Filed 9/10/13 P. v. Bursey CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEITH BURSEY,

Defendant and Appellant.

 B242598

 (Los Angeles County

 Super. Ct. No. BA391622)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

IT IS ORDERED that the opinion filed herein on August 22, 2013 be modified in 

the following particulars:

On page 1, in the first line under the case title, add the name “Dennis J. Landin” as 

judge, so the first and second lines under the case title now read: APPEAL from a 

judgment of the Superior Court of Los Angeles County. Dennis J. Landin and Sam Ohta, 

Judges. Conditionally reversed and remanded with directions. 

On page 5, in the first sentence of the fourth full paragraph, after the words “The 

trial court,” add “(Judge Dennis J. Landin)”, so the sentence now reads: The trial court 

(Judge Dennis J. Landin) denied Bursey‟s Pitchess motion, finding, “[t]here‟s not a 

plausible factual scenario that would warrant the in-camera review of personnel records.”
2

On page 5, at the beginning of the fifth full paragraph, immediately under the 

heading “Verdicts and Sentencing,” add the following sentence: The matter was tried 

before Judge Sam Ohta.

This modification does not result in a change in the judgment.

NOT TO BE PUBLISHED.

________________________________________________________________________

MALLANO, P. J. ROTHSCHILD, J. CHANEY, J.
Filed 8/22/13 P. v. Bursey CA2/1 (unmodifed version)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEITH BURSEY,

Defendant and Appellant.

 B242598

 (Los Angeles County

 Super. Ct. No. BA391622)

APPEAL from a judgment of the Superior Court of Los Angeles County. Sam 

Ohta, Judge. Conditionally reversed and remanded with directions.

Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael 

Katz, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________
2

Keith Bursey appeals from a judgment entered after a jury found him guilty of 

possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1)),

1

and 

carrying a loaded handgun (former § 12031, subd. (a)(1)). After Bursey admitted prior 

conviction allegations, the trial court sentenced him to five years in prison.

Bursey contends the trial court abused its discretion in denying his Pitchess

2

motion in its entirety. He argues he established good cause for the discovery of personnel 

records of three Los Angeles Police Department (LAPD) officers relating to falsified 

police reports, dishonesty and planting evidence.

3

 We agree with Bursey‟s arguments, 

and therefore conditionally reverse the judgment for an in camera hearing on Bursey‟s 

Pitchess motion.

BACKGROUND

Police Report

LAPD Officer Algren prepared the police report attached to Bursey‟s Pitchess

motion. According to the report, on December 7, 2011, Officers Algren, Escamilla and 

Malik were on patrol in an unmarked vehicle in an area claimed by the Rolling 60‟s 

criminal street gang. At about 5:50 p.m., the officers drove by several people who were 

standing in front of a residence that was known as “an active gang location where Rolling 

60 gang members trespass, congregate and sell narcotics.” As the officers drove 

southbound, one of those people (not Bursey) “nervously looked at” the officers “and 

then quickly walked northbound away from the location.” Officer Algren, who was 

driving, stopped the police vehicle and the officers exited and began “to investigate.” 

Officer Malik approached the man who had walked away from the residence. 

According to the police report, the man told Officer Malik “he did not want to be seen or 

 

1

Statutory references are to the Penal Code unless otherwise indicated.

2

Pitchess v. Superior Court (1974) 11 Cal.3d 531.

3

Bursey also sought discovery of records relating to numerous other types of 

misconduct by the officers, but he does not challenge the denial of his Pitchess motion 

with respect to those other categories of records.
3

stopped with the gang members who were standing in front of the location.” Officer 

Escamilla approached and spoke with another man who was known to Officer Algren “as 

an active Rolling 60 gang member currently on parole.” 

Officer Algren approached Bursey, “who was standing on the sidewalk embracing 

his girlfriend.” Bursey was four to five feet away from a “very distinctive red Chevrolet 

Blazer.” Officer Algren asked Bursey if the Blazer belonged to him. Bursey looked at 

the Blazer and responded, “no.” Bursey informed the officer he was on parole.

Officers Algren and Malik “spoke with multiple residents in the area to determine 

if [Bursey] and the others were trespassing, loitering or if they lived at any of the 

residences in the area.” A woman who lived on the street where the suspects were 

standing told Officer Algren that one of the suspects (the man Officer Algren identified in 

his report as “an active Rolling 60 gang member”) “used to live several houses down 

from her residence.” The same woman “told Officer Malik that she has seen Bursey 

before and that the red truck in front of her house belonged to him.” 

Officer Algren stated in the police report that he “inspected the red Blazer and 

observed the end of a possible pistol grip protruding from beneath the right front 

passenger seat.” Officer Algren then “opened the right front passenger door and 

observed a full size blue steel pistol (Springfield Armory, 9mm, 4” barrel) lying beneath 

the right front passenger seat.” In the glove compartment, Officer Algren found several 

documents with Bursey‟s name and address on them. Officer Algren searched Bursey‟s 

pants pockets and found a set of keys with a remote control that unlocked the Blazer. 

Bursey then told Officer Algren the vehicle belonged to him. 

Officer Algren recovered the firearm from the Blazer and unloaded it. As stated in 

the police report: “The firearm was loaded with (10) live 9mm handgun cartridges. It 

appeared to be operable and in good working order.” Officer Malik later “conducted an 

automated query” and determined the firearm was unregistered. 

Bursey was arrested for being a felon in possession of a firearm. The other two 

men “were released at [the] scene.” The man who had walked away from the location 

when the officers drove by stated he did not have any information about Bursey or the red 
4

Blazer. The other man stated a friend had driven him to the location, and Bursey and the 

red Blazer were already there when he arrived. 

The police report states Bursey “is an admitted Rolling 60 gang member with 

multiple gang tattoos all over his body.” 

Pitchess Motion

A March 16, 2012 information charged Bursey with possession of a firearm by a 

felon and carrying a loaded handgun. 

On April 2, 2012, Bursey filed his Pitchess motion, seeking complaints and other 

police personnel records concerning LAPD Officers Algren, Escamilla and Malik, 

relating to numerous categories of misconduct, including falsified police reports, 

dishonesty and planting evidence. Bursey attached his police report to his motion. 

Defense counsel‟s declaration in support of the Pitchess motion states, in pertinent part:

“Defense is informed and believes that the officers have falsified their report and 

that there was no way the officers could see any pistol protruding from under the seat. 

First, the vehicle had an extremely dark tint on its side windows making it impossible to 

view the interior of the vehicle at that hour of the evening.

[4]

 Second, there was no gun in 

the vehicle. The gun may have been planted by the officers in order to frame the 

defendant.

“Thus, the fictitious account of the officers‟ observations and statements made in 

the arrest report are a clear falsification contained in the officers‟ report. Defense counsel 

contends that the officers falsified their report in order [to] have the defendant improperly 

 

4

At the March 2, 2012 preliminary hearing in this matter, Officer Malik testified 

that Officer Algren looked through the window of the Blazer, turned and mouthed the 

word “gun” to Officer Malik, opened the passenger side door of the Blazer and thereafter 

recovered the firearm from the Blazer.

At trial, Officer Malik testified he saw Officer Algren look into the front passenger 

side window of the Blazer. Officer Escamilla testified at trial that he saw Officer Algren 

look inside the Blazer while standing outside the passenger side of the vehicle. Officer 

Algren testified at trial that he could not recall whether he looked into the Blazer through 

the passenger door window or the windshield. Officer Algren recalled that the windows

of the Blazer were tinted, but testified that he was able to see through the tint. 
5

charged for felony firearm possession and carrying an unregistered firearm.” (Bold and 

italicized font omitted.) 

After summarizing the information in the police report, Bursey explained he 

sought records relating to all three officers who were present when he was arrested 

because each of them “played a part in making the arrest” and was engaged in the 

misconduct. 

In written opposition to the Pitchess motion, the LAPD argued defense counsel‟s 

“declaration is nothing but a denial of the officer‟s report” and “therefore is insufficient 

to support a finding of „good cause‟ to compel review of private documents [police 

personnel records].” (Bold font omitted.) The LAPD asserted the trial court should deny 

Bursey‟s motion because defense counsel‟s declaration lacked specificity and did not 

present an “alternate” factual scenario of what occurred at the time of the arrest. (Bold 

font omitted.) 

At the April 27, 2012 hearing on Bursey‟s Pitchess motion, defense counsel 

reiterated Bursey‟s position that the officers falsified the police report and planted 

evidence (the handgun). Defense counsel argued the officers could not have looked into 

the window of Bursey‟s vehicle and seen a handgun, as reported, because (1) it was dark 

outside and the windows of the vehicle were tinted and (2) there was no handgun in the 

vehicle. 

The trial court denied Bursey‟s Pitchess motion, finding, “[t]here‟s not a plausible 

factual scenario that would warrant the in-camera review of personnel records.” The 

court commented: “[T]here‟s no explanation, no plausible reason why the officer would 

li[e] about that. Why would the police?” 

Verdicts and Sentencing

After hearing testimony from Officers Malik, Escamilla and Algren, and Bursey‟s 

stipulation that he had a prior felony conviction, the jury found Bursey guilty of 

possession of a firearm by a felon (count 1) and carrying a loaded handgun (count 2). 

Bursey admitted the allegation in the information that he had sustained one prior 

felony conviction which qualified as a serious or violent felony within the meaning of the
6

“Three Strikes” law. (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d).) He also admitted 

the allegation that he had sustained a prior conviction and had served a term within the 

meaning of section 667.5, subdivision (b). 

After denying Bursey‟s motion to dismiss the prior strike, the trial court sentenced 

Bursey to five years in prison: the middle term of two years on count 1, doubled to four 

years under the Three Strikes law, plus one year for the enhancement under section 

667.5, subdivision (b). The court imposed and stayed a four-year sentence on count 2.

DISCUSSION

Bursey contends the trial court erred in denying his Pitchess motion with respect 

to personnel records of Officers Algren, Escamilla and Malik relating to falsified police 

reports, dishonesty and planting evidence. He requests that we order the trial court to 

conduct an in camera review of such records. 

Under Evidence Code section 1043, a motion seeking discovery of police 

personnel records (a Pitchess motion) must include, among other things, “[a] description 

of the type of records or information sought” and “[a]ffidavits showing good cause for 

the discovery or disclosure sought, setting forth the materiality thereof to the subject 

matter involved in the pending litigation and stating upon reasonable belief that the 

governmental agency identified has the records or information from the records.” (Evid. 

Code, § 1043, subd. (b)(2), (3); City of San Jose v. Superior Court (1998) 67 Cal.App.4th 

1135, 1142-1143.) “The statutory scheme carefully balances two directly conflicting 

interests: the peace officer‟s just claim to confidentiality, and the criminal defendant‟s 

equally compelling interest in all information pertinent to the defense.” (City of San Jose 

v. Superior Court (1993) 5 Cal.4th 47, 53.)

In Warrick v. Superior Court (2005) 35 Cal.4th 1011, our Supreme Court clarified 

the good-cause requirement for discovery of police personnel records. In addition to a 

specific description of the discovery sought and a demonstration of a logical link between 

the defense proposed and the pending charge, to satisfy “the first part of the good cause 

requirement” and establish “the materiality to the pending litigation of the discovery 
7

sought,” the “defendant need only demonstrate that the scenario of alleged officer 

misconduct could or might have occurred.” (Id. at pp. 1016, 1021.) To make this 

showing, the defendant must present “a specific factual scenario of officer misconduct 

that is plausible when read in light of the pertinent documents,” such as the police report. 

(Id. at p. 1025.) “That factual scenario, depending on the circumstances of the case, may 

consist of a denial of the facts asserted in the police report.” (Id. at pp. 1024-1025.) To 

be plausible, the scenario must include “an assertion of specific police misconduct that is 

both internally consistent and supports the defense proposed to the charges.” (Id. at p. 

1026.) 

The Supreme Court recognized the good cause requirement “is a „relatively low 

threshold for discovery.‟ [Citation.]” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 

1019.) In ruling on a Pitchess motion, the trial court does not evaluate the credibility, 

believability or persuasiveness of the defendant‟s factual scenario. (Id. at p. 1026.) “A 

Pitchess motion need not . . . provide a motive for the alleged officer misconduct.” (Id. at 

p. 1025.)

We review a trial court‟s ruling on a Pitchess motion for abuse of discretion. 

(People v. Hughes (2002) 27 Cal.4th 287, 330.)

In his Pitchess motion, Bursey presented the following factual scenario through 

his counsel‟s declaration, read in conjunction with the police report: Officers Algren, 

Escamilla and Malik contacted three men who were standing outside a known gang 

hangout where narcotics had been sold in the past. Bursey informed an officer he was on 

parole. Officer Algren recognized one of the other men as an active gang member who 

was on parole. While the men were detained, the officers spoke to residents in the area to 

determine if the men were engaged in any criminal behavior. Apparently, none of the 

residents reported any criminal behavior. The police report does not cite evidence of 

narcotics sales.

One of the residents told an officer a vehicle in the area belonged to Bursey. 

Bursey had previously denied the vehicle was his when Officer Algren asked about it. 

Officer Algren looked into the vehicle, opened the front passenger side door and searched 
8

the vehicle. Bursey subsequently admitted the vehicle was his after Officer Algren found 

a set of keys in Bursey‟s pants pocket with a remote control which unlocked the vehicle.

Officer Algren reported that when he looked into the vehicle he saw the end of the 

grip of a firearm sticking out from underneath the front passenger seat. He thereafter 

recovered the firearm from the vehicle.

The defense presented in Bursey‟s Pitchess motion is that the officers planted the 

firearm in Bursey‟s vehicle and falsified the police report to cover it up. Defense 

counsel‟s declaration states there was no firearm in Bursey‟s vehicle and Officer Algren 

could not have seen the end of a grip of a firearm by looking through a side window of 

the vehicle as he stated in the police report. It was dark outside at the time Officer 

Algren looked into the vehicle (after 5:50 p.m. on a December evening) and the windows 

of the vehicle were tinted with “an extremely dark tint.”

5

 (Bold font omitted.) 

We find Bursey satisfied the prerequisites set forth in Evidence Code section 1043 

and made a showing of good cause for discovery of relevant information in the personnel 

files of Officers Algren, Escamilla and Malik regarding prior complaints of falsified 

police reports, dishonesty and planting evidence. In his Pitchess motion, Bursey 

presented a specific factual scenario of officer misconduct which supports the defense 

proposed to the charges and could or might have occurred—the officers planted the 

firearm and then falsified the police report to cover it up. Officer Algren reported he 

looked into the vehicle and saw the firearm. According to defense counsel‟s declaration, 

Officer Algren could not have seen a firearm in the vehicle because (1) there was no 

firearm in the vehicle and (2) it was dark outside and the window Officer Algren looked 

through had a dark tint.

 

5

At trial, the defense introduced a photograph of Bursey‟s vehicle which was 

received in evidence. Officer Algren testified that “in the photograph the windows are so 

dark that it looks like you can‟t even see through it” due to the tinting. Officer Algren 

denied the photograph accurately depicted the tint as it appeared on December 7, 2011, 

and maintained he was able to look through the window and see the firearm sticking out 

from underneath the front passenger seat.
9

The Attorney General argues Bursey did not show good cause for discovery of any 

police personnel records because the factual scenario Bursey presented in his Pitchess

motion did not “explain whether he was outside the nearby residence, and if so what he 

was doing there. He also failed to state whether the vehicle belonged to him.” As 

discussed above, a defendant must present “a specific factual scenario of officer 

misconduct that is plausible when read in light of the pertinent documents,” such as the 

police report. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1025, italics added.) 

As set forth in defense counsel‟s declaration in support of Bursey‟s Pitchess motion, the 

police report states Bursey was standing outside a particular residence and that Bursey 

eventually admitted the vehicle Officer Algren searched belonged to him. Bursey does 

not dispute these facts from the police report.

