Filed 10/19/20 P. v. Padilla CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL PADILLA,

Defendant and Appellant.

 B302320

 (Los Angeles County

 Super. Ct. No. YA094694)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mildred Escobedo, Judge. Reversed and 

remanded with directions.

Derek K. Kowata, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Jonathan J. Kline and Kristen J. Inberg, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________
2

A jury found Daniel Padilla guilty of three counts of assault 

with a deadly weapon upon a peace officer, and the trial court 

found true Padilla had suffered two prior felony convictions for 

which he served prison terms within the meaning of Penal Code 

section 667.5, subdivision (b).1 Padilla was sentenced to six years 

in state prison. We conditionally reversed and remanded for the 

trial court to conduct an in camera Pitchess2 review of personnel 

records for three City of Redondo Beach police officers and to 

provide Padilla with an opportunity to request a hearing on his 

ability to pay the court fines and assessments the trial court 

imposed. (People v. Padilla (June 18, 2019, B285989 [nonpub. 

opn.] (Padilla I).)

On October 10, 2019 the trial court conducted an in camera 

Pitchess review and determined there were no discoverable 

documents. It then reinstated the judgment. Padilla again 

appeals and requests we review the sealed record of the trial 

court’s in camera hearing to determine whether the court 

disclosed all relevant information in response to his Pitchess 

motion. Padilla also contends the trial court failed to provide him 

an opportunity to request a hearing on his ability to pay the court 

fines and assessments. Finally, Padilla argues, the People 

concede, and we agree his one-year prior prison term 

enhancement and the court’s true finding on the two prison prior 

enhancements must be stricken under Senate Bill No. 136 (2019-

2020 Reg. Sess.) (Senate Bill 136).

1 All further undesignated statutory references are to the 

Penal Code.

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-538 

(Pitchess).
3

We conclude the trial court abused its discretion in failing

to turn over information in the personnel files of two police 

officers and failing to inquire of the custodian of records whether 

he reviewed and brought to the trial court all “potentially 

relevant” documents. The trial court also erred in reinstating the 

fines and assessments without providing Padilla an opportunity 

to request an ability to pay hearing on the fines and assessments. 

We conditionally reverse and remand to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial, Verdicts, and Sentencing

On July 21, 2016, City of Redondo Beach Police Sergeant 

Michael Strosnider and Officer Joshua Spry were at the Manor 

Motel in Hawthorne for a probation search of Kelly Kimbell. 

Among other things, the officers found bullets, which Kimbell 

claimed belonged to Padilla. When Padilla drove into the parking 

lot, Kimbell yelled for him to leave. Officer Spry directed Padilla 

to put his vehicle in “park” or turn it off, but Padilla instead 

reversed out of his parking space, forcing Officer Spry to move 

out of the way. Officer Spry pointed his firearm at Padilla’s 

vehicle and ordered him to stop, but Padilla continued backing 

out of the space and drove at a high rate of speed out of the 

parking lot. (Padilla I, supra, B285989.)

After learning from Kimbell that Padilla would be at the 

Best Western hotel in Lawndale on August 2, 2016, Sergeant 

Strosnider, as well as City of Redondo Beach Police Lieutenant 

Joseph Hoffman and Officers Weiss, Salvador Garcia, Ryan 

Harrison, and Derek Theurer went to the Best Western on 

August 2 to arrest Padilla. When Padilla drove into the parking 

lot of the Best Western, Lieutenant Hoffman and Officers Garcia 
4

and Theurer followed him and positioned their cars to prevent 

him from exiting the lot. Once Padilla saw the police cars, he 

drove in reverse out of the parking lot and headed directly toward 

the police cars at top speed. A shootout ensued, with Officers 

Harrison, Weiss, Garcia, and Lieutenant Hoffman shooting at 

Padilla as he drove toward one and then another of the officers’ 

vehicles. Padilla’s vehicle crashed into Lieutenant Hoffman’s 

parked vehicle, and Padilla was arrested. A loaded firearm was 

recovered from his car. (Padilla I, supra, B285989.)

