1 Filed 12/23/14 P. v. Casteneda CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin)

----

THE PEOPLE, Plaintiff and Respondent,

v.
ANTHONY DAVID PERA ZA CASTENEDA, Defendant and Appellant. C075159 (Super. Ct. No. SF122594A)

Defendant Anthony David Peraza Cast eneda pleaded guilty to possession of methamphetamine. (Health & Saf. Code, § 11 378.) The trial court sentenced defendant to five years of probation, suspended impos ition of sentence, and ordered defendant to serve 180 days in county jail. On appeal, defe ndant asks us to review the trial court’s in camera determination that one officer’s po lice personnel files did not contain any2 discoverable materials. Because the in cam era review was impermissibly perfunctory, we must conditionally reverse the judgment.
BACKGROUND Prior to entering into his plea agre ement, defendant brought two discovery motions pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 seeking the personnel records of Stockton Police Offi cer Houston Sensaba ugh and another law
enforcement officer. The trial court found good cause to review Officer Sensabaugh’s personnel files for evidence of dishonesty. The court then conducted an in camera hearing with counsel for the City of Stockton. The following is the relevant portion of the hearing on defendant’s motion to discover the personnel files of Officer Sensabaugh:
“THE COURT: We are in chambers on a Pitchess motion. Marcie Arredondo is here from the City Atto rney’s office. It’s regarding Officer Sensabaugh, and it regards the issue of honesty and truthf ulness, and did you find anythi ng in the personnel files that
would reflect on those issues? “MS. ARREDONDO: No, Your Honor.
“THE COURT: We’ll note that for the record.”
DISCUSSION
Defendant asks us to review the trial cour t’s ruling that there were no discoverable materials in the officer’s personnel records. Defendant appeals without a certificate of probable cause. However, he points out that his appeal is directed to the denial of his motion to suppress evidence prior to his plea. Where a defendant’s Pitchess motion is “ ‘directed to’ ” the legality of a search, a challenge to the Pitchess ruling is cognizable on appeal pursuant to Penal Code section 1538.5, subdivision (m), providing for review of suppression motions notwithstanding a guilty plea. ( People v. Collins (2004) 115 Cal.App. 4th 137, 141, 148-149.) Accordingly,3 we will consider defendant’s Pitchess claim to the extent it is “ ‘directed to the legality of the search.’ ” ( Id. at p. 149.) The People do not oppose review. To compel discovery of confidential ma terials in peace officer personnel files, a
defendant must file an affida vit that establishes good cause in the form of a reasonable belief that the type of records requested are material to his or her defense and in the possession of the employing agency; only a re latively low threshold is necessary to compel discovery. ( Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) Upon a finding of good cause, the trial court must then review the re cords in camera and disclose “only that information falling w ithin the statutorily defined standards of relevance.” ( Id. at p. 1019.) Fundamental to the procedure under the statutory scheme which codifies Pitchess
is “the intervention of a neut ral trial judge” to examine th e records and determine what documents, if any, should be disclosed. ( People v. Mooc (2001) 26 Cal.4th 1216, 1227 ( Mooc ).) “Documents clearly irre levant to a defendant’s Pitchess request need not be presented to the trial court for in camera review”; howeve r, the “custodian should be prepared to state in chambers and for the record what ot her documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed i rrelevant or otherwise nonres ponsive to the defendant’s
Pitchess motion.” ( Id. at p. 1229.) “Absent this information, the [trial] court cannot adequately assess the completeness of the custodian’s review of th e personnel files, nor can it establish the legitimacy of the custodian’s decision to withhold documents contained therein. Such a procedure is necessary to satisfy the Suprem e Court’s pronouncement that ‘the locus of decisionmaking’ at a Pitchess hearing ‘is to be the trial c ourt, not the prosecution or the custodian of records.’ ” ( People v. Guevara (2007) 148 Cal.App. 4th 62, 69, quoting
Mooc , supra , 26 Cal.4th at p. 1229 [sworn statem ent of custodian that records did not contain potentially discoverable materials was insufficient to satisfy the trial court’s4 obligation to review records; since custodian’s sealed list of reviewed documents was not available for appellate review, the trial court must conditionally reverse for new hearing].) Here, the trial court failed to follow this procedure for proper Pitchess review. The representative for the City of Stockton did not present any documents for review, nor did the court question her about what docum ents or categories of documents were
contained in the locations she reviewed. Rath er, the trial court impermissibly deferred to the custodian’s judgment about whether disclo sure was appropriate, and did not make a
record of the documents that we re subject to that determinati on. This leaves us unable to conduct any meaningful review on appeal. Accordingly, we must conditionally reve rse the judgment and remand for the trial
court to conduct a new Pitchess hearing. The court must al so make an oral record of what it reviews, obtain a list or log of th e records from the agen cy and place that document in the court record, or place sealed copies of the agency records in the court record. ( Mooc, supra , 26 Cal.4th at p. 1228.)
DISPOSITION The judgment is conditionally reversed. The cause is remanded to the trial court to permit the trial court to co nduct an in camera review of the requested peace officer personnel records. If the inspection reveals relevant information, the trial court must order disclosure, allow appellant an opport unity to demonstrate prejudice, and order a new suppression hearing if there is a reasonabl e probability that the outcome would have5 been different had the informa tion been disclosed. If the inspection reveals no relevant information or if the inspection reveals releva nt information, but that disclosure of the
information does not demonstrate a reasona ble probability that the outcome of the hearing would have been diffe rent, the trial court must reinstate the judgment of
conviction and sentence.

DUARTE , J.

We concur:

HULL , Acting P. J.

MAURO , J.