Filed 10/11/17 P. v. Byrket CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill and Harry A. Staley (retired Judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Judges.*

Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

After defendant David Scott Byrket’s adult son called 911 to report defendant was behaving erratically, an incident occurred between defendant and Kern County Sheriff’s Deputy Geherty during transport to a mental health crisis clinic. As a result of the incident, defendant was charged with resisting an executive officer with force or violence, in violation of Penal Code section 69, and subsequently convicted following a trial by jury.[1] The trial court suspended imposition of sentence and placed defendant on probation for three years, with the first 120 days to be served in jail as a condition of probation.

On appeal, defendant claims the court erred in admitting testimony that the internal affairs investigation into the events underlying his offense did not result in any disciplinary consequences for Geherty. Defendant also claims the court erred in its instruction to the jury on that evidence and, cumulatively, the evidentiary and instructional errors deprived him of a fair trial. Finally, defendant claims the trial court abused its discretion in withholding five percipient witness statements he sought pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

The People agree with defendant’s request that we conduct an independent review of the Pitchess motion proceedings and remand the matter for a showing of prejudice should we find the trial court failed to disclose discoverable information. They otherwise dispute defendant’s entitlement to any relief.

We conclude defendant’s challenges to the trial court’s evidentiary ruling and instruction to the jury lack merit. However, we find the trial court abused its discretion in denying defendant’s motion for percipient witnesses’ statements. We therefore conditionally reverse the judgment and remand the matter for further proceedings. (People v. Gaines (2009) 46 Cal.4th 172, 180–181 (Gaines).)

FACTUAL SUMMARY[2]

I. Prosecution Case

At the time of the offense, defendant lived in the Kern County town of Onyx with his wife, an adult son and a daughter.[3] On the morning of April 21, 2013, defendant’s son, David, telephoned 911 and reported his father had “lost his mind” and was “mentally not there.” David said defendant was “running up and down the streets” and “yelling,” was “not himself,” and “need[ed] a psychiatric evaluation.” David said his father had been that way for a few days. While deputies with the Kern County Sheriff’s Office were en route to Onyx, a neighbor also made a 911 call and told the dispatcher defendant is “kind of a big, scary guy but he’s 5150.” The neighbor said, “[T]ry not to hurt him, okay, because he’s a nice guy. He’s just out of it today.”

Kern County Sheriff’s Deputies Geherty, Garza and Brooks responded to defendant’s residence in separate patrol cars to conduct a welfare check. Upon arrival, Geherty made contact with David while Garza made contact with defendant. Garza testified defendant was running in the road in a zigzag pattern and jumped on a fence, and he was yelling about his daughter being raped and wanting to go to jail. Defendant was described as alternating between calm and agitation. Defendant voluntarily entered Garza’s patrol car and was agreeable to going to Mary K. Shell, a mental health crisis center in Bakersfield.

The 911 call was assigned to Geherty and, therefore, defendant was transferred to Geherty’s patrol car for voluntary transportation to Mary K. Shell. Approximately 10 minutes into the transport, Geherty noticed defendant was slipping his handcuffs from the back of his body to the front of his body. Defendant did not comply with orders to stop and Geherty pulled his patrol car over near the entrance to Red’s Marina at Lake Isabella. Defendant unbuckled his seatbelt and began kicking the window of the patrol car. After Geherty threatened to spray him with pepper spray if he did not stop, defendant represented he would stop, rolled over onto his stomach and placed his hands behind his head in compliance with Geherty’s order. As Geherty went to open the passenger door, defendant kicked it open and used his body to prevent Geherty from closing it again.

Defendant and Geherty ended up struggling on the ground as Geherty attempted to regain control over defendant and get his hands cuffed behind his back again. Geherty had already placed two radio calls, the first to report defendant slipped his cuffs and the second to report defendant was resisting arrest. While Geherty was on the ground struggling with defendant but before responding officers arrived, citizen Carol Yates witnessed the struggle and pulled her vehicle over. She approached and offered her assistance but Geherty waved her off, concerned she would get hurt. She stood nearby and watched until other officers arrived. She then left the scene but returned with her father and provided a statement to an officer.

