P. v. Morones
Filed 6/5/13 P. v. Morones CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN MORONES,
Defendant and Appellant.
D061505
(Super. Ct.
No. SCS245331)
APPEAL from
a judgment of the Superior Court
of
County, Frank A. Brown, Judge.
Affirmed as modified.
Patricia J.
Ulibarri, 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, Assistant Attorney General, Peter Quon, Jr., and Theodore M.
Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury
convicted Juan Morones of conspiracy to commit
(a))
and found true the allegation the crime was committed for the benefit of a
criminal street gang within the meaning of section 186.22, subdivision
(b)(1). However, the jury acquitted
Morones of the remaining counts charged in the information, including a count
charging him with solicitation of murder (§ 653f, subd. (b)). After the court, in a
allegations that he had suffered numerous prior strike convictions (§ 667,
subds. (b)-(i)), it sentenced Morones to an indeterminate term of 85 years to
life plus a determinate term of 10 years.
On appeal,
Morones contends the evidence is insufficient to support the conspiracy
conviction because there was insufficient evidence he harbored the requisite
intent to kill the victim. He also contends
the conspiracy conviction must be reversed because his acquittal of the count
charging him with solicitation of murder, one of the overt acts charged in the
conspiracy count, necessarily represents a not true finding on the conspiracy
count. Morones also asks this court to
review de novo certain so-called Pitchess
materials and to determine whether the trial court's ruling on his
discretion. Morones also contends the
court erred when it imposed a consecutive 10-year determinate term for the gang
allegation as part of his sentence. The
People concede this was error and that term must be stricken.
I
FACTUAL
BACKGROUND
On July 5, 2010, Victoriano Ortiz, an inmate
at Donovan State Prison (Donovan), was walking in a prison yard with two
allies, Mr. Polina ("Blue") and Mr. Gonzalez ("Stomper"). Blue suddenly turned on Ortiz and attacked
him. Numerous other inmates quickly
joined the assault on Ortiz, while other inmates attacked Stomper. The prosecution's theory was that the attack
was the denouement of a power struggle between two rival factions of the
Mexican Mafia then competing for control of Donovan, one of which was led by
Ortiz and his "mesa," and the other led by a "mesa" composed
of Mr. Garcia, Morones, and two others.
The Mexican Mafia seeks to control prisons using "mesas" as a
command system, which is in effect a governing council. Ordinarily, the chief of the mesa is a "shot-caller"
or "key-holder," and he has two or three "helpers" to help
run various aspects or areas of the prison, and the shot-caller and his helpers
comprise the mesa. He derives his
authority to run the prison from a "member" of the Mexican Mafia.
A. The Principal Participants
Morones was
an associate in the Mexican Mafia serving a life sentence at Donovan. His eventual ally, Mr. Garcia, is also an
active Mexican Mafia associate. Ortiz
testified about the structure of the Mexican Mafia. At the bottom of the pyramid are "southsiders,"
all members of Hispanic street
gangs in southern California. These gang members must remit "taxes"
(a portion of the proceeds of their illegal activity) to the Mexican
Mafia. The next higher level are "surenos"
or "soldiers," gang members who have garnered authority and more
respect than southsiders by working for the Mexican Mafia, through collecting
taxes or enforcing orders through violent attacks. There are also "associates," who
have worked their way up and are close to "members" of the Mexican
Mafia (also referred to as "carnals"). At the top of the pyramid are the carnals,
who can order someone killed or assaulted (also called "giving the green
light") if the target is not respecting the authority of the Mexican
Mafia. Such an order must be followed by
all persons within the structure. Orders
to attack someone, when issued by the mesa operating under a carnal's authority
to run a prison, must be treated with the same obedience.
Ortiz was
an associate in the Mexican Mafia and was incarcerated at Donovan to serve time
for an assault he committed on its behalf.
Ortiz believed his authority to run Donovan derived from his association
with and permission from Richard Buchanon.
B. The Power Struggle Over Donovan
Ortiz
arrived at Donovan in March 2010 and almost immediately sent out word, through "kites"
and word of mouth, that he was now in charge of Donovan and whoever was in
charge needed to step down or risk being assaulted. "Kites" are small handwritten notes
by which messages can surreptitiously be passed to other inmates within the
prison (either between cells within a cell block or even between cell blocks)
or to persons outside the prison. Ortiz
also formed his mesa, which included Stomper (Ortiz's right-hand man), an
inmate named "Pino," and Morones.
