People v. Padilla CA2/7

Filed 10/19/20 P. v. Padilla CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B302320

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA094694)
v.

DANIEL PADILLA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Mildred Escobedo, Judge. Reversed and
remanded with directions.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jonathan J. Kline and Kristen J. Inberg,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________
 A jury found Daniel Padilla guilty of three counts of assault
with a deadly weapon upon a peace officer, and the trial court
found true Padilla had suffered two prior felony convictions for
which he served prison terms within the meaning of Penal Code
section 667.5, subdivision (b).1 Padilla was sentenced to six years
in state prison. We conditionally reversed and remanded for the
trial court to conduct an in camera Pitchess2 review of personnel
records for three City of Redondo Beach police officers and to
provide Padilla with an opportunity to request a hearing on his
ability to pay the court fines and assessments the trial court
imposed. (People v. Padilla (June 18, 2019, B285989 [nonpub.
opn.] (Padilla I).)
On October 10, 2019 the trial court conducted an in camera
Pitchess review and determined there were no discoverable
documents. It then reinstated the judgment. Padilla again
appeals and requests we review the sealed record of the trial
court’s in camera hearing to determine whether the court
disclosed all relevant information in response to his Pitchess
motion. Padilla also contends the trial court failed to provide him
an opportunity to request a hearing on his ability to pay the court
fines and assessments. Finally, Padilla argues, the People
concede, and we agree his one-year prior prison term
enhancement and the court’s true finding on the two prison prior
enhancements must be stricken under Senate Bill No. 136 (2019-
2020 Reg. Sess.) (Senate Bill 136).

1 All further undesignated statutory references are to the
Penal Code.
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-538
(Pitchess).

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 We conclude the trial court abused its discretion in failing
to turn over information in the personnel files of two police
officers and failing to inquire of the custodian of records whether
he reviewed and brought to the trial court all “potentially
relevant” documents. The trial court also erred in reinstating the
fines and assessments without providing Padilla an opportunity
to request an ability to pay hearing on the fines and assessments.
We conditionally reverse and remand to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial, Verdicts, and Sentencing
On July 21, 2016, City of Redondo Beach Police Sergeant
Michael Strosnider and Officer Joshua Spry were at the Manor
Motel in Hawthorne for a probation search of Kelly Kimbell.
Among other things, the officers found bullets, which Kimbell
claimed belonged to Padilla. When Padilla drove into the parking
lot, Kimbell yelled for him to leave. Officer Spry directed Padilla
to put his vehicle in “park” or turn it off, but Padilla instead
reversed out of his parking space, forcing Officer Spry to move
out of the way. Officer Spry pointed his firearm at Padilla’s
vehicle and ordered him to stop, but Padilla continued backing
out of the space and drove at a high rate of speed out of the
parking lot. (Padilla I, supra, B285989.)
After learning from Kimbell that Padilla would be at the
Best Western hotel in Lawndale on August 2, 2016, Sergeant
Strosnider, as well as City of Redondo Beach Police Lieutenant
Joseph Hoffman and Officers Weiss, Salvador Garcia, Ryan
Harrison, and Derek Theurer went to the Best Western on
August 2 to arrest Padilla. When Padilla drove into the parking
lot of the Best Western, Lieutenant Hoffman and Officers Garcia

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and Theurer followed him and positioned their cars to prevent
him from exiting the lot. Once Padilla saw the police cars, he
drove in reverse out of the parking lot and headed directly toward
the police cars at top speed. A shootout ensued, with Officers
Harrison, Weiss, Garcia, and Lieutenant Hoffman shooting at
Padilla as he drove toward one and then another of the officers’
vehicles. Padilla’s vehicle crashed into Lieutenant Hoffman’s
parked vehicle, and Padilla was arrested. A loaded firearm was
recovered from his car. (Padilla I, supra, B285989.)
The jury found Padilla guilty of three counts of assault
arising from the Best Western incident and acquitted him of the
assault count arising from the Manor Motel incident. The court
found the two prison prior allegations to be true. The trial court
sentenced Padilla to six years in prison, consisting of the upper
term of five years on count 2 for assault, with concurrent five-
year terms for counts 3 and 4, and a consecutive term of one year
pursuant to section 667.5, subdivision (b), for a single prison
prior. The court dismissed the remaining prison prior allegation.
The court imposed a $300 restitution fine (§ 1202.4), stayed a
parole revocation restitution fine in the same amount (§ 1202.45),
and imposed $90 in criminal conviction assessments (Gov. Code,
§ 70373) and $120 in court operations assessments (Pen. Code,
§ 1465.8). (Padilla I, supra, B285989.)

