Filed 10/21/14 P. v. Moore CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BRYSON DUPREE MOORE,

Defendant and Appellant.

F067118

(Super. Ct. No. BF139573B)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Jerold L. 

Turner, Judge.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

On December 1, 2011, appellant was arrested after attempting to discard a packet 

of methamphetamine in the presence of two police officers. Following a jury trial, 

appellant was convicted of transporting methamphetamine (count 1; Health & Saf. Code, 

§ 11379, subd. (a)), possessing methamphetamine for sale (count 2; Health & Saf. Code, 

§ 11378), and willfully, unlawfully, and actively participating in a criminal street gang 

(count 3; Pen. Code, § 186.22, subd. (a)). Enhancement allegations attached to counts 1 

and 2 as offenses committed for the benefit of, at the direction of, or in association with a 

criminal street gang and with the specific intent to promote, further or assist in criminal 

conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)). The information also 

alleged that appellant had six prior felony convictions, but the trial court struck five of the 

six prior convictions for sentencing purposes. Appellant was sentenced to a total of 17 

years in prison, and the trial court imposed additional fines and fees. 

On appeal, appellant argues that (1) the trial court abused its discretion by denying 

appellant’s Pitchess motion to discover certain files within the personnel files of his 

arresting officers, and (2) there was insufficient evidence to support appellant’s 

conviction for active gang participation. Neither of these arguments is persuasive and the 

judgment will be affirmed.

FACTS

On December 1, 2011, Bakersfield Police Department Officers Matthew Gregory 

and Andrew Ferguson observed a red vehicle pull up to a residence, and two men exit the 

vehicle. Gregory recognized one of the men as appellant whom he knew to be a parolee 

and member of the East Side Crips street gang. The officers approached the two men 

and, as they did so, appellant discarded an object into the grass. 

Following Gregory’s observation, the officers detained appellant and the other 

man, later identified as Vernon Mixon. Gregory retrieved the discarded package and saw 
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it was a plastic bag containing 3.23 grams of methamphetamine. The officers did not 

find any additional drugs or drug paraphernalia on appellant’s person, but did recover 

appellant’s cellular phone. 

The officers then conducted a consensual search of the residence which belonged 

to appellant’s aunt. She directed the officers to appellant’s belongings, where the officers 

recovered a black backpack containing a digital scale. Appellant was then placed under 

arrest and read his Miranda1rights. Appellant initially denied any knowledge of the 

methamphetamine that was recovered, but later stated that Mixon passed the bag of drugs 

to appellant when he observed the officers approach. 

DISCUSSION

I. The Trial Court Did Not Abuse Its Discretion By Denying Appellant’s 

Pitchess Motion.

A. Facts.

Prior to trial, appellant filed a Pitchess2 motion seeking disclosure of any materials 

within the personnel records of Officers Gregory and Ferguson relating to “[l]ack of 

credibility,” “acts involving moral turpitude,” “[d]ishonesty/untruthfulness/veracity/false 

testimony/false arrest/conduct unbecoming an officer/neglect of duty,” and “[r]acial 

discrimination; racial profiling; racial bias[.]” 

Attached to this motion was an affidavit by defense counsel averring, in relevant 

part, that the officers did not recognize appellant prior to approaching him, were the only 

 

1 Miranda v. Arizona (1966) 384 U.S. 436.

2 See Pitchess v. Superior Court (1974) 11 Cal.3d. 531. The California Legislature 

codified the privileges and procedures set out in Pitchess through the enactment of Penal 

Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. (City of 

Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81.) 
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witnesses who observed appellant making a throwing motion, and arrested appellant and 

Mixon “simply because they were two young black men out at night in a targeted

area.” 

The affidavit also stated that the documents sought were material to the defense, as 

they “cast doubt on the sequence of events set forth by the officers,” and it was 

“possible” the police were “simply trolling for alleged gang members to set-up and 

arrest.” 

The Bakersfield Police Department filed a brief in opposition to the Pitchess

motion, and the trial court denied appellant’s motion for failure to state a specific factual 

scenario justifying an in camera review of the officers’ personnel files. 

B. Standard of Review.

A trial court’s ruling on a Pitchess motion is reviewed for abuse of discretion. 

(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) 

C. Analysis.

Peace officer personnel records are confidential and can only be discovered 

pursuant to Evidence Code sections 1043 and 1045. (Pen. Code, § 832.7.) In order to 

discover such records, a defendant must file a motion stating what records are sought, and 

must provide affidavits “showing good cause for the discovery or disclosure sought, 

setting forth the materiality thereof to the subject matter involved in the pending 

litigation.” (Evid. Code, § 1043, subd. (b)(3).)

Establishing “good cause” requires the defendant to demonstrate a “specific 

factual scenario” that establishes a “plausible factual foundation” for the allegations of 

officer misconduct. (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 85-

86.) A factual scenario is “plausible” if it is one that “might or could have occurred.” 

(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026.) 
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Establishing “materiality” requires a defendant to show “(1) a logical connection 

between the charges and the proposed defense; (2) the requested discovery is factually 

specific and tailored to support the claim of officer misconduct; (3) the requested 

discovery supports the proposed defense or is likely to lead to information that will do so; 

and (4) the requested discovery is potentially admissible at trial. [Citation.]” (Giovanni 

B. v. Superior Court (2007) 152 Cal.App.4th 312, 319.) If a defendant establishes both 

good cause and materiality, the personnel records at issue are reviewed by the trial court 

in camera and relevant documents are released to the defense. (Evid. Code, § 1045, subd. 

(b).)

Here, however, appellant’s Pitchess motion established neither good cause nor 

materiality. Rather than asserting a specific factual scenario sufficient to show good 

cause, appellant’s motion merely denied that Officers Gregory and Ferguson recognized 

appellant, and asserted that appellant was arrested because he was a young Black man in 

a targeted area where it was “possible” that police were “trolling for alleged gang 

members to set-up and arrest.”

This vague factual scenario stands in stark contrast with a case appellant relies 

upon in his brief on appeal, Warrick v. Superior Court, supra, 35 Cal.4th 1011. In 

Warrick, the defendant was charged with possession of cocaine for sale after he ran from 

police in an area known for narcotics activity and a large quantity of rock cocaine was 

found on the ground near the site of his eventual apprehension. (Id. at pp. 1016-1017.) 

In the defendant’s subsequent Pitchess motion, he asserted that he was in the area to 

purchase drugs, not sell them, and that he fled from the police because he was in violation 

of his parole. (Id. at pp. 1017-1018.) He also asserted that the drugs that were recovered 

did not belong to him, but had been dropped by someone in the crowd of people he fled 

through. (Ibid.) The Supreme Court later determined that the defendant’s motion 

established good cause, as it presented a specific and internally consistent factual 
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scenario that supported a defense that the arresting officers lied or were mistaken about 

who had spilled the drugs in question. (Id. at p. 1027.) 

When viewed next to the specificity of the factual scenario in Warrick, appellant’s 

generalized denials and speculative assertions more closely resemble the Pitchess motion 

in People v. Thompson (2006) 141 Cal.App.4th 1312. In that case, the defendant was 

arrested after selling drugs to an undercover police officer, and was found in possession 

of two $5 bills that were later identified as being from the undercover officer’s purchase 

money. (Id. at p. 1315.) In the defendant’s Pitchess motion, he denied buying the drugs, 

denied that the purchase money was found on his person, and asserted that the officers 

involved in his arrest had arrested him because he was in a targeted area, and then 

fabricated the entire incident and planted evidence on the defendant after discovering that 

he had a criminal record. (Id. at pp. 1315, 1317.) 

On appeal, the Second District Court of Appeal rejected the defendant’s claim that 

the trial court had improperly denied his Pitchess motion, and held that the defendant’s 

factual scenario was neither internally consistent nor complete, did not explain the facts 

set out in the police report (People v. Thompson, supra, 141 Cal.App.4th at p. 1317), and 

merely made “bald assertions that denied the elements of the charged crime.” (Id. at p. 

1318.) The Second District also found that “Warrick did not redefine the word 

‘plausible’ as synonymous with ‘possible,’ and does not require an in camera review 

based on a showing that is merely imaginable or conceivable and, therefore, not patently 

impossible.” (Id. at p. 1318.)

Like the defendant in Thompson, appellant’s Pitchess motion alleged that he was 

only arrested for being in a targeted area, and that the police subsequently fabricated 

evidence to support charging appellant with a drug offense. However, unlike the valid 

Pitchess motion in Warrick, appellant’s motion failed to lay out a reasonably specific 

alternative scenario that accounted for the evidence supporting the charges. Accordingly, 
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appellant’s motion was factually deficient and did not establish good cause for discovery 

of the requested information. 

Further, appellant’s Pitchess motion failed to establish materiality by setting out 

any logical connection between the charges and a proposed defense, or by showing the 

requested discovery supported a proposed defense or was likely to lead to information 

that would do so. Appellant’s motion fails to address the ownership or authenticity of the 

drugs found at the scene, as well as appellant’s statements at the scene confirming he was 

aware of the drugs. Instead, the affidavit in support of appellant’s motion only addresses 

the motives of the arresting officers at the time they approached appellant, not the 

validity of the charges or the elements of the charged offense.

For these reasons, we uphold the denial of appellant’s Pitchess motion as a 

reasonable exercise of judicial discretion.

II. There Was Substantial Evidence to Support Appellant’s Conviction for 

Active Gang Participation.

A. Facts.

At trial, Officer Gregory testified that appellant’s phone had pictures of marijuana 

and baggies that suggested that the marijuana was for sale and not for personal use, as 

well as text messages referring to packaging and selling drugs. He also testified that 

appellant admitted that Mixon passed appellant the package of methamphetamine when 

Mixon saw the police approaching. 

Officer Robert Woods, who serves on the Bakersfield Police Department Gang 

Unit, testified that the text messages on appellant’s phone indicated involvement in the 

East Side Crips street gang and made references to the packaging and sale of narcotics. 

Woods further testified that appellant’s phone contained pictures of appellant wearing 

East Side Crips colors, making East Side Crips gang signs, and posing with known 

members of the East Side Crips. He also testified that Mixon was a self-admitted 

member of the East Side Crips and that appellant had claimed membership in the East 
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Side Crips when he was booked following his arrest in this case. Woods further testified 

that narcotics sales are a primary activity and source of income for the East Side Crips. 

B. Standard of Review.

We view the record in the light most favorable to the conviction and presume the 

existence of every fact in support of the conviction the trier of fact could reasonably infer 

from the evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) “Reversal is not 

warranted unless it appears ‘‘‘that upon no hypothesis whatever is there sufficient 

substantial evidence to support [the conviction].” [Citation.]’ [Citation.]” (People v. 

Duran (2002) 97 Cal.App.4th 1448, 1457.)

C. Analysis.

“The elements of the gang participation offense in [Penal Code] section 186.22(a) 

are: First, active participation in a criminal street gang, in the sense of participation that is 

more than nominal or passive; second, knowledge that the gang’s members engage in or 

have engaged in a pattern of criminal gang activity; and third, the willful promotion, 

furtherance, or assistance in any felonious criminal conduct by members of that gang. 

[Citation.]” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) Penal Code 

section 186.22, subdivision (a) does not apply to criminal acts committed by a gang 

member acting alone. (Rodriguez, supra, at p. 1139.)

On appeal, appellant asserts that there was insufficient evidence to establish that 

appellant engaged in the promotion, furtherance, or assistance of any gang related 

criminal conduct, as there was no evidence showing that appellant was acting in concert 

with other gang members. Contrary to appellant’s assertions, however, there was 

substantial evidence to establish that appellant was a member of the East Side Crips, that 

at the time of his arrest he was with another known member of that gang, and that both 

appellant and the other member were aware of the drugs that were seized by the police. 

Further, there was evidence on appellant’s cell phone that suggested that appellant was 
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not only a member of the East Side Crips, but was also involved in drug dealing for the 

financial benefit of that gang, which uses the proceeds from drug sales as a primary 

source of income. 

Viewing this direct and circumstantial evidence in the light most favorable to the 

conviction, we find there was substantial evidence to support appellant’s conviction for 

active gang participation.

DISPOSITION

The judgment is affirmed.

_____________________

LEVY, Acting P.J.

WE CONCUR:

_____________________

DETJEN, J.

_____________________

PEÑA, J.