At one point, Morones asked Ortiz for paperwork containing Ortiz's
authority, but Buchanon had verbally authorized Ortiz to run Donovan.
Another
group apparently disagreed with Ortiz's attempt to exert control, and Ortiz
believed this group was trying to challenge his authority. The group included Morones, who had been in a
dispute with Stomper, and Mr. Franco (Casper).
That group began sending kites asserting its authority to run Donovan,
which those in the group believed was derived from another carnal, and included
messages to Ortiz that Ortiz "had something coming." When Ortiz noticed southsiders were beginning
to follow Morones's group, he tried to reassert his authority because there can
only be one mesa running a prison. Ortiz's
efforts to regain control included writing a kite to Morones asking to resolve
the power struggle (an offer that did not bear fruit), and challenging Casper
to a fight, which Casper declined. Ortiz
interpreted Casper's response as acquiescing to Ortiz's authority, and he sent
a kite to Casper indicating they were both now working under Buchanon's
authority. Ortiz formed a new mesa,
including Stomper, Blue and Mr. Ballesteros (Lazy). For the next month, everything appeared calm
with Ortiz in control.
However, in
late June or early July, problems over control reemerged after a carnal (Rudy
Esputo) was temporarily incarcerated at Donovan. Esputo gave authority over Donovan to
Morones, Morons' cellmate (Garcia) and two other inmates (Casper and an inmate with
the moniker "Oso"). Almost
immediately, Garcia began yelling on the tier of their cell block that he had "authority"
and threatened that Ortiz and Stomper had "something coming," which
Ortiz understood to mean he was targeted for attack. Ortiz also saw kites written by Garcia and
Morones ordering Ortiz be "whacked" with "no exceptions."
Authorities
had placed Garcia in a cell that was surreptitiously "wired" and,
during this period, numerous recordings were made of conversations between
Morones and Garcia, as well as conversations they had with other inmates. In some of the recordings from July 2, 2010
(three days before the attack on Ortiz and Stomper), Morones had already begun
writing a kite to Lazy when Garcia began contributing to the kite. Garcia told Morones to ensure that the kite
declare Esparto's direct orders had established the new mesa, and the new mesa
was ordering both Lazy and Blue (members of Ortiz's inner circle) to "[whack]
[Ortiz and Stomper] on this next yard no exceptions," and later discussing
that the kite had been delivered.
When Ortiz
went to walk in the prison yard on July 5, 2010, he knew he was risking his
safety because there was a chance he would be assaulted. However, he believed he still had
authorization to run Donovan, and could not show fear, so he nevertheless went
into the yard. As Ortiz was walking with
two of his allies (Blue and Stomper), Blue suddenly turned on Ortiz and began
punching and cutting at him. Other
inmates joined in the attack on Ortiz while yet another group of inmates
attacked Stomper. Although correctional
officers responded by ordering the inmates to get down, and thereafter by
firing some shots when the inmates ignored the command, the attackers did not
immediately cease but instead continued stabbing Ortiz and banging his head
against a wall. Ortiz suffered head and
other injuries from the
attack.
II
ANALYSIS
A. Sufficiency of the Evidence
Morones contends
the evidence was insufficient to support the conspiracy conviction. He does not
contend the evidence was insufficient to show there was a conspiracy directed at trying to kill Ortiz; instead, he
asserts the evidence was insufficient to show he was among those who agreed to the object of the conspiracy or
that he intended that Ortiz be
killed. Although Morones concedes the
evidence showed Garcia and others agreed to (and did) try to kill Ortiz,
Morones argues the only evidence against him was that he knew of Garcia's plan
and acted as a mere scrivener for him, and asserts that no reasonable trier of
fact could conclude he agreed to the object of the conspiracy or intended Ortiz
be killed.
Legal Principles
When the sufficiency of the evidence is challenged, the court is
not required to " ' "ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt."
[Citation omitted.] Instead the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.' " (
576.)
"In determining whether a reasonable trier of fact could have found
defendant guilty beyond a reasonable doubt, the appellate court 'must . . .
presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.' [Citations.]
