Filed 5/2/07 P. v. Adair CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs and George Genesta, Judges. Reversed with directions.

Judith Vitek, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

Defendant, Scott Wells Adair, appeals from his convictions for methamphetamine possession (Health & Saf. Code, 1377, subd. (a)) and misdemeanor obstruction of a peace officer. (Pen. Code, 148, subd. (a)(1).) Defendant argues the trial court improperly denied his motion to compel disclosure of peace officer personnel records. Defendant further requests we independently review the in camera proceedings conducted in the trial court. We reverse and direct the trial court to conduct an in camera review of the material peace officer personnel records of Officer Richard Martinez.

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 1:40 p.m. on December 5, 2005, Pomona Police Officer Scott Hess was on duty in a black and white patrol car. Officer Hess responded to a call regarding possible drug activity in an alley where two individuals were working on cars. An anonymous caller had described a gray Ford pick-up truck and an orange El Camino. Officer Martinez was also called to the scene. When Officer Hess arrived at the location, he saw both automobiles with their engine hoods open parked in front of an open garage. It appeared that someone was working on them. Officer Hess saw defendant and Jeff Oliver near the front of the gray pick-up truck. Both men stopped what they were doing when Officer Hess approached on foot. Officer Hess told the men that he was responding to a call regarding their work on the cars in the alleyway. Officer Hess did not mention drugs to the men. Defendant indicated that they would complete their work on the cars shortly.

Officer Hess asked defendant and Mr. Oliver to step closer to talk to him. When defendant complied, Officer Hess noticed that defendant had a gray cloth bag and a rubber hose in his hand. Defendant asked if he could go to wash his hands. Officer Hess denied defendants request. Officer Hess told defendant to step out and place the gray bag and hose on top of the air filter of the open engine compartment of the pick-up truck. Defendant placed the items on the air filter as instructed. Defendant and Mr. Oliver moved to the bed area of the El Camino. Officer Hess filled out field interview cards with defendants and Mr. Olivers personal information.

Officer Martinez eventually arrived in the alley. Officer Hess handed Officer Martinez the field interview cards. Officer Martinez began to run a warrant check on defendant and Mr. Oliver. Officer Hess asked permission of Mr. Oliver to conduct a pat down search. Mr. Oliver consented to the search. Thereupon, defendant ran into the garage, through the door into the backyard, and then into a residence. Defendant exited the front door of the home. Officer Martinez chased defendant yelling, Stop. Stop. Stop, police. However, defendant failed to heed Officer Martinezs commands. Mr. Oliver was handcuffed and placed inside the patrol car. One of the officers notified the dispatcher of the foot pursuit. Additional police units arrived with canine support and set up a perimeter. Officer Martinez saw defendant run down the street into the yard of another residence. Defendant then scaled over a wall and into another alley. Defendant was apprehended inside the bedroom of another nearby residence.

Before defendant was apprehended, Officer Hess looked around the general area to locate contraband. Officer Hess picked up the gray bag from atop the air cleaner. The bag contained a plastic baggie containing methamphetamine. Officer Hess notified Officer Martinez and other responding officers that defendant had possessed methamphetamine. Officer Hess also found several plastic baggies with white crystal-like residue within a glasses case inside the drivers area of the pick-up truck. Approximately 10 minutes later, Officer Martinez returned to the alley with defendant. Officer Hess identified defendant as the individual that placed the gray bag atop the air filter. Officer Martinez took custody of the gray bag containing methamphetamine. Officer Martinez booked the gray bag containing methamphetamine and the baggies containing crystallized methamphetamine into evidence. Defense counsel stipulated that approximately one gram of powder containing methamphetamine was found in the baggies.

