P. v. Lowe









Filed 3/27/17 P. v. Lowe CA3




NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Placer)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JOSHUA MICHAEL LOWE,

Defendant and Appellant.

C078867

(Super. Ct. No. 62125348B)





Defendant Joshua Michael Lowe was convicted of multiple charges related to a series of vehicle burglaries. On appeal, defendant requests this court review the sealed documents related to his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) to determine whether the trial court abused its discretion in determining there were no discoverable materials (Evid. Code, § 1043 et seq.). Because the trial court failed to swear in the custodian of records at the in camera hearing, we remand the case to the trial court with directions to hold a new hearing in which the oath is administered to the custodian of records before he testifies.
FACTS AND PROCEEDINGS
Prior to trial, defendant filed a Pitchess motion to discover citizen complaints with respect to four officers. The trial court found good cause with respect to Officers R. Byers and D. Meier and held an in camera hearing. During the hearing, the trial court reviewed the officers’ personnel files and found no complaints or other relevant evidence in the records. A court reporter was present during the in camera hearing and the record was sealed.
The trial court convicted defendant of petty theft (Pen. Code, § 488, subd. (a), counts ten, thirteen, & seventeen, unless otherwise set forth, statutory references that follow are to the Penal Code), burglary (§ 459; counts eleven & twelve), attempted burglary (§ 664/459; count fourteen), vandalism (§ 594, subd. (b)(2)(a); count fifteen), and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a); count eighteen). The trial court found true count eleven was a violent felony because the victims were in the residence during the burglary. (§ 667.5, subd. (c)(21).) In addition, the trial court found that defendant had a prior strike and a prior prison term. (§§ 667, subds. (a)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)
The trial court sentenced defendant to an aggregate term of 13 years in state prison, as follows: four years for count eleven, doubled for the strike, plus five years for the prior serious felony, a concurrent two years for count twelve, doubled for the strike, six months in county jail for count ten, a concurrent one year in county jail for count fourteen, and a concurrent six months in county jail each for counts thirteen, fifteen, seventeen, and eighteen. At counsels’ request, the trial court struck the punishment for the prior prison term.
DISCUSSION
Defendant requests we independently review the trial court’s ruling regarding his Pitchess motion. The sealed transcript of the hearing reflects that the trial court reviewed the contents of the personnel files that were presented for its review and held that there were no complaints on file for either officer or other relevant evidence. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 (Mooc).)
However, the trial court failed to clarify whether the sheriff’s department’s witness, Lieutenant Troy Sander, was testifying as the custodian of records, and failed to administer the oath to Sander.
As explained in People v. White (2011) 191 Cal.App.4th 1333, 1335 (White), administering the oath to the testifying custodian of records is necessary to “establish the accuracy and veracity of the custodian[’s] representations regarding the completeness of the record submitted for the court’s review” and “protect the defendant’s right to a fair trial . . . .” (White, at pp. 1335, 1340, see also Mooc, supra, 26 Cal.4th at p. 1229, fn. 4.)
Under the circumstances, we will remand the matter to the trial court for further proceedings. (§ 1260 [reviewing court “may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances”]; see also People v. Gaines (2009) 46 Cal.4th 172, 180; White, supra, 191 Cal.App.4th at pp. 1340-1342.) The trial court must hold a new Pitchess hearing during which any witnesses who testify are placed under oath. If the trial court finds there are discoverable records, they shall be produced and the trial court shall conduct such further proceedings as are necessary and appropriate. If the trial court finds there are no discoverable records, or that there is discoverable information but defendant cannot establish that he was prejudiced by the denial of discovery, the judgment shall be reinstated as of that date. Defendant is not precluded from seeking appellate review of the trial court’s rulings on the Pitchess motion following remand. (Gaines, at p. 181, fn. 3 [the defendant retains the right to appeal from the judgment for the limited purpose of challenging the Pitchess findings].)
DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings concerning defendant’s Pitchess motion as described above.



HULL , J.



We concur:



RAYE , P. J.



HOCH , J.
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