The court does not, however, limit its
review to the evidence favorable to the respondent. . . . '[O]ur task . . . is twofold. First, we must resolve the issue in the light
of the whole record--i.e., the entire picture of the defendant put
before the jury--and may not limit our appraisal to isolated bits of evidence
selected by the respondent. Second, we
must judge whether the evidence of each of the essential elements . . .
is substantial; it is not enough for the respondent simply to point to "some"
evidence supporting the finding, for "[n]ot every surface conflict of
evidence remains substantial in the light of other facts." ' "
(Id.
at pp. 576-577.)
"The standard
of review is the same in cases such as this where the [prosecution relies]
primarily on circumstantial evidence. [Citation.]
'Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of
two interpretations, one of which suggests guilt and the other innocence, it is
the jury, not the appellate court[,] which must be convinced of the defendant's
guilt beyond a reasonable doubt. If the
circumstances reasonably justify the trier of fact's findings, the opinion of
the reviewing court that the circumstances might also be reasonably reconciled
with a contrary finding does not warrant a reversal of the judgment.' " (People
v. Perez (1992) 2 Cal.4th 1117, 1124.)
"A conspiracy
is an agreement between two or more people to commit a public offense. [Citation.] A conviction for such requires proof of: (1)
an agreement; (2) the specific intent to conspire; (3) the specific intent to
commit the offense; and (4) an overt act towards achievement of that goal. [Citation.] These elements are sufficiently met by
circumstantial evidence. . . . [¶] The
overt acts charged as part of the conspiracy can be circumstantial evidence of
its existence. ' "Such acts
may establish the purpose and intent of the conspiracy and relate back to the
agreement whose purpose may be otherwise enshrouded in the hush-hush
admonitions of the conspirators." ' " (People
v. Herrera (1999) 70 Cal.App.4th 1456, 1464, disapproved on other grounds by
People v. Mesa (2012) 54 Cal.4th 191,
199.) A
defendant may be convicted of a criminal conspiracy if there is evidence the defendant
and one or more persons had the specific intent to agree to commit an offense
and to commit the elements of the offense, and one of the conspirators
committed some overt act in furtherance of the conspiracy. (People
v. Morante (1999) 20 Cal.4th 403, 416.) The overt act need not be a
committed by the defendant. (
conspiracy
it supports
an inference that the parties positively or tacitly came to a mutual
understanding to commit a crime. [Citation.]
The existence of a conspiracy may be inferred from the
conduct, relationship, interests, and activities of the alleged conspirators
before and during the alleged conspiracy. [Citations.]' " (People
v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) Intent to agree to commit a crime is usually
established through circumstantial evidence, and proof of an express or formal
agreement is not required. (
1596, 1606, disapproved on other grounds by People
v. Palmer (2001) 24 Cal.4th 856, 861, 867.)
Although mere
association does not prove a criminal conspiracy (People v. Manson (1976) 61 Cal.App.3d 102, 126), "common gang
membership may be part of circumstantial evidence supporting the inference of a
conspiracy. [Citation.] The circumstances from which a conspiratorial
agreement may be inferred include 'the conduct of defendants in mutually
carrying out a common illegal purpose, the nature of the act done, the
relationship of the parties [and] the interests of the alleged conspirators . . . .' " (People
v. Superior Court (Quinteros)
U.S. v. Garcia (9th Cir. 1998) 151
F.3d 1243, 1244 [gang membership by itself is insufficient to prove a
gang member's agreement to commit a crime].)
Similarly, although evidence a defendant performed some act that furthered
another person's illegal purpose is not by itself sufficient to prove the defendant
was a member of a conspiracy to accomplish that illegal purpose, a rational
trier of fact may infer the requisite agreement when there is evidence the
defendant performed an act that furthered the other person's illegal purpose
while knowing of that person's
illegal purpose. (Cf.
p. 1607.)