In response to Geherty’s radio call for assistance, four deputies, including Garza and Brooks, and two Kern County Parks and Recreation Department officers responded to the scene. Officers succeeded in gaining control over defendant, handcuffing him behind his back again and hobbling his legs.[4] Defendant was then returned to Geherty’s patrol car and transported to jail.

II. Defense Case

Testifying for the defense, Zina said defendant had no history of mental illness and was not violent. She said they had been arguing the morning of the incident because defendant wanted to kick David out of the house. She was upset and left. However, in a recorded telephone call defendant placed from the jail the day after his arrest, he told Zina he messed up and did not know why he was there. Zina responded that he needed mental help and had been crazy for the past few weeks. In a second recorded telephone call the same day, Zina told defendant he was going insane.

David testified that he has problems with alcohol on and off and the day before the incident, he was at a wedding where he drank. He came home early the next morning and went to bed, but defendant woke him up and wanted him to do yardwork. They argued and defendant told him to pack his bags. David testified that in an effort to get defendant picked up and taken away, he called 911 and lied about defendant’s behavior. He also testified he lied to his neighbor about defendant’s behavior and the neighbor called 911 at David’s request. David testified he then lied to Zina and his brother, Jonathan, about defendant’s behavior. He testified he did not tell them the truth about the situation until two or three days later.

The defense also presented evidence that during the second telephone call defendant made from jail, he told Jonathan he needed to go to the hospital and he had broken bones. After his release from jail, Zina took some photographs of bruises and marks on defendant’s body. Zina testified the photos were taken at the same time, with the exception of the photo of his side. Additionally, she was unsure when she took the photo of his hand. However, during cross-examination, the prosecutor elicited evidence that of the photos Zina testified were taken at the same time, defendant was not wearing the same clothing in every shot.

Defendant’s primary care physician testified that he saw defendant on April 29, 2013, for rib and chest pain. Subsequent evaluation revealed recently fractured ribs and a spinal compression. The doctor defined “recent” for purposes of the fractures as sustained within days or a few weeks of the X-ray. The doctor also testified, however, that defendant has a history of severe osteoporosis, which renders sufferers more susceptible to fractures. He also testified that he saw defendant eight days after his arrest and, while bruises start to turn yellow and green within two or three days of injury, defendant’s bruising appeared fresh.

DISCUSSION

I. Evidentiary and Instructional Errors

A. Background

Prompted by defendant’s complaint of officer misconduct (misconduct complaint), the Kern County Sheriff’s Department conducted an internal affairs investigation into the alleged use of excessive force against defendant during the incident underlying his conviction in this case.[5] At trial, the defense sought to use witness statements provided during the course of that investigation for impeachment purposes. During defense counsel’s cross-examination of Brooks, counsel referred to the statement Brooks gave to a sergeant from internal affairs. The prosecutor objected to the mention of internal affairs on the ground it violated an in limine ruling and she stated she was unaware the internal affairs investigation was going to be raised at trial. She contended it was unfair for the jury to hear about an internal affairs investigation without learning what happened or the result.

The trial court ruled that if it admitted the statements to internal affairs, counsel could cross-examine the witnesses regarding their statements without specifically referring to internal affairs. The court also denied the prosecutor’s request that the jury be instructed to disregard the comment about internal affairs on the ground the proposed instruction would call undue attention to the internal affairs reference. In addition, without yet ruling on admissibility, the court directed the prosecutor to let witnesses Armstrong and Eades know that if they were questioned about their interview statements, they should refrain from referring to internal affairs.

During defense counsel’s subsequent cross-examination of Armstrong, he asked Armstrong about a statement he made to a sergeant and Armstrong responded, “If you’re referring to an Internal Affairs investigation.” Melby, a reserve deputy with the sheriff’s department, also mentioned internal affairs when defense counsel was cross-examining him about reports he reviewed prior to testifying. Melby responded, “Yeah. I did not recall the whole incident. I didn’t even know I was dealing with Mr. Byrket until I was called to Internal Affairs.” In both instances, defense counsel proceeded with his questioning without objection and the witnesses did not repeat their references to internal affairs.

