Filed 6/23/15 P. .v Zuniga CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.
ANGEL ROBERT ZUNIGA,
Defendant and Appellant. B254659
(Los Angeles County Super. Ct. No. GA087551)

APPEAL from a judgment of the Su perior Court of Los Angeles County. Dorothy L. Shubin, Judge. Affirmed as modified.

Melissa A. Fair, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, Jonathan J. Kline and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ __________2 In an information filed by the Los Ange les County District Attorney, defendant and appellant Angel Robert Zuniga was charge d with one count of carjacking (Pen. Code, §§ 664/215, subd. (a)). 1 The information further alleged that appellant personally used a handgun in the commission of th e crime (§ 12022.53, subd. (b )) and that he was released on bail or his own recognizance at the time of th e crime (§ 12022.1). It was also alleged that appellant had served three prio r prison terms (§ 667.5, subd. (b)). Appellant pleaded not guilty and denied the allegations. Trial was by jury. The jury found appellant guilty as charged and found the firearm-us e allegation to be true. In a bifurcated proceeding, appellant admitted the on-bail and prior prison allegations. The trial court denied probation and senten ced appellant to a total term of 14 years six months in state prison, computed as follo ws: the midterm of two years six months on the substantive offense, plus 10 years on th e firearm-use enhancement, and two years on
the on-bail enhancement. 2 The trial court imposed and st ayed the one-year sentences on each of the prior prison term enhancements. He was awarded 548 days of presentence custody credits. Various fines and fe e were imposed and one was stayed. Appellant timely filed a notice of appeal. On appeal, he argues that the trial court erred in denying his Pitchess 3 motion and that that error re quires a conditional reversal to allow the trial court to hold an in camera hearing.
We affirm.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 According to the People’s brief, the abst ract of judgment incorrectly reflects the sentence imposed on the fire-arm use and on-bail enhancements. The trial court imposed a 12-year sentence, but the abst ract of judgment indicates that appellant was sentenced to 12 years 6 months. The People ask that we co rrect the abstract to delete the six-month sentence.

