Filed 4/30/18 P. v. Kurney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

IRA KURNEY,

Defendant and Appellant.

F074559

(Super. Ct. No. DF012088A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-



Defendant Ira Kurney appeals the denial of his Pitchess motion for discovery of a correctional officer’s personnel records. We affirm.
PROCEDURAL SUMMARY
On September 24, 2015, the Kern County District Attorney charged defendant with conspiracy to possess a controlled substance for sale (Pen. Code, § 182, subd. (a)(1); count 1), possession of a controlled substance for sale (Health & Saf. Code, § 11351; count 2), bringing a controlled substance into a prison (§ 4573; count 3), and possession of a controlled substance in a prison (§ 4573.6; count 4). The information further alleged defendant had suffered 18 prior felony convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
On June 13, 2016, defendant filed a Pitchess motion for discovery of Correctional Officer Carole Estioco-Fountain’s personnel records. The trial court denied the motion.
On September 9, 2016, a jury found defendant guilty on counts 1 through 3. Count 4 was deemed a lesser included offense of count 3. The trial court found the prior conviction allegations true.
On October 18, 2016, the trial court sentenced defendant to four years in prison on count 2, doubled pursuant to the Three Strikes law, for a total of eight years. Eight-year terms on counts 1 and 3 were stayed pursuant to section 654.
FACTS
On May 31, 2014, when defendant was an inmate at Kern Valley State Prison, he was visited by Rene Thompson. Correctional Officer Raul Hernandez was monitoring the visiting room through a live feed video. He observed Thompson place an object into a bag of Doritos. When defendant sat down with Thompson, they sat close to each other. Defendant took the bag, removed the object, and hid it in the rear of his pants. Then he started eating the Doritos with his other hand. Hernandez notified Officer Michael Solis and told him to handcuff defendant and take him to the processing area and have someone stay with Thompson. Solis complied and had Officer Edgar Lacsina stay with Thompson.
Hernandez performed an unclothed body search of defendant. Hernandez observed some type of shiny lubricant around defendant’s anus, and an oily stain on his boxer shorts consistent with the lubricant. At this point, defendant did not voluntarily give Hernandez any contraband. Hernandez went to speak with Thompson, then returned to defendant and asked him to give up the contraband. Defendant removed a bindle from his body and Hernandez seized it. The package contained 25.7 grams of heroin, which sold for up to $300 per gram in prison. Inmates usually paid for things with a Green Dot account paid for by family members, who informed the inmates of the account number.
Officers Elisa Esparza and Estioco-Fountain came to the visiting room. Esparza told Thompson to leave her belongings on the table. Estioco-Fountain collected those belongings. Esparza escorted Thompson to a women’s restroom and conducted a search of Thompson. She found nothing.
Sergeant Jerome Peacock searched Thompson’s vehicle. He found and searched Thompson’s purse, which contained a Green Dot credit card in another woman’s name.
Defense Evidence
Alexander Robinson was defendant’s cellmate for about one year, but possibly not at the time of the crimes. He knew defendant was using narcotics, but never saw him sell or give drugs to anyone else. For a while, defendant worked as a prison porter, helping to deliver food and clean things up.
Rebuttal Evidence
Juan Garza, a senior investigator at the public defender’s office, interviewed Robinson twice at the prison. The first time, he was standoffish and said he did not want to get involved. But the second time, he was willing to talk because he had found out Garza was helping the attorney who was representing defendant.
Hernandez explained that porters do various jobs and have access to about 64 cells.
DISCUSSION
I. Law
“A criminal defendant has a limited right to discovery of a peace officer’s personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.” (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 318.) “[O]n 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.” (People v. Gaines (2009) 46 Cal.4th 172, 179.)
“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.’ ” (People v. Gaines, supra, 46 Cal.4th at p. 179.) The defendant must show materiality to the pending action by setting forth a “specific factual scenario” that establishes a “plausible factual foundation.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86.)
“The supporting affidavit ‘must propose a defense or defenses to the pending charges.’ [Citation.] To show the requested information is material, a defendant is required to ‘establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.’ [Citation.] The information sought must be described with some specificity to ensure that the defendant’s request is ‘limited to instances of officer misconduct related to the misconduct asserted by the defendant.’ ” (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71 (Garcia).) “The information sought must … be ‘requested with adequate specificity to preclude the possibility that defendant is engaging in a “fishing expedition.” ’ ” (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 85.)
“Counsel’s affidavit must also describe a factual scenario that would support a defense claim of officer misconduct. [Citation.] ‘That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.’ [Citation.] ‘In other cases, the trial court hearing a Pitchess motion will have before it defense counsel’s affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendant’s averments, “[v]iewed in conjunction with the police reports” and any other documents, suffice to “establish a plausible factual foundation” for the alleged officer misconduct and to “articulate a valid theory as to how the information sought might be admissible” at trial.’ [Citation.] Corroboration of or motivation for alleged officer misconduct is not required. [Citation.] Rather, ‘a plausible scenario of officer misconduct is one that might or could have occurred.’ [Citation.] A scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense. [Citation.] ‘A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial.’ [Citation.] A defendant who meets this burden has demonstrated the materiality requirement of section 1043.” (Garcia, supra, 42 Cal.4th at p. 71.)