The next morning outside the presence of the jury, the prosecutor informed the court she had spoken with Geherty and he had a letter with the internal affairs investigation results. She wanted to include testimony on the issue “since so much of it has come up.” Defense counsel argued the results were founded on a biased investigation and results of an internal affairs investigation are not admissible.

After hearing argument from both parties, the trial court later proposed instructing the jury, “The conclusions of an officer investigating a complaint against a peace officer are not admissible in a criminal proceeding. The jury is admonished that it may not speculate or give any thought or consideration to the Internal Affairs investigation that was referenced by several of the witnesses.” The parties agreed.

During the afternoon session, the prosecutor again broached the subject of Gerherty testifying regarding the internal affairs investigation. She acknowledged that evidence of the investigation’s conclusion was excluded under the law, but she wanted to question Geherty regarding any employment-related ramifications. Defense counsel argued the People were seeking to introduce evidence that was directly barred under the law. The court found that its previously proposed admonition was sufficient.

The prosecutor subsequently informed the court that after some brief research, she believed the law distinguished between investigatory conclusions and discipline resulting from an investigation. The court expressed willingness to revisit the issue conditioned on the parties, and the prosecutor in particular, conducting research. The next morning following argument and over defendant’s due process objection, the court modified its ruling to permit Geherty to testify the internal affairs investigation had concluded and whether or not he was disciplined. The court stated it had conducted a balancing of factors under Evidence Code section 352 and was not going to allow evidence on the substance of the internal affairs investigation, as it would be unduly consumptive of time, not particularly probative, and prejudicial. The court then provided the parties with a proposed jury instruction relating to that evidence. Defense counsel again objected.

Geherty thereafter testified there was an internal affairs investigation as a result of this case, it had concluded, he did not have to take a day off of duty because of the investigation and no disciplinary action was taken against him because of or based on the investigation. On cross-examination, Geherty testified that as a result of the complaint against him by defendant, he did not sustain any discipline.

B. Admission of Testimony Regarding Disciplinary Consequences

Defendant argues the trial court permitted Geherty’s testimony based on a misunderstanding of the law and disregard of the facts, which constituted an abuse of discretion and resulted in a fundamentally unfair trial in violation of his federal constitutional rights. Specifically, defendant contends the court misunderstood the California Supreme Court’s decision in City of San Jose v. Superior Court (1993) 5 Cal.4th 47 (City of San Jose) to be “some form of mandate to admit the evidence” and it misunderstood the facts to the extent it believed the defense had “‘opened the door’” to the evidence for purposes of rebuttal or to correct a misperception.

The People respond that it appears defendant failed to object specifically to the evidence on Evidence Code section 352 grounds and to the extent he now challenges the evidence on appeal on any grounds other than argued at trial, the claim was forfeited. They also argue defendant’s claim fails on its merits and any error was harmless.

1. Standard of Review

On appeal, we presume the trial court’s evidentiary ruling was correct and defendant bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644, 666.) Trial courts have broad discretion in determining the admissibility of evidence and we review challenges to the admission of evidence for abuse of discretion. (People v. Jackson (2016) 1 Cal.5th 269, 320–321.) Under this standard, the court’s ruling “‘“will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]’” (People v. Lewis (2009) 46 Cal.4th 1255, 1286; accord, People v. Jackson, supra, at p. 321.)

2. Analysis

a. Forfeiture Argument

As an initial matter, we observe that while the failure to object in the trial court generally forfeits a claim on appeal and this principle applies to constitutional claims, there are exceptions to this rule and courts have the discretion to consider an issue notwithstanding the failure to object. (People v. McCullough (2013) 56 Cal.4th 589, 593; In re Sheena K. (2007) 40 Cal.4th 875, 880–881, 887–888, fn. 7.) Given our determination there was neither an abuse of discretion nor prejudice, discussed post, we need not decide whether defendant’s objections in the trial court were sufficient to preserve the issues he advances on appeal.

b. Misunderstanding of the Law

Turning to the merits of defendant’s claim, we are not persuaded by the argument that the trial court misunderstood the law and permitted testimony on the disciplinary consequences based on an erroneous belief it was compelled to do so under City of San Jose. Instead, the record shows that the court arrived at its decision to permit the testimony as the issue evolved throughout the course of trial and with a firm understanding of the proper scope of City of San Jose.