B. Padilla’s Pitchess Motion
Prior to trial, Padilla filed a Pitchess motion under
Evidence Code section 1043 seeking discovery of personnel
records concerning excessive force, fabrication, and falsification of
police reports involving Sergeant Strosnider, Lieutenant
Hoffman, and Officers Spry, Garcia, Harrison, and Weiss. The
trial court granted the motion as to Sergeant Strosnider,

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Lieutenant Hoffman, and Officer Spry, but it denied the motion
without explanation as to Officers Garcia, Harrison, and Weiss.
(Padilla I, supra, B285989.)

C. Padilla I
Padilla appealed, and we concluded Padilla had shown good
cause for discovery of the personnel records of Officers Garcia,
Harrison, and Weiss. We also concluded Padilla should have had
an opportunity to request a hearing demonstrating his inability
to pay the fines and assessments in accordance with our opinion
in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas).
We conditionally reversed and remanded for the trial court to
conduct an in camera review of the records of Officers Garcia,
Harrison, and Weiss. We also directed the trial court to afford
Padilla an opportunity to request a hearing on his ability to pay.
We otherwise affirmed. (Padilla I, supra, B285989.)

D. Proceedings on Remand
On September 5, 2019 the trial court entered a minute
order indicating it had reviewed the remittitur and would
conduct a “Pitchess in camera hearing” on October 10, 2019. The
minute order was silent as to whether Padilla would have an
opportunity on the day of the in camera hearing to request an
ability-to-pay hearing. The court clerk served the minute order
on the district attorney and the Redondo Beach City Attorney’s
office, but not on Padilla’s counsel.
On October 10, 2019 the trial court conducted a Pitchess
hearing in camera. Following its in camera review, the trial
court stated in open court with the prosecutor present, but not
Padilla or his attorney, that Padilla’s attorney called the day
before the hearing “and indicated if we needed him available that

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he would contact the Court. So he’s present telephonically, if you
will.” The trial court stated, “[T]he Court has conducted an in
camera review. There’s no discovery that has to be tendered.
Hence, pursuant to the remittitur, this Court determines that
there is no relevant information, and the judgment is reinstated.”
The October 10, 2019 minute order provided, “A hearing after
remittitur was set on this date and in this department to address
the in camera review on Pitchess. No relevant information was
contained. [¶] This court, pursuant to instructions, reinstates
the judgment in full, including fines and fees pursuant to People
versus Hick[s] [(2019) 40 Cal.App.5th 320].” The court did not
hold a hearing on Padilla’s ability to pay the fines and court
assessments.
Padilla again appealed.

DISCUSSION

A. The Trial Court Failed To Comply with Its Obligations
Under Pitchess
“‘When a defendant shows good cause for the discovery of
information in an officer’s personnel records, the trial court must
examine the records in camera to determine if any information
should be disclosed.’” (People v. Rivera (2019) 7 Cal.5th 306, 338
(Rivera); accord, People v. Anderson (2018) 5 Cal.5th 372, 391
(Anderson).) “‘The court may not disclose complaints over five
years old, conclusions drawn during an investigation, or facts so
remote or irrelevant that their disclosure would be of little
benefit.’” (Rivera, at p. 338; accord, People v. Winbush (2017)
2 Cal.5th 402, 424; see Evid. Code, § 1045, subd. (b).) “‘Pitchess
rulings are reviewed for abuse of discretion.’” (Rivera, at p. 338;
accord, Anderson, at p. 391.)

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 Padilla requests we review the sealed portion of the record,
which includes the transcript of the in camera hearing. The
People do not object to our review. Padilla’s request for an
independent review of the sealed record is proper. (Anderson,
supra, 5 Cal.5th at p. 391 [“Defendant properly asks us to review
the sealed record of the in camera hearing to determine whether
the court erroneously failed to provide discovery that he should
have received.”]; Rivera, supra, 7 Cal.5th at pp. 338-339
[Supreme Court reviewed sealed transcript of in camera hearings
and sealed exhibits].)
We have reviewed the sealed transcript of the trial court’s
in camera review. We conclude the trial court abused its
discretion in failing to order disclosure of information relating to
the complaints described in the transcript at page 303, line 2
through page 304, line 10 (complaint 1) and page 305, line 27
through page 307, line 4 (complaint 2).
In addition, our review of the record shows the trial court
failed to inquire of the custodian whether he brought all
potentially relevant records to court. A trial court is obligated to
ensure the custodian “br[ings] to the trial court ‘all “potentially
relevant” documents to permit the trial court to examine them for
itself’ . . . and state[] 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.’” (Rivera, supra, 7 Cal.5th at p. 339; accord, People v.
Mooc (2001) 26 Cal.4th 1216, 1228-1229.)
Because the trial court did not comply with its obligations
under Pitchess, we conditionally reverse the judgment and
remand for the trial court to conduct a further in camera review
of the personnel records of Officers Garcia, Harrison, and Weiss.