We review the trial court’s decision on a Pitchess motion for an abuse of discretion. (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019 (California Highway Patrol).)
II. Background
Before jury trial commenced, defendant raised a Pitchess motion on the basis that charges of vehicle theft were pending against Estioco-Fountain. Defendant requested disclosure of Estioco-Fountain’s personnel records relevant to dishonesty, conduct involving moral turpitude, fabrication of evidence, falsification of information, use of excessive force, and any information impugning her credibility as a witness.
Defendant’s written motion recognized that Estioco-Fountain did not have any interaction with defendant; her interaction was solely with Thompson after defendant was removed from the visitation room. He stated that Estioco-Fountain gathered Thompson’s items together, escorted her to a restroom, searched her, and found nothing. Defendant’s motion stated that “[a]llegations of fabrication or misstatements in a police report are considered ‘good cause’ for purposes of a Pitchess motion.” Then he argued that good cause for the disclosure existed in his case, as follows:
“In the present case, the defense contends that based on the information conveyed to the defense regarding Officer Estioco-Fountain’s recent misdemeanor case involving allegations concerning moral turpitude conduct, Officer Estioco-Fountain’s personnel records should be reviewed to see if there are any other types of crimes/conduct of moral turpitude in her past that would have some bearing on her veracity that the defense and the jury should ultimately be able to consider. Past acts involving fabricating evidence, and committing acts of moral turpitude are admissible to challenge an officer’s credibility. [Citation.] As such, good cause for discovery of the requested information has been shown. [Citations.]”
In defense counsel’s affidavit attached to the motion, counsel stated:
“The defense asserts that based on Officer Estioco-Fountain’s recent charges involving her alleged conduct involving moral turpitude, a review of her personnel file should be conducted to see if there are other similar acts that reflect on the issue of dishonesty. At this time, it is unknown to the defense if Officer Estioco-Fountain will be a witness for the prosecution, however, if she should testify, her credibility will be in question just like every other witness testifying in [defendant’s] case. Since she could be a witness ultimately testifying against [defendant], it is the position of the defense that other types of conduct reflecting on the officer’s credibility should be made known to the defense per a review of Officer Estioco-Fountain’s personnel records.”
Also attached to defendant’s motion as exhibits were incident reports made by the prison staff. The report made by Estioco-Fountain states that she was instructed to report to the visiting room to escort Thompson to the investigative unit and conduct an unclothed body search. She and Esparza went to the visiting room where Thompson was waiting with Lacsina. Estioco-Fountain took all of the food items from the table and put them into a clear plastic bag. She kept the bag in her sole possession. She and Esparza escorted Thompson to the unit where Estioco-Fountain relinquished the plastic bag to Hernandez. Thompson signed a consent form to be searched. Esparza and Estioco-Fountain escorted Thompson to the women’s restroom where Esparza searched Thompson’s body while Estioco-Fountain searched Thompson’s clothing. The search resulted in no contraband. Esparza’s incident report reflects facts consistent with Estioco-Fountain’s report, and no other incident report contains facts inconsistent with these reports.
The consent form signed by Thompson was also attached as an exhibit. On that form, Esparza is listed as the staff member conducting the search and Estioco-Fountain is listed as the staff member who witnessed the search.
At the hearing on the motion on July 12, 2016, the following occurred:
“THE COURT: … This is on for a motion for discovery pursuant to the Pitchess case. [Defense counsel], have you been provided with the either case number or report number regarding the [Vehicle Code section 10851]⸺
“[DEFENSE COUNSEL]: I have been provided the case number.
“THE COURT: All right. Did you have any comments you wanted to make regarding your Pitchess motion?
“[DEFENSE COUNSEL]: Your Honor, I will simply state that the prosecutor relayed to me the correctional officer’s misdemeanor case that had previously been pending. And it was also the prosecutor who informed me that based on that, it was his position that I should go ahead and file a Pitchess motion on that correctional officer giv[en] that she did have a criminal case pending here in Kern County. So those are my main reasons why I filed the Pitchess motion.
“And while—while perhaps I’m not able to address any other type of specific instances that—that would relate to items or times of this officer having instances of dishonesty or writing false reports, the fact that she did have that criminal case pending, and the fact that the prosecutor’s position was to go ahead and direct me to file a Pitchess motion, are the reasons why I’m asking to be able to have the Court look into this officer’s [personnel] records because I don’t know if there’s going to be any other issues relating to her honesty and credibility. And so those were the basis for the motion, and I’ll submit.
“THE COURT: All right. Which is why when you do that it’s somewhat of a fishing expedition. But I don’t think that precludes you from offering impeachment evidence related to her arrest for auto theft if the trial court will allow you to impeach her with that. But I don’t think [it] justifies me searching through her personnel file because the theory that if she’s arrested for auto theft, she must have something else in her personnel file. I don’t think that’s sufficient foundation for a Pitchess motion. So I’m going to deny the Pitchess motion then.”
Defendant now contends the trial court abused its discretion when it determined defendant failed to establish good cause for the Pitchess motion. Specifically, he explains:
“Under controlling case law, good cause was established in the case at hand which compelled the trial court to conduct an in-camera hearing. In light of Estioco-Fountain’s arrest for auto theft, [it] logically follows that her personnel file could contain evidence establishing that she was less than credible and may have committed misconduct when participating in the investigation of [defendant’s] case.”