The jury found Padilla guilty of three counts of assault 

arising from the Best Western incident and acquitted him of the 

assault count arising from the Manor Motel incident. The court 

found the two prison prior allegations to be true. The trial court 

sentenced Padilla to six years in prison, consisting of the upper 

term of five years on count 2 for assault, with concurrent fiveyear terms for counts 3 and 4, and a consecutive term of one year 

pursuant to section 667.5, subdivision (b), for a single prison 

prior. The court dismissed the remaining prison prior allegation. 

The court imposed a $300 restitution fine (§ 1202.4), stayed a 

parole revocation restitution fine in the same amount (§ 1202.45), 

and imposed $90 in criminal conviction assessments (Gov. Code, 

§ 70373) and $120 in court operations assessments (Pen. Code, 

§ 1465.8). (Padilla I, supra, B285989.)

B. Padilla’s Pitchess Motion

Prior to trial, Padilla filed a Pitchess motion under 

Evidence Code section 1043 seeking discovery of personnel 

records concerning excessive force, fabrication, and falsification of 

police reports involving Sergeant Strosnider, Lieutenant 

Hoffman, and Officers Spry, Garcia, Harrison, and Weiss. The 

trial court granted the motion as to Sergeant Strosnider, 
5

Lieutenant Hoffman, and Officer Spry, but it denied the motion 

without explanation as to Officers Garcia, Harrison, and Weiss. 

(Padilla I, supra, B285989.)

C. Padilla I

Padilla appealed, and we concluded Padilla had shown good 

cause for discovery of the personnel records of Officers Garcia, 

Harrison, and Weiss. We also concluded Padilla should have had 

an opportunity to request a hearing demonstrating his inability 

to pay the fines and assessments in accordance with our opinion 

in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas). 

We conditionally reversed and remanded for the trial court to 

conduct an in camera review of the records of Officers Garcia, 

Harrison, and Weiss. We also directed the trial court to afford 

Padilla an opportunity to request a hearing on his ability to pay. 

We otherwise affirmed. (Padilla I, supra, B285989.)

D. Proceedings on Remand

On September 5, 2019 the trial court entered a minute 

order indicating it had reviewed the remittitur and would 

conduct a “Pitchess in camera hearing” on October 10, 2019. The 

minute order was silent as to whether Padilla would have an 

opportunity on the day of the in camera hearing to request an 

ability-to-pay hearing. The court clerk served the minute order 

on the district attorney and the Redondo Beach City Attorney’s 

office, but not on Padilla’s counsel.

On October 10, 2019 the trial court conducted a Pitchess 

hearing in camera. Following its in camera review, the trial 

court stated in open court with the prosecutor present, but not 

Padilla or his attorney, that Padilla’s attorney called the day 

before the hearing “and indicated if we needed him available that 
6

he would contact the Court. So he’s present telephonically, if you 

will.” The trial court stated, “[T]he Court has conducted an in 

camera review. There’s no discovery that has to be tendered. 

Hence, pursuant to the remittitur, this Court determines that 

there is no relevant information, and the judgment is reinstated.” 

The October 10, 2019 minute order provided, “A hearing after 

remittitur was set on this date and in this department to address 

the in camera review on Pitchess. No relevant information was 

contained. [¶] This court, pursuant to instructions, reinstates 

the judgment in full, including fines and fees pursuant to People 

versus Hick[s] [(2019) 40 Cal.App.5th 320].” The court did not 

hold a hearing on Padilla’s ability to pay the fines and court 

assessments. 

Padilla again appealed.

