1 Filed 8/27/13 P. v. Austin CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MONTRELL EUGENE AUSTIN, Defendant and Appellant. A135317
(Solano County Super. Ct. No. VCR213774)

Defendant Montrell Eugene Austin appeal s his conviction, following a jury trial, of carrying a loaded, unregistered firearm. Defendant contends there was insufficient evidence to support th e conviction, that the court abus ed its discretion in summarily denying his Pitchess 1 motion to review the personnel f ile of one of the two arresting officers, and asks that we conduct an indepe ndent review of the other officer’s personnel
records to determine if the court’s order denying disclo sure was proper. Defendant also
contends the trial court abused its disc retion in conditioning his probation on not consuming alcohol in a public place. We conclude the conviction was supported by substantial evidence and that the probation condition is appropria te. However, we must remand th e matter to the trial court for further proceedi ngs concerning the Pitchess motions.

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.2 F ACTUAL AND P ROCEDURAL B ACKGROUND There was testimony at trial that on Ju ly 16, 2011, Vallejo Police Department Officers Eric Jensen and Dustin Joseph were patrolling the Crest area of Vallejo. At approximately 2:30 a.m., Officer Jensen, driv ing eastbound, saw defe ndant walking in the same direction, look over his right shoulde r at the patrol car, move his elbows and his hands to the front of his body, reach into hi s waistband area and toss a dark object that had “some girth to it.” The object landed appr oximately two feet from defendant. Officer Joseph observed much the same thing, tes tifying that the objec t was thrown with defendant’s left hand to his left side, about a foot to two feet off the sidewalk, into the side yard of the corner house at Cynthia and Amelia Streets. Joseph testified that he never lost sight of defendant from the time he first saw him until he made the throwing gesture. After defendant discarded the object, Jensen turned on the driv er’s side spotlight and pulled up about 10 to15 feet behind defendant. Both office rs exited the patrol car and ordered defendant to stop a nd place his hands on his head . Defendant complied. Joseph pat-searched defendant for wea pons while Jensen walked back 30 feet to where defendant had tossed the object. About tw o feet from the sidewalk, Je nsen found a fully loaded, operable .357 Smith & Wesson magnum revolver. Joseph testified that Jensen picked up the gun “[i]n the exact spot where [the y] saw Mr. Austin drop the object.” Jensen was wearing gloves when he picked up the gun by its grip. He removed six live rounds from the gun. A latent print proc essing technician subsequently examined the gun but was unable to find “any suitable latent impressions.” The technician swabbed the textured surfaces of the gun for DNA but did not know the re sults of the DNA analysis.
Defendant testified in his own defens e that on the night in question he was walking with “a lot of stuff on [his] mind,” that he had been drinking from a bottle of gin which he threw down as the police approached , and that he was not carrying a gun. He denied that the gun Jensen found was his. Defendant was charged by information with carrying a loaded, unregistered firearm. (Pen. Code, §§ 12031, subd. (a)(1), 25850, subd. (a).) Prior to trial he filed two virtually identical Pitchess motions to discover the person nel files of Officers Joseph and3 Jensen, which the Vallejo city attorney opposed. The court granted the motion as to Officer Jensen, but denied the motion as to Officer Joseph without conducting an in camera hearing. After an in camera review of documents from Jensen’s file, the court found no documents required to be disclosed to the defense. A jury found defendant gu ilty as charged. The cour t suspended imposition of sentence and placed defendant on probation for three year s on conditions including 242 days in county jail, with cr edit for time served, and that he “not ingest alcohol, consume alcohol in any public place.” Defenda nt timely filed a notice of appeal.
D ISCUSSION 1. Sufficiency of the Evidence
Defendant contends there was insufficien t evidence to support the conviction due to a lack of “fingerprint or DNA evidence li nking [defendant] to the gun” as well as “no direct, clear observation of the object [defen dant] discarded.” In reviewing a claim of insufficiency of the eviden ce, “we review the whole re cord to determine whether any rational trier of fact could ha ve found the essential elements of the crime or special circumstances beyond a reas onable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evid ence that is reasonable, credible, and
of solid value—such th at a reasonable trier of fact coul d find the defendant guilty beyond a reasonable doubt. [Citation.] . . . [¶] The sa me standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.] [An appellate court] ‘must accept logical inferences that the jury might have drawn from the circumstantial evidence.’ ” ( People v. Zamudio (2008) 43 Cal.4th 327, 357.) Here, the testimony of Officers Joseph an d Jensen was sufficient to support the conviction for carrying a loaded, unregistered firearm. Although the evidence indicated that the street was poorly lit at the time – appr oximately 2:30 a.m. – and that the officers
observed defendant’s movements from a distan ce of 35 to 40 feet, the circumstantial
evidence nonetheless was suffici ent to support the inference that defe ndant possessed the weapon that Jensen found. Both officers were able to obse rve, describe and demonstrate the motion defendant made with his hands, and Jensen found the weapon exactly where4 the officers observed defendant throw the object. There were no alcohol bottles at that spot. While the evidence of possession of cont raband may have been stronger in other cases which defendant cites, the evidence here nonethele ss was sufficient to support a
rational inference that the movements th e officers observed defendant making were taking the gun from his waistband and discarding it where Jensen found it.
2. Probation Condition
