P. v. Jacome

Filed 6/21/07 P. v. Jacome CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II , Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

Procedural History Underlying Appeal No. F044115

On May 24, 2002, the Fresno County District Attorney filed an information in superior court charging appellant Melvin Estiwar Jacome as follows: count Iattempted murder of a peace officer/firefighter further alleging that the offense was willful, deliberate and premeditated (Pen. Code,^[1] 187, subd. (a), 664, subds. (e), (f)); count IIuse of a machine gun/assault weapon on a peace officer/firefighter ( 245, subd. (d)(3)); count IIIevading an officer with willful disregard (Veh. Code, 2800.2, subd. (a)); and count IVpossession of an assault weapon ( 12280, subd. (b)). As to counts I and II, the district attorney specially alleged appellant intentionally discharged a firearm ( 12022.53, subd. (c)); personally used a firearm in a statutorily specified offense ( 12022.53, subd. (b)); and personally used a firearm in the attempted commission of a felony (then 12022.5, subd. (a)(1)).

On May 28, 2002, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On September 11, 2002, the court suspended proceedings and appointed two doctors to determine and report on appellants mental competency to stand trial ( 1368).

On November 14, 2002, the court found appellant mentally competent and reinstated criminal proceedings against him.

On August 25, 2003, after numerous continuances, jury trial commenced.

On August 27, 2003, the court dismissed count IV.

On September 9, 2003, the jury returned verdicts finding appellant guilty of all of the remaining substantives counts (counts I-III) and finding all of the special allegations to be true.

On October 7, 2003, the date set for sentencing, the court did not agree to appellants request to appoint new counsel to assist or represent him. The court then denied appellant probation and sentenced him on count I to the term of life in state prison with the possibility of parole. As to that count, the court additionally imposed a term of 20 years for the firearm discharge enhancement ( 12022.53, subd. (c)) and stayed under section 654 the sentences imposed on the remaining enhancements. The court imposed the upper term of 12 years on count II but stayed that term and terms applicable to the related personal firearm use enhancements under section 654. The court imposed a concurrent term of two years on count III. The court also awarded 647 days of custody credits, imposed a restitution fine ( 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole ( 1202.45), and ordered appellant to pay $450 in direct restitution to the victim ( 1202.4, subd. (f)).

On October 20, 2003, appellant filed a timely notice of appeal (case No. F044115).

On May 20, 2005, this court filed a nonpublished opinion affirming the judgment of conviction of the substantive crimes in counts I, II, and III and each of the attendant findings and enhancements (with the exception of the two section 12022.5, subd. (a)(1) enhancements). This court vacated the judgment of sentence because the trial court failed to properly respond to appellants request to discharge his retained counsel. We remanded the matter to the trial court for consideration of any request of appellant pertaining to representation of counsel, any appropriate posttrial motions, and resentencing as might be applicable.

On September 8, 2005, this court issued a remittitur.

Procedural History Underlying Appeal No. F050387

On October 18, 2005, the court conducted a hearing on remittitur, granted appellants request for new counsel, appointed the public defender to represent appellant, vacated the sentence, and referred the matter to the probation officer for a supplemental report.

On January 10, 2006, the court set a schedule for counsel to file briefs regarding the scope of this courts remand.

On January 10, 2006, appellant filed a brief on the scope of remand and specifically sought a hearing under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

On January 20, 2006, appellant filed a supplemental brief on the scope of remand and noted the trial courts discretion to hear new evidence on ineffective assistance of trial counsel.

On February 3 and 16, 2006, the People filed a written response and supplemental response, respectively, to appellants request to file a postconviction Pitchess motion.

On February 21, 2006, the superior court denied appellants motion to file a Pitchess motion because the motion exceeded the limits of the current trial record.

On March 10, 2006, appellant filed a motion for new trial or to modify the verdict ( 1181, subd. 6). On the same date, appellant filed a notice of intent to suggest dismissal of a portion of the action in furtherance of justice ( 1385, subd. (a)).

On March 20, 2006, the People filed a written response to appellants motion for new trial, arguing the evidence was sufficient to sustain the jurys verdict.

On March 21, 2006, the court granted appellants request for a continuance to hire a new counsel.

On March 24, 2006, appellant filed a motion to strike cruel and unusual punishments.

On March 28, 2006, the People filed a written response to the motion regarding cruel and unusual punishment and urged the court to follow general objectives in sentencing (see Cal. Rules of Court, rule 4.410).

On the same date, appellant filed a written response to the opposition papers and urged the grant of a new trial or modification of the verdict to strike the finding of willful, deliberate, and premeditated attempted murder.

On March 30, 2006, the court conducted a hearing on the various motions. Appellant withdrew his motion for new counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), indicated he no longer wished to retain counsel, and requested to proceed with Deputy Public Defender Garrick Byers as his appointed counsel. The court denied appellants motion for new trial and invitation to strike the finding of willful, deliberate, and premeditated murder. The court granted the parties additional opportunities to brief the issue of a dismissal in furtherance of justice and the issue of cruel and unusual punishment.