DISCUSSION

A. The Trial Court Failed To Comply with Its Obligations 

Under Pitchess

“‘When a defendant shows good cause for the discovery of 

information in an officer’s personnel records, the trial court must 

examine the records in camera to determine if any information 

should be disclosed.’” (People v. Rivera (2019) 7 Cal.5th 306, 338 

(Rivera); accord, People v. Anderson (2018) 5 Cal.5th 372, 391

(Anderson).) “‘The court may not disclose complaints over five 

years old, conclusions drawn during an investigation, or facts so 

remote or irrelevant that their disclosure would be of little 

benefit.’” (Rivera, at p. 338; accord, People v. Winbush (2017) 

2 Cal.5th 402, 424; see Evid. Code, § 1045, subd. (b).) “‘Pitchess

rulings are reviewed for abuse of discretion.’” (Rivera, at p. 338; 

accord, Anderson, at p. 391.)
7

Padilla requests we review the sealed portion of the record, 

which includes the transcript of the in camera hearing. The 

People do not object to our review. Padilla’s request for an 

independent review of the sealed record is proper. (Anderson, 

supra, 5 Cal.5th at p. 391 [“Defendant properly asks us to review 

the sealed record of the in camera hearing to determine whether 

the court erroneously failed to provide discovery that he should 

have received.”]; Rivera, supra, 7 Cal.5th at pp. 338-339 

[Supreme Court reviewed sealed transcript of in camera hearings 

and sealed exhibits].)

We have reviewed the sealed transcript of the trial court’s 

in camera review. We conclude the trial court abused its 

discretion in failing to order disclosure of information relating to 

the complaints described in the transcript at page 303, line 2 

through page 304, line 10 (complaint 1) and page 305, line 27 

through page 307, line 4 (complaint 2).

In addition, our review of the record shows the trial court 

failed to inquire of the custodian whether he brought all 

potentially relevant records to court. A trial court is obligated to 

ensure the custodian “br[ings] to the trial court ‘all “potentially 

relevant” documents to permit the trial court to examine them for 

itself’ . . . and state[] for the record ‘what other documents (or 

category of documents) not presented to the court were included 

in the complete personnel record, and why those were deemed 

irrelevant or otherwise nonresponsive to the defendant’s Pitchess

motion.’” (Rivera, supra, 7 Cal.5th at p. 339; accord, People v. 

Mooc (2001) 26 Cal.4th 1216, 1228-1229.)

Because the trial court did not comply with its obligations 

under Pitchess, we conditionally reverse the judgment and 

remand for the trial court to conduct a further in camera review 

of the personnel records of Officers Garcia, Harrison, and Weiss. 
8

In its review, the court must inquire of the custodian whether he 

or she has brought to the court all potentially relevant 

documents. (Rivera, supra, 7 Cal.5th at p. 339.) The court is to 

review any additional documents the custodian produces in 

response to Padilla’s Pitchess motion and order disclosure to 

defense counsel of information relating to complaints 1 and 2 and 

any other complaints or documents the court determines at the in 

camera hearing are discoverable.

Following the disclosures, the trial court must give Padilla 

an opportunity to demonstrate prejudice, and it must order a new 

trial if there is a reasonable probability the outcome would have 

been different had the information been disclosed. (See People v.

Gaines (2009) 46 Cal.4th 172, 182 [“To obtain relief, then, a 

defendant who has established that the trial court erred in 

denying Pitchess discovery must also demonstrate a reasonable 

probability of a different outcome had the evidence been 

disclosed.”]; People v. Johnson (2004) 118 Cal.App.4th 292, 305 

[“If the trial court concludes defendant should have received 

information by virtue of his Pitchess motion, the proper standard 

for the trial court to use to determine prejudice is whether there 

is a reasonable probability the outcome would have been different 

had the information been disclosed.”]; People v. Hustead (1999) 