More than 40 years ago in Pitchess, the California Supreme Court recognized “that a criminal defendant’s fundamental right to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information entitled a defendant, who was asserting self-defense to a charge of battery on a police officer, to discovery of police personnel records.” (City of San Jose, supra, 5 Cal.4th at p. 52, citing Pitchess, supra, 11 Cal.3d at pp. 535–537.) The California Legislature subsequently codified the privileges and procedures that flowed from the Pitchess decision. (City of San Jose, supra, at pp. 50–52.) Relevant here, Evidence Code section 1045 specifically excludes from disclosure, in any criminal proceeding, an investigating officer’s conclusions. (Id., subd. (b)(2).) In City of San Jose, the California Supreme Court subsequently held that these statutory discovery exclusions also apply to juvenile proceedings and, under the statutory scheme, discipline imposed as a result of an investigation must be disclosed. The court rejected the argument “that ‘discipline imposed’ is the equivalent of the ‘conclusions’ of an officer investigating a citizen’s complaint.” (City of San Jose, supra, at p. 55.)

In this case, the trial court expressly recognized that in City of San Jose, an investigating officer’s conclusions are defined as “the thought processes of, and factual inferences and deductions drawn by, an officer investigating a complaint, concerning such matters as the credibility of witnesses or the significance, strength, or lack of evidence.” (City of San Jose, supra, 5 Cal.4th at p. 55.) However, the court also recognized that City of San Jose further provides, “We see no indication that the Legislature intended the term to include the investigating body’s ruling on the complaint or the nature of any discipline imposed. As [the respondent] correctly asserts, the statutory scheme reveals a legislative intent to allow disclosure of the outcome of an investigation, i.e., the discipline imposed, without also requiring disclosure of how or why the investigating body reached that outcome.” (Ibid.)

Here, at a minimum, defense counsel’s trial objections impliedly conflated evidence of the investigating officer’s conclusions with evidence of the disciplinary consequences.[6] As the trial court explained, the decision in City of San Jose compelled its rejection of any argument that in seeking admission of the disciplinary consequences, the prosecutor was seeking to introduce evidence prohibited under Evidence Code section 1045. Thus, the trial court discussed City of San Jose not in the context of believing it was required to admit Geherty’s testimony, but in explaining its rejection of counsel’s argument that the evidence was prohibited from disclosure by statute. We find no express or implied support in the record for defendant’s argument that the court’s evidentiary ruling was driven by a misunderstanding of the reach of City of San Jose.

Additionally, City of San Jose addresses the discoverability of evidence rather than its admissibility in court and, as defendant points out, discoverability is broader than admissibility. The trial court did not overlook either point, however. The court expressly recognized that City of San Jose was decided not in the context of a criminal trial, but in the context of whether Pitchess motion proceedings applied in juvenile court.

c. Disregard of Facts

Likewise, we reject defendant’s argument that the trial court disregarded or misinterpreted the facts. This argument draws on the court’s comments regarding its concern about “the specter of wrongdoing that’s inherent in the reference [to] an [internal affairs] investigation.” Defendant contends that to the extent the court admitted the evidence for rebuttal or to correct a misperception created by the defense, the ruling lacked a basis in fact and was, therefore, an abuse of discretion.

To the contrary, we find the record reflects the trial court took care in considering whether to admit the disputed evidence, and it contradicts defendant’s argument that the ruling rested on the court’s determination that defense counsel “‘opened the door’” to the evidence. The prosecutor in this case assigned responsibility for the introduction of the internal affairs issue to defense counsel. However, the court expressly rejected this view. The court recognized defense counsel’s entitlement to cross-examine witnesses regarding prior inconsistent statements and after counsel referred to the internal affairs investigation one time, he complied with the court directive not to do so again. The court further recognized that the individuals who subsequently referred to the internal affairs investigation were prosecution witnesses and they did so despite presumably being told by the prosecutor not to, as directed by the court.

d. Conclusion

Based on the foregoing, we conclude the trial court did not misunderstand the law or the facts and we reject defendant’s claim that the trial court abused its discretion on those bases. Defendant cites no authority on appeal for the proposition that the evidence was inadmissible under the law and he advances no other grounds in support of his argument that its admission was an abuse of discretion.

