People v. Mann CA4/2

Filed 10/24/13 P. v. Mann 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E056493

v. (Super.Ct.No. SWF1101479)

RICHARD BERNARD MANN SR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy,

Judge. Affirmed.

Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Melissa Mandel and

Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant Richard Bernard Mann Sr. was standing on a street corner when a

police officer asked him for his identification. Defendant said he would go get it and

started to walk away. The officer said that was not necessary and added, “Come on over

here!” Nevertheless, defendant broke into a run. The officer chased him and saw him

swallow several bindles. Defendant hid under a truck; he violently resisted the officer’s

efforts to drag him out and to handcuff him. Bindles of heroin and methamphetamine

were then found under the truck.

After a jury trial, defendant was found guilty of possession of methamphetamine

(Health & Saf. Code, § 11377, subd. (a)), possession of heroin (Health & Saf. Code,

§ 11350, subd. (a)), and resisting an executive officer (Pen. Code, § 69). In a bifurcated

proceeding, the jury found true one “strike” prior allegation (Pen. Code, §§ 667, subds.

(b)-(i), 1170.12) and seven prior prison term allegations (Pen. Code, § 667.5, subd. (b)).1

As a result, defendant was sentenced to 13 years 4 months in prison, along with

the usual fines, fees, and conditions.

1 The prosecution later conceded that two of the prior prison terms had been
served concurrently, and hence only six prior prison term allegations should have been
found true. (See Pen. Code, § 667.5, subd. (g).) The trial court therefore stayed the
sentence on one of the prior prison term enhancements.

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 Defendant now contends:

1. Defendant was unlawfully detained, and therefore:

a. There was insufficient evidence that the officer was lawfully performing

his duties.

b. The trial court erred by denying defendant’s motion to suppress the

drugs and other evidence.

2. Defendant was prejudiced by the prosecution’s delayed discovery of an audio

recording of the encounter because there is a reasonable probability that timely disclosure

would have changed the outcome of defendant’s Pitchess motion.2 To the extent that

defense counsel failed to preserve this issue by raising it below, defendant contends that

she rendered constitutionally ineffective assistance.

We find no error. Hence, we will affirm.

I

FACTUAL BACKGROUND

On June 13, 2011, around 12:30 p.m., Hemet Police Officer Rene McNish was on

routine patrol when he saw defendant standing on a corner. Two people — a Hispanic

man and woman — were standing with defendant. Officer McNish stopped, got out, and

2 A “Pitchess motion” is a motion for discovery of a peace officer’s
confidential personnel records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)

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contacted them. The subsequent encounter was captured by an audio recorder on Officer

McNish’s belt.3

Officer McNish asked, “You guys mind if we talk to you?” On the belt recording,

defendant can be heard saying something in response, but it is unintelligible. Officer

McNish later testified that defendant “indicated to me yes, that it was okay.”

The conversation continued:

“McNISH: . . . You got an I.D. on you, boss?

“[DEFENDANT]: Can I grab it?

“McNISH: No, it’s all right.

“[DEFENDANT]: [Unintelligible.]

“McNISH: I said, no, it’s all right. You don’t need to grab it. Hey!

“UNKNOWN: [Unintelligible.]

“McNISH: Come on over here!”4

At this point, Officer McNish can be heard running.

Officer McNish explained that, when he said, “No, it’s all right,” defendant started

to turn around. Defendant had taken two or three steps by the time Officer McNish told

3 In addition to reviewing the transcript of the recording, we have had the
recording itself transmitted to us, and we have listened to it.
4 Defendant claims that Officer McNish “yelled” these words. Our
impression from the recording is that he may have spoken a little more loudly, but no
more so than one would expect if defendant was moving away from him; he sounds more
surprised than either angry or commanding.

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him, “Come on over here!” At that point, defendant started to run, and Officer McNish

started to chase him.

During the chase, defendant removed plastic bindles of a type commonly used for

controlled substances from his pockets and put some of them in his mouth.

When Officer McNish caught up to him, defendant was under a truck that was

parked in a driveway. Officer McNish grabbed his legs and dragged him out. Defendant

resisted by trying to hit and kick Officer McNish; some of these blows connected.

Officer McNish repeatedly ordered defendant to put his hands behind his back, but

defendant did not comply. Defendant was yelling and screaming for help and saying that

he could not breathe. At one point, he said, “Please don’t choke me”; however, Officer

McNish denied choking him. Officer McNish punched defendant in the face twice; when

that seemed to have little effect, he punched him in the face twice again. This enabled

him to grab one of defendant’s hands.

