Filed 12/23/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re M.C., a Person Coming 2d Juv. No. B304097
Under the Juvenile Court Law. (Super. Ct. No. YJ39207)
(Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
M.C.,
Defendant and Appellant.
In People v. Galan (2009) 178 Cal.App.4th 6 (Galan),
we upheld the denial of a motion to inspect the confidential
personnel file of a police officer. There, and here, there was no
“good cause” for discovery. Here, the reason is straightforward
and surprisingly simple. It requires only common sense and
practical wisdom, both of which were demonstrated by the
experienced trial judge, Honorable Fumiko H. Wasserman. This
officer’s “Pitchess jacket” had nothing to do with the search for
truth. Appellant was apprehended a short time and distance
away from the burglary. He was hiding in a cardboard box. We
doubt that the officer has a penchant for fabricating arrests out of
a cardboard box. As we shall explain, his credibility has nothing
to do with appellant’s guilt or innocence, or his theory of the case.
M.C. was declared a ward of the court (Welf. & Inst.
Code, § 602) and returned to his home on probation after the trial
court sustained a petition for first degree burglary with a person
present (Pen. Code, §§ 459; 462, subd. (a) and felony vandalism
§ 594, subd. (a)). He appeals, contending that the trial court
erred in denying his Brady/Johnson motion (Brady v. Maryland
(1963) 373 U.S. 83 (Brady); People v. Superior Court (Johnson)
(2015) 61 Cal.4th 696) for an in camera review and discovery of
the arresting officer’s confidential personnel file. We affirm.
Facts and Procedural History
On the morning of March 22, 2019, Eldwin Lum was
at home and heard the doorbell ring and knocking at his front
door. Lum watched a video surveillance feed of a woman at his
front porch. The woman walked to a black Kia parked two
houses way. Lum called 911 and continued to watch the Kia.
Two men, wearing dark hoodies and pants, got out of the Kia and
ran towards Lum’s house. One man wore red shoes and the other
man wore blue shoes.
Lum called 911 again when he heard the downstairs
sliding glass door break. There were sounds of male voices,
people walking on broken glass, and rummaging through the
house. Lum heard the stairs creak and yelled “get out of my
house. I got a gun.” Running halfway down the stairs, Lum fired
his pistol and saw two men, one wearing blue shoes and the other
with red shoes flee. They ran out the broken glass door. Sheriff’s
units responded to the 911 call and searched the area.
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Appellant is lucky he was not shot and killed by the
victim. A rational inference from the record is that appellant was
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Deputy Sheriff Navarro was directed to set up a
command post at a nearby park. Neighbors reported that
someone jumped over a backyard fence. Officers found two men
in a backyard, hiding in a boat. One of these suspects had a glass
breaking device in his pocket.
Deputy Navarro assisted officers in a backyard
search a couple of houses away. Appellant was in a neighbor’s
shed, hiding inside a cardboard box. Appellant and the two men
were brought to the street one at a time and appellant identified
them from a police car. Lum made the identification based on
“their attire and the color of their shoes.” At trial, still photos
from a neighbor’s surveillance video were received into evidence.
Lum identified the black Kia and the “two individuals with the
shoes.” Lum said appellant was one of the burglars on the stairs.
Brady/Johnson Motion
Appellant contends the trial court erred in denying
his Brady/Johnson motion for the in camera inspection and
discovery of Deputy Navarro’s confidential personnel records.
Appellant’s supporting declaration stated that the prosecutor told
defense counsel that Deputy Navarro’s personnel file had
“discoverable information” and the deputy was an essential
witness. The declaration did not explain the deputy’s role in the
case, the nature of his expected testimony, or how the deputy’s
credibility was at issue. Opposing the motion, the Los Angeles
County Sheriff’s Department argued that appellant had not made
a good cause showing for the in camera inspection and disclosure
a member of a residential burglary “crew.” This is an extremely
dangerous endeavor. Penal Code section 198.5 provides that
there is a presumption in favor of a homeowner who shoots an
intruder in his or her home.
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of the confidential personnel file. The trial court denied the
motion without prejudice. We review for abuse of discretion.
