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Filed 8/3/16 P. v. Matthews 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO MATTHEWS,

Defendant and Appellant.

C077963

(Super. Ct. No. 13F07791)

Defendant Mario Matthews was convicted of indecent exposure and resisting a 

peace officer. (Pen. Code, §§ 314, subd. 1, 148, subd. (a)(1).)1 On appeal, defendant

contends: (1) the trial court improperly found confidential officer personnel records 

unresponsive to his Pitchess motion, and he asks us to review the sealed documents

(Evid. Code, § 1043 et seq.; Pitchess v. Superior Court (1974) 11 Cal.3d 531); and (2) 

the trial court improperly calculated his presentence custody credit. We have reviewed 

 

1 Undesignated statutory references are to the Penal Code. 
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the sealed transcript of the hearing held in camera and conclude the trial court did not 

abuse its discretion in determining the records contained no discoverable material. As to 

credits, we conclude the trial court erred in calculating defendant’s presentence custody 

credit. We modify defendant’s presentence credit and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

On or about November 27, 2013, defendant exposed himself in a hotel room 

window to a woman walking by. A hotel representative called police and asked them to 

remove defendant, since he was not a guest. Police Officers Kelly Bagozzi and Christine 

O’Shea arrived, and defendant resisted their attempts to remove him. The officers took 

defendant outside and tried to put him in the police car, but he pulled away, twisting his 

body and kicking off of the police car and then off the hotel wall. One of the officers

took defendant to the ground, and defendant attempted to bite him. While defendant was 

pinned to the ground, he continued to struggle and rubbed his body against the concrete

causing abrasion injuries. 

Arguing the officers used excessive force and were untruthful, defendant filed a 

Pitchess motion to discover citizen complaints. The trial court found good cause and

held an in camera hearing on March 21, 2014. A court reporter was present during the in 

camera hearing, and the custodian of records was sworn prior to testifying. There were 

no complaints against Officer Bagozzi. There was a complaint involving Officer O’Shea

that the trial court reviewed and determined was “not within the parameters” of 

defendant’s Pitchess motion. 

Defendant was convicted by jury of indecent exposure (count one, § 314, subd. 1) 

and misdemeanor resisting a peace officer (count two, § 148, subd. (a)(1)). The court 

also found true the allegation defendant had served three prior prison terms. (§ 667.5, 

subd. (b).) 
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The court sentenced defendant to serve five years in prison: two years for 

indecent exposure, plus one year for each of the three prior convictions (count one, 

§§ 314, subd. 1, 667.5, subd. (b)), and a consecutive 180 days in county jail for 

misdemeanor resisting a peace officer (count two, § 148, subd. (a)(1)). Even though 

defendant spent 373 actual days in custody, the trial court awarded him credit for 386 

days. The trial court calculated the 386 days by (a) deducting the 180 day sentence for 

count two from defendant’s 373 actual days served, for a total of 193 “days of time 

served,” and then (b) adding 193 “day-for-day credits.” 

We requested the trial court to provide the materials it reviewed during the in 

camera hearing. The trial court, in turn, ordered the custodian of records to submit the 

documents. The custodian of records declared under penalty of perjury that all such 

records had been destroyed. 

DISCUSSION

I

Pitchess Motion

Defendant requests that we independently review the trial court’s ruling regarding 

his Pitchess motion. 

“A trial court’s decision on the discoverability of material in police personnel files 

is reviewable under an abuse of discretion standard.” (People v. Jackson (1996) 

13 Cal.4th 1164, 1220-1221 (Jackson).) To determine whether the trial court abused its 

discretion, the appellate court must review the record of the documents examined by the 

trial court. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) A defendant is entitled 

to “meaningful appellate review” of the confidential documents, and a trial court may 

preserve the record by stating which documents it examined. (Ibid.) 

Where, as here, the trial court reviewed a document that was subsequently 

destroyed, a constitutional error exists only if it appears the record was destroyed in bad 
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faith. (Jackson, supra, 13 Cal.4th at p. 1221, fn. 10; People v. Memro (1995) 11 Cal.4th 

786, 831-832.) The custodian of records does not explain in his sworn declaration why 

the files examined by the trial court regarding Officer O’Shea were destroyed as of July 

2015. Based on our review of the sealed transcript, there is no evidence the complaint 

involving Officer O’Shea was destroyed in bad faith.

In sum, we have reviewed the sealed transcript of the hearing held in camera and 

conclude the trial court did not abuse its discretion in determining the records contained 

no discoverable material. 

II

Credits

Defendant contends the trial court improperly calculated his presentence custody 

credit as 386 days, and the People agree. 

Here, the defendant spent 373 actual days in custody, and the trial court 

determined he was entitled to full credit for those days. Where a defendant earns all days

under section 4019, “a term of four days will be deemed to have been served for every 

two days spent in actual custody.” (§ 4019, subd. (f); see also People v. Whitaker (2015) 

238 Cal.App.4th 1354, 1359-1360.) Accordingly, it was error for the trial court to deduct 

the 180-day sentence from actual days served before calculating the section 4019 credit. 

The trial court should have awarded defendant 373 days spent in actual custody, plus 372 

days conduct credit, for a total of 745 days credit, and then deducted the 180-day 

sentence. (§ 2900.5, subd. (a); see also Whitaker, at pp. 1358-1359 [not awarding an 

additional single day of conduct credit where a defendant served an odd number of 

days].) 

DISPOSITION

The award of credits is modified to award defendant 373 actual days and 372 

conduct credits, or 745 days total. The trial court is directed to prepare an amended 
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abstract of judgment and to forward a certified copy to the Department of Corrections and 

Rehabilitation. As modified, the judgment is affirmed.

 /s/

HOCH, J.

We concur:

 /s/

BLEASE, Acting P. J.

 /s/

ROBIE, J.