First, defendant argues that the trial court improperly denied his motion to conduct an in camera review of the peace officer personnel records of Officer Martinez. (Evid. Code,  1045, subd. (b); Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019; People v. Mooc (2001) 26 Cal.4th 1216, 1232; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535-540.) Our Supreme Court has explained that the declaration accompanying the motion must set forth a specific factual scenario to support assertions of impropriety: [Evidence Code] section 1043 . . . , subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, inter alia, (2) A description of the type of records or information sought; and [] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has such records or information from such records. (City of Santa Cruzv. Municipal Court (1989) 49 Cal.3d 74, 81-83; see also Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038; City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9; City of San Josev.Superior Court (1998) 67 Cal.App.4th 1135, 1148-1149.) In Warrick, the Supreme Court further held that the moving party must show a plausible scenario of officer misconduct and how the information sought could lead to or be evidence potentially admissible at trial. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1026; see Hurd v. Superior Court (2006) 144 Cal.App.4th 1100, 1111-1112.) We review the trial courts ruling denying a disclosure request for an abuse of discretion. (Pitchess v.Superior Court, supra, 11 Cal.3d at p. 535; see also Alford v. Superior Court, supra, 29 Cal.4th at p. 1039; People v. Memro (1985) 38 Cal.3d 658, 684.)

In this case, defendant filed a motion prior to trial seeking disclosure of the personnel records of both Officers Hess and Martinez. In the notice of motion, defendant alleged: [T]he defendant will move for an order directing each of you to make available the materials herein described to defendants attorney for examination, copying, and hearing: [] (1) The name, address, and telephone numbers of all persons who were witnesses against, or filed complaints against [O]fficer Scott Hess, 40820 and [O]fficer Richard Martinez, 30562, relating to acts of dishonesty, fabrication of probable cause, and/or falsification of police reports, as well as the dates of the filing of such complaints. [] (2) Disclosure of the discipline imposed upon the named officers as a result of an Investigating Departments investigation of any complaint described in item one above.

In his declaration in support of the motion, defense counsel stated: People arrested or detained, and attorneys, friends, and relatives of those people, make complaints to investigating agencies and departments concerning law enforcement officers. The complainants make a variety of allegations, including charges that police officers, fabricated probable cause, planted evidence, were biased in a manner affecting the officers credibility and/or judgment, illegally searched or seized a person, engaged in acts of dishonesty, and/or engaged in acts of moral turpitude. [] The investigating department makes and keeps written, taped, and computerized records of complaints which are made by citizens, and such records are kept in the personnel files or other files maintained by the department. [] . . . [] The defendant asserts that Pomona Police Officer Scott Hess, #40820 and Officer Richard Martinez, #30562 falsified the police report and testified falsely in this matter. On the date of [] his arrest Mr. Adair, a mechanic was working on a friend[]s car, an El Camino. A casual friend of his Jeff Oliver was also working on his own car, a Ford truck. Officer Hess approaches both men and finds drugs on the filter/cleaner of the Ford Truck. However, after Mr. Adair ran, Officer Hess and Officer Martinez arrest Mr. Adair, not Jeff Oliver who owned and was working on the exact car where the drugs were found. Mr. Adair contends that the officers committed misconduct when they arrested him and that his arrest was the result of an intentional attempt to point the finger at him solely because he ran, they had to catch him and not because he was the actual possessor of the methamphetamine[.] Mr. Adair contends that he never touched the drugs in question[], never possessed them and was not even aware that Mr. Oliver had drugs on him until the officers arrested him. (Emphasis omitted.) In response, the Deputy City Attorney argued defense counsels declaration failed to: follow the provisions set forth in Warrick; state a proposed defense; and demonstrate how any of the requested items would be relevant to that defense. Moreover, the deputy city attorney wrote: Additionally, Officer Martinez[s] report never states the defendant was in possession of a controlled substance by direct observation! There is nothing in the declaration to show any misconduct by Officer Martinez to invade his confidential personnel record. (Emphasis omitted.)