Application
We are convinced there was
reasonable trier of fact could have concluded Morones agreed to the object of
the conspiracy and specifically intended the target crime would be
committed. There was evidence of motive:
Morones was part of the mesa authorized by carnal Esputo to run Donovan, Ortiz's
claim of a competing authorization (which Morones had asked Ortiz to prove) was
undocumented, and a trier of fact could infer that Morones viewed Ortiz as a
usurper. Moreover, in the recordings
taken from his cell shortly before the assault, played for the jury during
trial, he was overheard discussing with Casper whether he (Morones) should tell
other inmates (Blue and Lazy) that they would be exempted from the coming
retribution, and telling Casper he tried to warn others that Ortiz was a
usurper and they should not follow him but should instead "follow my lead
[and] step back" because "shit is going to fall in the place it is
supposed to fall." This evidence
permitted a reasonable trier of fact to infer Morones already knew of the
impending attack, and agreed to it because that was how "it is supposed to
fall," and intended the attack to be successful because he tried to
explain to potential allies of Ortiz why they should not come to Ortiz's
assistance. In another recording, made
about two to three hours later, Garcia asked Morones to whom he was writing
and, when Morones told him the kite was for Lazy, he told Morones to include in
his missive that the new mesa was on direct orders from carnal Esputo, and
Ortiz and Stomper were to be "[whacked] on this next yard[,] no exceptions." A reasonable jury could infer that Morons' willingness
to include Garcia's instructions in his kite was because he agreed to the attack
and intended it to succeed.
The
following day, Morones is overheard questioning why Ortiz "doesn't come
out," and Garcia reassured Morones that Ortiz was "on group crew, but
that's a good thing . . . that way we can blast the fuck out of him." A reasonable jury could infer that Morones
asked about the mechanics of the attack because he was supportive of its goals. Finally, in the morning on the day of the
attack, Morones is overheard expressing doubts whether others will follow the
commands: he explained to Garcia that he "just went through it" and,
while Garcia "make[s] it seem so easy," it's not easy because "you're
waiting for the alarm, you're waiting for the alarm . . . . You look like an idiot," and a minute
later Morones bemoans that "when we had the chance to, we fucken blew it,"
which forced him to try "to get bed moves." A few minutes later, Garcia reassures Morones
that "some people fail, some people don't . . . and 'cause some
people don't succeed doesn't make them . . . bad," and Morones
responds, "I know." A
reasonable jury could infer that Morones, having agreed to help organize the
attack with the intent it succeed, was sharing his anxiety with Garcia that
their common goal might not be achieved because Morones had personal experience
with a previous aborted effort, but nevertheless tells Garcia, "I will
like to see how this comes down."
a different and more benign interpretation: that he was merely engaged in a
charade and acting as though he agreed to the plan and was following the orders
of Garcia to issue the kite ordering the attack out of an understandable desire
for self-preservation. However, this
argument at bottom asserts that, even though Morones's words and deeds made it
to the goals of the conspiracy and intended its object to succeed, no
reasonable trier of fact could have found that his outward appearances were
reflective of his true subjective
intentions. This argument was presented
to the trier of fact, and the jury rejected that interpretation of the
evidence. Because the subjective
intentions of a defendant are peculiarly within the province of the trier of
fact to determine (see, e.g., Begnal v.
Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 77 [" ' "[
regarding motivation and intent depend on complicated inferences from the evidence and are
therefore peculiarly
within the province
of the factfinder." ' "]), we may not reverse its verdict
merely because the jury, rejecting Morones's arguments, found his subjective
intentions accorded with outward appearances.
B. The Inconsistent Verdict Claim
Morones
alternatively contends the conspiracy conviction must be reversed because it
was based on the same overt act (writing the so-called "murder kite")
that underlay another count charging him with solicitation of murder under section
653f, subdivision (b), on which he was acquitted. Morones acknowledges the law generally
accepts inconsistent verdicts but asserts that, under the limited judicial
exception applicable in conspiracy cases, the acquittal of the solicitation
count is a not true finding on the overt act required for conspiracy, and
therefore he should be deemed acquitted of the conspiracy count.
Legal Principles
"Prior to 1927, appellate
courts of this state . . . held that inconsistent verdicts 'would not support a judgment
of conviction.' [Citations.] In apparent response to these decisions, the
Legislature amended section 954 in 1927, adding the last sentence of the
section, which now provides: 'An
acquittal of one or more counts shall not be deemed an acquittal of any other
count.' [Citations.] . . . [¶] Since
1927 our courts have followed the general rule and viewed an inconsistent
acquittal as the product of confusion or an act of mercy on the part of the
jury, of which an appellant is not permitted to take further advantage." (People
v. Pahl (1991) 226 Cal.App.3d 1651, 1656-1657 (Pahl); see People v.