As the People state, under California law, all relevant evidence is admissible except as otherwise provided by statute. (Evid. Code, § 351.) Section 352 of the Evidence Code is one such statute, providing that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” However, defendant does not claim that the trial court abused its discretion under section 352 of the Evidence Code, and the record demonstrates the court considered potential prejudice under the statute. The record makes clear that in admitting the evidence, the court was attempting to balance the equities in terms of avoiding any prejudice to either side arising from the mention of an internal affairs investigation.[7]

Accordingly, we find defendant has not met his burden of demonstrating error on appeal with respect to the admission of Geherty’s testimony and we reject his claim that its admission violated his right to due process. (People v. Winbush (2017) 2 Cal.5th 402, 458 [proper admission of testimony vitiates the derivative constitutional claim]; People v. DeHoyos (2013) 57 Cal.4th 79, 120 [as a general rule, violation of state evidentiary rules not of constitutional magnitude].)

e. No Prejudice

State law errors are reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson), which requires a determination whether “it is … reasonably probable that a result more favorable to [the] defendant would have been reached in the absence of the error.” (Id. at p. 837; People v. Aranda (2012) 55 Cal.4th 342, 354.) We conclude that even assuming error, the admission of Geherty’s limited testimony was harmless.

Defendant was convicted of resisting Geherty with force or violence. (§ 69.) This required the jury to find, in relevant part, that Geherty was acting lawfully at the time the offense was committed. (People v. Smith (2013) 57 Cal.4th 232, 240–241; In re Manuel G. (1997) 16 Cal.4th 805, 816.) An officer’s use of excessive force renders an arrest unlawful and this was the theory defendant pursued at trial. (People v. Olguin (1981) 119 Cal.App.3d 39, 44–46; People v. White (1980) 101 Cal.App.3d 161, 166–167.) This defense depended on attacking Geherty’s credibility, with the hope the jury would doubt or reject his version of events.

Given the evidence adduced at trial, we are not persuaded the brief, limited testimony that Geherty was not disciplined as a result of the internal affairs investigation was so damaging that its introduction prejudiced defendant. While only defendant and Geherty were present in the patrol car when the incident underlying the offense began, as defendant contends, multiple officers testified regarding defendant’s agitated demeanor prior to transport and the jury heard his son’s telephone call to 911, which the prosecutor reasonably characterized in argument as urgent in tone and motivated by fear. The jail phone calls between defendant and his wife added to the evidence of defendant’s compromised mental state.

Multiple witnesses also testified defendant entered the patrol car willingly and cooperatively, and he agreed to be transported to Mary K. Shell. He was not under arrest at that time. During the transport, Geherty radioed first that defendant slipped his handcuffs and, subsequently, that he was resisting arrest. In addition to Geherty’s testimony regarding defendant’s actions in the patrol car, independent third party witness Yates testified she saw the physical altercation occurring on the side of the road.[8] She feared for Geherty’s safety and remained on the scene until other officers arrived. She also saw Geherty hit defendant only once with his baton, consistent with Geherty’s testimony, and she testified defendant was resistant and uncooperative. Other officers who subsequently arrived also testified regarding defendant’s physical resistance and lack of cooperation.

This was a strong prosecution case and the defense was largely reliant on the difficult task of attempting to undermine the credibility of law enforcement witnesses. On this record, we conclude it is not reasonably probable that defendant would have obtained a more favorable verdict in the absence of Geherty’s testimony that he did not sustain any discipline as a result of the internal affairs investigation.