III. Analysis
We agree with the trial court that defendant’s Pitchess motion was no more than a fishing expedition. Defendant offered no defense to the charges against him. In fact, he made no claim of officer misconduct, much less a factual scenario to support such a claim. His motion stated generally that “[a]llegations of fabrication or misstatements in a police report are considered ‘good cause’ for purposes of a Pitchess motion,” but he did not raise any allegations of fabrication or misstatements in Estioco-Fountain’s incident report. He offered no explanation as to how discovery of Estioco-Fountain’s personnel records would support his defense or impeach Estioco-Fountain’s version of events—which did not incriminate him in the first place. In sum, defendant alleged nothing that made Estioco-Fountain’s personnel records material or relevant. Defendant failed to establish good cause for discovery of Estioco-Fountain’s personnel records.
This type of discovery request—the quintessential fishing expedition, as the trial court noted—has been firmly rejected by the courts. (See, e.g., People v. Jackson (1996) 13 Cal.4th 1164, 1220; California Highway Patrol, supra, 84 Cal.App.4th at p. 1024.) It is well settled that discovery of material in an officer’s personnel records is limited to instances of officer misconduct similar to the misconduct asserted by the defendant. (Garcia, supra, 42 Cal.4th at p. 71; California Highway Patrol, at p. 1021.) The trial court here did not err.
DISPOSITION
The judgment and the trial court’s ruling denying defendant’s Pitchess motion are affirmed.