On or about April 11, 2006, appellant filed a brief regarding section 664, subdivisions (e) and (f) and the sentencing discretion of the trial court.

On April 28, 2006, the People filed a written response to appellants brief.

On May 2, 2006, appellant filed a written reply to the response of the People.

On May 9, 2006, the court conducted a sentencing hearing and struck the finding of willful, deliberate, and premeditated attempted murder for the purposes of sentencing ( 664, subd. (f))^[2]only. The court sentenced appellant to life in state prison with the possibility of parole on count I ( 187, subd. (a), 664) plus a 20-year determinate term under section 12022.53, subdivision (c). The court directed the indeterminate term to be served after the determinate term. The court imposed and stayed a four-year upper term on count II ( 245, subd. (d)(3), 654). The court imposed a three-year upper term on count III ( 2800.2, subd. (a)) and ordered it to run concurrently with the term imposed on count I. The court struck the section 12022.5, subdivision (a)(1) findings as to counts I and II. The court stayed sentence on section 12022.53, subdivision (b). The court awarded 1,593 days of custody credits and imposed the same fines and fees as previously ordered.

On May 15, 2006, appellant filed a timely notice of appeal.

On November 27, 2006, this court granted appellants request to take judicial notice of the record, pleadings, and opinion in his prior appeal, case No. F044115.

STATEMENT OF FACTS

Facts Underlying Appeal No. F044115^[3]

At 12:30 a.m. on March 24, 2002, Sanger Police Officer Noel Johnson was working the night patrol shift in his community. Johnson was dressed in uniform and was operating a marked City of Sanger police car. While Johnson was stopped at a red traffic signal, a citizen pulled up next to his squad car and reported on an apparent drunk driver. The citizen saw the driver was at the nearby intersection of Annadale and Academy Avenues and said the driver was proceeding eastbound on Annadale in a pickup truck. Officer Johnson immediately headed eastbound on Annadale in an attempt to locate the vehicle. A few seconds later, the officer saw the taillights of the pickup truck ahead of him.

Officer Johnson attempted to overtake the pickup truck by accelerating the speed of the patrol car. He observed the pickup was swerving from side to side and was repeatedly crossing over into the westbound (oncoming) lane of traffic. Johnson activated the siren and lightbar of his vehicle and the pickup responded by accelerating, requiring Johnson to accelerate to 80 miles per hour to close the gap. The pickup continued to swerve into the westbound lanes despite the presence of oncoming traffic. To avoid creating a collision between the pickup and oncoming traffic, Johnson turned off his siren and emergency signals but continued to pursue the pickup truck at speeds from 70 to 80 miles per hour. The pickup finally came to a stop in a rural area outside of the Sanger city limits. Officer Johnson pulled up behind the truck and began to get out of his patrol vehicle. Before Johnson was completely out of his car, the pickup started moving again, made a U-turn using both lanes of traffic, and then headed back in the direction of Sanger.

By this time, two other Sanger police officers in marked police vehicles joined the pursuit. Officer Johnsons vehicle was first in pursuit. Sergeant Fred Sanders directed the pursuit from his position behind Johnson. Officer Robert Theile drove in the number three position. After the U-turn, the pickup proceeded westbound on Annadale with the three police vehicles in pursuit. All of the police vehicles had activated sirens and emergency signals. When the pickup reached a three-way intersection at Riverbend Avenue, it came to a skidding stop and locked its brakes for several seconds. The pickup then proceeded northbound on Riverbend into a rural ranching area. The police units followed the pickup at about 45 miles per hour. After traveling a half-mile on Riverbend, the pickup turned westbound and traveled onto the Hedrick Ranch. The pickup went 100 to 150 yards on a private road and then stopped near a trailer and gate.

Officer Johnson began to step out of his police unit and made eye contact with the driver, the appellant. He saw that appellant was pointing a black pistol at him. Johnson moved to the rear of his police car and yelled gun several times to warn his fellow officers. Appellant almost instantly discharged his weapon. The volley lasted about four seconds and Sergeant Sanders and Officer Theile observed multiple muzzle flashes coming from the drivers side window of the pickup truck. From his vantage point, Theile could see appellant pointing the weapon at Officer Johnson before discharging it. All three officers returned fire with their .40-caliber Glock service pistols. Johnson yelled about 10 times, both in English and in Spanish, and ordered appellant to put his hands up and open his truck door. However, appellant did not comply.

After a 10 to 15 minute wait, Sergeant Sanders approached appellant in the pickup truck and took him into custody. Appellant had sustained a gunshot wound in the ribcage and injury to two fingers of his left hand. Officers examined the interior of the pickup cab and seized a nine-millimeter assault weapon from the seat. The weapon had been struck by a bullet during the exchange of gunfire. They also found cartridge casings, blood, and broken glass inside the truck. Officer Johnson noted three holes in the drivers side door of his police car and saw that another round had shattered the passenger side window of that car.

