Mooc (2001) 26 Cal.4th 1216, 1227 (Mooc); see also Alford v.
Superior Court (2003) 29 Cal.4th 1033, 1038; Evid. Code, §§ 915, subd. (b), 1043, 1045,
subd. (b).) Because defendant was not even permitted to be present at the in camera
portion of the Pitchess hearing, due to its limited and confidential nature, his presence at
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the hearing on remand, even if a critical stage, would not have contributed to the fairness
of the proceedings.
The trial court reviewed Huff‟s personnel files and determined there were no
discoverable materials. We have reviewed the sealed transcript of the Pitchess
proceeding regarding Huff‟s records, which upon inspection is clearly “adequate for
purposes of conducting a meaningful appellate review.” (People v. Myles (2012)
53 Cal.4th 1181, 1209 (Myles); see also Mooc, supra, 26 Cal.4th at pp. 1229-1230.)
We conclude the trial court followed proper Pitchess procedures and did not erroneously
withhold any documents. (See People v. Fuiava (2012) 53 Cal.4th 622, 646-648.)
We have also independently reviewed the sealed records from McCutcheon‟s personnel
file and conclude the trial court did not abuse its discretion in declining to disclose the
one complaint at issue. (See Myles, supra, 53 Cal.4th at p. 1209.)
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
DUARTE , J.
We concur:
BLEASE , Acting P. J.
HOCH , J.
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