74 Cal.App.4th 410, 423 [“If the in camera hearing reveals 

discoverable information bearing on the officer’s honesty which 

could lead to admissible evidence helpful to appellant in defense 

of the charge, the trial court shall grant the requested discovery, 

allow appellant an opportunity to demonstrate prejudice, and 

order a new trial if prejudice is demonstrated.”].) If the trial 

court finds no prejudice, it shall reinstate the judgment.
9

B. The Trial Court Denied Padilla an Opportunity To Request 

an Ability-to-pay Hearing

Padilla contends the trial court erred in reinstating the 

fines and assessments at the hearing scheduled for the court’s in 

camera review without giving him an opportunity to request a 

hearing and present evidence of his inability to pay. The People 

argue the court did not err in reinstating the judgment because 

Padilla’s attorney was available by telephone but elected not to 

request a hearing on Padilla’s ability to pay. The People also 

argue “imposition of the restitution fine was constitutional, and 

any due process violation in the imposition of the non-punitive 

fines was harmless” for the reasons set forth in People v. Hicks, 

supra, 40 Cal.App.5th at page 322, review granted Nov. 26, 2019, 

S258946. Padilla has the better argument.

In Padilla I, supra, B285989 we instructed the trial court, 

“On remand, the trial court is . . . directed to afford Padilla the 

opportunity to request a hearing on his ability to pay the court 

facilities assessments (Gov. Code, § 70373), court operations 

assessments ([Pen. Code, ]§ 1465.8) and restitution fine 

([id., ]§ 1202.4). If the court determines he is unable to pay, the 

assessments may not be imposed, and the court must stay the 

execution of the restitution fine.” Although Padilla opted not to 

appear on the day of the trial court’s in camera Pitchess hearing, 

the court did not give notice to the parties (which, in any event 

was not served on Padilla) that it intended following the in 

camera hearing to reinstate the judgment without affording 

Padilla an opportunity to request a hearing on his ability to pay 

the fines and assessments.

In addition, it appears the trial court intended to deny 

Padilla a hearing on his ability to pay, instead reinstating the 

fines and assessments “pursuant to People versus Hick[s].” This 
10

was error. In People v. Hicks, supra, 40 Cal.App.5th at page 322, 

the court concluded this court’s decision in “Dueñas was wrongly 

decided.” But regardless of the trial court’s preference to follow 

Hicks instead of Dueñas, the court was not at liberty to defy our 

remand order requiring it to allow Padilla an opportunity to 

request a hearing. “When an appellate court’s reversal is 

accompanied by directions requiring specific proceedings on 

remand, those directions are binding on the trial court and must

be followed.” (Butler v. Superior Court (2002) 104 Cal.App.4th 

979, 982; accord, Hampton v. Superior Court (1952) 38 Cal.2d 

652, 655 [“When there has been a decision upon appeal, the trial 

court is reinvested with jurisdiction of the cause, but only such 

jurisdiction as is defined by the terms of the remittitur. The trial 

court is empowered to act only in accordance with the direction of 

the reviewing court; action which does not conform to those 

directions is void.”]; Ayyad v. Sprint Spectrum, L.P. (2012) 

210 Cal.App.4th 851, 860 [“On remand, the trial court must 

adhere to the reviewing court’s directions even if the lower court 

is convinced the appellate court’s decision is wrong or has ‘been 

impaired by subsequent decisions.’”].)

Moreover, as we explained in People v. Belloso (2019) 

42 Cal.App.5th 647, 649, review granted March 11, 2020, 

S259755, “We find unpersuasive the analyses of the courts that 

have disagreed with Dueñas, as exemplified by the two most 

recent cases rejecting this court’s due process analysis, People v. 

Hicks[, supra,] 40 Cal.App.5th 320, 326 . . . and People v. Aviles

(2019) 39 Cal.App.5th 1055, 1061 . . . .”

3

3 The People also rely on People v. Kopp (2019) 

38 Cal.App.5th 47, 96-97, review granted Nov. 13, 2019, S257844, 
11

We therefore again remand with directions for the trial 

court to afford Padilla an opportunity to request a hearing and 

present evidence demonstrating his inability to pay the fines and 

assessments imposed by the trial court. The court shall ensure 

Padilla has an opportunity to make this request by inquiring at a 

hearing whether Padilla requests an ability-to-pay hearing. As 

we instructed in Padilla I, supra, B285989, if the court 

determines Padilla does not have the ability to pay the 

assessments, they may not be imposed; if he does not have the 

ability to pay the restitution fine, the court must stay its 

execution.