District Attorney Investigator Lee Cotter testified the seized weapon was an Intratec AB-10 nine-millimeter semi-automatic weapon. Cotter said the weapon was self-loading but not self-firing. In other words, the firing of each round required a separate pull of the trigger. Cotter explained the weapons magazine holds at least 18 nine-millimeter rounds but the magazine had been rendered inoperable by the bullet that struck the weapon. Officer Johnson testified this assault weapon uses a detachable magazine as well as a second handgrip.

Jose Guerrero, an identification technician with the Fresno County Sheriffs Department, said he examined Officer Johnsons police car and found three bullet holes in the drivers side door and recovered three spent bullets inside the vehicle. He determined the bullet holes were made by shots fired from outside the vehicle. Nine expended casings were found at the scene. The casings and the spent projectiles were of nine-millimeter caliber. Michael Giborson, a criminalist with the Fresno County Sheriffs Department Forensics Laboratory, examined the expended projectiles found in Johnsons vehicle and said they had been fired from appellants assault weapon. Jose Guerrero further testified the trajectory of the bullets was consistent with having come from appellants position in the pickup truck.

Defense

On the evening of the shooting, appellant went to the home of a former coworker, Antonio De La Cruz, had three shots of tequila, and left between 9:45 and 10:00 p.m. Appellant later arrived at Tops Bar in Sanger and drank five double tequilas over a 90-minute period. Appellants friend, Ishmael Vargas Menera, met appellant at the bar and saw him drink at least three tall glasses of tequila. Sonia Lopez, a bartender at Tops, testified appellant started to bother people and his friend took him out of the bar. Appellant and Menera left Tops and Menera drove the pickup truck because appellant was drunk. Menera saw appellants gun on the seat in the pickup truck. The gun was located underneath a jacket. Appellant and Menera went to the El Abril bar and Menera saw appellant drink two more double shots of tequila at that establishment.

At one point, appellant went outside of the El Abril bar for 30 minutes and Menera offered to take him home. Appellant declined and explained his wife was going to pick him up. After hearing that explanation, Menera returned the pickup keys to appellant. Appellant then drove away from the El Abril.

Appellant testified on his own behalf. He said he began working at the Hedrick Ranch in 1999 and aspired to become a jockey. However he had trouble getting his weight sufficiently low and began taking two or three Metabolite pills a day over a period of 17 months in order to lose weight. The pills occasionally caused him to hear noises. He took Metabolite on March 23, 2002. Appellant recalled the early part of that evening but could not remember anything after giving Ishmael Menera his pickup keys at Tops Bar. Appellant said he woke up in a hospital, had difficulty breathing, and noticed his left hand was bandaged.

Appellant purchased the Intratec weapon in 1999. When he left his house on March 23, 2002, he put the Intratec in his truck because he had been arguing with his wife and because he intended to go hunting. He had one or two drinks of tequila before leaving his house and then drove to Antonios house, where he consumed three or four more tequila drinks. From Antonios house, appellant went to Tops Bar.

Appellants employer, William Hedrick, testified he had hired appellant to break horses on his ranch and had a high opinion of appellants character for truthfulness. Appellants common-law wife, Evelin Palma, testified appellant was never violent with her. Palma said appellant began drinking more after the birth of their second child on December 26, 2001. She also said appellant was taking Metabolite three times a day during the two weeks preceding the shooting. Hedrick foreman Andreas Hernandez lived on the ranch and said he did not hear any police car sirens before he heard the gunshots on March 24, 2002.

The parties stipulated that appellants blood was drawn at 1:54 a.m. on March 24, 2002, and the blood alcohol level was 0.193. They also stipulated that his blood was drawn at 2:50 a.m. that same day and the blood alcohol level was 0.14. No illicit drugs were found in appellants system. Raymond Deutsch, M.D., a specialist in addiction medicine, testified about the effect of ephedrine and alcohol on the human brain. Dr. Deutsch said Metabolite contains ephedrine and that appellant met the criteria for addiction to alcohol. Dr. Deutsch said a .19 blood alcohol level would reduce a persons inhibitions such that the person could not make deliberate judgments. He also said ephedrine ingestion has been associated with psychosis when taken in fairly high doses and can cause hallucinations.

Facts Underlying Appeal No. F050387

On October 18, 2005, the superior court conducted a hearing upon the remittitur. Upon agreement of appellant, the court relieved defense counsel Dan Harralson, appointed the office of the public defender to represent appellant, and directed attorney Harrelson to deliver a copy of all relevant portions of his file to the public defender. The court also asked the probation department to prepare a supplemental report to update appellants time credits in connection with a proposed sentencing date.

On November 1, 2005, the court conducted a hearing and attorney Harralson explained he had been unable to deliver his trial file to the office of the public defender because appellants appellate counsel had the file in her possession. Appellants new counsel, Deputy Public Defender Garrick Byers, asked for a continuance in order to have ample opportunity to obtain and review the trial file. The court set a review hearing for November 29, 2005, upon the agreement of appellant.