Santamaria (1994) 8 Cal.4th 903, 911 ["It is . . . settled
that an inherently inconsistent verdict is allowed to stand; if an acquittal of one count is
factually irreconcilable with a conviction on another, or if a not true finding
of an enhancement allegation is inconsistent with a conviction of the substantive offense, effect
is given to both."].) As
the validity of inconsistent
verdicts
usually arises when a jury renders two verdicts on two different counts which
are contradictory. [Citation.] Understandably, in such cases defendants . . .
take the position that the acquittal is the legally correct verdict while the conviction is not. This argument has been universally rejected
because inconsistent
verdicts
are probably the result of compromise in the jury room or of an extension of
leniency or mercy to the defendant. [Citation.]
In other words, if the conviction is
supported by substantial evidence, it is valid because the defendant 'had the
benefit of the jury's compassion, rather than suffering a burden because of its
passion . . . .' " (Pahl,
at p. 1656.)
this rule established by our Supreme Court in In re Johnston (1935) 3 Cal.2d 32, 34-36, applicable in
cases, Morones argues he falls within the Johnston exception. We conclude that, even assuming the
defendants,
title="">[3]
Morones does not fall within its parameters. "The conspiracy exception is limited, applying only where, as in Johnston,
an overt act alleged in a conspiracy charge is identical
to another charged offense of which defendant is acquitted. The Supreme Court decreed that under those
unique circumstances, section 954 should not be construed to support a judgment
of conviction for conspiracy, because the defendant has been acquitted of
supra, 226 Cal.App.3d at p. 1658, italics added.)
As the italicized
language reveals, the
act alleged in the conspiracy charge is identical to the other charged offense of
which the defendant is acquitted. (
However, where the conspiracy count alleges overt acts other than (or in addition to)
the act constituting the substantive offense charged in another count, there is
no inconsistency
in convicting the defendant of conspiracy while acquitting him of the substantive offense. (People
v. Eberhardt (1985) 169 Cal.App.3d 292, 297.) Alternatively, when the overt act forming the
basis of the conspiracy
count is dissimilar to the other substantive
offense upon which a defendant is acquitted, and the acquittal of the substantive offense could have
been based on elements not necessarily requiring a not true finding as to the
overt act, the acquittal of the
substantive offense does not
operate as an acquittal of the conspiracy count. (See, e.g., People v. Witt
(1975) 53 Cal.App.3d 154, 168.) For
example, in Witt, the defendant was
charged with forgery of a will and conspiracy
to defraud an estate; the trial court dismissed the forgery charge after the
prosecution rested but the jury convicted defendant of the conspiracy
charge. (Id. at pp. 167-168.) The
was predicated on the defendant's going to a store and causing the store owner
to type the will (rather than on the act of forgery itself), and (2) the
defendants were not acquitted for lack of proof that they committed the crime of
forgery but instead because the prosecution failed to show the offense occurred in Tulare County. (Witt,
at pp. 167-168.)
Applying these
authorities here, the "limited judicial exception" under
solicitation of murder in violation of section 653f, subdivision (b). That offense required proof that (1) Morones
requested or directed another person to commit the crime of murder, (2) he intended
the crime be committed, and (3) his communication containing the request or
direction was received by the other person.
(See, e.g., People v. Saephanh (2000) 80 Cal.App.4th 451,
458-459.) In contrast, the overt act
alleged in this case was that "[Garcia] told his [cellmate, Morones], to
write an inmate message ('Kite') to have [Ortiz and Stomper] murdered
immediately ('whacked'). GARCIA told MORONES
to write the following: '[Ortiz], Stomper . . . are to be whacked on
the next yard ASAP. No exceptions. Direct orders from the Carnal.' " The overt act was not the alleged writing
containing the request, as required by the first element in the solicitation
count; instead, the overt act was Garcia's statement
directing Morones to make the alleged
writing. Moreover, even assuming those
distinct acts could be deemed co-extensive, a jury could have acquitted Morones
of the solicitation count if it concluded a distinct element of proof (e.g. the
communication containing the request or direction was received by the other person) had not been shown beyond a
reasonable doubt, even if it were convinced the overt act had occurred. Under the analysis of People v. Witt, supra,
53 Cal.App.3d 154, either potentiality precludes application of
Finally, even assuming
the foregoing obstacles to application of Johnston
could be overcome, Morones's argument falters because there were four overt
acts alleged by the information, any one of which would suffice for the
conspiracy conviction. As explained in
138:
"It is only when the substantive offense
charged is alleged to be the only
overt act in furtherance of the conspiracy that an acquittal of the substantive
offense operates as an acquittal of the conspiracy count based solely thereon.