3 Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ).3 FACTUAL BACKGROUND
I. Prosecution Evidence On September 27, 2012, at approximat ely 10:50 p.m., Jose Raygoza (Raygoza) and Melissa Nunez (Nunez) were in a McDona ld’s parking lot in San Gabriel when two men approached them. Raygoza was sitting in the driver’s seat of his car, and Nunez was standing outside near the driver’s door. On e of the men, later identified as appellant, asked Raygoza what gang he wa s from. Raygoza replied that he was not a gang member. When Raygoza got out of his truck, appellant demanded his car keys. Raygoza did not immediately comply. After demanding the car keys three times, appellant lifted up his shirt, showed Raygoza part of a gun, and said, ‘“This is your last call.’” Raygoza told appellant that his car keys, wallet, and cell ph one were on the dashboard. When appellant looked inside the car, Ra ygoza and Nunez ran away. Raygoza and Nunez went inside the McD onalds and called 911. Raygoza told the dispatcher that appellant and another man atte mpted to take his truck. Raygoza described appellant to the dispatcher as Hispanic and sa id that he was wearing blue pants, a white and blue football jersey, and a blue hat. At trial, Raygoza testified that appellant was wearing a sports jersey, baggy blue pants, and a hat. Appellant’s accomplice was bald, and he wore a dirty white or brownish shirt and shorts. Nunez testified at trial that appellant was wearing a blue and white Dodger je rsey and baggy blue jeans. From inside McDonald’s, Raygoza and Nune z saw appellant and his accomplice look inside the car and then run away. Los Angeles Sheriff’s Deputies Juan Ri vas and David Kearne y responded to the 911 call. Deputy Rivas interviewed Raygoza and Nunez and put out a crime broadcast that included the description of the suspec ts given to him by Ra ygoza and Nunez. Deputy Rivas testified that Ra ygoza said that the man with the gun had tattoos above his eyebrows, and Nunez said that the gunman had tattoos on his face.
About 40 to 45 minutes later, Los Angeles Sheriff’s Deputy Robert o Roman and his partner located and detained appellant becau se he matched the suspect’s description.4 In particular, appellant was Hispanic, was wear ing blue jeans, had a shaved head, and had tattoos on his forehead, eyebrows, and chest. Raygoza and Nunez were brought to the location for an in-field identification or field show-up. Raygoza positivel y identified appellant. Raygoz a told the deputies that if the suspect had tattoos over his eyebrows, th en he was the perpetrator. Nunez also identified appellant at the field show-up. A ppellant was not wearing a shirt at the time of the field show-up. Nunez identified appellant again from a live line-up on December 3, 2013.
II. Defense Evidence The defense presented alibi evidence showing that appellant was engaged in
sexual activities with a woman in a car near the crime scene around the time of the crime. It also presented expert testimony c oncerning false identification.
DISCUSSION On appeal, appellant argues that the trial court committed reversible error by summarily denying his Pitchess motion and failing to hold an in camera hearing. He
contends that he met the low threshold of showing good cause for the discovery or disclosure of the personnel file of Deputy Kearney. A. Relevant Procedural History
1. Appellant’s Pitchess Motion Appellant filed a pretrial Pitchess motion seeking discovery of personnel records of Deputy Kearney concerning: “All complain ts from any and all sources relating to acts
of violation of constitutional rights, fabrication of charge s, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, illegal search/seizure; false arrest, perjury, dishonesty, writing of false police reports, writing of false police reports to cover up the use of excessive force, plan ting of evidence, false or misleading internal reports including but not limite d to false overtime or medi cal reports, and any other evidence of misconduct amounting to moral turpitude.” Appellant’s counsel submitted a declara tion in support of the motion. The declaration alleges that Deputy Kearney author ed the police report, which is not attached5 to the declaration. Accordi ng to that police report (as represented in the declaration), Nunez identified the gunman based on his f ace and goatee, and Raygoza identified the gunman based on his dark blue baggy pants and eyebrow tattoos. According to defense counsel, the description of the gunman in the police repo rt contradicted Nunez’s and Raygoza’s preliminary hearing testimonies. Regarding Raygoza, the police report showed that he stated that the gunman had a shaved head, but he testified at the prelim inary hearing that the gunman was wearing a hat. Counsel surmised that “Raygoza coul d not have known whet her the suspect had a shaved head, thus raising qu estions about the police report .” Furthermore, the police report suggested that Raygoza testified at the preliminary hearing that he told the deputies that “‘if’” the suspect had tattoos above his eyebrows, then he was the gunman. Raygoza did not actually see the suspect’s eyeb row tattoos at the field show-up. As for Nunez, the police report showed that she reported that the gunman had tattoos above his eyebrows. However, she testif ied at the preliminary hearing that she did not tell the police about any tattoos; nor did sh e see any tattoos on the suspect during the field show-up. Rather, Nunez emphasized th at the gunman had a goatee; but, the police report did not mention a goatee in Nunez’s de scription. In addition, the police report
showed that Nunez said that the gunman and his accompli ce fled east on Duarte Road after committing the crime, but Nunez testified at the preliminary hearing that she did not see the direction in which they fled. Finally, the police report suggested that Nunez and Raygoza gave very similar clothing descriptions of the gunman while in fa ct they gave very diffe rent descriptions of his clothing at the preliminary hearing. For example, although Nunez and Raygoza testified at the preliminary hearing that the gunman did not wear sunglasses when committing the crime, th e suspect was wearing sunglasses at the field show-up. Thus, according to defense counsel, “Raygoza and Nunez not onl y contradicted the police report, but [they] also said vastly differe nt things from each other, which makes the police report which relays their descriptions of the suspect as identical even more problematic.”6 Based on the foregoing, counsel conclude d that Deputy Kearney authored a false police report to ensure appellant’s arrest; he also allegedly omitted Raygoza and Nunez’s uncertainty about the field identification of appellant. Defense counsel requested material about Deputy Kearney to determine if he has a custom or habit of engaging in
similar misconduct.
2. The Police Report Deputy Rivas interviewed Raygoza and Nu nez at the scene of the crime. He testified that he also authored the police re port. Both Deputies Rivas and Kearney signed the report. The police report showed that Raygoza told the deputies that the gunman was Hispanic; that he had a shaved head and tattoos over his ey es; and that he wore a brown or orange shirt with dark, jean-type pants. The accomplice was a White male in his 20’s. He had a goatee and wore a wh ite or blue shirt and hat. Nunez told Deputies Kearney and Rivas that the gunman was Hispanic, had a shaved head and tattoos over his eyebrows, a nd wore a brown shirt. The accomplice was a White male, had a goatee, and wore a white and blue shirt and hat. After the crime, Nunez said that the suspects fl ed eastbound on Duarte Road.
3. Preliminary Hearing Testimony Raygoza and Nunez’s testimony at the preliminar y hearing was consistent with their trial testimony. Raygoza described the perpetrators as Hispanic and White. The Hispanic man, who Raygoza identified as appellant, wore dark pants, a dark hat, and a “bluishgrayish” “NFL” shirt. Appellant also had tattoos above his eyebrows. The White accomplice was in his late 20’s, was bald, an d had a goatee that wrapped around his
mouth. He wore bl ack pants and a “whitis h brown” T-shirt At the field show-up, Raygoza could not actually see appellant’s eyebrow tattoos because of the distance between him and appellant, but he told the depu ties: “‘If I’m not wrong, this guy has two tattoos on the eyebrows.’” Raygoza testified that he did not identify appellant from his clothing because appellant was not weari ng a shirt or hat at the field show-up.7 Nunez testified at the preliminary heari ng that the gunman, who she identified as appellant, was Hispanic and bald. He wore a bl ue Dodger jersey and blue jeans. She did not notice any tattoos on him because it was ni ghttime and she was trying not to look at his face. She did notice his goatee. She tes tified that his accomplic e was also Hispanic
and bald. He was in his 30’ and wore a brownish-orange T- shirt and brown sweatpants. Nunez later identified appellant at the field s how-up and at the live li ne-up. She testified that she recognized appellant at the field show-up by his goatee. She further testified that
she did not see the direction in which appellant and his ac complice ran after the crime. B. Relevant Legal Principl es and Standard of Review “For approximately a quarter-century our tr ial courts have entertained what have
become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendant’s defense.” ( People v. Mooc (2001) 26 Cal.4th 1216 , 1225, fn. omitted ( Mooc )); see Pitchess
, supra , 11 Cal.3d 531.) To balance the defendant’s right to discovery of records pertinent to his or her defense with the peace officer’s reasonable expectati on that his or her personnel records will remain confidential, the Legislature has adop ted a statutory scheme requiring a defendant to meet certain prerequisites before his or he r request may be consid ered. (See §§ 832.5, 832.7 & 832.8; Evid. Code , §§ 1043-1047 [statuto ry scheme governing Pitchess motions].) Specifically, a defendant seeking discovery of a peace officer’s confidential personnel record must file a written motion de scribing the type of records or information sought (Evid. Code, § 1043) and include w ith the motion an affidavit demonstrating “good cause” for the discovery and the materi ality of such eviden ce relative to the defense. ( Mooc , supra, at p. 1226; see also Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 ( Warrick ).) The information must be request ed with “sufficient specificity to preclude the possibility of a defendant’s simply casting about for a ny helpful information [citation].” ( Mooc , at p. 1226.)
Once the trial court concludes the defendan t has satisfied these prerequisites, the custodian of records is obligated to bring to court all documents “‘ potentially relevant’” to the defendant’s motion. ( Mooc , supra , 26 Cal.4th at p. 1226.) The trial court must8 then examine the information in chambers, outside the pres ence of any person except the proper custodian “and any other persons as the person authorized to claim the privilege is willing to have present.” (Evid. Code, §§ 915, subd. (b), 1045, subd. (b); see Warrick
, supra , 35 Cal.4th at p. 1019.) Subject to cer tain statutory exceptions and limitations, 4 the
trial court must then disclose to the defendant “‘such information [that] is relevant to the subject matter involved in th e pending litigation.’” ( Mooc , supra , at p. 1226; Warrick
, supra , at p. 1019.) As the parties here agre e, “[a] trial court’s ruling on a motion for access to law enforcement personnel records is s ubject to review for abuse of discretion.” ( People v. Hughes (2002) 27 Cal.4th 287, 330; see also People v. Moreno (2011) 192 Cal.App.4th 692, 701; People v. Cruz (2008) 44 Cal.4th 636, 670.) C. Analysis Appellant challenges the trial court’s denial of his Pitchess motion, arguing that he established the necessary good cause to review the records of Deputy Kearney. He argues that he satisfied the “relatively low threshold” for establishing good cause for an in camera review. ( City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83–84;
Warrick
, supra , 35 Cal.4th at p. 1019.) We disagree. Appellant’s Pitchess motion is based upon th e theory that Deputy Kearney authored a false police report. But, appellant failed to provide us (and the trial court) with a copy of that police report. And, notably, Deputy Kearney did not author the police report. Thus, we fi nd no abuse of discretion. Setting that aside, and considering a ppellant’s argument based upon what is presented in the appellate record, we still find no abuse of discretion. Again, appellant contends that inconsistencies between Raygo za’s and Nunez’s statements warrant an in

