Filed 9/23/21 P. v. Young CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TORAINO LEON YOUNG,

Defendant and Appellant.

F079921

(Super. Ct. No. DF012462A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. John D. 

Oglesby, Judge.

Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. 

Martinez, and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Detjen, J. and DeSantos, J.
2.

Defendant Toraino Leon Young stands convicted of assault with a deadly weapon 

by an inmate. He contends on appeal that his trial counsel was ineffective for failing to 

file a third Pitchess1 motion, seeking disclosure of confidential peace officer records. 

The People disagree. We affirm.

PROCEDURAL SUMMARY

On August 24, 2016, the Kern County District Attorney filed an information 

charging defendant with assault with a deadly weapon by an inmate (Pen. Code, § 4501, 

subd. (a);2 count 1). The information further alleged defendant had suffered two prior 

felony “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, 

subds. (b)–(i), 1170.12, subds. (a)–(e)), had suffered a prior serious felony conviction 

(§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (b)). 

On August 24, 2017, defendant filed a first Pitchess motion, seeking disclosure of 

confidential peace officer records for two officers and Brady3 material related to 

11 officers. On August 31, 2017, the Department of Corrections and Rehabilitation 

(CDCR), as custodian of records for the documents, filed an opposition to that motion. 

On September 14, 2017, the trial court denied the motion. 

On May 22, 2018, defendant filed a second Pitchess motion, seeking disclosure of 

confidential peace officer records for six officers and any Brady material related to 

11 officers. Again, the CDCR opposed the motion. On July 11, 2018, the trial court 

denied defendant’s second motion. 

On October 11, 2018, after a bench trial, the trial court found defendant guilty on 

count 1 and found all special allegations true. On August 7, 2019, the trial court 

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

2 All further statutory references are to the Penal Code unless otherwise stated.

3 Brady v. Maryland (1963) 373 U.S. 83 (Brady).
3.

sentenced defendant to 25 years to life in state prison as a third-strike offender. The trial 

court struck the five-year serious felony conviction enhancement. 

On September 9, 2019, defendant filed a notice of appeal. 

FACTUAL SUMMARY

On October 20, 2015, defendant was an inmate at Kern Valley State Prison 

(KVSP). At about 1:30 p.m., defendant and other inmates were on afternoon yard release 

in the facility “A” yard. Defendant approached fellow inmate Kio Simmons from the 

rear and struck Simmons on the right side of his head using his right hand. No other 

inmate was within five feet of the two. Simmons dropped to his knees and defendant 

struck him an additional two or three times. Simmons did not fight back. He attempted 

to protect his head with his hands. 

KVSP Correctional Officers Lorenzo Gurrola and Stephanie Vera were 

supervising inmates on the facility “A” yard during the attack and KVSP Correctional 

Officer Ruben Robles was providing observation of facility “A” from an overlooking 

patio that stood approximately 25 feet above the ground. Gurrola and Vera stood about 

50 to 60 yards away from defendant and Simmons; Robles was approximately 40 or 

50 yards away from defendant and Simmons. When Gurrola saw defendant strike 

Simmons he radioed the other officers and gave all inmates on the yard an order to 

“prone out.” Vera and Robles also saw defendant strike Simmons. Defendant stopped 

striking Simmons, walked about 10 feet away from Simmons and toward Gurrola, and 

“assumed the prone position.” Gurrola, Vera, and Robles all testified that they did not 

see defendant throw any weapon or make any throwing gesture. 

As Gurrola and Vera approached Simmons, Simmons attempted to rise to his feet, 

but he appeared unsteady. Gurrola placed Simmons in handcuffs and conducted a 

clothed body search for contraband. A plastic inmate-manufactured weapon was 

discovered near where the fight took place. 
4.

KVSP Correctional Officer Ramiro Loza worked for the investigative services unit 

on October 20, 2015. At about 1:30 p.m., he was called to investigate an incident in the 

facility “A” yard involving a weapon. When he arrived, the inmates—other than

Simmons, who was already removed from the yard—were laying facedown. He 

observed and took custody of a jagged inmate-manufactured weapon made from melted 

plastic that was sharpened to a point. He further observed that defendant had suspected 

blood on his shorts and on his right hand. He also observed a laceration on the knuckle 

of defendant’s right thumb. Loza did not discover any blood on any other inmate. 

Dr. Jeff Sao was a medical doctor at KVSP on October 20, 2015. He treated 

Simmons and discovered that he had suffered a laceration on the right side of the 

forehead; an abrasion above the right eye on the forehead; an almost three-quarter-inch 

laceration on the right side of the face, lateral to the right eye; a crater-like abrasion on 

the chin; and an abrasion and puncture at the upper right neckline near the jaw. Simmons 

was struck repeatedly on the right side. The injuries to the chin and neckline were 

consistent with the injury having been caused by the plastic inmate-manufactured 

weapon. 

Dr. Sao treated defendant on October 27, 2015. On that date, defendant 

complained that his right hand was broken. Defendant claimed that he injured it in a fall 

a week prior. Dr. Sao noted swelling on the base of the right thumb and a scab that was 

at least three to four days old near the knuckle on the right thumb. Because the scab was 

on the top side of the hand, Dr. Sao believed the injury was more consistent with fighting 

than with falling. The injury could also have been caused by using the plastic 

inmate-manufactured weapon in a punching motion. 

DISCUSSION

Defendant contends that his trial counsel was ineffective for failing to file a 

third Pitchess motion seeking the same information he sought in the second Pitchess 

motion—personnel records of KVSP Officers Loza, Robles, Gurrola and Vera, 
5.

Lieutenant David Balkind, and Sergeant Marvin Ventura as well as Brady material 

related to 11 officers, including some of the aforementioned officers. We disagree.

A. Pitchess Framework

A Pitchess motion allows a criminal defendant to “compel the discovery” of

information in police officer personnel files. (People v. Superior Court (Johnson) (2015) 

61 Cal.4th 696, 710.) “Traditionally, Pitchess motions seek information about past 

complaints by third parties of excessive force, violence, dishonesty, or the filing of false 

police reports contained in the officer’s personnel file.” (Rezek v. Superior Court (2012) 

206 Cal.App.4th 633, 641 (Rezek).)

Pitchess motions are governed by specific statutory procedures. (Evid. Code, 

§§ 1043–1045; §§ 832.5, 832.7, 832.8.) “The [written] motion must describe the type of 

records or information sought and include an affidavit showing good cause for the 

discovery, which explains the materiality of the information to the subject of the pending 

litigation and states on reasonable belief that the governmental agency has the records or 

information.” (People v. Superior Court (Johnson), supra, 61 Cal.4th at p. 710.)

“ ‘A showing of “good cause” exists if the defendant demonstrates 

both (1) a “specific factual scenario” that establishes a “plausible factual 

foundation” for the allegations of officer misconduct [citations], and 

(2) that the misconduct would (if credited) be material to the defense 

[citation] .... Accordingly, defense counsel’s supporting declaration must 

propose a defense and articulate how the requested discovery may be 

admissible as direct or impeachment evidence in support of the proposed 

defense, or how the requested discovery may lead to such evidence.

[Citation.] Thus, a defendant meets the materiality element by showing 

(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.]’ ”

(Rezek, supra, 206 Cal.App.4th at pp. 639–640.)
6.

B. Additional Background

Defendant’s first Pitchess motion contained a declaration by counsel alleging that 

Loza and Lieutenant David Balkind “have been the subjects of ongoing investigations 

involving unspecified violations[.]” The motion contained the contention that “the 

reports of ... Loza and ... Balkind are incorrect or false.” However, no evidence was 

submitted in support of that contention and no explanation was given regarding the way 

in which the reports were incorrect or false. At the hearing on the motion, defendant’s 

counsel contended that “the reports of the officers in this case were plainly wrong. They 

provided supplemental declarations that contradicted the first findings during the initial 

investigation ....” The trial court denied the motion without prejudice, noting that the 

motion was unsupported by evidence and that defendant’s counsel had not submitted any 

exhibit suggesting that contradictory evidence was contained in the officers’ reports. 

Defendant’s second Pitchess motion repeated the allegation that “the reports of ... 

Loza and ... Balkind are incorrect or false.” The motion further alleged that Vera, 

Ventura, Gurrola, and Robles “provided the prosecution with additional statements which 

were in marked contrast to the ones provided in [their] original report[s].” The motion 

also alleged that Robles had “a level of familiarity with the ... victim that was unknown 

to the defense[,]” had been charged with and acquitted of “[a]ssault by a public officer 

and making a false report[,]” and had been convicted of “driving under the influence ... 

and [was] currently on probation for those charges [sic].” Defendant’s counsel’s 

declaration in support of the second motion alleged that “Lozano [sic] and ... Balkind 

ha[d] been the subjects of ongoing investigations involving unspecified violations[,]” 

“Robles, Vera, Loza, Ventura[,] and Gurola [sic] have provided false reports in this 
7.

case[,]” and Robles was “on probation and was charged with assault and making a false 

report[.]” The trial court denied the second motion.4

On October 9, 2018, the Pitchess issue was revisited. Defendant’s counsel 

explained that his client had discovered that administrative proceedings had been initiated 

against Balkind and perhaps other officers. Defendant’s counsel further commented that 

information regarding Balkind had been released in response to a Pitchess proceeding in 

a different case. Defendant’s counsel then commented that he “received information 

from ... Vera, who indicate[d] that the report she had originally filed ... was 

contradicted” and information suggesting that Robles was involved in an incident of 

excessive force in 2007. He summarized that he filed the Pitchess motions because he 

did not know whether the officers had been involved in administrative proceedings where 

allegations of misconduct were substantiated. He was “guessing that some of them 

[were] substantiated.” He knew that the administrative proceedings against some officers 

existed and “wanted to know the nature of them” because it impacted the credibility of 

the witnesses. However, he did not allege “that there was any issue[] of dishonesty.” At 

the end of the proceeding, the trial court suggested defendant’s counsel—with the 

assistance of court staff—seek the trial court records of any case involving misconduct 

against Balkind or Robles, that the People review and redact the records, and that the 

People provide discovery to defendant. 

On October 10, 2018, the parties disclosed that they had discovered a 

one-page probable cause declaration finding that Robles “assaulted a person who could 

not defend himself[] and then he lied” about the encounter in a report. The trial court 

afforded defendant an opportunity to seek a continuance to seek further discovery 

regarding the incident of excessive force. Defendant’s counsel responded that his “client 

4 The record does not contain a transcript from the hearing on defendant’s 

second Pitchess motion.
8.

believes that it is not in his best interest ... to continue the matter, and he wishes to 

proceed to trial.” Defendant did not contradict his counsel’s statement.

C. Analysis

To establish ineffective assistance of counsel (IAC) defendant must show 

(1) counsel’s representation fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) counsel’s deficient performance was prejudicial.

(Strickland v. Washington (1984) 466 U.S. 668, 687–688; People v. Ledesma (1987) 

43 Cal.3d 171, 216–217.) “ ‘Unless a defendant establishes the contrary, we shall 

presume that “counsel’s performance fell within the wide range of professional 

competence and that counsel’s actions and inactions can be explained as a matter of 

sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or 

failed to act in the manner challenged,” an appellate claim of [IAC] must be rejected 

“unless counsel was asked for an explanation and failed to provide one, or unless there 

simply could be no satisfactory explanation.” ’ ” (People v. Lopez (2008) 42 Cal.4th 960, 

966.) To establish prejudice, defendant must make a showing “sufficient to undermine 

confidence in the outcome” that but for counsel’s errors there is a reasonable probability 

that the result of the proceeding would have been different. (Strickland, at p. 694; see

Ledesma, at pp. 217–218.)