C. The Trial Court Must Strike the One-year Prior Prison 

Enhancement and the True Finding on the Two Prison 

Prior Allegations

Padilla contends, the People concede, and we agree that, 

pursuant to Senate Bill 136, the one-year prison prior 

enhancement the trial court imposed under section 667.5, 

subdivision (b), and the court’s true finding on the prison prior 

allegations must be stricken.

Effective January 1, 2020, Senate Bill 136 (2019-2020 Reg. 

Sess.) amended section 667.5, subdivision (b), to provide for a 

one-year prior prison term sentence enhancement only for 

which applied a Dueñas due process analysis to imposition of the 

court assessments but analyzed the restitution fines under the 

Eighth Amendment. In granting review in Kopp, the Supreme 

Court limited briefing and argument to the following issues: 

“Must a court consider a defendant’s ability to pay before 

imposing or executing fines, fees, and assessments? If so, which 

party bears the burden of proof regarding defendant’s inability to 

pay?” (Supreme Ct. Minutes, Nov. 13, 2019, p. 1622.)
12

sexually violent offenses, as defined in Welfare and Institutions 

Code section 6600, subdivision (b). (People v. Jennings (2019) 

42 Cal.App.5th 664, 681; People v. Lopez (2019) 42 Cal.App.5th 

337, 340-341.) Senate Bill 136 applies retroactively to Padilla 

because Padilla’s sentence was not final at the time the new law 

became effective on January 1, 2020. (Jennings, at p. 682 

[“Senate Bill No. 136’s . . . amendment to section 667.5, 

subdivision (b) applies retroactively to all cases not yet final as of 

its January 1, 2020, effective date.”]; Lopez, at pp. 341-342 

[applying Sen. Bill 136 retroactively]; see In re Estrada (1965) 

63 Cal.2d 740, 744 [Absent contrary legislative intent, “[i]f the 

amendatory statute lessening punishment becomes effective prior 

to the date the judgment of conviction becomes final then, in our 

opinion, it, and not the old statute in effect when the prohibited 

act was committed, applies.”].) Because Padilla’s prior prison 

term enhancement was based on a conviction for recklessly 

evading peace officers in pursuit (Veh. Code, § 2800.2, subd. (a)), 

which is not an enumerated sexually violent offense (Welf. & 

Inst. Code, § 6600, subd. (b)), Padilla is entitled to have the prior 

prison term enhancement findings and one-year sentence 

stricken.

DISPOSITION

The matter is reversed and remanded for the trial court to 

conduct a new in camera Pitchess hearing for which the custodian 

of records brings to the court all potentially relevant documents 

relating to excessive force, fabrication, and falsification of police 

reports involving Officers Garcia, Harrison, and Weiss. The court 

shall order disclosure to Padilla of information relating to 

complaints 1 and 2 and any other complaints or other documents 
13

found to be discoverable during the in camera review. Following 

the disclosures, Padilla shall be afforded an opportunity to 

demonstrate prejudice, and the trial court shall order a new trial 

if there is a reasonable probability the outcome would have been 

different had the information been disclosed. If the trial court 

finds no prejudice, the judgment shall be reinstated.

If the judgment is reinstated, the trial court shall strike the 

one-year prison prior enhancement and the court’s true finding 

Padilla served two prior prison terms, and it shall resentence 

Padilla. The trial court is further directed to afford Padilla an 

opportunity to request a hearing on his ability to pay the court 

facilities and court operations assessments and restitution fine. 

The court shall specifically inquire whether Padilla requests an 

ability-to-pay hearing. If the court determines Padilla is unable 

to pay, the assessments shall not be imposed, and the court must 

stay execution of all restitution fines.

FEUER, J.

We concur:

PERLUSS, P. J.

RICHARDSON, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.