On February 21, 2006, the court conducted a contested hearing on appellants motion to file a Pitchess motion. The court ruled:

I dont think its appropriate on this case, on this showing, and on these facts, to do that. I think it requires a tortured reading of the Court of Appeals opinion to conclude that this Court should engage in that kind of a reopening of this case. The Court of Appeal opinion said, Judge Hamlin you made a mistake. When this man said he wanted another attorney before sentence was imposed, you should have checked that representation of Counsel, and that attorney should have been allowed then to bring any appropriate post trial motions. And that is exactly what the Court of Appeal told me in its remand order. Appropriate post trial motions in this setting would be, from my view, any motion for new trial based on the current state of the trial record, or any other motion the requesting that the Court dismiss any counts under 1385, or otherwise take some action on the state of the current trial record. And I am limiting my action on the case at this point to that; that being the current trial record.

I dont believe theres a sufficient basis to order that discovery under Pitchess be allowed under the possibility that it may yield evidence that may have been admissible at trial that may support a conclusion that Counsel was ineffective in having failed to obtain that information, and having failed to introduce that evidence at trial. I think that is beyond the scope of this remand. I think it would be an inappropriate exercise of the Courts discretion to allow that. I think the appropriate course is for Defense to bring whatever motions it wishes with respect to the current state of the trial record, and Ill decline a request for Pitchess discovery.

The court subsequently continued the matter to March 21, 2006, so that defense counsel could prepare motions for new trial and to dismiss various counts or findings under section 1385.

On March 30, 2006, the court conducted a continued hearing on pending motions. The court noted one pending motion for a new trial and two pending motions to strike the finding that appellants actions were willful, deliberate, and premeditated based on the grounds the punishment is cruel and unusual. The court also noted that appellant had sought to retain attorney David Mugridge and had also sought a Marsden hearing. After an extensive discussion with appellant, the court determined appellant was satisfied with Deputy Public Defender Byers as his counsel and did not conduct a Marsden hearing.

The court then proceeded to deny appellants new trial motion, stating in relevant part:

... I did undertake the review of some of the testimony in the case with respect to the issues presented by the willful, deliberate, and premeditative finding, and with respect to the conduct on the trial as a whole. First of all with respect to the conduct of the trial as a whole, I am satisfied, based on my observations of that trial, that Mr. Jacome had effective and committed representation by Mr. Harralson, that he thoroughly questioned and called into question the credibility of the officers involved, he thoroughly put to task the Identification Bureau technicians who testified regarding the physical evidence and their observations and opinions. He presented expert testimony regarding Mr. Jacomes intoxication and the use of diet medications, his fasting and his deprivation of food and water, and how that might join with the consumption of alcohol, and how that might affect his mental state, and all those issues were fairly before the jury.

As far as the need for the Court or the appropriateness of the Court to grant a new trial based on conduct in the trial, I think the Peoples analysis of the case authority and the Courts role in considering that motion is accurate. The Court does not really sit as a 13th juror, the Court is not free to simply substitute its opinions for that of the jury, and the Court is directed to consider the entire record and determine whether there is substantial evidence of credible and solid value that supports the jurys conclusion. And absent a statute or other grounds to conclude that ... there is some defect in the presentation of the case that would warrant a new trial, the Court is not free to disregard the verdict, and simply substitute its own opinion of what the verdict ought to be.

The court then reviewed the trial testimony of Officers Johnson, Sanders, and Thiele and went on to hold:

The jury found, and rightly so on these facts, that this Defendant had not only the opportunity, but, in fact, willfully and deliberately and with premeditation, made the decision to try to kill that officer. They heard the expert testimony, they heard about his intoxication, and they didnt have to form the opinion that even on the drive that that was his intent though theres evidence there to support that; that he takes the officers to a secluded location, where he is familiar with the surroundings, and perhaps they are not before this event takes place but the description of these officers about this individual pointing the barrel out the window, making eye contact with him, tracking him to the rear of his car, and then opening fire, is more than sufficient to support the conclusion that he acted deliberately, willfully, with premeditation. It is more than sufficient to support that conclusion. It wasnt just some random, accidental firing of a gun. It wasnt even some rash act. It was a willful and calculated decision to attempt to kill the officers. That is what the evidence supports, and I cant see how you can get to any other conclusion with the eye contact, with the movement, with the timing, as described by these individuals.

The jurors accepted their testimony as accurate and truthful, and there was no contrary description or physical evidence that would support any other conclusion. There were bullet holes at the rear of that vehicle where the officer had retreated to and had attempted to place more mass between himself and the Defendant. That was his decision.

The court further declined appellants request to strike the finding of willful, deliberate, and premeditated attempted murder, stating in relevant part:

[W]hile I have a great deal of discretion ... I decline to exercise that discretion as requested. There certainly was evidence to support a conclusion that he was drunk and that he was too intoxicated to make a decision, but there was abundant evidence to support the contrary conclusion, including his ability to lead the officers on this attenuated chase, to turn them around, lead them in another direction, to take them into this secluded area ... to evade them for the period of time that he did, to safely drive his vehicle throughout that stretch as he did, to park it in the location he chose, to point the weapon, to track the officer to his location at the rear of the vehicle, and to open fire. So I decline to grant the motion for new trial, I decline to strike the finding of willful, deliberate, and premeditated murder as requested. I find its adequately supported by the record, and that it is appropriate that the jurors make that finding as they did.