After handcuffing defendant, Officer McNish looked under the truck and saw

“plastic stuff” in the rim of a spare tire. As he watched, the owner of the truck went

under the truck and retrieved several bindles.5 These appeared to contain

methamphetamine, heroin, and marijuana. Two of the bindles were tested; they proved to

contain 1.72 grams of methamphetamine and 0.11 grams of heroin.

5 In his report and at the preliminary hearing, Officer McNish had stated that
he searched under the truck, without mentioning the truck owner.

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 Defendant was left with a cut near his eye. He told a paramedic that he had

swallowed 1.5 grams of heroin.

II

THE SUFFICIENCY OF THE EVIDENCE THAT THE DETENTION WAS LAWFUL

Defendant argues that Officer McNish detained him unlawfully, and hence there

was insufficient evidence that the officer was lawfully performing his duties to support

the conviction for resisting an executive officer.

Resisting an officer can be committed by:

1. “[A]ttempt[ing], by means of any threat or violence, to deter or prevent an

executive officer from performing any duty imposed upon such officer by law”; or

2. “[K]nowingly resist[ing], by the use of force or violence, [an executive] officer,

in the performance of his duty . . . .” (Pen. Code, § 69; see also In re Manuel G. (1997)

16 Cal.4th 805, 814.)

“The first form of a violation of section 69 ‘encompasses attempts to deter either

an officer’s immediate performance of a duty imposed by law or the officer’s

performance of such a duty at some time in the future.’ [Citation.] The second form of

violating section 69 ‘assumes that the officer is engaged in such duty when resistance is

offered,’ and ‘the officers must have been acting lawfully when the defendant resisted

arrest.’ [Citation.]” (People v. Nishi (2012) 207 Cal.App.4th 954, 966, italics omitted.)

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 “The long-standing rule in California and other jurisdictions is that a defendant

cannot be convicted of an offense against a peace officer ‘“engaged in . . . the

performance of . . . [his or her] duties”’ unless the officer was acting lawfully at the time

the offense against the officer was committed. [Citations.] ‘The rule flows from the

premise that because an officer has no duty to take illegal action, he or she is not engaged

in “duties,” for purposes of an offense defined in such terms, if the officer’s conduct is

unlawful. . . . [¶] . . . [T]he lawfulness of the [officer]’s conduct forms part of the corpus

delicti of the offense.’ [Citation.]” (In re Manuel G., supra, 16 Cal.4th at p. 815.)

“[A] consensual encounter between a police officer and an individual does not

implicate the Fourth Amendment. It is well established that law enforcement officers

may approach someone on the street or in another public place and converse if the person

is willing to do so. There is no Fourth Amendment violation as long as circumstances are

such that a reasonable person would feel free to leave or end the encounter. [Citations.]”

(People v. Rivera (2007) 41 Cal.4th 304, 309.) “[E]ven when officers have no basis for

suspecting a particular individual, they may generally ask questions of that individual[]

[citations] [and] ask to examine the individual’s identification[] [citations] . . . — as long

as the police do not convey a message that compliance with their requests is required.”

(Florida v. Bostick (1991) 501 U.S. 429, 434-435.)

But “[e]ven ‘an initially consensual encounter . . . can be transformed into a

seizure or detention within the meaning of the Fourth Amendment.’ [Citations.]”

(Kaupp v. Texas (2003) 538 U.S. 626, 632.) “Unlike a consensual encounter, a detention

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is a seizure within the meaning of the Fourth Amendment of the United States

Constitution . . . . [Citations.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1081.)

“‘A seizure occurs whenever a police officer “by means of physical force or show

of authority” restrains the liberty of a person to walk away.’ [Citation.] Whether a

seizure has taken place is to be determined by an objective test, which asks ‘not whether

the citizen perceived that he was being ordered to restrict his movement, but whether the

officer’s words and actions would have conveyed that to a reasonable person.’ [Citation.]

Thus, when police engage in conduct that would ‘communicate[] to a reasonable person

that he was not at liberty to ignore the police presence and go about his business,’ there

has been a seizure. [Citations.]” (People v. Celis (2004) 33 Cal.4th 667, 673.)