The Attorney General cites People v. Thompson (2006) 141 Cal.App.4th 1312, 

1318 in support of its argument Bursey did not show good cause because his factual 

scenario did not explain what he was doing outside the residence prior to and at the time 

of his arrest. In that case, the police reported the defendant sold narcotics to an 

undercover officer as several other police officers watched the transaction. (Id. at pp. 

1315, 1317.) In his Pitchess motion, the defendant denied involvement in the narcotics 

transaction and asserted the police arrested him because he was in an area where the 

police were making other arrests for drug sales. (Id. at p. 1317.) The Court of Appeal 

found the defendant did not show good cause for discovery of police personnel records 

regarding dishonesty, planting evidence and other misconduct because the factual 

scenario he presented did not explain why he was in an area where drugs were being sold 

or what he was doing prior to his arrest which led to his “being singled out by the police.” 

(Id. at pp. 1317, 1318.)

In this case, the police report states Bursey and two other men were standing in 

front of a residence that was known as “an active gang location where Rolling 60 gang 

members trespass, congregate and sell narcotics.” Bursey was hugging his girlfriend 

when the officers arrived. The officers conducted an investigation but did not uncover 

evidence that the men were engaged in criminal conduct (e.g., narcotics sales). There is 
10

no reported connection between the location where Bursey was standing and the firearm 

that was found in his vehicle. The sufficiency of Bursey‟s factual scenario does not 

depend upon him explaining why he was standing outside the residence or what he was 

doing just prior to the officers‟ arrival.

The Attorney General also argues “the records for Officers Escamilla and Malik 

are irrelevant because these officers were not involved in searching appellant‟s vehicle or 

documenting that search.” As stated above, we find Bursey showed good cause for 

discovery of the personnel records of all three officers regarding prior complaints of 

falsified police reports, dishonesty and planting evidence. Courts have allowed discovery 

of personnel records as to all officers who were “directly involved in the fracas” 

(Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 697), who “acted in concert” 

with the arresting officer (Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 787), or 

who were present and witnessed the fracas (Kelvin L. v. Superior Court (1976) 62 

Cal.App.3d 823, 828-829). Officers Escamilla and Malik drove to the scene in the same 

patrol car as Officer Algren. They worked together with Officer Algren to investigate the 

activities of Bursey and the other two men. Officers Escamilla and Malik were present 

and witnessed the search of Bursey‟s vehicle. The police report demonstrates Officers 

Escamilla and Malik were directly involved in the events leading up to Bursey‟s arrest 

and they acted in concert with Officer Algren.

We remand the matter for an in camera hearing during which the trial court shall 

examine any personnel records of Officers Algren, Escamilla and Malik relating to 

falsified police reports, dishonesty and planting evidence, and disclose to Bursey 

“information [that] is relevant to the subject matter involved in the pending litigation,” 

but does not fall within the statutory exceptions and limitations. (Evid. Code, § 1045, 

subd. (a); People v. Mooc (2001) 26 Cal.4th 1216, 1226-1227.) In the event the trial 

court discloses information to Bursey, the court shall allow Bursey an opportunity to 

demonstrate prejudice and shall order a new trial if there is a reasonable probability that 

the outcome would have been different had the information been disclosed. If, after a 
11

reasonable time, Bursey has failed to demonstrate prejudice, the court shall reinstate the 

judgment. (People v. Hustead (1999) 74 Cal.App.4th 410, 419, 422-423.)

DISPOSITION

The judgment is conditionally reversed and the cause remanded with directions to 

the trial court to conduct an in camera hearing on Bursey‟s discovery motion with respect 

to personnel records of Officers Algren, Escamilla and Malik relating to falsified police 

reports, dishonesty and planting evidence, and to make a record in accordance with the 

procedures set forth in People v. Mooc, supra, 26 Cal.4th at pages 1228-1230. If the 

hearing reveals no discoverable information, the trial court shall reinstate the original 

judgment. If the in camera hearing reveals discoverable information, the trial court shall 

grant discovery, allow Bursey an opportunity to demonstrate prejudice, and order a new 

trial if prejudice is demonstrated. If prejudice is not demonstrated, the trial court shall 

reinstate the original judgment.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

MALLANO, P. J.

ROTHSCHILD, J.