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In its review, the court must inquire of the custodian whether he
or she has brought to the court all potentially relevant
documents. (Rivera, supra, 7 Cal.5th at p. 339.) The court is to
review any additional documents the custodian produces in
response to Padilla’s Pitchess motion and order disclosure to
defense counsel of information relating to complaints 1 and 2 and
any other complaints or documents the court determines at the in
camera hearing are discoverable.
Following the disclosures, the trial court must give Padilla
an opportunity to demonstrate prejudice, and it must order a new
trial if there is a reasonable probability the outcome would have
been different had the information been disclosed. (See People v.
Gaines (2009) 46 Cal.4th 172, 182 [“To obtain relief, then, a
defendant who has established that the trial court erred in
denying Pitchess discovery must also demonstrate a reasonable
probability of a different outcome had the evidence been
disclosed.”]; People v. Johnson (2004) 118 Cal.App.4th 292, 305
[“If the trial court concludes defendant should have received
information by virtue of his Pitchess motion, the proper standard
for the trial court to use to determine prejudice is whether there
is a reasonable probability the outcome would have been different
had the information been disclosed.”]; People v. Hustead (1999)
74 Cal.App.4th 410, 423 [“If the in camera hearing reveals
discoverable information bearing on the officer’s honesty which
could lead to admissible evidence helpful to appellant in defense
of the charge, the trial court shall grant the requested discovery,
allow appellant an opportunity to demonstrate prejudice, and
order a new trial if prejudice is demonstrated.”].) If the trial
court finds no prejudice, it shall reinstate the judgment.

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B. The Trial Court Denied Padilla an Opportunity To Request
an Ability-to-pay Hearing
Padilla contends the trial court erred in reinstating the
fines and assessments at the hearing scheduled for the court’s in
camera review without giving him an opportunity to request a
hearing and present evidence of his inability to pay. The People
argue the court did not err in reinstating the judgment because
Padilla’s attorney was available by telephone but elected not to
request a hearing on Padilla’s ability to pay. The People also
argue “imposition of the restitution fine was constitutional, and
any due process violation in the imposition of the non-punitive
fines was harmless” for the reasons set forth in People v. Hicks,
supra, 40 Cal.App.5th at page 322, review granted Nov. 26, 2019,
S258946. Padilla has the better argument.
In Padilla I, supra, B285989 we instructed the trial court,
“On remand, the trial court is . . . directed to afford Padilla the
opportunity to request a hearing on his ability to pay the court
facilities assessments (Gov. Code, § 70373), court operations
assessments ([Pen. Code, ]§ 1465.8) and restitution fine
([id., ]§ 1202.4). If the court determines he is unable to pay, the
assessments may not be imposed, and the court must stay the
execution of the restitution fine.” Although Padilla opted not to
appear on the day of the trial court’s in camera Pitchess hearing,
the court did not give notice to the parties (which, in any event
was not served on Padilla) that it intended following the in
camera hearing to reinstate the judgment without affording
Padilla an opportunity to request a hearing on his ability to pay
the fines and assessments.
In addition, it appears the trial court intended to deny
Padilla a hearing on his ability to pay, instead reinstating the
fines and assessments “pursuant to People versus Hick[s].” This

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was error. In People v. Hicks, supra, 40 Cal.App.5th at page 322,
the court concluded this court’s decision in “Dueñas was wrongly
decided.” But regardless of the trial court’s preference to follow
Hicks instead of Dueñas, the court was not at liberty to defy our
remand order requiring it to allow Padilla an opportunity to
request a hearing. “When an appellate court’s reversal is
accompanied by directions requiring specific proceedings on
remand, those directions are binding on the trial court and must
be followed.” (Butler v. Superior Court (2002) 104 Cal.App.4th
979, 982; accord, Hampton v. Superior Court (1952) 38 Cal.2d
652, 655 [“When there has been a decision upon appeal, the trial
court is reinvested with jurisdiction of the cause, but only such
jurisdiction as is defined by the terms of the remittitur. The trial
court is empowered to act only in accordance with the direction of
the reviewing court; action which does not conform to those
directions is void.”]; Ayyad v. Sprint Spectrum, L.P. (2012)
210 Cal.App.4th 851, 860 [“On remand, the trial court must
adhere to the reviewing court’s directions even if the lower court
is convinced the appellate court’s decision is wrong or has ‘been
impaired by subsequent decisions.’”].)
Moreover, as we explained in People v. Belloso (2019)
42 Cal.App.5th 647, 649, review granted March 11, 2020,
S259755, “We find unpersuasive the analyses of the courts that
have disagreed with Dueñas, as exemplified by the two most
recent cases rejecting this court’s due process analysis, People v.
Hicks[, supra,] 40 Cal.App.5th 320, 326 . . . and People v. Aviles
(2019) 39 Cal.App.5th 1055, 1061 . . . .”3