The court explained:

Under 1385 I have declined to exercise my discretion to strike that finding. [] ... [] I just think its an abuse of my discretion under 1385 to strike it on the given record before me, but there is always that constitutional argument that I believe I should, nonetheless, address on the facts before me, so Id be happy to do that, and will do that after further briefing. [] ... []

[W]hat is left to decide is whether I should strike findings either apparently because, you know, the argument is, a life sentence is cruel and unusual, so presumably an order to get to less than a life sentence I would not only have to strike the finding of willful, deliberate, and premeditated attempted murder, Id have to strike the finding that it was a peace officer engaged in the performance of his duties and that the Defendant was aware of that or [k]new or reasonably should have known that because the argument before me at present is that any life sentence in addition to enhancements for gun use in this case is too severe under the Eighth Amendment....

The court established a briefing schedule for the parties, set a hearing date, and explained to appellant when he sought to bring in new evidence:

I already determined that that motion was not appropriate. The scope of remand from the Court of Appeal to my mind ... is nothing more than a direction to consider your request for new lawyer and proceed to sentencing. But aside from that, even considering that I have a broader scope of discretion in that, I have declined to allow for investigation by way of Pitchess motion or otherwise to augment the record and further discovery to take place with respect to a case that has already been decided by a jury nearly three years ago. So that motions been denied.

On May 9, 2006, the court conducted a contested hearing on appellants motion to strike jury findings on the ground they would expose appellant to a term of 15 years to life and thus constitute cruel and unusual punishment. The court read and considered the documents filed by the parties, heard from appellant, his counsel, and the prosecutor, and ultimately ruled:

Mr. Jacome made a lot of choices on the night in question. He chose to get in that car with that gun. He chose to go drinking with his friend and drink to excess. He chose then to drive his vehicle. He chose then to evade the police and after stopping for them, then chose to further evade them, to lead them to a remote area and to turn on them with a very dangerous firearm. Those were his choices. And I cannot save him from those choices.

To the extent that imposing a 15 to life sentence plus a determinate term might be considered cruel and unusual, I will say that the purposes of these sections is to ensure that persons are held accountable for serious behaviors. And in this setting I believe this defendant will be appropriately held accountable with the very sentence he received before. That being a determinate term for the enhancement as well as a life term for the crime of attempted murder of a peace officer. And whether I strike the finding of willful, deliberate and premeditated murder for the purpose of subdivision (f) or whether I sentence him under 664(a) or whether I sentence him under 664(e) his term is life in prison. And that would be, as counsel I think appropriately points out, the Court has the ability to strike that finding for limited purposes to achieve justice in its sentence.

And I am not for a moment suggesting that the jury verdict that this attempted murder was willful, deliberate and premeditated is anything but supported by the evidence in this case. It is well supported by the evidence. And the citations to the record that I referred to at the last hearing make that clear. Im not going to go over those again. The record speaks for itself.

This defendant made a willful deliberate and premeditated attempt to kill these officers. After numerous opportunities to change his course he chose the selfish and dangerous course of putting himself ahead of their safety and all of the evidence in this case supports the conclusion that he did try to kill them and he had more than one opportunity to reflect on that decision and made that consciously, willfully and deliberately.

So when I strike this finding for purposes of sentencing Im not for a moment suggesting that its not supported by the jurys verdict. Im simply suggesting that it may be, in fact, cruel and unusual to require this man to serve some 33 years in state prison before hes ever eligible for a parole. And for that reason, and that reason alone, Im striking the finding of willful, deliberate and premeditated murder for the purposes of sentencing only.

The court then sentenced appellant to a term of life in state prison with the possibility of parole on count I and a 20-year determinate term on the section 12022.53, subdivision (c) enhancement. The court directed the determinate term be served before the indeterminate term.

DISCUSSION

As his sole issue on appeal, appellant contends the trial court committed reversible error when it denied his request to file a Pitchess motion preparatory to the presentation of a motion for new trial.^[4] Appellant submits the trial courts ruling prevented new counsel from fully investigating all possible bases for a new trial motion and denied appellant his federal constitutional rights to due process and the effective assistance of counsel.

This court stated in relevant part in its nonpublished opinion filed May 20, 2005:

We next note that appellants statements at the sentencing hearing represented his first request to discharge his retained counsel. During the trial, appellant did not previously express any dissatisfaction with his attorney, or make any comments which could be interpreted as an attempt to discharge his attorney. Thus, the courts error has no effect upon appellants trial on the substantive offenses and special allegations, and the jurys findings on those issues will not be disturbed. Instead, the courts failure to properly respond to appellants request to discharge his attorney will only result in the vacation of the sentence imposed herein.