Defendant contends the tria l court abused its discreti on in imposing as a condition of probation that he not ingest or consume al cohol in a public place. Absent a showing that a condition of probation infringes upon a constitutional right, we review probation conditions for abuse of discretion, “that is , for an indication th at the condition is ‘arbitrary or capricious’ or otherwise exceeds the bounds of reason under the circumstances.” ( People v. Olguin (2008) 45 Cal.4th 375, 384.) In People v. Lent (1975) 15 Cal.3d 481, 486, the Suprem e Court stated that “A cond ition of probatio n will not be held invalid unless it ‘(1) has no relationshi p to the crime of wh ich the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ ” Furthermore, “a condition of probation which requ ires or forbids conduct whic h is not itself criminal is valid if that conduct is reasonably relate d to the crime of which the defendant was
convicted or to futu re criminality.” ( Ibid .) Defendant acknowledges that there was evidence that he “h ad been drinking
before his arrest.” Based on the circumstan ces surrounding defendan t’s arrest, the trial court could properly conclude that alcohol was related to his offense. Although the consumption of alcohol is not in itself crimin al, the court could properly conclude that limiting the consumption of alcohol would reas onably deter future criminal behavior. We see no basis for concluding that the trial court abused its discretion in imposing the
alcohol condition.
3. Pitchess Motions
Defendant contends the tria l court abused its discretion in summarily denying his
Pitchess motion directed to the personnel file of Officer Joseph and requests that we5 conduct an independent review of the docum ents from the personnel file of Officer
Jensen that the court examined in camera and found were not subject to disclosure. We review the trial court’s ruling on a Pitchess motion for abuse of discretion. ( Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; People v. Gill (1997) 60 Cal.App.4th 743, 749.) When a party seeking discovery or disclosure of a peace or custodial officer’s personnel records file s a written motion in accordance with the requirements of Evidence Code section 1043, “t he trial court must co nduct an in camera inspection of the records in order to determine their relevance to the subject matter involved in the pe nding proceeding.” ( People v. Gill
, supra , at p. 749.) “Good cause for discovery exists when the de fendant shows both ‘ “materia lity” to the subject matter of the pending litigation and a “reasonable belie f” that the agency has the type of information sought.’ [Citation. ] A showing of good cause is measured by ‘relatively
relaxed standards’ that serve to “insure th e production” for trial court review of “all potentially relevant documents.’ ” ( Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016.) The trial court granted defendant’s motion as to one of the arresting officers but denied an essentially identical motion as to the second officer. As the court implicitly recognized in granti ng the motion as to Officer Jens en’s file, defendant’s showing satisfied the “relatively low threshold for discovery.” ( City of Santa Cruz v. Municipal
Court (1989) 49 Cal.3d 74, 83.) Both motions were supported by similar declarations by defendant’s trial counsel stating that defenda nt “maintains he di d not throw any objects
and had no involvement with th e firearm allegedly found at the scene,” that defendant contends there was no probable cause to stop or arrest him, that each officer “has a long history of fabricating probable cause to arrest and reasonable suspicion to de tain suspects, and for use of excessive force” and that “[i]t is believed that [each officer] has a history of fabricating probable cause to arrest. This information is relevant to this case because there are no independent percipient witnesse s to this event so the credibility of the arresting officers will be at issue. [¶] The de fense is entitled to im peach the credibility of any of the state’s witnesses at trial and/or at a motion to suppress evidence. This conduct6 on the part of [each officer] w ill show that [they do] in f act have the propensity to fabricate probable cause and will give the jury or court greater insight into the facts in the present case . . . .” 2 The court granted the motion “to revi ew the personnel file of Officer
Jensen as it relates to credib ility issues, allegation of false arrests, illegal searches and seizures” but “den[ied] the Pitchess discovery request on behalf of the other officer.” The Attorney General defend s the denial of the motion as to Officer Joseph’s file on the ground that defendant “failed to pr ovide a ‘specific fact ual scenario’ which established a ‘plausible factual foundation’ for the allegations of officer misconduct.” However, we can find no meanin gful distinction between the showing made as to the two officers and, in both cases, the motion should have been granted.
In Warrick , the Supreme Court stated that “a factual scenario supporting the claimed officer misconduct . . . may consist of a denial of the facts asserted in the police report.” ( Warrick v. Superior Court
, supra , 35 Cal.4th at pp. 1024 -1025.) Here, defendant denied throwing the firearm and challenged th e veracity of the testimony of both officers tending to prove the charged offense, contra dicting defendant’s deni al. Information that either officer had previously fabricated a ba sis for arrest would be relevant to impeach that officer’s testimony here. Indeed, if ther e was any difference between the situation of the two officers, the reason fo r compelling the production of Officer Joseph’s file was the more compelling, since the police report describing the circumstances of defendant’s arrest was written by Joseph, not Jensen. De fendant’s assertion that Officer Joseph falsified his police report when he indicated he had seen defendant throw an object established “a plausible scenario of officer misconduct . . . that might or could have occurred.” ( Id. at p. 1026.) Thus, we must reverse defendant’s conv iction and remand the matter so that the trial court may conduct an in camera heari ng to review the personnel file of Officer Joseph to ascertain whether it contains a ny relevant documentation responsive to