“[P]olice officers . . . may temporarily detain a suspect based only on a

‘reasonable suspicion’ that the suspect has committed or is about to commit a crime.

[Citations.]” (People v. Bennett (1998) 17 Cal.4th 373, 386-387.) “‘Under California

law, an officer is not lawfully performing her duties when she detains an individual

without reasonable suspicion or arrests an individual without probable cause.’

[Citation.]” (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 819, italics omitted.)

According to defendant, he was detained when Officer McNish said, “Come on

over here!” We recognize that “[c]ircumstances establishing a seizure might include . . .

the use of language or of a tone of voice indicating that compliance with the officer’s

request might be compelled. [Citations.]” (In re Manuel G., supra, 16 Cal.4th at p. 821.)

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 However, an attempt to detain is not a detention. There is no detention until

someone’s liberty is in fact restrained. “[A] seizure ‘requires either physical force . . . or,

where that is absent, submission to the assertion of authority.’ [Citation.]” (People v.

Turner (1994) 8 Cal.4th 137, 180.) “[A] policeman yelling ‘Stop, in the name of the

law!’ at a fleeing form that continues to flee . . . is no seizure.” (California v. Hodari D.

(1991) 499 U.S. 621, 626.)

Hodari D. is almost on all fours. There, two officers on patrol spotted a group of

five youths. (California v. Hodari D., supra, 499 U.S. at p. 622.) When the youths saw

the officers, they ran. (Id. at pp. 622-623.) One officer got out and chased them. He saw

Hodari toss away a small rock that turned out to be crack cocaine. He then tackled

Hodari. (Id. at p. 623.) The prosecution conceded that the officer did not have

reasonable suspicion for a stop. (Id. at p. 623, fn. 1.) A California court of appeal

therefore held that Hodari was seized when he saw the officer running after him, and

hence the cocaine was the fruit of an illegal seizure. (Id. at p. 623.)

The United State Supreme Court, however, held that Hodari had not yet been

seized when he dropped the cocaine. (California v. Hodari D., supra, 499 U.S. at

pp. 623-629.) It stated: “Hodari contends (and we accept as true for purposes of this

decision) that [the officer’s] pursuit qualified as a ‘show of authority’ calling upon

Hodari to halt. The narrow question before us is whether, with respect to a show of

authority as with respect to application of physical force, a seizure occurs even though

the subject does not yield. We hold that it does not.” (Id. at pp. 625-626.) “In sum,

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assuming that [the officer’s] pursuit in the present case constituted a ‘show of authority’

enjoining Hodari to halt, since Hodari did not comply with that injunction he was not

seized until he was tackled.” (Id. at p. 629.) It also noted that “[the officer’s] seeing the

rock of cocaine, at least if he recognized it as such, would provide reasonable suspicion

for the unquestioned seizure that occurred when he tackled Hodari.” (Id. at p. 624.)

Here, even if Officer McNish’s statement, “Come on over here!,” is viewed as a

show of authority, defendant clearly did not yield to that show of authority. Rather,

Officer McNish had to chase him and had to use physical force to apprehend him. In the

interim, the officer saw defendant taking suspicious bindles out of his pockets and putting

them in his mouth. Thus, the officer had not only reasonable suspicion but probable

cause to arrest by the time he was actually able to effect a seizure.

Defendant relies on People v. Bower (1979) 24 Cal.3d 638, which held that the

defendant was detained when an officer called to him to stop and turn around. (Id. at

p. 643.) There, however, the defendant did stop and turn around (ibid.); thus, he

submitted to the officer’s assertion of authority. In any event, Bower was decided before

Hodari D. — the first case that authoritatively required either physical force or

submission.

Defendant also relies on People v. Verin (1990) 220 Cal.App.3d 551, which held:

“[W]hen an officer ‘commands’ a citizen to stop, this constitutes a detention because the

citizen is no longer free to leave. [Citation.]” (Id. at p. 556.) Verin, however, cited

Bower for this proposition. Moreover, Verin, like Bower, was decided before Hodari D.

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 We therefore conclude that there was substantial evidence that Officer McNish

was lawfully performing his duties — i.e., lawfully attempting to arrest defendant, based

on probable cause — at the time when defendant violently resisted arrest.

III

MOTION TO SUPPRESS

In a related contention, defendant also contends that the trial court erred by

denying his third and final motion to suppress.

A. Additional Factual and Procedural Background.

Before the preliminary hearing, defendant filed a motion to suppress the drugs and

other physical evidence that Officer McNish had recovered. The motion was heard

concurrently with the preliminary hearing. (See Pen. Code, § 1538.5, subd. (f).) At the

end of the hearing, the magistrate denied the motion.

Prior to trial, defendant filed a second motion to suppress. The trial court denied

the motion on procedural grounds, without an evidentiary hearing.

Just days before trial, however, the prosecutor produced Officer McNish’s belt

recording to the defense. (See part IV, post.) Defense counsel argued that the late

discovery had prejudiced defendant because, among other things, he had not been able to

use the belt recording to support his suppression motions. She asked the trial court to

“revisit” the suppression issue. The prosecutor conceded that the belt recording was new

evidence warranting a new suppression hearing. The trial court therefore set such a

hearing.

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 When the hearing began, the parties stipulated that the trial court was “totally

rehearing” the motion, and not just supplementing the preliminary hearing transcript.

(Compare Pen. Code, § 1538.5, subd. (h) with id., subd. (i).)

The testimony at the suppression hearing was substantially similar to the evidence

at trial, except as noted below.

Officer McNish testified that defendant was in an area where he had made 20 to

30 previous drug arrests. When he had seen people on that sidewalk before, they were

involved in criminal activity “the majority of the time.”

Officer McNish also testified that, when he said, “[I]t’s all right,” defendant

“turned around and ran away.” Later, however, he testified (as at trial) that defendant

started running only after he said, “Come on over here!” He chased defendant because,

“[b]ased on the location of our contact and his abrupt manner in running away from me,

indicated there was reasonable suspicion that he was doing something that was illegal.”

The trial court denied the motion. It explained: “If when the officer walked up

and said, ‘Can I see your ID,’ and if Mr. Mann would have said ‘[N]o’ and walked away,

end of story.” “But saying, ‘I’ll get it,” and then the officer saying, ‘No, you don’t need

to,’ and then he takes off, I think the officer is doing what we expect officers to do . . . .”

B. Analysis.

“In ruling on a motion to suppress, the trial court must find the historical facts,

select the rule of law, and apply the rule to the facts in order to determine whether the law

as applied has been violated. [Citation.] We review the trial court’s resolution of the

12
factual inquiry under the deferential substantial evidence standard. [Citation.] Selection

of the applicable law is a mixed question of law and fact that is subject to independent

review. [Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 284.)

As discussed in part II, ante, Officer McNish did not detain defendant by saying

“Come on over here!” or even by chasing him. Defendant was not detained until after

Officer McNish saw him pull bindles out of his pockets and put them in his mouth, which

gave Officer McNish probable cause for an arrest. Accordingly, the evidence was not the

product of an illegal detention.

We also note, however, that unlike at trial, Officer McNish testified that defendant

“ran away” as soon as he said, “[I]t’s all right” — in other words, before he said “Hey!”

and “Come on over here!” The trial court seems to have accepted this testimony, as it

found that “the officer say[s], ‘No, you don’t need to,’ and then [defendant] takes off

. . . .”

In this scenario, even assuming the words “Come on over here!,” standing alone,

could constitute a detention, defendant had already started running before these words

were spoken. This gave the officer reasonable suspicion. “While such evidence of flight,

of itself, is not sufficient to justify an investigative stop, it ‘is a proper consideration —

and indeed can be a key factor — in determining whether in a particular case the police

have sufficient cause to detain.’ [Citations.]” (People v. Turner (2013) 219 Cal.App.4th

151, 168.) Here, under the totality of the circumstances — including that (1) the

encounter took place in a high-crime area, (2) defendant seemed willing to talk to the

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officer until he was asked for his identification, and (3) defendant made no excuse for

leaving — defendant’s sudden flight suggested consciousness of guilt. (Cf. People v.

Souza (1994) 9 Cal.4th 224, 228, 242 [fact that defendant was talking to two people in

parked car at 3:00 a.m. in a high crime area, plus fact that, when officer shone spotlight,

people in car bent down and defendant took off running, “justified a brief, investigative

detention . . . .”].)

Accordingly, the trial court properly denied defendant’s motion to suppress.

IV

THE EFFECT OF THE PROSECUTION’S DELAYED DISCLOSURE

OF THE BELT RECORDING ON DEFENDANT’S PITCHESS MOTION

Defendant contends that he was prejudiced by the prosecution’s delayed disclosure

of the belt recording because there is a reasonable probability that timely disclosure

would have changed the outcome of his Pitchess motion. To the extent that defense

counsel failed to preserve this issue by raising it below, defendant contends that she

rendered constitutionally ineffective assistance.

A. Additional Factual and Procedural Background.

In January 2012, after the preliminary hearing, defendant filed a Pitchess motion,

seeking Officer McNish’s personnel records, including records related to lack of veracity

and excessive force. The City of Hemet filed an opposition.

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 In February 2012, the trial court held a hearing on the motion. At the hearing,

defense counsel stated: “[T]he main concern here is the lack of veracity.” At the end of

the hearing, the trial court denied the motion. It explained, “I don’t see any veracity

issues,” essentially because independent witnesses (the Hispanic man, the owner of the

truck, and the paramedic) could corroborate Officer McNish.

In April 2012, just days before trial, the prosecution produced the belt recording to

the defense. There were two minor discrepancies between the belt recording and Officer

McNish’s testimony at the preliminary hearing:

1. At the preliminary hearing, Officer McNish testified that, when he asked if he

could speak with defendant, defendant said yes. In the recording, defendant can be heard

saying something, but it is not intelligible.

2. At the preliminary hearing, Officer McNish testified that, after he told

defendant not to worry about his identification, defendant began to look around, then

turned and ran; Officer McNish chased him. The recording reflects that Officer McNish

also said “Hey!” and “Come on over here!” before starting to chase defendant.

On the date set for trial, defense counsel conceded that she had had an opportunity

to review the recording and that she was ready for trial. However, she stated: “Just to

preserve the issue . . . for appeal, . . . Mr. Mann is seeking that we revisit the 1538.5.”

The trial court agreed to hold a new suppression hearing.

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 B. Analysis.

“Under the federal Constitution’s due process clause, as interpreted by the high

court in Brady v. Maryland [(1963)] 373 U.S. 83, 87, [83 S.Ct. 1194] (Brady), the

prosecution has a duty to disclose to a criminal defendant evidence that is ‘“both

favorable to the defendant and material on either guilt or punishment.”’ [Citations.]” (In

re Bacigalupo (2012) 55 Cal.4th 312, 333.)

“For Brady purposes, evidence is favorable if it helps the defense or hurts the

prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if

there is a reasonable probability its disclosure would have altered the trial result.

[Citation.] Materiality includes consideration of the effect of the nondisclosure on

defense investigations and trial strategies. [Citations.]” (People v. Zambrano (2007) 41

Cal.4th 1082, 1132-1133, disapproved on other grounds in People v. Doolin (2009) 45

Cal.4th 390, 421, fn. 22.) “Defendant has the burden of showing materiality. [Citation.]”

(People v. Hoyos (2007) 41 Cal.4th 872, 918.)

Defense counsel forfeited defendant’s present contention by failing to raise it

below. (See People v. Williams (2008) 43 Cal.4th 584, 620 [failure to object below

forfeited contention “that the People improperly delayed discovery or failed to disclose

potentially inculpatory evidence prior to the preliminary hearing . . . .”].) “[A]s a general

rule, ‘the failure to object to errors committed at trial relieves the reviewing court of the

obligation to consider those errors on appeal.’ [Citations.] This applies to claims based

on statutory violations, as well as claims based on violations of fundamental

16
constitutional rights. [Citations.]” (In re Seaton (2004) 34 Cal.4th 193, 198.) “To

consider on appeal a defendant’s claims of error that were not objected to at trial ‘would

deprive the People of the opportunity to cure the defect at trial and would “permit the

defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction

would be reversed on appeal.”’ [Citation.]” (Ibid.)

Defense counsel did raise a Brady issue below, but she argued that the belated

disclosure was prejudicial exclusively with respect to defendant’s motion to suppress.

The trial court proceeded to cure this asserted prejudice by holding a new suppression

hearing. She never argued that the belated disclosure was also prejudicial with respect to

defendant’s Pitchess motion. All she had to do was ask the trial court to hold a new

Pitchess hearing, too. Her failure to do so constitutes a forfeiture.

Defendant therefore argues that defense counsel’s failure constituted ineffective

assistance. “When challenging a conviction on grounds of ineffective assistance, the

defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant

must first show counsel’s performance was deficient, in that it fell below an objective

standard of reasonableness under prevailing professional norms. Second, the defendant

must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s

deficient performance, the outcome of the proceeding would have been different. When

examining an ineffective assistance claim, a reviewing court defers to counsel’s

reasonable tactical decisions, and there is a presumption counsel acted within the wide

range of reasonable professional assistance. It is particularly difficult to prevail on an

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appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed

for ineffective assistance only if (1) the record affirmatively discloses counsel had no

rational tactical purpose for the challenged act or omission, (2) counsel was asked for a

reason and failed to provide one, or (3) there simply could be no satisfactory explanation.

All other claims of ineffective assistance are more appropriately resolved in a habeas

corpus proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 987.)

Here, defendant cannot show that defense counsel’s performance was deficient.

The belated disclosure of the belt recording was a Brady violation if, and only if, it was

reasonably probable that its timely disclosure would have altered the result at trial.

Certainly, if defendant’s motion to suppress were granted instead of denied, that would

change the result at trial. Accordingly, defense counsel requested a new suppression

hearing. By contrast, defendant could not show that, if his Pitchess motion was granted

instead of denied, that would change the result at trial. For all we know, there was no

relevant evidence in Officer McNish’s file. Certainly defendant could not show that there

was. Thus, the trial court had no obligation to hold a new Pitchess hearing, and defense

counsel did not render ineffective assistance by failing to request one.

Moreover, even assuming a request for a new Pitchess hearing potentially had

merit, defense counsel could have had a rational tactical reason for not requesting one.

The trial was about to start; jury voir dire did start about one hour later. For a new

Pitchess hearing to matter at all, the trial court would have had to order a hearing in

camera; it would have had to find that Officer McNish’s personnel file contained

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evidence of prior incidents that tended to show dishonesty or excessive force; and, most

important, defense counsel would have had to investigate and be prepared to prove up

those prior incidents. The trial would have had to be continued.

Defendant, however, was in custody, and he was insisting on a timely trial. Back

in February 2012, when the trial court originally heard defendant’s Pitchess motion,

defense counsel claimed he6 had evidence supporting the motion that had not been

included in his moving papers; the trial court offered to let him refile or supplement the

motion, but he declined, stating: “ . . . Mr. Mann already has a trial set. . . . [¶] . . .

We’re not willing to waive time at this time.” In fact, he agreed with the trial court that

the motion was “an exercise in futility,” because even if the trial court granted it, he

likely would not receive any Pitchess materials in time to use them at trial. If it was an

exercise in futility in February, then a fortiori, it was an exercise in futility in April, when

jury voir dire was about to start.

Finally, defendant cannot show that the failure to request a new Pitchess hearing

was prejudicial. It is not reasonably likely that, even with the belt recording, the trial

court would have granted the motion. To prevail on a Pitchess motion, “[w]hat the

defendant must present is a specific factual scenario of officer misconduct that is

plausible when read in light of the pertinent documents. [Citations.]” (Warrick v.

Superior Court (2005) 35 Cal.4th 1011, 1025.) Here, the belt recording would not have

6 At the hearing on the Pitchess motion, defendant was represented by a male
attorney; at trial, he was represented by a female attorney.

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supported a scenario of lack of veracity. The discrepancies between the belt recording

and Officer McNish’s testimony were minor and arguably not even discrepancies at all.

Officer McNish testified that, when he asked if he could speak with defendant, defendant

said yes. The recording reflects that defendant did say something; however, it is

impossible to make out what it was. Thus, the recording does not really contradict

Officer McNish. Also, at the preliminary hearing, Officer McNish did not mention the

fact that he said “Hey!” and “Come on over here!” However, he was not asked about

this. Thus, again the recording does not really contradict him.

Defendant argues that, once the trial court heard the belt recording, it might have

granted the motion based on excessive force. In the recording, defendant repeatedly says

that Officer McNish is hitting him, that he is hurt, and that he cannot breathe. At the

preliminary hearing, however, Officer McNish admitted that he punched defendant in the

face four times, leaving a cut by defendant’s eye. In his original motion, defendant

claimed that “Off[icer] McNish struck [him] numerous times with his fist, causing injury

. . . .” Thus, the belt recording added no new information that was relevant to a scenario

of excessive force.

We therefore conclude that defense counsel did not render ineffective assistance

by failing to request a new Pitchess hearing based on the asserted Brady violation.

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 V

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI
J.

We concur:

McKINSTER
Acting P. J.

CODRINGTON
J.

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