conspiracy count alleged as the only overt acts the specifically described
crimes set forth in the other counts, and defendant was found not guilty of any
of these specific crimes, there could be no conviction of the alleged
conspiracy because no overt acts had been proved. [Citations.]
are overt acts alleged in the conspiracy count in addition to those
constituting the substantive offense, there may be a conviction of conspiracy
and an acquittal of the substantive offense. Such a conviction and acquittal have been held
not to be inconsistent."
The analysis in
count one of the information charged the appellant and a Mr. Schaefer with
conspiracy to engage in bookmaking; five overt acts in pursuance of the
conspiracy were alleged, four of which were committed by Schaefer alone
(involving accepting bets and collecting money from a bettor), and the fifth
was that Schaefer turned the money over to the defendant on October 24, 1952. Count two of the information charged the
defendant with bookmaking because Schaefer turned the funds over to the
defendant on October 24, 1952. (
pp. 138-139.) The defendant, after being
acquitted on count two but convicted of the conspiracy, argued the acquittal on
count two necessarily absolved him under Johnston
of the conspiracy count because he was acquitted of the only overt act charged
against him in the conspiracy count. The
Robinson court, rejecting that
argument, explained:
"The undisputed evidence of the four overt
acts committed by Schaefer would be sufficient to sustain the conspiracy conviction
against appellant, once the latter's alleged connection with the conspiracy was
shown. . . . [Citations.] [It is not]
accomplished [citations] or that each conspirator perform some overt act. It is sufficient if one conspirator commits an
overt act in carrying out the purpose of the conspiracy, for all the members
thereof 'are bound by all acts of all members done in furtherance of the agreed
plot.' [Citations.] In view of the evidence that Schaefer
committed the first four alleged overt acts pursuant to the conspiracy, which
overt acts were additional to the acts alleged against appellant in count two,
it cannot be said that the verdict of guilty on count one is inconsistent with
the verdict of not guilty on count two."
(Id. at pp. 139-140.)
Robinson is directly analogous and controls this case. As in Robinson,
Morones was charged with participating in a conspiracy, and multiple overt acts
(only one of which directly involved Morones) were alleged. As in Robinson,
Morones was charged with, but acquitted of, an additional count that arguably
encompassed an evidentiary overlap with the only overt act alleged against
Morones as part of the conspiracy count.
We follow Robinson and
conclude the evidence that other persons committed the other alleged overt acts
pursuant to the conspiracy, which overt acts were additional to the acts
alleged against appellant in count two, precludes us from concluding the guilty
verdict on the conspiracy count is irreconcilable with the verdict of not
guilty on the solicitation count.
C. The Pitchess
Motion
denial of any discovery pursuant to his Pitchess
motion. In the trial court, Morones
filed a Pitchess motion in which he sought
discovery of the personnel records for agent Epperson, including records regarding
the truthfulness of his reports. The
Attorney General opposed the motion. The
trial court conducted an in camera review of the personnel records (see Warrick
v. Superior Court (2005) 35 Cal.4th 1011, 1019 ["[i]f the trial court
finds good cause for the discovery, it reviews the pertinent documents in
chambers and discloses only that information falling within the statutorily
defined standards of relevance"]) and, after reviewing the personnel
records in camera, ruled there were no discoverable records in the file.
On appeal,
this court is required to examine the materials in camera and determine whether
the trial court abused its discretion in refusing to disclose the contents of
the officers' personnel files. (People
v. Hughes (2002) 27 Cal.4th 287, 330; People v. Mooc (2001) 26
Cal.4th 1216, 1229.) We have examined
the personnel records in camera and conclude the trial court did not err in its
ruling on Morones's Pitchess motion.
DISPOSITION
The court
on remand shall strike the 10-year determinate term for the gang allegation
appended to count one; as so modified, the judgment is affirmed.
McDONALD, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.
name="_ftn1" title="">[1] All further
statutory references are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] Pitchess v. Superior Court (1974) 11
Cal.3d 531.