2 These quoted statements appear in full in the declaration concerning Officer Joseph. The declaration concerning Officer Jensen in two instances omits phrases that do not affect the meaning of the declaration and appear to be clerical errors.7 defendant’s motion that should have been disclo sed to the defense; and, if so, to order
disclosure of those documents to the defens e and to consider a motion for a mistrial, should one be timely filed, pr edicated on the disclosed info rmation. If the court either
determines that there are no documents re quiring disclosure or denies a motion for mistrial based on any documents that may be disclosed, the judgment shall be reinstated. With respect to the documents concerni ng Officer Jensen, th e Attorney General has expressed no objection to this court’s in dependent review of th e materials examined in camera by the trial court and determined not to be subject to disclosure. We have reviewed Officer Jensen’s personnel file and agree that it contains no documents potentially relevant to issues in this case that required disclosure to the defense. ( People
v. Mooc (2001) 26 Cal.4th 1216, 1232.)
D ISPOSITION The judgment is reversed and the matte r is remanded to the trial court with directions to conduct an in camera hearing to review the personnel file of Officer Joseph to ascertain whether it contains any relevant documentation responsive to defendant’s
motion that should have been di sclosed to the defense; and, if so, to order disclosure of
those documents to the defense and to cons ider a motion for a mistrial, should one be timely filed, predicated on the disclosed inform ation. If the court either determines that there are no documents requiring disclosure or denies a motion for mistrial based on any documents that may be disclosed (o r if no motion for mistrial is8 filed within 30 days of the production of any such docum ents to the defense), the judgment shall be reinstated.

_ ____________ ____________ Pollak, Acting P.J.

We concur:

_____________ ____________ Siggins, J.

_____________ ____________ Jenkins, J.