At the hearing on the motion, the trial court reviewed the arrest report. The arrest report reviewed by the trial court was prepared by both Officers Martinez and Hess. Both the reports refer to the other officers report. The reports are paginated as a single document. Both reports state that Officers Hess and Martinez were dispatched to the alley in connection with potential drug activity. Officer Hesss portion of the report states: Upon my arrival at the location I found a gray pick-up truck . . . and an orange El Camino, obstructing the alleys pass through. In addition, both . . . vehicles hoods were propped open. As I approached both of the listed vehicles, I found suspect #1 and subject #1 standing to the front of the gray Ford Pick-up . . . . At this time, both the suspect and the subject stated they were just working on the vehicles and would be done shortly. While Officer Hess was awaiting the arrival of Officer Martinez: defendant was denied a request to wash his hands; defendant was directed to place a plastic hose and gray cloth bag on the air filter of the Ford pick-up; and field interrogation cards were filled out. As Officer Martinez began to pat down the person identified in the report only as subject #1, defendant began to flee. Officer Martinez chased defendant. While Officer Martinez chased defendant, Officer Hess handcuffed the person identified in the report only as subject #1 and looked at the gray bag. Officer Hess then discovered a crystal like substance which resembled methamphetamine in the gray bag. Inside the Ford pick-up, Officer Hess found numerous plastic Baggies which also contained what appeared to be methamphetamine. Eventually, after defendant was arrested, the two vehicles were towed and Officer Martinez took possession of the gray bag and the methamphetamine.

Officer Martinez also prepared a report. That report indicates Officer Martinez booked the following items into evidence: a baggie containing what appeared to be crystal methamphetamine; a cloth baggie which contained the methamphetamine; and a black eyeglass case containing several empty baggies. Officer Martinezs report goes into extensive detail about chasing and arresting defendant. Further, the report details Officer Hesss statements about the methamphetamine he found on the air cleaner of the Ford pick-up. Officer Martinezs report refers to Officer Hesss reports for details concerning the discovery of the methamphetamine. Finally, Officer Martinezs report contains defendants denials of any knowledge as to the contents of the gray bag: I also asked him if he had put the cloth bag down when Officer Hess approached him. He stated, no sir, I walked over to him, I never had the bag. He states that he doesnt own it and doesnt know whats in it. I asked him whose bag it was. He stated, I dont know. I asked him if it was the other guys that was on the scene with him. He stated, I cant tell you that. I asked him if he knew anything about the methamphetamines and he stated, no.

Also at the hearing, the trial court heard argument from counsel. Defendants attorney, Beverly L. Bourne, argued that defendant was arrested because he ran from the scene. Ms. Bourne pointed out the methamphetamine was found on top of the engine of Mr. Olivers truck. Ms. Bourne further argued, [I]ts our contention that Officer Hess and Officer Martinez, by way of adopting in the police, report, and the assessments of Officer Hess, thats why Officer Martinez was added to this Pitchess motion, the earlier statements written in the police report. Pomona Deputy City Attorney Theodore J. Smith, III responded: Officer Martinez, again, did not arrest the defendant, nor did he indicate that the defendant had possession of the controlled substance. He indicates in his report that Officer Hess told him that, and thats what he placed in his report. The trial court granted the motion to conduct an in camera review of peace officer personnel records as to Officer Hess but denied it as to Officer Martinez, noting: I think Mr. Hess falls under the general guidelines of Warrick. And I think Mr. Martinez squarely falls under [People v.] Hill [(2005) 131 Cal.App.4th 1089]. [] His activities clearly begin, Mr. Martinez, that is, after Officer Hess got there and after Officer Hess apparently made the observations that he clearly stated in his report. Since the paragraph that talks about Mr. Hess ordering our defendant to place the small gray cloth bag on the air cleaner, the end of that paragraph states: [] (Reading Both the suspect and the subject complied with my request for each of them to stand next to the orange El Camino as I waited for my partner, Officer Martinez. [] And the next paragraph is, while awaiting Officer Martinezs arrival, I completed, apparently, some paperwork with the information, and the paragraph ends with, A few moments later, Officer Martinez arrived at my location to assist me. And then we go into Officer Martinez and his activities of running the radio check and the defendant departing, with Martinez apparently in hot pursuit. I dont feel that that falls within the definition of Warrick. It clearly falls within Hill. [] And Officer Martinezs report clearly states that Officer Hess was the one that provided the information as to how the cloth baggie got on the air cleaner. But he does not in any way, shape, or form indicate that he has any personal knowledge of any of the activities that occurred, oddly enough, prior to his arrival at the location, other than what he had heard from Mr. Hess and later on from Mr. Adair, I believe. . . . []

