P. v. Roberts

Filed 10/19/07 P. v. Roberts CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Michael Roberts, an inmate at Pelican Bay State Prison, was convicted of throwing feces (gassing) at a correctional officer. He argues that the prosecution violated due process by breaching an alleged promise to dismiss this case after Roberts was convicted in another case; that the prosecution failed to prove an element of the offense; that the trial court erred in denying his Pitchess[1]discovery motion; and that the trial court erred in not allowing him to reopen his case so he could testify in his own defense. We conclude the trial court erred in denying Roberts Pitchess motion and reject the other claims.

Background

On August 12, 2003, Correctional Officer Thomas Travis was working in the administrative segregation unit of Pelican Bay State Prison. Roberts, an inmate in the unit, repeatedly demanded toilet paper. Travis told him he would have to wait until Travis completed his regular duties. About an hour after Roberts first asked for toilet paper, Travis and two other officers, Darwin Luna and Brian Chaucer, went to Roberts cell. Travis told Roberts they were going to search his cell to see if he was hoarding toilet paper, which some inmates use to start fires so they can melt plastic into weapons. The officers told Roberts to cuff up, which meant they wanted him to put his arms behind him and back up to the cuff port in the cell door so the officers could handcuff him. Roberts refused to do so and asked for a sergeant. After several demands to cuff up and refusals by Roberts, Travis sent Chaucer to get the sergeant.

Roberts was agitated and angry and said the officers were going to have to come in and get him. He grabbed his blanket off of his bed and tried to hang it on a string stretched across the cell door. When inmates cover the fronts of their cells, they generally are planning to set traps for officers who enter the cell. The officers ordered Roberts several times not to cover the door and warned him he would be sprayed with pepper spray unless he stopped. Roberts did not stop and both Travis and Luna sprayed him with pepper spray through the cell door, which was covered with holes about one quarter inch in diameter.

Roberts retreated to the back of the cell and said, Here, take this. Travis turned, heard something hit, and felt something warm strike his cheek. He did not see Roberts throw anything, but he surmised that Roberts had thrown feces. A medical technical assistant later removed samples from the side of Traviss face and from his sleeve and collar and a criminologist confirmed the samples contained fecal matter. Roberts then picked up his mattress and carried it toward the cell door. Travis sprayed Roberts through the food port in the cell door. Roberts said, Hey, I give up. I quit. Ill cuff up.

Luna testified that he used pepper spray on Roberts after he attempted to put his mattress against the cell door. He sprayed through the cell door for one to two seconds and struck Roberts in the shoulder area. He sprayed again for three to four seconds and struck Roberts in the face, shoulder and neck. After the spraying, Luna saw Roberts reach into the toilet. Luna said, Get back, hes going to gas. He then saw feces on the cell front and heard Travis say, He gassed me. Luna later saw feces on Traviss face and vest. He did not see Roberts actually throw anything.

Luna and Travis testified that their use of pepper spray was justified because the situation was an emergency. They both testified that an immediate use of force is justified when officers cannot see into a cell. The People stipulated that the officers use of pepper spray was not justified under any of the specific scenarios listed in the prisons immediate use of force policy, which are not exclusive. Under the prisons policy regarding the use of force in contained situations, including situations involving a recalcitrant prisoner in a locked cell with no apparent likelihood of immediate danger or injury to any person, a lieutenant or higher ranked officer must authorize the use of force. Pepper spray is supposed to be sprayed from a minimum distance of somewhere between five and nine feet. When they sprayed Roberts, Travis and Luna were two to three feet in front of the cell door and Roberts was about one foot behind the cell door. The officers testified that spraying from a shorter distance was acceptable because they were spraying through holes in the cell door.

Roberts had a medical or health care chrono, a document that sets forth an inmates medical restrictions, which stated that he needed a lower bunk, lower tier and crutches from July 2 to October 2, 2003. When a medical chrono is issued, copies are provided to the inmate and the housing unit where the inmate is housed. Prisoners who use crutches ordinarily are restrained by attaching their hands to a waist chain at their sides, so they can still use the crutches. Travis did not bring a waist chain with him when he went to Roberts cell for the cell search. Neither Travis nor Luna observed Roberts having any difficulty moving around his cell. Roberts never said he needed crutches.

