Filed 5 / 1 2 / 23 P. v. Ibarra CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY IBARRA,

Defendant and Appellant. 2d Crim. No. B320100 (Super. Ct. No. VA155929) (Los Angeles County)

Anthony Ibarra appeals a judgment following his no contest plea to possession for sale of a controlled substance

, heroin (Health. & Saf. Code, § 1 1351 ) , a felony

, after the denial of his motion to suppress evidence. (Pen. Code, § 1538.5.) The trial court suspended imposition of sentence and placed him on probation for two years. We conclude, among other things, that 1) the trial court properly de n ied his motion to suppress evidence ; but 2) in conducting an in camera review of police personnel records in response to Ibarra’s Pitches s motion ( Pitchess v. Superior Court (1974) 11 Cal.3d 531 ; Pen. Code, § 832.7 ; Evid. Code, § 1043 et2

seq.)

, the court did not disclose to the defense a relevant complaint against the officer. We conditionally reverse the judgment and remand with instructions.
FACTS On January 6, 2021, Sheriff D eputy Alex Hernandez and his partner John Balarosan were on duty near a hotel

. They saw Ibarra immediately walk away from a hotel room after he looked
in their direction. Ibarra then threw an item away. The officers
searched that area for that item and found a “bindle” containing a white substance resembling methamphetamine.
T he officers detained Ibarra and asked his permission to
search his hotel room. Ibarra agreed and he signed a search entry waiver form. With his consent

, the officers searched
Ibarra’s hotel room. They discovered illegal controlled substances
in his room

. Ibarra filed a motion to suppress the evidence obtained in
the search. He claimed the officers searched the room without
his consent. He claimed the signature on the consent to search
form was not his. The trial court denied the suppression motion
fi nding the People had met their burden to show a lawful search.
Ibarra filed a Pitchess motion. The trial court found the defense had established good cause to review the officer s ’ personnel records. After conducting an in camera review, the
court releas ed some records for review by the defense.
DISCUSSION
The Motion t o Suppress Evidence Ibarra contends the trial court erred by denying his motion to suppress evidence. (Pen. Code, § 1538.5.) He claims the evidence shows the police conducted a search wit hout his consent.3 The trial court is the fact finder on a motion to suppress. ( People v. Woods (1999) 21 Cal. 4th 668, 673.) It decides the credibility of witnesses ; it weighs the evidence and resolves evidentiary conflicts. ( Ibid .) We do not decide th e credibility of witness testimony or reweigh the evidence.
Searches conducted without a warrant are “unreasonable per se under the Fourth Amendment unless it falls within one of the ‘specifically established’ ” exceptions to that requirement. ( People v. Woods

, supra , 21 Cal. 4th at p. 674.) “ I t i s ‘well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. ’ ” ( Ibid .)
Sheriff Deputy Hernand ez testified Ibarra immediately began to walk away from a h otel room when he saw the officers.
Ibarra appeared to be throwing trash away. The officers detained him for a “littering investigation.” Ibarra told the officers that he tossed away “a loaded s yringe” containing drugs. He agreed that the officers could search him “for any additional contraband.”
When Hernandez search ed the area where Ibarra tossed the
item

, he found a “bindle” containing a whit e substan ce “resembling methamphetamine.” Ibarra said it was his. The officers asked Ibarra if they could search h is h otel

room. Ibarra agreed and he signed a “search entry waiver form.” In a search the officers found illegal drugs.
Ibarra testified the officers handcuffed him and put him in a patrol car. When they asked his permission to search the h otel room, he said “no.” He said the signature on the search consent
form was not his. Ibarra admitted that he signed a citation at the police station.4 Ibarra notes the trial court said, “Deputy Herna ndez testified credibly; Mr. Ibarra testified credibly.” He claims this undermines the court’s ruling on the motion. But the court made
these comments before i t ruled on the motion. A “court’s comments” may “never be used to impeach the order or judgmen t.” ( Burbank

- Glendale

- Pas a dena Airport Authority v.
Hensler (1991) 233 Cal.App.3d 577, 591.) Such “comments in oral argument may never be used to impeach the final order.” ( Jespersen v. Zubiate

- Beauchamp (2003) 114 Cal.App. 4th 624, 633.) The reason for this is that the court “retains inherent authority to change its .

. . findings of fact .

. . at any time before entry of judgment

. . . .” ( Shaw v. County of Santa Cruz (2008) 170 Cal.App. 4th 229, 268.) The trial court found the signature on the citat ion, that Ibarra admitted he signed, was “similar” to the signature on the
search waiver form. Both begin with what appears to be a large
crude

- shaped letter “A” slanting to the left. It found the evidence
“boils down” to a “credibility call [] .” The cou rt said the “search waiver was completed before the search.” The People note the court rejected the defense claim that the officers had fabricated the signature. The court found the People met their burden to prove “the search was lawful.” Consequently, i t ultimately resolved the conflict in the evidence against Ibarra. Ibarra has not shown the court erred by denying the motion. ( People v

. Woods

, supra , 21 Cal. 4th at p. 673.)
The Pitchess Motion
Ibarra filed a Pitchess motion ( Pitchess v. Superior C ourt
, supra , 11 Cal.3d 531; Pen. Code, § 832.7 ; Evid Code, § 1043 et seq.) to discover relevant information from the police officers’ personnel records.5 “A criminal defendant, on a showing of good cause, is entitled to discovery of information in the co nfidential personnel records of a peace officer when that information is relevant to defend against a criminal charge.” ( People v. Gaines (2009) 46
C al. 4th 172, 176.) In the declaration in support of the motion, defense counsel
declared that officers Her nandez and Balarosan had a “custom of engaging in misconduct” that included fabricating evidence and conducting searches without a defendant’s consent. The trial court granted the motion and held an in camera review of the officers’ personnel records. Th e court ordered certain information from these records to be disclosed to the defense, including a complaint by a woman who said the officers “illegally searched
her residence after she was arrested.” But there was another complaint that was not disclosed to
the defense. In complaint No. 254917, filed on October 23, 2020, a man claimed one of the officers “entered his home, without any legal justification, while he was away.” This complaint was relevant to the defense claim that the officers had a patter n of searching homes without consent from defendants. It should
ha ve been disclosed to the defendant. Consequently, the judgment must be conditionally reversed. ( People v. Gaines

, supra , 46 Cal. 4th at pp. 180

- 182.)
DISPOSTION The judgment is condition ally reversed. The trial court on remand shall disclose complaint No. 254917 to the defense and
h old a hearing where the defendant shall have the burden to
show “ a reasonable probability of a different outcome had the
evidence been disclosed.” ( People v. Gaines

, supra , 46 Cal. 4th at

p. 182 ; People v. Mooc (2001) 26 Cal.4th 1216, 1228

- 1232. ) If the6

defendant meets that burden

, the judgment shall be vacated ; if

not
, the court must reinstate the judgment. ( Id . at p. 176.) Depending upon what the court det ermines after its review on remand, it may wish to reconsider its ruling on the Penal Code
section 1538.5 motion. We leave this decision to the trial court’s
discretion.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur:

YEGAN, J.

BALTODANO , J.7 Lee W. Tsao, Judge

Superior Court County of Los Angeles

______________________________

Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael C. Keller and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.