Although the issue is extraordinarily close, we agree with defendant that the trial court should have conducted an in camera review of the relevant peace officer personnel records of Officer Martinez. Ms. Bournes declaration expressly asserts that both Officers Hess and Martinez falsified the police report. Ms. Bournes declaration asserts that: the methamphetamine belonged to Mr. Oliver; Mr. Oliver owned the car where the methamphetamine was found; Mr. Oliver was working on the car where the methamphetamine was found; and the officers falsified the report because defendant ran from them. Further, Ms. Bournes declaration states that defendant denies possessing the contraband or having any knowledge at the time that Mr. Oliver was in possession of methamphetamine. This showing of plausibility was sufficient to require that Officer Martinezs relevant peace officer personnel records be subject to in camera review. (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1017, 1027; People v. Gill (1997) 60 Cal.App.4th 743, 750.)

We disagree that our prior decision in People v. Hill, supra, 131 Cal.App.4th at pages 1099-1100 is controlling. Hill involved statements of witnesses to a shooting made to non percipient officers. Here, both officers were physically present while defendant possessed methamphetamine and personally witnessed his flight from the alley which was circumstantial evidence of his guilt. Further, the purportedly falsified police report was a single document and each officers reports cross referenced the other. Hill is not controlling.

Second, defendant requests that we review the sealed documents and transcripts prepared in connection with Officer Hesss records. (Evid. Code, 1045, subd. (b); People v. Mooc, supra, 26 Cal.4th at p. 1232; Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 535-540.) As noted, an in camera review of Officer Hesss records was ordered. We have reviewed the documents and the transcripts to determine if the trial court abused its discretion in denying additional disclosure of Officer Hesss records. No abuse of discretion occurred with respect to the trial courts refusal to disclose additional information regarding Officer Hesss personnel files. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Samayoa (1997) 15 Cal.4th 795, 827.) No error occurred in any respect in connection with any peace officer personnel records of Officer Hess.

Third, upon issuance of the remittitur, the trial court is to conduct an in camera hearing and determine whether to order disclosure of Officer Martinezs peace officer personnel records in existence on March 21, 2006, the date of the hearing in this case, pursuant to Evidence Code section 1045, subdivision (b). (People v. Mooc, supra, 26 Cal.4th at p. 1226; City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 84.) If there are no relevant peace officer personnel records that should have been disclosed, the judgment is to be reinstated. If there are peace officer personnel records that should have been disclosed, the trial court is to determine if the failure to grant the discovery motion was prejudicial to defendant. In assessing prejudice, the trial court is to apply the People v. Watson (1956) 46 Cal.2d 818, 836 standard of reversible error. The proper standard to apply was described by our colleague, Presiding Justice James A. Ardaiz, thusly: [T]he proper standard of analysis regarding whether a defendant was prejudiced from the denial of a discovery motion is to determine if there was a reasonable probability that the outcome of the case would have been different had the information been disclosed to the defense. Indeed, we find no difference between this case and those cases where the trial court erroneously excluded admissible evidence. When the trial court excludes relevant, admissible evidence over the defendants objection, the proper standard of review is whether there is a reasonable probability that there would have been a different result had the evidence been admitted. [Citations.] (People v. Hustead (1999) 74 Cal.App.4th 410, 422; accord People v. Johnson (2004) 118 Cal.App.4th 292, 305.) If the trial court finds defendant was not prejudiced within the meaning of Watson, the judgment is to be reinstated. Defendant may appeal from any order reinstating the judgment. If the trial court finds there was prejudice within the Watson standard, a new trial is to be ordered.

By the trial court, we mean the post remittitur in camera review of Officer Martinezs records is to be conducted by the Honorable George Genesta. Judge Genesta did not deny the pretrial motion to compel in camera review of Officer Martinezs records. Judge Genesta tried the case. Judge Genesta is best qualified to conduct the prejudice review if there are any material records discovered during the in camera review since he has heard all the testimony. We leave these matters in the good hands of Judge Genesta.

The judgment is conditionally reversed as described in the body of this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

ARMSTRONG, J.

KRIEGLER, J.

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