Timmy Ray Tyson was an inmate housed in the upper tier of the unit at the time of the incident. He had a conviction for first degree murder. He did not associate with Roberts before or after the incident. He could see what was happening in the lower tier, where Roberts was housed, by viewing a reflection in the control booth. Roberts used a cane or a crutch because his leg was messed up. When Roberts requested toilet paper, he was told to use his sheet or a paper bag instead. Travis told Roberts he did not care about Roberts situation and Roberts would just have to deal with it. His demeanor was belligerent. Roberts announced to us over the tier that he was about to flood the cell if they didnt bring him some toilet paper so he could get the sergeant over. And so thats what he did. The officers did not warn Roberts before using the pepper spray. When Tyson came down to the lower tier to shower later that day, he saw officers cleaning up what appeared to be feces on the tier.

Tony Curtis was an inmate in the cell next to Roberts cell. He had convictions for attempted manslaughter and assault with a deadly weapon. Curtis did not know Roberts before or after they were housed next to each other and they were not friends. Roberts had problems walking and needed crutches. When Roberts asked for toilet paper, Travis refused and told him he would have to wait until another day. Travis used profanity and abusive language. Curtis did not see Roberts cover his cell, which he would be able to detect if the light emanating from Roberts cell were obstructed. Because Roberts was conversing with Travis, Curtis assumed the door was not covered. In the middle of their conversation, Travis just started spraying. Curtis never saw Roberts throw anything, but he heard the officers allege later that he threw feces.

Terry Williams was an inmate in the cell directly above Roberts cell. He was convicted of murder. When Roberts was placed in the unit during the summer of 2003, he arrived in a wheelchair. Williams heard Travis tell Roberts, You dont have shit coming.

Roberts was charged with battery by an inmate on a noninmate by gassing (Pen. Code,  4501.1).[2] It was alleged that he had two prior prison terms ( 667.5, subd. (b)) and two prior felony convictions ( 1170.12, 667, subds. (b) - (i)). A jury convicted him of the offense and found the allegations true. Roberts moved to strike the prior convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court granted the motion as to one of the priors. The court imposed a one-year term (one-third the middle term) for the offense; doubled the term pursuant to section 1170.12; and added two one-year prior prison term enhancements, for a total sentence of four years.

Discussion

I.                    Estoppel

Roberts argues that principles of estoppel and due process require enforcement of an alleged promise by the prosecutor to dismiss this case after Roberts was convicted in case number 04-5192.

A.                 Factual Background

At a June 9, 2005 hearing, the court discussed trial preparations for Roberts two pending criminal cases. This case (No. 04-5034) was scheduled to begin trial on June 13 and case number 04-5192[3] was scheduled to begin trial on June 27. Attorney George Mavris represented Roberts in this case and John Babin represented him in case number 04-5192. Roberts estoppel argument is based on a discussion that took place at the June 9 hearing about the order in which the two trials should be held. Because the specific wording of the courts and the attorneys comments are critical to our resolution of this issue, we set forth the discussion in some detail:

MR. MAVRIS: Well, your Honor, Mr. Roberts and I have been meeting for about the last 45 minutes. . . . I have my own idea of -- of the case strategy and what needs to be done. Mr. Roberts has a different idea of what that is. . . .

THE DEFENDANT: I just plan to tell the truth, thats all.

MR. MAVRIS: Im trying to find a way to avoid a problem in this case . . . Mr. Babin indicates hes not requesting any further continuances. Hes ready to go. I understand Mr. Roberts and Mr. Babin are on the same page.

Frankly, I dont think there[re] going to be two trials for Mr. Roberts.

THE COURT: What do you expect is going to happen?

MR. MAVRIS: Well, I dont know. . . . If he prevailed I dont think the second case would go forward, and if he loses theres going to be absolutely no reason to go forward on the other case. [] . . . [] 

THE COURT: . . . [] So what youre asking, Mr. Mavris, is what then? That this case trail the other case?

MR. MAVRIS: That would be my request . . . .

After considerable further discussion between the court, Roberts and Mavris about Roberts trial strategy, the prosecutor Katherine Micks interjected:

MS. MICKS: Defense counsel is correct. If Mr. Babins case goes forward and if the defendant is found guilty, we will not be proceeding on Mr. Mavriss case. So it makes sense to the People as well to go forward on Mr. Babins case and not have to proceed with two jury trials.

THE COURT: Well, so then are we agreed there should be a continuance of this matter?

MR. MAVRIS: I -- I would be agreeable to that, your Honor . . . .

THE DEFENDANT: This is very interesting. This is -- I originally didnt want to have the second case, Mr. Babins case, happen first because it was the second case. But -- this is very interesting.

THE COURT: Well, if you understand that -- that the District Attorney is going to -- is likely to dismiss the case you have with Mr. Mavris --

THE DEFENDANT: Uh-huh.

THE COURT: -- if theres a conviction on the other case then -- I guess that --

THE DEFENDANT: Well --

THE COURT: That means the D.A. is going to only get to take one shot at you instead of two.

THE DEFENDANT: Yeah, that -- this is very interesting. Like I said, I dont know what to do on it. I --

MR. MAVRIS: I would advise Mr. Roberts that its in his best interest to do it that way.

THE DEFENDANT: I think its possible that I might be inclined to -- to take that advice.

THE COURT: All right. So is time waived?

MR. MAVRIS: Yes, it is, your Honor.

THE COURT: And both sides move for a continuance of Case 04-5034?

MR. MAVRIS: Yes.

MS. MICKS: Yes.

THE COURT: All right. That being the case then I will vacate the jury trial set for the 13th. []  . . . [] 

THE COURT: All right, shall we . . . rather than setting a new date, just put it on for a dismissal or resetting . . . ?

MS. MICKS: (Nodding.) Yes.

MR. MAVRIS: Thats fine.

In case number 04-5192, Roberts was charged with battery by an inmate on a noninmate ( 4501.5) and resisting an executive officer ( 69). It was alleged that he had one prior felony conviction within the meaning of sections 1170.12 and 667, subdivisions (b)-(i). The jury convicted Roberts of resisting an executive officer and the court declared a mistrial on the battery count. The battery count was dismissed on the Peoples motion. The trial court found there was a failure of proof as to the prior conviction.

The hearing on the dismissal or resetting of this action took place on June 30, 2005. The following colloquy took place at the hearing:

MR. MAVRIS: . . . Ive talked to the district attorney. She wants to go forward with another trial because apparently she didnt get as much time or as much of a conviction as shed hoped. But looking at the minute order from last time we were here, the second to last sentence says, parties agree case should pre settle as People would not be proceeding in this matter if there was a conviction in the other case.[4] And I understand there was a conviction in the other case.

THE COURT: I dont know. That would be depending on the People. Its not in the nature of a contract or that sort of thing; is it?

MR. MAVRIS: Ive never heard [sic] a situation where an agreement like that was followed. So I -- I havent researched it. Frankly I dont know [sic] it is or not. I dont know if they could be held to that or not.

THE COURT: Well, I guess they -- I dont know. I guess they convicted him of one of the two counts. And they were essentially the same transaction. Maybe that prior made a difference they didnt have proof on.

MS. MICKS: Your Honor, it was my understanding at the last appearance that the defendant was charged with two strike priors in the other case. And upon further review he was only charged with one. And that wasnt proven. And at the last appearance I represented we would not go forward with this case if we had a third strike based on the case that proceeded to trial on Monday.

THE COURT: . . . I dont think they have a binding agreement or estoppel or anything of that sort that would prevent the D.A. from getting a trial date. So if you want to go ahead and have a trial date well do it.

MR. MAVRIS: Wed object to a trial date, Your Honor.

At a further pretrial hearing held July 21, 2005, the prosecutor moved to amend the information to allege two prior prison terms pursuant to section 667.5, subdivision (b). Roberts objected. [O]ne of the reasons we wanted Mr. Babins case to go first with the understanding that if Mr. Roberts were convicted, . . . the People would dismiss against us is because we knew in our case and in the other case that no prior strike priors had been charged and -- by adding them . . . its kind of changed up things. The court stated, Now you wish you had gone to trial first? Defense counsel responded, No. We wish shed kept her word . . . [I]f she kept her word Mr. Roberts would be looking at a maximum of three years as opposed to a maximum I think of six or eight. The court granted the motion, explaining, I cant say that thats a binding contract that was entered into, so if theyve decided for whatever reason that -- they want to -- pile it on, I guess they can do that.

B.                 Analysis

If a prosecutor makes a promise that induces a defendant to waive his or her constitutional rights, due process requires the prosecutor to honor that promise. (People v. Quartermain (1997) 16 Cal.4th 600, 620.) Similarly, the doctrine of equitable estoppel applies where a party has by language or conduct induced another party to do what he or she would not otherwise have done, resulting in an injury. (Hair v. State of California (1991) 2 Cal.App.4th 321, 328-329.) Roberts claims he relied on the alleged promise when he waived his speedy trial rights so that the trial date in this action could be continued. We assume for purposes of argument that Roberts needed to personally waive his speedy trial rights before the trial date could be postponed.

The estoppel argument fails because the prosecutor did not break a promise when she proceeded to trial in this action. First, the prosecutors statement of what she intended to do if Roberts was convicted in case number 04-5192 was not phrased as a promise or commitment. The prosecutor said that if Roberts was found guilty in case number 04-5192, we will not be proceeding on Mr. Mavriss case. So it makes sense to the People as well to go forward on Mr. Babins case and not have to proceed with two jury trials. The last quoted sentence indicates that the prosecution was simply explaining her rationale for agreeing with defense counsels request for a continuance. The trial court confirmed this understanding of the prosecutors statement when it told Roberts, the District Attorney is going to -- is likely to dismiss the case you have with Mr. Mavris -- [] . . . [] if theres a conviction on the other case . . .  [] . . . [] That means the D.A. is going to only get to take one shot at you instead of two. (Italics added.) By correcting itself, the court alerted Roberts that the prosecutor was expressing her present attention and likely litigation strategy, not committing herself to a future course of action. The choice for Roberts was whether to take a calculated risk to continue case number 04-5034 because the case was likely to be dismissed if he was convicted in case number 04-5192, not whether to waive time in reliance on a promise that the case would be dismissed. The court, which witnessed the demeanor of the participants in the discussion, later confirmed the noncommittal meaning of the prosecutors comment when it ruled that the prosecutor had not made a binding agreement. Even defense counsel, after learning that the prosecutor did not intend to seek dismissal of this case, initially expressed doubt about whether the alleged promise was enforceable.

Second, even if the prosecutors statement was construed as a promise or commitment, the prosecutor reasonably concluded that Roberts had not been found guilty in case number 04-5192 and she was not bound to dismiss this action. Stipulations made during criminal proceedings are enforced under a reasonable interpretation that reflects the probable intentions of the parties. (People v. Dyer (1988) 45 Cal.3d 26, 57.) The prosecutor said she would dismiss this case if the defendant is found guilty in case number 04-5192. Her reference to Roberts being found guilty could reasonably be understood as encompassing convictions on all of the charged offenses and true findings on all of the prior conviction allegations. Roberts was found guilty of only one of the charged offenses and the alleged prior conviction was not found true. Under a reasonable interpretation of the alleged promise, the prosecutions refusal to dismiss this case was not a breach of the promise.

II.                 Sufficiency of Evidence

Roberts argues that his conviction must be reversed because the prosecutor failed to prove an element of the crime, that he was confined in state prison by an order made according to law.

A.                 Factual Background

Section 4501.1 prescribes the punishment for any person confined in the state prison who commits a battery by gassing upon the person of any peace officer . . . . ( 4501.1, subd. (a).) The statute is in a chapter of the Penal Code prescribing punishments for offenses by prisoners. (Part 3, tit. 5, ch. 1.) For purposes of this chapter: [] [a] person is deemed confined in a state prison if he is confined in any of the prisons and institutions specified in Section 5003 by order made pursuant to law, including, but not limited to, commitments to the Department of Corrections or the Department of the Youth Authority, regardless of the purpose of such confinement and regardless of the validity of the order directing such confinement, until a judgment of a competent court setting aside such order becomes final. ( 4504, subd. (a), italics added.) The CALCRIM jury instruction for a section 4501.1 offense includes this definition of a person confined in state prison. (CALCRIM No. 2722.) The trial court provided this instruction to the jury and specifically stated, the People must prove that, one, the defendant was serving a sentence in a California state prison . . . . [] A person is serving a sentence in the state prison if he or she is confined in Pelican Bay State Prison by an order made according to law. (Italics added.)

B.                 Analysis

When a conviction is challenged on the ground of insufficient evidence, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)

The People presented substantial evidence that Roberts was confined in a state prison pursuant to an order made according to law. The consistent testimony of the officer and inmate witnesses that Roberts was housed in a cell at Pelican Bay State Prison supported an inference that he had been sentenced to serve a term of imprisonment there by judicial order. That the conviction or sentence might be on appeal or otherwise under legal challenge is irrelevant under the governing statute. ( 4504, subd. (a).) A jury could, on this evidence, find beyond a reasonable doubt that Roberts was confined in a state prison by order made according to law. Even if a different finding would also be reasonable, when two or more inferences can reasonably be deduced from the facts as found, a reviewing court is without power to substitute its deductions for those of the trial court or jury. (People v. Ramsey (1988) 203 Cal.App.3d 671, 682.)

III.               Pitchess Motion

Roberts argues the trial court erroneously denied his Pitchess motion seeking discovery of the officers personnel records.

A.                 Factual Background

Roberts Pitchess motion sought discovery from the personnel records of the officers involved in this incident regarding complaints of dishonesty or the fabrication of charges or evidence; morally lax character; unnecessary acts of aggressive behavior or violence; and the use or attempted use of excessive force. In a supporting declaration, counsel averred that Roberts intended to show at trial that the officers used excessive force in spraying him with pepper spray five times and that they attempted to cover up their use of excessive force by falsely claiming they had warned Roberts and sprayed him at an acceptable distance. Counsel cited discrepancies in the incident reports filed by the officers and sworn statements by inmate witnesses that contradicted aspects of the officers accounts.

At the hearing on the motion, defense counsel said he would contend at trial that the officers use of pepper spray was a use of excessive force in retaliation for Roberts request for toilet paper and that Roberts responded in self-defense by throwing feces through his cell door. Roberts interjected that he did not plan to admit throwing feces or to argue that he did so in self-defense. He explained that he could not recall what he did during the incident because he was suffering from the burning effects of the pepper spray. Defense counsel stated that he planned to raise a self-defense theory at trial whether or not his client agreed.

The court denied the motion as to discovery of complaints of the use of excessive force. The court reasoned that the officers use of pepper spray would not be a disputed issue at trial because the officers admitted using pepper spray. Also, the officers use of excessive force was irrelevant unless Roberts argued self-defense. Although defense counsel said he planned to argue self-defense over his clients objections, the court stated he would need evidence to support the theory and Roberts has said he would not testify that he acted in self-defense. Moreover, defense counsels self-defense theory was far-fetched, especially because Roberts was separated from the officers by a locked cell door when he allegedly threw the feces.

The trial court also denied the motion as to discovery of complaints of dishonesty or falsification of records. The court also questioned whether there was any real dispute about whether the officers accurately described what occurred during the incident. Defense counsel cited discrepancies in the officers reports, but the court questioned how those discrepancies would tip the scale in a jurors mind about whether or not Roberts was guilty. Finally, the court reiterated that Roberts did not appear to have a viable defense theory and therefore none of the alleged discrepancies in the incident reports were material.

B.                 Analysis

The discovery principles announced in Pitchess, supra, 11 Cal.3d 531 have been codified in sections of the Evidence and Penal Codes. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) Generally, peace officer personnel records are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. ( 832.7, subd. (a).) Section 1043 of the Evidence Code requires a defendant to file a written motion for discovery of peace officer personnel files that includes [a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation . . . . (Evid. Code  1043, subd. (b)(3).) Once good cause has been established, the trial court must examine the material in camera to determine its relevance to the case. (Evid. Code,  1045.)

A showing of good cause requires a defendant to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officers version of events. (Warrick, supra, 35 Cal.4th at p. 1021.) The information sought must be described with some specificity to ensure that the defendants request is not so broad as to garner all information which has been obtained by the People in their investigation of the crime but is limited to instances of officer misconduct related to the misconduct asserted by the defendant. [Citations.] (Warrick, supra, at p. 1021.) The affidavit must describe a factual scenario supporting the claimed officer misconduct. The defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred. (Id. at pp. 1016, 1024-1025.) It is not the courts role to weigh or assess the evidence or to determine whether the scenario is reasonably probable or apparently credible. (Id. at pp. 1025-1026.)

The Supreme Court summarized the courts inquiry into good cause as follows: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? (Warrick, supra, 35 Cal.4th at pp. 1026-1027.)

We review the denial of a Pitchess motion for abuse of discretion. (People v. Gill (1997) 60 Cal.App.4th 743, 749.)

Roberts made a sufficient showing of good cause to compel an in camera review of the officers personnel records. Roberts showed a logical connection between the charges and the proposed defense and posited a specific factual scenario in support of the defense. (Warrick, supra, 35 Cal.4th at p. 1027.) He argued that the officers used excessive force in spraying him with pepper spray; that they did so in retaliation for his requests for toilet paper rather than in reaction to his alleged attempts to cover his cell door; that the officers falsified their reports to cover up their use of excessive force; and that the gassing was a lawful act of self-defense to protect himself from injury.

Roberts discovery request for complaints of excessive force or unnecessary aggressive behavior or violence by the officers was relevant to prove that the officers use of force in this case was excessive and unjustified. (Warrick, supra, 35 Cal.4th at p. 1027.) Although the officers admitted to spraying Roberts with pepper spray, they did not admit that their use of force was excessive or unjustified. Whether their use of force was justified was a disputed issue at trial and it was relevant to Roberts self-defense theory. (See People v. Coleman (1978) 84 Cal.App.3d 1016, 1022-1023 [discussing inmates right to act in self-defense when correctional officer uses excessive force].)

Roberts discovery requests for complaints of dishonesty, fabrication of reports or evidence or morally lax character was relevant to prove that the officers falsified their account of the incident to cover up their alleged excessive use of force. (Warrick, supra, 35 Cal.4th at p. 1027.) In support of his motion, Roberts filed inmate witness declarations averring that Roberts needed crutches, that the officers were belligerent and did not warn Roberts before spraying him, and that Roberts was not seen covering up his cell or throwing feces during the incident. He thus indicated he was challenging the officers representations that he unreasonably refused to cuff up without the assistance of crutches, that he attempted to cover up the cell door before the officers began using pepper spray, and that the officers warned Roberts before spraying him with the substance.

Roberts discovery requests were narrowly tailored to two issues relevant to his defense theorythe officers use of excessive force and their honesty or dishonesty in the incident reportsand did not constitute a fishing expedition for all information the prosecution gathered in their investigation into the crime. (Warrick, supra, 35 Cal.4th at p. 1021.) The requests put the trial court on notice of the defenses theory at trial and would have adequately guided the trial courts review of the personnel records to identify relevant material. (Ibid.)

The trial court applied erroneous legal standards when it denied the motion. First, the trial court erred to the extent it relied on Roberts personal statements during the hearing in denying the motion. Defense counsel had the authority to determine trial strategy, even over the objections of the defendant. (People v. Turner (1992) 7 Cal.App.4th 1214, 1220 (Turner).) Although the court acknowledged this rule, it reasoned that the self-defense theory was not viable if defense counsel had no evidence to prove it and defense counsel would have no such evidence if Roberts refused to testify in support of the theory. However, as the court later instructed the jury, the prosecution bore the burden of proving that Roberts did not act in self-defense when he gassed the officers. The defense did not have to produce evidence that Roberts acted in self-defense, but merely had to raise a reasonable doubt about whether the prosecution proved he did not act in self-defense. (CALCRIM No. 3470.) Further, the case law does not require a defendant to identify evidence in support of a proposed defense theory in order to prevail on a Pitchess motion. The defendant need only articulate a plausible factual scenario showing the discovery requests are relevant to the proposed defense. (Warrick, supra, 35 Cal.4th at pp. 1024, 1026.) The scenario may be asserted on information and belief. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86.)

Second, the court applied an incorrect legal standard when it ruled that Roberts had not established good cause because his proffered self-defense theory was far fetched and not viable. The question before the court was whether the proffered scenario could or might have happened, not whether it was reasonably probable or apparently credible. (Warrick, supra, 35 Cal.4th at pp. 1016, 1025-1026.) The court could not conclude as a matter of law, based solely on Roberts proffered factual scenario, that the alleged gassing could not have been a legally protected act of self-defense. Significantly, the court instructed the jury on the exact same self-defense theory that Roberts presented in support of his Pitchess motion. Under the courts instructions, gassing the officers was legitimate self-defense if Roberts reasonably believed he was in imminent danger of being touched unlawfully, he reasonably believed that the immediate use of force was necessary to defend against that danger, and he used no more force than was reasonably necessary to defend against that danger. Under Roberts factual scenario, Roberts could have reasonably believed he was in imminent danger of further spraying, that the immediate use of force was necessary to defend against that danger; and that gassing was the degree of force reasonably necessary to deter further spraying.

We recognize that Roberts defense counsel could have done a better job of articulating his self-defense theory at the Pitchess hearing. When he discussed the officers alleged falsification of their reports to cover up their use of excessive force, he failed to explain how facts allegedly misrepresented in the reports could support Roberts self-defense theory. For example, he noted that the reports were inconsistent about whether and when Roberts covered up the front of his cell. He did not expressly argue that if Roberts did not in fact attempt to cover the cell door, the officers use of pepper spray was more arbitrary and belligerent than they claimed and potentially more harmful to Roberts, as there were fewer obstacles shielding Roberts from the spray. The more menacing the officers unlawful use of force, the greater the likelihood that the jury would conclude that gassing was a lawful proportional use of force in self-defense. Roberts drew these connections more effectively at trial. Nevertheless, Roberts showing in support of his Pitchess motion met the relaxed standard established by the case law. (Warrick, supra, 35 Cal.4th at p. 1016.)

We conclude that the trial court abused its discretion in denying Roberts Pitchess motion without holding an in camera hearing. We follow the lead of People v. Hustead (1999) 74 Cal.App.4th 410, 419, 423, in fashioning an appropriate disposition. We will remand to the trial court to conduct an in camera hearing on the discovery motion. If there is no discoverable information in the records, then the trial court is ordered to reinstate the original judgment and sentence and the judgment is ordered affirmed. If there is relevant discoverable information in the officers files, Roberts shall be given an opportunity to demonstrate that the information would have led to relevant admissible evidence he could have presented at trial and that he was prejudiced by the lost opportunity to present that evidence at trial. Prejudice is established if there was a reasonable probability of a different outcome if the evidence had been presented at trial. (Id. at p. 423.) If Roberts demonstrates prejudice, the trial court shall order a new trial. If he fails to demonstrate prejudice, the trial court is ordered to reinstate the original judgment and sentence and the judgment is ordered affirmed.

IV.              Motion to Reopen

Roberts argues that the trial court erred by not allowing him to reopen his case so that he could testify in his own defense.

A.                 Factual Background

After five defense witnesses testified, the court asked defense counsel if he had any other evidence to present. The court granted his request for a 10 minute recess to confer with Roberts. Following the recess, the court said, The attorneys tell me that theyve concluded with their presentation of evidence. Defense counsel confirmed that he rested his case and court adjourned for the day.

At the very start of proceedings the next morning, Roberts said, Im still in a little disagreement here with my attorney over whether or not I want to testify, your Honor. Im not too sure yet. The court stated, Well, we have crossed the Rubicon. The case has been submitted. [] Making any motions, Mr. Mavris [defense counsel]? Mavris responded, Im not, no. After the court and the attorneys discussed jury instructions (a discussion that covers five pages of the transcript), Roberts stated, Your Honor, Im going to object. I think I want to testify, your Honor. [] . . . [] I think I havent rested my case. The court responded, All right. Well take a recess and -- Mr. Mavris, do you have any motions to make? He replied, No. The court stated, Okay. Okay. Well resume in five minutes. [] I think I probably -- so there is no doubt, I would entertain a motion to reopen. Im not saying Id grant it or not, but I think the record should be clear Ive heard the defendant; I know hes expressed that desire. Okay. Court recessed for five minutes. When court reconvened, the jury was present and the court began to instruct the jury. Neither Roberts nor his attorney mentioned Roberts desire to testify or made a motion to reopen.

When the jury verdict was read by the courtroom clerk, Roberts immediately said, They dont know I had to have surgery. They dont know that these guys -- they dont know. The court asked, Whats the problem? and Roberts responded, I should have been able to testify. Roberts then conferred loudly with his attorney. The court ordered the clerk to record the verdict, excused the jury and prepared for the trial on the prior conviction allegations. Roberts continued to interrupt the proceedings throughout the trial on the priors.

B.                 Analysis

The trial court did not err. The court clearly invited the defense to make a motion to reopen and neither defense counsel nor Roberts made the motion. Roberts implies that the court should have interpreted his comments as a motion to reopen and a demand that he be allowed to testify over his attorneys objections. We disagree.

The trial court had previously informed Roberts (at the June 9, 2005 hearing when Roberts agreed to continue the trial date for this case) that he had an absolute right to testify in his own defense regardless of his attorneys wishes. (See Turner, supra, 7 Cal.App.4th at pp. 1220-1221.) Defense counsel acknowledged at the same hearing that I have the power to decide case strategy; I dont have the power to prevent him from testifying. Thats his absolute right . . . . At times during that hearing, Roberts said he planned to testify and at other times he said he was not sure what to do.

When court convened the day after the defense rested its case, Roberts said he was still unsure whether he wanted to testify. The court granted Roberts an opportunity to confer with his attorney, as the court had done the previous day. Roberts continued to express his tentative interest in testifying, saying he thought he wanted to testify. Three times the court invited the defense to make an appropriate motion. On the third occasion, the court specifically invited a motion to reopen and added, I think the record should be clear Ive heard the defendant; I know hes expressed that desire. Although the court never directly inquired of Roberts whether he personally wished to reopen his case so he could testify, the court knew from experience that Roberts did not hesitate to speak up in court if he disagreed with a strategic decision by his attorney. A reasonable conclusion in the circumstance was that Roberts had been considering testifying but ultimately had been persuaded by his attorney not to do so. The court responded appropriately to Roberts comments. Because Roberts never made a motion to reopen, the cases he cites about the legal standards that apply to such motions are irrelevant.

Disposition

For the reasons stated, the judgment is reversed and the cause is remanded with directions to the trial court to conduct an in camera hearing on appellants discovery motion consistent with this opinion. If the hearing reveals no discoverable information in the officers personnel records that would lead to admissible evidence helpful to Roberts defense, the trial court shall reinstate the original judgment and sentence which shall stand affirmed. If the in camera hearing reveals discoverable information that could lead to admissible evidence helpful to Roberts in defense of the charge, the trial court shall grant the requested discovery, allow Roberts an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated. If Roberts does not demonstrate prejudice, the trial court shall reinstate the original judgment and sentence which shall stand affirmed.

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

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[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

[2]All statutory references are to the Penal Code unless otherwise indicated.

[3] We grant the request for judicial notice of the appellate record in case number 04-5192, appeal number A111329. (Evid. Code,  452, subd. (d), 459, subd. (a).)

[4] The minute order in the appellate record states, Parties agree that Defendants [sic] other case should precede this case to trial as People would not be pursuing this matter if there was a conviction in the other case. Time continues to be waived.