We will thus vacate the sentence imposed and remand the matter to the trial court for further proceedings consistent with the views expressed in this opinion. [] ... []

DISPOSITION

With the sole exception of the two Penal Code section 12022.5, subdivision (a)(1) enhancements, the convictions of the substantive crimes in counts I, II and III and each of the attendant findings and enhancements are affirmed. The sentence imposed is vacated and the matter is remanded to the trial court for consideration of any request of appellant pertaining to representation of counsel, any appropriate posttrial motions and resentencing as may be applicable, and all in accord with the views expressed in this opinion. (Fn. omitted.)

On January 10, 2006, appellant filed a brief on the scope of remand and argued a request to dismiss the life term portion of the action and a motion for new trial were well-within the scope of the court of appeals remand. Appellant went on to argue:

[T]he grant of a new trial does not disturb the jurys verdict within the appellate courts meaning, since the new trial motion may be based on evidence not heard by the jury.

Current counsel does indeed contemplate brin[g]ing in new evidence outside the existing record under the ineffective assistance rubric.

One possible piece of new evidence, however, requires the making of a Pitchess motion. There was no Pitchess motion in this case. Even though the defendant has no memory of the events here, this case cries out for a Pitchess motion: the videotape recorders on one or more of the police cars in this case did not work. In my view, the explanation for that given at trial was not adequate. Even if it were in an officer-involved shooting, even the most honorable of people have at least a motive to shade the truth or even outright lie.

Counsel therefore requests an opportunity to present a Pitchess motion at which he demonstrate[s] [a] scenario of alleged officer misconduct [that] could or might have occurred. Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (stating the standard of the showing that the defendant must make at a Pitchess motion). That motion might disclose evidence of prior officer misconduct that might be sufficient to show that, had it been introduced at this trial, the jurys verdict might have been different.

On January 20, 2006, appellant filed a supplemental brief on the scope of remand, stating in relevant part:

At the last hearing on this case, January 10, 2006, the court questioned whether new counsel could, in the context of a motion for new trial based on ineffective assistance of counsel, introduce evidence outside the existing trial record. The court suggested that the introduction [of] such new defense evidence should be relegated to a post-judgment petition for a writ of habeas corpus. However, the court granted me leave to brief this issue.

The court did not question new counsels authority to file a motion for a new trial based on ineffective assistance of counsel, as the California Supreme Court has authorized by People v. Fosselman (1983) 33 Cal.3d 572. But the court pointed out that in Fosselman the new trial motion did not seek to introduce evidence of ineffective assistance outside of the existing trial record.

The Fosselman court wrote, 33 Cal.3d at 583, that in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsels effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so.

The California Supreme Court recently considered this general issue in the death penalty case of People v. Cornwell (2005) 37 Cal.4th 50, 99-102.

Cornwell stated, in short, that while Fosselman does assume[] that such claims would be decided on the basis of the trial courts own observation, still, the court has discretion not to relegate the presentation of new evidence to a habeas corpus motion.

In a written response filed February 3, 2006, the People argued it was inappropriate for a trial court to hear a pretrial request for discovery such as a Pitchess motion at the pre-judgment stage of a criminal case. The prosecution noted that People v. Fosselman (1983) 33 Cal.3d 572,stands for the premise that inadequate assistance of counsel is a non-statutory ground for a new trial motion. The prosecution further noted that the claim of ineffective assistance in People v. Cornwell (2005) 37 Cal.4th 50rested primarily upon matters other than what the trial court observed during trial and the trial court acted within its discretion in concluding the claim of ineffective assistance should be litigated in a habeas corpus proceeding.

Appellant argued in a February 10, 2006, written reply:

The Prosecutor states ... that the Defense is putting the cart before the horse by asking to file a Pitchess motion before filing a new trial motion.

Not so. Putting the cart before the horse would be accomplished by filing the new trial motion before the Pitchess motion.

The Defense could file a new trial motion, claiming that trial counsel was ineffective for not filing a Pitchess motion. But if the Defense did so, the court and prosecution would, naturally, ask: how do you know that counsel was ineffective unless you know what the result would have been from filing a Pitchess motion.

Then the Defense would say: we must find out by holding a Pitchess hearing!

So asking for the Pitchess hearing first is actually the sensible, economic, way to proceed. If the Pitchess motion yields nothing, then the new trial motion on that ground would be unnecessary. If it yields significant new evidence, then, of course, a new trial motion would be most appropriate.

On February 16, 2006, the People filed a supplemental response to appellants written reply and argued the proposed Pitchess motion failed to meet any procedural and evidentiary threshold. The prosecution particularly argued that appellant failed to meet the threshold burdens set forth in People v. Pope (1979) 23 Cal.3d 412 and Warrick, surpa, 35 Cal.4th 1011.