C. Jury Instruction Regarding Internal Affairs Evidence

Defendant also challenges the trial court’s instruction to the jury regarding the internal affairs investigation and evidence of the disciplinary consequences. Defendant argues that even if the trial court did not err in admitting Geherty’s testimony regarding the disciplinary consequences, its instruction to the jury highlighted Geherty’s testimony that he did not sustain any discipline and the instruction was therefore improperly argumentative. The People contend the instruction did not highlight evidence that was favorable to the prosecution. Instead, it simply informed the jury that the fact of whether discipline was or was not imposed could be presented and it was for the jury to determine the facts based on the evidence presented. Further, any error was harmless.

1. Legal Standard

We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)

An improperly argumentative instruction is one that invites the jury to draw inferences in favor of one party or the other “‘from specified items of evidence on a disputed question of fact.’” (People v. Santana (2013) 56 Cal.4th 999, 1012.) Conversely, a proper instruction pinpoints not specific evidence as such, but the party’s theory of the case. (Ibid.) “‘An instruction should contain a principle of law applicable to the case, expressed in plain language, indicating no opinion of the court as to any fact in issue.’” (People v. Wright (1988) 45 Cal.3d 1126, 1135.) “nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury.” ([i]People v. Holt (1997) 15 Cal.4th 619, 677; see People v. Thomas (2011) 52 Cal.4th 336, 356.) Jurors are presumed to have understood and followed the trial court’s jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)

2. Analysis

The challenged jury instruction, which was drafted by the court based on City of San Jose, is as follows: “The conclusions of an officer investigating a complaint against a peace officer are not admissible in a criminal proceeding. The conclusions are the thought processes of and factual inferences and deductions drawn by an officer investigating a complaint concerning such matters as the credibility of witnesses or the significant strength or lack of evidence. However, the fact that discipline against the officer was imposed or was not imposed may be presented to the jury.

“Deputy Geherty has testified regarding that. You are not to speculate or give any thought or consideration to any other aspect of the Internal Affairs investigation against Deputy Geherty, and it is up to you to decide what the facts are in this case based solely on the evidence you have received during the course of this trial.”

We do not agree this instruction invited the jury to draw inferences favorable to the prosecution on a disputed issue of fact. (People v. Santana, supra, 56 Cal.4th at p. 1012.) As previously stated, the trial court was attempting to balance the equities so that the jury did not draw any impermissible inferences in favor of one party over the other in light of the repeated mentions of the internal affairs investigation. Although Geherty’s testimony was favorable to the prosecution because he did not suffer any disciplinary consequences as a result of the investigation, the disputed instruction did no more than inform the jury of the law and that it was to find the facts from the evidence presented at trial. Defendant does not argue the instruction misstated the law and although the instruction mentioned the fact that Geherty testified, it did not highlight his favorable testimony and merely related the legal instruction to the evidence to which it applied.

In any event, any error was harmless. The Watson standard of review applies to claims of argumentative instruction (People v. Santana, supra, 56 Cal.4th at p. 1012) and, as we have discussed, the fact that Geherty was not disciplined as a result of the internal affairs investigation was a relatively minor point when viewed in the context of the evidence adduced at trial. As well, the testimony on that issue was brief and not detailed. Critically, multiple law enforcement witnesses and an independent third party witness testified regarding defendant’s continued resistance while Geherty attempted to gain physical control over him. Given the strength of the prosecution’s case, there is no reasonable probability of a more favorable verdict had the challenged instruction not been given. (Ibid.)

D. Cumulative Error

Finally, defendant argues that in combination, the admission of Geherty’s testimony and the jury instruction violated his rights. “In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error.” (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Having rejected defendant’s claims the trial court erred in admitting Geherty’s testimony and in instructing the jury regarding that evidence, we necessarily reject his claim of cumulative error. (People v. Williams (2013) 56 Cal.4th 165, 201; People v. Sedillo, supra, at p. 1068.)

II. Independent Review of Pitchess Proceedings

A. Procedural Background

During the course of criminal proceedings in this case, defendant filed more than one Pitchess motion. This appeal concerns one of the two supplemental Pitchess motions filed on July 24, 2014. A hearing on the motions and an in camera review of the material sought were held on August 15, 2014.

In the first supplemental motion, defendant requested percipient witness statements obtained during the course of the internal affairs investigation into his misconduct complaint. In the second supplemental motion, he requested additional information relating to the previously disclosed misconduct complaints filed by third parties Andrea Sanchez and Brian Dickerson after the initial disclosure of their names and addresses proved insufficient to locate them. (See Rezek v. Superior Court (2012) 206 Cal.App.4th 633, 641 (Rezek).) The trial court granted both requests for further discovery, subject to in camera review.

In an effort to locate relevant percipient witness statements, the trial court reviewed the internal affairs report prepared by the Kern County Sheriff’s Department and the personnel files of Armstrong and Eades, both of whom worked for the Kern County Parks and Recreation Department and provided statements during the course of the internal affairs investigation.[9] The court ordered the disclosure of the statements made by Armstrong and Eades and the statements of third party witnesses Smith and Yates. The court withheld statements made by Geherty, Garza, Brooks, Melby and Kirkham, all of whom were employees of the Kern County Sheriff’s Department. The court also reviewed the files on Sanchez’s and Dickerson’s misconduct complaints and ordered the disclosure of their complaints along with the incident report to Sanchez’s complaint containing witnesses’ names and addresses.[10]

Defendant requests we conduct an independent review of the Pitchess proceedings conducted on August 15, 2014, to ensure that the trial court complied with the procedural requirements set forth in People v. Mooc (2001) 26 Cal.4th 1216, 1228–1229 (Mooc), and did not abuse its discretion in refusing to order the disclosure of the statements made by Geherty, Garza, Brooks, Kirkham and Melby. Defendant seeks conditional reversal and an order directing the court to conduct an in camera review, as he cannot evaluate whether the nondisclosure was prejudicial without reviewing the withheld statements.[11] The People do not object to our independent review of the trial court’s Pitchess proceedings and they agree a limited remand for the purpose of showing prejudice is appropriate should we determine discoverable information exists.

B. Standard of Review

The procedure for obtaining discoverable information from law enforcement personnel files is well established. Pursuant to Evidence Code section 1043, subdivision (b), “on a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ‘“materiality” to the subject matter of the pending litigation and a “reasonable belief” that the agency has the type of information sought.’ [Citation.] A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], ‘the trial court should then disclose to the defendant “such information [that] is relevant to the subject matter involved in the pending litigation.”’” (Gaines, supra, 46 Cal.4th at p. 179.)

On appeal, a defendant may request we conduct an independent review of the proceedings and the trial court’s determination regarding the presence or absence of discoverable information. (People v. Townsel (2016) 63 Cal.4th 25, 67–68 (Townsel); People v. Yearwood (2013) 213 Cal.App.4th 161, 179–180.) “A trial court is afforded wide discretion in ruling on a motion for access to law enforcement personnel records. The decision will be reversed only on a showing of abuse of discretion.” (People v. Yearwood, supra, at p. 180, citing People v. Hughes (2002) 27 Cal.4th 287, 330.)

C. Analysis

We have conducted an independent review of the in camera proceedings and we find the trial court complied adequately with the proper procedural requirements set forth in Mooc, supra, 26 Cal.4th at pages 1228–1230.[12] At issue, then, is whether it abused its discretion by erroneously withholding discoverable information.

1. Eades’s Missing Personnel File

As an initial matter, we briefly address the missing personnel file of Eades, which the trial court reviewed for any statements relevant to the internal affairs investigation. In response to our request for the records reviewed by the trial court on August 15, 2014, we received Armstrong’s file, but in a written statement, Chief Ranger Ron Rice said Eades retired approximately two years ago and his personnel file cannot be located.

The statements made by Armstrong and Eades are part of the internal affairs report. The only information the court located in the personnel files of Armstrong and Eades relating to the internal affairs investigation was a letter of notice that defendant filed a misconduct complaint and a subsequent letter of notice of the investigation’s outcome.

We find the trial court’s in camera review record is adequate to enable us to conduct a meaningful review regarding Eades’s personnel file and that record does not suggest the court improperly withheld any material information. (Townsel, supra, 63 Cal.4th at pp. 68–69.) As well, Eades’s witness statement that was the subject of the supplemental Pitchess motion was part of the internal affairs report and was disclosed to defendant. Under those circumstances, defendant cannot show any prejudicial impact resulting from the loss or destruction of Eades’s personnel file.[13] (See Townsel, supra, at pp. 68–70; Gaines, supra, 46 Cal.4th at pp. 182–183; People v. Samuels (2005) 36 Cal.4th 96, 110.)

2. Statements Made By Geherty, Garza, Brooks, Kirkham and Melby

Turning to the internal affairs investigation statements, the trial court ordered the disclosure of the statements made by Yates, Smith, Armstrong and Eades, but withheld the statements made by Geherty, Garza, Brooks, Kirkham and Melby. Regarding Geherty’s statement, the trial court stated, “There is no good cause to show that there be any inconsistencies in his statements he’s already produced in the police reports or law enforcement reports.” Regarding the other four witnesses, the court stated, “At this point the Court is not aware of whether Phillip Garza, a senior deputy, made a report and does not find good cause to release his statement; the same for Joshua Brooks, not being ordered or Reserve Deputy Dennis Melby; Cyrus Kirkham; however, the Court would order that their names be revealed as persons present.”

This was error. Defendant sought the statements of percipient witnesses to the events underlying his arrest in this case. (Rezek, supra, 206 Cal.App.4th at p. 643.) That information is material and the trial court did not rule otherwise. (Id. at p. 644.) Rather, the trial court withheld Geherty’s statement because it was not inconsistent with other statements he gave. The court’s brief explanation suggests it withheld the other statements because there was no showing those witnesses wrote any reports. Those are not grounds for denying discovery, however. If the information is relevant and is not otherwise subject to exclusion under the law, it must be disclosed. (Gaines, supra, 46 Cal.4th at pp. 179, 182.) “[A] defendant is entitled to discover relevant information under Pitchess even in the absence of any judicial determination that the potential defense is credible or persuasive” (id. at p. 182), and it appears the court improperly withheld the material based on such a determination here. We also note the absence of any express or implied distinction made by the court between the Kern County Parks and Recreation officers’ statements it disclosed and the Kern County Sheriff’s Department officers’ statements it did not disclose. All were percipient witnesses who were present at Red’s Marina during the events underlying defendant’s arrest and all testified at trial.

“A defendant’s need for the statements of percipient witnesses to the charged crime is of constitutional dimension and is based on the right to a fair trial, effective assistance of counsel, confrontation and cross-examination. [Citations.] When the defendant seeks the statements of witnesses to the charged incident, an officer’s privacy interests are implicated less than when the information sought pertains to past incidents unconnected to the charged offense.” (Rezek, supra, 206 Cal.App.4th at p. 643.) “The materiality of statements of alleged eyewitnesses to the charged offenses is ‘self-evident.’” (Id. at p. 644.) Accordingly, we conclude the trial court abused its discretion in failing to order disclosure of the statements Geherty, Garza, Brooks, Melby and Kirkham gave to the internal affairs investigator.[14] Defendant is entitled to conditional reversal and remand for further proceedings. (See People v. Fernandez (2012) 208 Cal.App.4th 100, 123.) If, after disclosure of the statements, defendant elects to move for a new trial, he will be required to demonstrate a reasonable probability the outcome would have been different had the information been disclosed. (Gaines, supra, 46 Cal.4th at pp. 182–183.)

DISPOSITION

The judgment is conditionally reversed with directions to the trial court to (1) order disclosure of the internal affairs statements made by Geherty, Garza, Brooks, Melby and Kirkham and (2) allow defendant a reasonable opportunity to investigate the newly disclosed material and determine whether it would have led to any relevant and admissible evidence he could have presented at trial. If defendant can demonstrate he was prejudiced by the denial of this discovery, the trial court must order a new trial. In all other respects, the judgment is affirmed and if defendant cannot demonstrate prejudice as a result of the denial of discovery, the judgment is to be reinstated.

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MEEHAN, J.

WE CONCUR:

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GOMES, Acting P.J.

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FRANSON, J.