(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)
Brady requires that the prosecution disclose
“‘evidence favorable to an accused’” (U.S. v. Bagley (1985) 473
U.S. 667, 676) that is material either to guilt or to punishment
(Brady, supra, 373 U.S. at p. 87). “[E]vidence is ‘material’ within
the meaning of Brady when there is a reasonable probability
that, had the evidence been disclosed, the result of the proceeding
would have been different.” (Cone v. Bell (2009) 556 U. S. 449,
469-470.)
In Johnson, supra, 61 Cal.4th 696, our Supreme
Court held that a defendant may file a Pitchess motion for the
disclosure of Brady material in an officer’s personnel file. There
the San Francisco Police Department informed the district
attorney the personnel records of two officers in a pending case
might contain exculpatory information. The prosecution filed a
Pitchess motion for the in camera inspection of the officers’
personnel files and the Brady disclosure of records material to
the prosecution and the defense. The supporting declaration
stated the officers’ personnel files may contain “‘sustained
allegations of specific Brady misconduct, reflective of dishonesty,
bias, or evidence of moral turpitude. . . .’” It stated the records
“‘are material to the pending litigation in that they pertain to the
credibility of a necessary and material prosecution witness, and
could either impeach said witness or lead to evidence exonerating
the defendant.’” (Id. at p. 706.) Our Supreme Court held “[t]he
information the police department has provided, together with
some explanation of how the officers’ credibility might be relevant
to the case, would satisfy the threshold showing a defendant
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must make in order to trigger judicial review of the records under
the Pitchess procedures.” (Id. at pp. 705-706.)
Here, unlike Johnson, appellant’s supporting
declaration failed to state how Deputy Navarro’s personnel file
has Brady material relevant to the case. The supporting
declaration is pro forma and states the confidential personnel file
may have “discoverable information” and “[t]he Brady
information pertains to the credibility of a necessary and
material prosecution witness.” That’s it. The supporting
declaration presents no scenario of officer misconduct. (Galan,
supra, 178 Cal.App.4th at p. 13.) That is why the trial court
denied the motion without prejudice. And that is why we affirm
the denial of discovery.
The declaration does not say the personnel files
contain “‘sustained allegations of specific Brady misconduct,
reflective of dishonesty, bias, or evidence of moral turpitude. . . .’”
(Johnson, supra, 61 Cal.4th at p. 706, italics added.) There is a
world of difference between a citizen complaint about a traffic
ticket and “sustained allegations” of officer misconduct reflecting
dishonesty or bias. The supporting declaration did not say or
explain why the Brady material was relevant to Deputy
Navarro’s credibility. It did not describe Deputy Navarro’s role in
the case, the nature of his expected testimony, or how the
deputy’s credibility was linked to some defense or disputed issue.
The Johnson court acknowledged that “in some
criminal cases the credibility of police officer witnesses might not
be at issue and the defense might have no reason to bring
a Pitchess motion” or have a need for impeachment material
within the meaning of Brady. (Johnson, supra, 61 Cal.4th at
p. 718.) That is the case here. Deputy Navarro did not write the
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arrest report, interview appellant, or interview Lum. There was
no defense claim that the deputy used excessive force, conducted
a search without reasonable cause, mishandled evidence, tried to
get appellant to confess, or conducted an unfair field
identification. Appellant defended on the theory that Lum’s
identification was unreliable because it was based solely on the
clothing and the red and blue shoes worn by the intruders. It had
nothing to do with Deputy Navarro or possible Brady material in
his personnel records. The defense theory was that appellant
never entered the house and Lum made a wild pistol shot that
shattered the sliding glass door. All of that occurred before
Deputy Navarro responded to the 911 call.
Appellant cites no authority, and we have found
none, that a Brady/Johnson motion may be used as a fishing
expedition to disclose confidential personnel files that have no
logical link to the 911 call, the arrest, the charges, a defense, or
the impeachment of a witness.
Disposition
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Fumiko H. Wasserman, Judge
Superior Court County of Los Angeles
______________________________
Tonja R. Torres, 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, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, Theresa A. Patterson, Deputy Attorney
General, for Plaintiff and Respondent.