On February 21, 2006, the court conducted a hearing on appellants request to file a Pitchess motion and ruled:

I agree this is not a motion for a new trial. Its a request by Defense to have the Court authorize an augmentation or supplementation of trial record by way of a Pitchess motion in anticipation of a possible motion for new trial. Depending on the outcome, thats procedurally where I see it. Procedurally I see that from the case authority I may indeed have discretion to order that, and order that discovery be reopened and that other matters pertinent to a new trial motion outside the record may be discovered, and the record may be augmented.

I dont think its appropriate on this case, on this showing, and on these facts, to do that. I think it requires a tortured reading of the Court of Appeals opinion to conclude that this Court should engage in that kind of a reopening of this case. The Court of Appeal opinion said, Judge Hamlin you made a mistake. When this man said he wanted another attorney before sentence was imposed, you should have checked that representation of Counsel, and that attorney should have been allowed then to bring any appropriate post trial motions. And that is exactly what the Court of Appeal told me in its remand order. Appropriate post trial motions in this setting would be, from my view, any motion for new trial based on the current state of the trial record, or any other motion the requesting that the Court dismiss any counts under 1385, or otherwise take some action on the state of the current trial record. And I am limiting my action on the case at this point to that; that being the current trial record.

I dont believe theres a sufficient basis to order that discovery under Pitchess be allowed under the possibility that it may yield evidence that may have been admissible at trial that may support a conclusion that Counsel was ineffective in having failed to obtain that information, and having failed to introduce that evidence at trial. I think that is beyond the scope of this remand. I think it would be an inappropriate exercise of the Courts discretion to allow that. I think the appropriate course is for Defense to bring whatever motions it wishes with respect to the current state of the trial record, and Ill decline a request for Pitchess discovery.

Appellant now contends:

This ruling was wrong. In the analogous situation of a trial court wrongly denying a Marsden motion brought after verdicts are returned, the proper remand is to appoint counsel to fully investigate and present a motion for new trial. The trial courts ruling here prevented new counsel from fully investigating all the possible bases for a motion for new trial and as such, denied appellant his federal constitutional rights to due process and to the effective assistance of counsel. This Court should remand the matter again to allow appellants lawyer to fully investigate and present all arguable bases for seeking a new trial.

A motion for new trial is an application for reexamination of an issue in the same court, before another jury, after a verdict has been given. ( 1179.) The motion may be made after either a jury or a court trial. (In re Rothrock (1939) 14 Cal.2d 34, 40-41.) If the motion is granted, the parties are placed in the same position as if there had been no trial. ( 1180.) The judge who presides at trial should hear and determine the motion for a new trial. (People v. Tokich (1954) 128 Cal.App.2d 515, 517.)

The standard of review used by a trial court acting under section 1181 is different from the standard used by an appellate court under the same section. In ruling upon a motion for a new trial, the trial court is required to independently weigh the evidence. (People v. Drake (1992) 6 Cal.App.4th 92, 98.) The trial court does not disregard the verdict or decide what result it should have reached if the case had been tried without a jury. Rather, it considers the proper weight to be accorded to the evidence and then decides whether or not, in its opinion, there is sufficient credible evidence to support the verdict. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215, citing People v. Robarge (1953) 41 Cal.2d 628, 633.) The appellate court will not modify or set aside the verdict if there is any substantial evidence to support it. (People v. Drake, supra, 6 Cal.App.4th at p. 98.) On appeal, a trial courts ruling on a motion for new trial is subject to review for abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 667.)

A trial court may grant a motion for new trial on the ground of ineffective assistance of counsel. (People v. Chavez (1996) 44 Cal.App.4th 1144, 1148.) Although ineffective assistance of counsel is not among the grounds enumerated for ordering a new trial under section 1181, motions alleging ineffective assistance are permitted pursuant to the constitutional duty of trial courts to ensure that defendants be accorded due process of law. To prevail on this ground, a defendant must show both that his counsels performance was deficient when measured against the standard of a reasonably competent attorney and that counsels deficient performance resulted in prejudice to defendant in the sense that it so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (People v. Callahan (2004) 124 Cal.App.4th 198, 209, 212.)

On remand in the instant case, appellant sought the opportunity to present a Pitchess motion to the trial court to (a) disclose evidence of possible prior misconduct by the Sanger police officers involved in the March 24, 2002, shooting; (b) identify ineffective assistance of original trial counsel due to actions and/or omissions with respect to a Pitchess inquiry; and (c) establish a constitutional basis for a new trial motion based on inadequacy of trial counsel. The trial court, on remand, concluded the request was outside the scope of our dispositional language. The trial court erred.