Here, the record undercuts defendant’s contention that there is no satisfactory 

explanation for his trial counsel’s failure to file a third Pitchess motion. Defendant’s trial 

counsel stated on the record his reason for not filing a third Pitchess motion—his “client 

ha[d] been waiting almost exactly three years to vindicate himself in this case. [¶ ] ... 

[¶] [His] client believe[d] that it [was] not in his best interest ... to continue the matter, 

and he wishe[d] to proceed to trial.” Even assuming a Pitchess motion may have been 

meritorious, counsel’s stated reason for refusing to file a third Pitchess motion was a 

valid tactical decision.
9.

Next, defendant has not established that he suffered any prejudice as a result of his 

trial counsel’s failure to file a third Pitchess motion. The record does not support any 

statement of a “ ‘specific factual scenario’ ” which could have established a “ ‘plausible 

factual foundation’ ” (Rezek, supra, 206 Cal.App.4th at p. 639) for the nonspecific 

allegations that Vera, Gurrola, and Ventura provided false information or made false 

reports.5 A defendant disputing the facts set out in an officer’s report is not sufficient to 

demonstrate good cause for a Pitchess motion. (People v. Sanderson (2010) 

181 Cal.App.4th 1334, 1340–1341; People v. Thompson (2006) 141 Cal.App.4th 1312, 

1317.) Here, the record does not support any foundation for the allegation that those 

officers submitted false reports. Instead, defendant’s counsel’s prior declarations and 

statements on the record merely alleged that those officers’ reports were false. The 

record does not support an alternate version of the facts that supported his defense and 

therefore does not support a showing of good cause.

Even assuming defendant had prevailed on the motion and obtained evidence of 

excessive force, violence, dishonesty, or the filing of false reports from the personnel 

files of Loza, Balkind, and Robles, there is no reasonable probability that the result would 

have been different. Balkind did not testify and did not appear to have any role in the 

investigation of this case; Loza did not testify to any material information not provided 

by the other officers; and the court was aware of the allegation that Robles harmed an 

inmate and then later filed a false report to conceal the incident. Vera and Gurrola both 

witnessed defendant’s attack on Simmons. Vera saw and took custody of the 

inmate-manufactured weapon before Loza arrived. Dr. Sao described Simmons’ neck 

and chin injuries as including a “stab wound” and an “irregular shaped puncture” that 

5 Defendant previously alleged that Loza submitted a report falsely describing the 

injuries to defendant and Robles had previously submitted a false report to conceal 

unwarranted or excessive use of force. No similar allegations were made regarding Vera, 

Gurrola, or Ventura. 
10.

were consistent with the weapon found near the fight. Dr. Sao further described the 

inflammation and scabbing of defendant’s right thumb as being more consistent with 

fighting than with defendant’s explanation that he fell. 

The trial court’s description of the basis for its verdict is consistent with the 

conclusion that Pitchess-type evidence would not have impacted the verdict. The trial 

court described “that the evidence in this case clearly establishe[d] ... defendant’s guilt. 

We have three people[—Robles, Gurrola, and Vera—]who witnessed an assault by ... 

defendant on another inmate. [¶] ... [W]e have the testimony of the medical doctor, 

who ... testified that a weapon was used to ... inflict[] [at least] one of the injuries. A 

weapon was found in the vicinity of where the assault occurred. And the defendant was 

noted to have injuries ... on his right hand, and that would be, in this Court’s opinion, 

consistent with the assault.” In sum, there is no reasonable likelihood that the trial 

court’s verdict would have been different even if Pitchess-type evidence had been 

discovered regarding Robles, Loza, and Balkind. 

DISPOSITION

The judgment is affirmed.