4 The trial court must exclude from disc overy: “(b)(1) Information consisting of complaints concerning conduct occurring more than fi ve years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought. [¶] (2) In any crimin al proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of th e Penal Code. [¶] (3) Facts sought to be disclosed that are so remote as to make disclo sure of little or no practical benefit.” (Evid. Code, § 1045; see also Mooc , supra , 26 Cal.4th at pp. 1226–1227.)9 camera inspection of Deputy Kearney’s pers onnel file. But, defense counsel never provided a specific factual scenario of poli ce misconduct that might have occurred or an “alternate version of the events.” ( People v. Thompson (2006) 141 Cal.App.4th 1312, 1318.) Although appellant presented alibi evid ence at trial, he did not provide that
factual scenario in his Pitchess motion. His failure to do so reasonably allowed the trial
court to conclude that he had omitted a ma terial fact in seek ing Deputy Kearney’s personnel files. Even if the trial court erred in failing to hold an in camera review of Deputy Kearney’s personnel file, that erro r would have been harmless. ( People v. Samuels (2005) 36 Cal.4th 96, 110; People v. Hill (2005) 131 Cal.App.4t h 1089, 1100, fn. 8, overruled in part on other grounds in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.) Here, as set forth above, there was strong evidence of appellant’s guilt. And, the People’s case did not rest on the testimony a nd credibility of Deputy Kearney. Rather, it was predicated almost entirely upon the te stimony of Raygoza an d Nunez, who were present during the crime and who identified appellant. The case also rested on the testimony of Deputies Rivas and Roman. Unde r these circumstances, even if the trial court had erred by not holding an in camera hearing, we would find that error harmless.
DISPOSITION The judgment as modified is affirmed. On remand, the abstract of judgment shall be corrected to reflect appe llant’s sentence of 12 years.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________ ___________________, J. ASHMANN-GERST

We concur:

________________ ______________, P. J. ____

__________________ ________, J. BOREN CHAVEZ