3 The People also rely on People v. Kopp (2019)
38 Cal.App.5th 47, 96-97, review granted Nov. 13, 2019, S257844,

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 We therefore again remand with directions for the trial
court to afford Padilla an opportunity to request a hearing and
present evidence demonstrating his inability to pay the fines and
assessments imposed by the trial court. The court shall ensure
Padilla has an opportunity to make this request by inquiring at a
hearing whether Padilla requests an ability-to-pay hearing. As
we instructed in Padilla I, supra, B285989, if the court
determines Padilla does not have the ability to pay the
assessments, they may not be imposed; if he does not have the
ability to pay the restitution fine, the court must stay its
execution.

C. The Trial Court Must Strike the One-year Prior Prison
Enhancement and the True Finding on the Two Prison
Prior Allegations
Padilla contends, the People concede, and we agree that,
pursuant to Senate Bill 136, the one-year prison prior
enhancement the trial court imposed under section 667.5,
subdivision (b), and the court’s true finding on the prison prior
allegations must be stricken.
Effective January 1, 2020, Senate Bill 136 (2019-2020 Reg.
Sess.) amended section 667.5, subdivision (b), to provide for a
one-year prior prison term sentence enhancement only for

which applied a Dueñas due process analysis to imposition of the
court assessments but analyzed the restitution fines under the
Eighth Amendment. In granting review in Kopp, the Supreme
Court limited briefing and argument to the following issues:
“Must a court consider a defendant’s ability to pay before
imposing or executing fines, fees, and assessments? If so, which
party bears the burden of proof regarding defendant’s inability to
pay?” (Supreme Ct. Minutes, Nov. 13, 2019, p. 1622.)

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sexually violent offenses, as defined in Welfare and Institutions
Code section 6600, subdivision (b). (People v. Jennings (2019)
42 Cal.App.5th 664, 681; People v. Lopez (2019) 42 Cal.App.5th
337, 340-341.) Senate Bill 136 applies retroactively to Padilla
because Padilla’s sentence was not final at the time the new law
became effective on January 1, 2020. (Jennings, at p. 682
[“Senate Bill No. 136’s . . . amendment to section 667.5,
subdivision (b) applies retroactively to all cases not yet final as of
its January 1, 2020, effective date.”]; Lopez, at pp. 341-342
[applying Sen. Bill 136 retroactively]; see In re Estrada (1965)
63 Cal.2d 740, 744 [Absent contrary legislative intent, “[i]f the
amendatory statute lessening punishment becomes effective prior
to the date the judgment of conviction becomes final then, in our
opinion, it, and not the old statute in effect when the prohibited
act was committed, applies.”].) Because Padilla’s prior prison
term enhancement was based on a conviction for recklessly
evading peace officers in pursuit (Veh. Code, § 2800.2, subd. (a)),
which is not an enumerated sexually violent offense (Welf. &
Inst. Code, § 6600, subd. (b)), Padilla is entitled to have the prior
prison term enhancement findings and one-year sentence
stricken.

DISPOSITION

The matter is reversed and remanded for the trial court to
conduct a new in camera Pitchess hearing for which the custodian
of records brings to the court all potentially relevant documents
relating to excessive force, fabrication, and falsification of police
reports involving Officers Garcia, Harrison, and Weiss. The court
shall order disclosure to Padilla of information relating to
complaints 1 and 2 and any other complaints or other documents

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found to be discoverable during the in camera review. Following
the disclosures, Padilla shall be afforded an opportunity to
demonstrate prejudice, and the trial court shall order a new trial
if there is a reasonable probability the outcome would have been
different had the information been disclosed. If the trial court
finds no prejudice, the judgment shall be reinstated.
If the judgment is reinstated, the trial court shall strike the
one-year prison prior enhancement and the court’s true finding
Padilla served two prior prison terms, and it shall resentence
Padilla. The trial court is further directed to afford Padilla an
opportunity to request a hearing on his ability to pay the court
facilities and court operations assessments and restitution fine.
The court shall specifically inquire whether Padilla requests an
ability-to-pay hearing. If the court determines Padilla is unable
to pay, the assessments shall not be imposed, and the court must
stay execution of all restitution fines.

FEUER, J.
We concur:

PERLUSS, P. J.

RICHARDSON, J.*

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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