The primary purpose of the requirement that counsel render effective assistance is to ensure a fair trial. Thus, the benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. (People v. Callahan, supra, 124 Cal.App.4th at p. 212.) Here, this assessment cannot be made absent an appropriate inquiry pursuant to Pitchess and related statutory principles (Evid. Code,  1043-1045). To hold otherwise would fail to carry out the letter and spirit of the dispositional language of our prior opinion and would essentially neutralize or undermine an available constitutional groundthe effectiveness of counsel under the Sixth Amendmentfor a posttrial motion for new trial.^[5]

The matter must again be remanded to the superior court with instructions to vacate the judgment of sentence and allow appellant to file, within 30 days of the date of remittitur, a motion pursuant to Pitchess, supra, 11 Cal.3d 531. If appellant fails to timely file such a motion or if adjudication of such a motion fails to yield relevant information in the personnel files of the police officers in question, then the court may simply reinstate the sentence imposed on May 9, 2006. If such a motion yields relevant information in the personnel files of the police officers, then the trial court must exercise its broad statutory discretion to determine whether a new trial should be granted. Before ordering a case retried, the trial court must make its independent determination, under article VI, section 13 of the California Constitution, both that error occurred and that the error prevented the complaining party from receiving a fair trial. (People v. Ault (2004) 33 Cal.4th 1250, 1262-1263.) If the superior court declines to order the case retried, then it may reinstate the sentence imposed on May 9, 2006.

DISPOSITION

The convictions of the substantive crimes in counts I, II and III and each of the attendant findings and enhancements are affirmed. The sentence imposed is vacated and the matter is remanded to the trial court to allow appellant to file within 30 days of the date of remittitur a motion pursuant to People v. Pitchess, supra, 11 Cal.3d 531. If appellant fails to timely file such motion or if adjudication of such motion fails to yield relevant information in the personnel files of the three police officers in question resulting in the filing by appellant within the next succeeding 30 days of a renewed motion for new trial based on such relevant information, then the trial court may simply reinstate the sentence imposed on May 9, 2006. If such a motion for new trial is filed, the trial court shall proceed accordingly exercising its broad statutory discretion to determine whether a new trial should be granted. If the superior court declines to order the case retried it shall reinstate the sentence imposed on May 9, 2006.

_____________________

HARRIS, Acting P.J.

WE CONCUR:

_____________________

HILL, J.

_____________________

KANE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] While the trial court was not specific in its statement or minute order, the record makes it clear that the willful, deliberate, and premeditated striking was for the purpose of section 664, subdivision (f) and not subdivision (a) of that section.

^[3]The facts are taken substantially verbatim from our nonpublished opinion filed May 20, 2005.

^[4]In Pitchess, supra, 11 Cal.3d at pages 536 to 537, the Supreme Court established that a criminal defendant could compel discovery of certain relevant information in the personnel files of police officers by making general allegations which establish some cause for discovery of that information and by showing how it would support a defense to the charge against him. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019 (Warrick).)

In 1978, the California Legislature codified the holding of Pitchess by enacting Penal Code sections 832.7 and 832.8, as well as Evidence Code sections 1043 through 1045. To initiate discovery, the defendant must file a motion supported by affidavits showing good cause for the discovery, first by demonstrating the materiality of the information to the pending litigation, and second by stating upon reasonable belief that the police agency has the records or information at issue. (Evid. Code,  1043, subd. (b)(3).) This two-part showing of good cause is a relatively low threshold for discovery. (Warrick, supra, 35 Cal.4th at p. 1019, citing City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.)

If 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. (People v. Mooc (2001) 26 Cal.4th 1216, 1226-1227.) The trial court may not disclose complaints more than five years old, the conclusions of any officer who investigates a citizen complaint of police misconduct, or facts so remote as to make [their] disclosure of little or no practical benefit. (Evid. Code,  1045, subd. (b).) Typically, the trial court discloses only the names, addresses, and telephone numbers of individuals who have witnessed, or have previously filed complaints about, similar misconduct by the officer. (See Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1089-1090.) That practice imposes a further safeguard to protect officer privacy where the relevance of the information sought is minimal and the officers privacy concerns are substantial. (Id. at p. 1090; Warrick, supra, 35 Cal.4th at p. 1019.)

To show good cause as required by Evidence code section 1043, defense counsels declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence that would support those proposed defenses. These requirements ensure that only information potentially relevant to the defense need be brought by the custodian of the officers records to the court for its examination in chambers. In other cases, the trial court hearing a Pitchess motion will have before it defense counsels affidavit, a police report, witness statements, or other pertinent documents. The court then determines whether defendants averments, viewed in conjunction with the police reports and other documents, suffice to establish a plausible factual foundation for the alleged officer misconduct and articulate a valid theory as to how the information sought might be admissible at trial. (Warrick, supra, 35 Cal.4th at pp. 1024-1025.)

A plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing puts the court on notice that the specified officer misconduct will likely be an issue at trial. Once that burden is met, the defendant has shown materiality under Evidence Code section 1043. (Warrick v. supra, 35 Cal.4th at p. 1026.)

To determine whether the defendant has established good cause for an in-chambers review of an officers personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: 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? If defense counsels affidavit in support of the Pitchess motion adequately responds to these questions, and states upon reasonable belief that the governmental agency identified has the records or information from the records (Evid. Code, 1043, subd. (b)(3)), then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant. (Warrick, supra, 35 Cal.4th at pp. 1026-1027.)

^[5]The California Supreme Court recently observed: