Filed 10/19/22 P. v. Pettit 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.

BRANDON SCOTT PETTIT,

Defendant and Appellant.

F082379

(Super. Ct. No. 1462584)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Thomas 

D. Zeff, Judge.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

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

Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooAppellant Brandon Scott Pettit’s parents were shot to death in their home, which 

was subsequently intentionally set on fire. The People’s theory was that the crimes were 

perpetrated by appellant’s friend, Felix Valverde, and appellant had hired him to do so. 
2.

Valverde was charged with appellant as a codefendant but was subsequently found 

mentally incompetent to stand trial and was separated from appellant’s trial. 

Appellant was convicted following a jury trial of two counts of first degree murder 

(Pen. Code,1 § 187, subd. (a); counts I & II). The jury found true an allegation that 

appellant acted intentionally, deliberately and with premeditation and a special 

circumstance that the murders were intentional and carried out for financial gain (§ 190.2, 

subd. (a)(1)). The court sentenced appellant to two consecutive terms of life without the 

possibility of parole. 

On appeal, appellant contends the court erred by admitting statements he made to 

law enforcement he alleges were taken in violation of Miranda v. Arizona (1966) 

384 U.S. 436 (Miranda). He further contends the court erred by declining to review 

Valverde’s competency report in camera in response to appellant’s motion for access to 

the report under section 1369.5, which was then recently enacted, to determine whether it 

contained exculpatory information that should be released to appellant. He further 

contends the court erred by instructing the jury they could find appellant guilty of murder 

based on the natural and probable consequences doctrine. He also requests we 

independently review the court’s in camera proceedings with regard to appellant’s 

pretrial discovery motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 

(Pitchess). Finally, he contends the cumulative prejudicial effect of the alleged errors 

warrant reversal of the judgment. Respondent concedes instructional error but contends 

it was clearly harmless given the jury’s verdict on the premeditation and deliberation and 

special circumstance allegations. Respondent does not object to appellant’s request we 

review the Pitchess proceedings but disagrees with the remainder of appellant’s 

contentions. 

1 All further undesignated statutory references are to the Penal Code.
3.

Finding appellant’s statements to law enforcement were taken in violation of 

Miranda, and their admission was not harmless, we reverse the judgment and remand for 

a new trial. Upon remand, should appellant request access to Valverde’s competency 

report under section 1369.5, the court must review the report in camera and make the 

proper considerations in deciding whether to grant appellant such access. We have 

reviewed the in camera proceedings regarding appellant’s Pitchess motion and find no 

error. Because we reverse the judgment, we need not address appellant’s claims of 

instructional error or cumulative error. 

FACTS

Prosecution Evidence

In the early morning of August 8, 2013, the fire department was called to 

investigate a house fire at the Pettit residence, where David Scott Pettit and Janet Pettit 

lived with appellant, their adult son.2 Scott and Janet were found dead inside their 

bedroom. It was determined Scott had suffered a total of five gunshot wounds and died 

from gunshot wounds to the head, chin, chest and right elbow. Janet had suffered a total 

of two gunshot wounds and died from gunshot wounds to the head and left thigh. Both 

died before the fire was set. The fire investigator opined based on the department’s 

investigation that the fire had been intentionally set by an ignitable liquid. Appellant was 

not home at the time of the incident because he was out of town at work as a security 

guard. 

Police notified appellant of his parents’ deaths that morning. The next day, they 

conducted an interview with him to gather background information about the family and 

determine possible motives of anyone who might want to hurt his parents. Appellant 

gave police contact information for his friends. As for possible theories of what 

2 To avoid confusion, we will be referring to David Scott Pettit as Scott, as trial 

evidence revealed that is what he went by, and Janet Pettit as Janet. No disrespect is 

intended.
4.

happened to his parents, appellant told the police his ex-girlfriend, Susan Carter,

3 had ties 

to the Nicaraguan cartel, who could have someone hurt or killed within 24 hours. 

Appellant also suggested Carter could have snuck in to kill them. 

Further investigation revealed that people in appellant’s life had heard him make 

concerning comments in the months leading up to his parent’s death, many of whom 

testified at trial. Scott’s friend, Michael Anderson, testified that in the middle of 2012, he 

gave appellant a job at Scott’s request. Scott had a number of cars, some of which he 

kept at Anderson’s property, including a Corvette. Between the middle of 2012 and the 

middle of 2013, appellant would go to Anderson’s house frequently and during that time 

appellant made comments about his parents, including, at one point, saying he would be 

better off if his parents “weren’t here.” Appellant would work on the Corvette and tell 

Anderson it belonged to him. Appellant also told Anderson he was moving to Georgia. 

At the Pettits’ vigil, appellant wanted to know if the cars were at Anderson’s house and 

expressed interest in selling the Corvette and heading to Georgia.

Carter testified she was in a relationship with appellant in 2013 and lived in a 

house she rented from Scott. Appellant lived with her for a short time, but after they 

ended their relationship in July 2013, he moved back in with his parents. In April 2013, 

she went with appellant and Scott on a road trip. She and appellant rode together in the 

Corvette and appellant told her he could not wait until the car was his so he could treat it 

properly. Appellant told Carter that once Scott died, the car would be his. Appellant 

often showed Carter pictures of multi-million dollar homes in Montana and Missouri he 

wanted to buy though at the time he did not have a job. Appellant also told Carter he 

would be coming into a lot of money. On another occasion, appellant told Carter he 

could “get rid of” her ex-husband for her by paying his friend, Felix Valverde, $500. 

3 Susan Carter, during a period relevant to the facts of this case, went by the last 

name Sanchez. She is referred to both ways throughout the record; for consistency, we 

refer to her only as Carter, as that is how she identified herself when she testified at trial. 
5.

After Carter and appellant broke up, appellant would text her stating he was irritated 

about how his parents were treating him like a child and on one occasion he told her that 

he wished his father was dead. In total, he told Carter he wanted his parents dead about 

five or six times. 

Carter’s sister, Corin Cazares, testified that in June 2013, appellant told her and 

her boyfriend he was going to be coming into a large sum of money in a couple of 

months and was interested in buying her boyfriend’s vehicle. 

Appellant’s friend, Sarah Wilson, testified appellant told her that his parents had 

money and would be buying him a million dollar home in Georgia where he wanted her 

to live with him. He had sent her email correspondence between himself and a realtor in 

Georgia. Appellant told her that his mother had arranged flights to Georgia so they could 

look at houses, and they were supposed to leave on August 9, 2013.4 On August 7, 

appellant texted Wilson that she was getting a “boob job” for Christmas. On August 8, 

she found out his parents had died, and she went to his friend’s house to see him. Wilson 

asked appellant if she should cancel the flights, and appellant responded that his aunt 

would cancel them. After appellant met with the police, he told Wilson he gave them her 

phone number and he told her not to tell them his aunt had cancelled the flight tickets and 

not to tell them about the realtor he had been corresponding with in Georgia. 

Appellant’s friend, Arlin Traster, testified in the summer of 2013, he saw appellant 

occasionally, and during that time, appellant told Traster he wanted to “off” his parents.

Appellant told Traster his parents were being “dicks” and that they had money. Traster 

did not take him seriously about offing his parents and believed it was just bar talk.

Traster denied telling Modesto Police Department Detective Michael Hicks that appellant 

told him he gave someone $500 as a down payment to kill his parents. Hicks later 

4 All further dates are to dates in 2013, unless otherwise indicated.
6.

testified, however, that Traster had told him appellant said he gave someone a down 

payment to off his parents in the summer of 2013. 

Police investigation also revealed evidence indicating Valverde was involved with 

the murders. Valverde’s friend and neighbor, Matthew Wells, testified in mid to late 

July 2013, Valverde had recently picked up a .22 caliber “old western revolver” with a 

pearl handle. They went shooting with it on July 27. The revolver shot two types of 

bullets: .22 long rifle and .22 shorts. Valverde shot the gun from a variety of positions, 

including from a standing position, taking a knee, and lying on his stomach. 

Wells saw Valverde late on August 8, while drinking with other friends and 

neighbors near their apartments. Valverde was not much of a drinker, but that night he 

was throwing up, “pouring down sweat,” and his glasses were fogged. Wells asked 

Valverde if there was something wrong, and Valverde said he was sick with kidney 

stones. Wells saw appellant a few days after the incident visiting Valverde, and when he 

told him he was sorry for his loss, appellant responded, “It’s all good.” Wells took 

appellant’s response as appellant did not really know Wells and it was not really his 

business. 

The week following the murders, police conducted a search of Valverde’s 

residence and recovered a box of .22 caliber ammunition from Valverde’s kitchen 

counter and a gas can containing gasoline from the kitchen. Police also recovered from 

Valverde’s hall closet a rolled up paper bag which contained Scott’s and Janet’s wallets 

and keys to the Pettits’ home. From a planter outside Valverde’s apartment, police 

recovered seven spent .22 caliber casings. Police did not recover a revolver or handgun 

from the residence. A neighbor testified that about a week or week and a half before he 

saw the police searching Valverde’s residence, he saw Valverde bent over the planter and 

moving the flowers around.

Hicks testified that after personal items of Scott and Janet were found in 

Valverde’s apartment, he went to where appellant was staying to ask him if he knew why 
7.

they were there. Appellant denied knowing how they would be there, and Hicks and 

appellant arranged to have a second interview later that day. Hicks testified that during 

appellant’s first interview on August 9, appellant never mentioned Valverde as being one 

of his friends. On or about August 16, Hicks texted appellant asking him who Valverde 

was, and appellant never directly answered the question though Hicks asked three times.

During Hicks’s second interview with appellant on August 17, appellant denied 

giving Valverde the keys to his parents’ house. Appellant reported never having seen the 

keys because the family used access pads in order to access the doors to the home and his 

father kept the keys in a safe that appellant did not have access to. Appellant also denied 

having the pass code. 

Hicks asked appellant why he never told him about Valverde, and appellant 

responded by telling Hicks that Valverde was trying to extort money from his family and 

that was the reason he did not tell Hicks about him. Appellant told Hicks he was trying 

to figure it out himself. Appellant explained that Valverde knew appellant’s parents had 

a lot of money because they were doing large renovations to their home. Appellant said 

Valverde wanted $10,000 in exchange for not hurting his family. This threat occurred 

approximately a month before Scott and Janet’s deaths. Appellant did not tell the police 

but did tell Scott. According to appellant, Scott did not believe the threat and said he 

would look into it himself. 

Initially during the interview, appellant stated he and Valverde were only 

acquaintances but later admitted to being friends. Appellant stated that after Valverde’s 

threat, appellant continued their friendship; they continued to have contact and phone 

calls, and appellant had given Valverde a box of bullets. Appellant told Hicks that he 

now understood why Valverde wanted them. Appellant admitted to having a phone 

conversation with Valverde while he was at work on August 7 about what they were 

going to do on the weekend. Appellant also admitted to going to Valverde’s house late in 
8.

the evening on or about August 12, after a memorial service for his parents and giving 

him $100. Appellant said he gave Valverde the money because he needed it for his kids. 

Hicks confronted appellant with the comments appellant had made about wishing 

his parents were dead, and appellant responded that he had a good relationship with his 

parents and denied any involvement in their deaths. According to Hicks, appellant never 

asked Hicks how his parents were murdered, and when Hicks questioned appellant on 

that point, he responded that he did not want to know. Hicks asked appellant how he 

would come up with $1.3 million to buy a home in Georgia and appellant responded that 

his parents would help him out.

Defense Evidence 

Appellant’s sister, Lauren Pettit,

5

testified on his behalf. She testified appellant 

would occasionally lie to impress people and bragged about things to make friends. He 

would often give people money to help them. Lauren testified appellant and his father 

spent a lot of time together and were best friends. They would work on Scott’s collector 

cars together, and appellant would help Scott at his rental home and his karate school. 

They would also work on community events together such as a toy drive every year. 

Lauren knew of no falling out between appellant and her parents, and she never heard 

him say he wanted them dead. She would not have believed it if she had heard it. 

Appellant and Scott were both listed as registered owners and lien holders on the pink 

slip for the Corvette. Lauren never heard appellant talk about his parents buying him a 

home in Georgia or a ranch in Montana. Lauren stated that appellant does not show grief 

in the same way as others and was upset when his parents died. Appellant has tattoos on 

his forearms that say, “Family forever,” which he got around 2011 or 2012. Lauren 

5 To avoid confusion, we refer to Lauren Pettit by her first name. No disrespect is 

intended.
9.

believed her parents carried keys to the house with them. After her parents’ deaths, 

Lauren gained access to the home by crawling through the dog door. 

Appellant’s aunt, Pamela Mills, testified she is a psychologist specializing in child 

and adolescent assessment for disabilities though she was not testifying as an expert. She 

has known appellant since he was born, and his parents often asked her for advice about 

him. She advised them on a situation where appellant was being asked to leave his 

preschool and attended an IEP meeting with his mother when he was in high school. 

Appellant had a learning disability, specifically in written language. Appellant did not 

have friends when he was younger and had poor social skills. Appellant spent “an 

enormous amount of time” with Scott. Scott told Mills that he bought the Corvette for 

appellant. Mills never heard of or observed appellant showing aggression. Mills was 

present when Lauren crawled through the dog door and stated that one of the detectives 

had said he also entered the house through the dog door. 

Clinical psychologist, Laura Geiger, testified she was appointed to assist the 

defense as an expert. She had not met or treated appellant; she reviewed “extensive 

documentation” including police reports, transcripts of interviews conducted by the 

police, school records, and past psychiatric records and psychological assessments in 

order to provide any information she could “from a clinical psychological perspective 

that could throw light on the case.” She learned that appellant had “a lifelong set of 

symptoms that coincided with a pervasive developmental disorder, such as Asperger’s.”

She explained appellant had been given various diagnoses over the course of his life, 

including Attention Deficit Disorder, Asperger’s, depression, Obsessive Compulsive 

Disorder, and learning disabilities. The documents she reviewed included a thorough 

evaluation which showed he was intelligent and functioned in average categories of 

thinking skills such as vocabulary and being able to identify a missing component in a 

picture but had impaired processing speed. 
10.

Geiger testified a multi-hour police interrogation would be the type of 

environment that would be “quite difficult” for a person with Asperger’s because they 

could become “overwhelmed with the verbal interaction, the back and forth, a very 

ambiguous situation with ... not knowing how to respond.” Geiger explained that a 

person with Asperger’s will have a tendency to want to be cooperative in a situation with 

authority like the police because “usually there is a long history of social rejection, lack 

of having friends, and so you want to be accepted, you want to be liked, especially if it is 

a person in authority, that ... might be someone that they would look up to.” 

Geiger further explained that a person with Asperger’s may display a reaction that 

is not congruent with the situation they are responding to, for example, if a person is 

telling them about relationship problems, they might make a nonsequitur like, “Well, 

have you ever played cribbage?” In general, people with Asperger’s have “abnormal 

social responses to social interactions.” People with Asperger’s want to appear to be 

“something more than they’re actually functioning as” due to “chronically struggling” 

with low self-esteem and not having a lot of friends, which might have the appearance of 

boastfulness or wanting to look successful or something that other people would admire 

or want to engage with socially. A person with Asperger’s may say they are wealthy 

when they are not and may say they are going to own a $1 million-dollar home when that 

will not happen. Appellant’s “family forever” tattoos signify that family is a significant 

value for him. Someone with Asperger’s might say they want someone to be dead as a 

manifestation of something he is not able to express emotionally. Geiger explained, 

“[A person with Asperger’s is] not able to say, I’m so frustrated, I want this situation to 

go away. I’m so angry that I—you know, I’m upset. I want to change the situation, but I 

don’t know how. They are not able to express that. And so they say it in a very concrete 

form,” but they do not actually want the person dead. 

Scott Fraser, a professor in psychiatry law and behavioral sciences at University of 

Southern California’s medical school, testified he was hired by the defense to review and 
11.

evaluate the documents related to the case including police reports, videos, psychological 

examinations, and school records and “indicate ... what aspects of science and research 

that might be pertinent.” He had never spoken to or treated appellant. Fraser concluded 

that two major aspects were involved in this case: Neuropsychopharmacology, the 

effects of drugs both acute and chronic use and the “the acuity, mainly the keenness of 

our ability to perceive the accuracy or the legitimacy of the emotions that other people 

are displaying.” Fraser testified that the various medications appellant had been 

prescribed throughout his life would have caused permanent deterioration of parts of his 

brain associated with emotional functioning. Fraser further testified that people, 

including law enforcement, are generally poor at determining others’ emotions. 

Inmate Shaun Schaaphok at the Stanislaus County Public Safety Center testified 

that, in jail, Valverde told him he was looking to kill appellant because appellant was 

messing around with his girlfriend, but he killed his parents instead. When Valverde was 

in appellant’s parents’ house, he took some money.

Inmate Timothy Fee at the Stanislaus County Public Safety Center testified that, in 

jail, Valverde claimed responsibility for the murder and that appellant had nothing to do 

with it. Valverde also said he would not admit his actions until he was given a better 

deal.

Prosecution’s Rebuttal 

The prosecution offered rebuttal evidence to show that at some point both 

Schaaphok and Fee were housed near appellant. 

DISCUSSION

I. Admission of Appellant’s August 17 Statements to Law Enforcement

A. Relevant Background

Appellant moved in limine to exclude statements made at the interview conducted 

by the police on August 17. The court conducted a hearing pursuant to Evidence Code 

section 402 to determine the admissibility of the statements. 
12.

Detective Hicks testified that on August 9, he conducted a nine-hour long 

voluntary interview with appellant in an interview room at the police station where he 

and appellant discussed various subjects such as his parents, family, friends, anyone who 

had any possible motives to hurt his parents, and many facets of appellant’s life. 

Hicks subsequently learned of the evidence recovered from Valverde’s residence, 

and on August 17, at around 2:00 or 3:00 a.m., Hicks went to the house where he knew 

appellant was staying and told him he needed to talk to him again. He asked appellant a 

couple of questions, and they arranged to meet later that evening after appellant went out 

to dinner with his family. 

After the dinner, appellant went to the police department and texted Hicks upon 

his arrival. Hicks met with appellant outside the front public area of the building. They 

went into the building through the public entrance and then upstairs to investigative 

services. Hicks did not control appellant’s movements as they went up the stairs such as 

by holding his arm, and appellant was not handcuffed. Hicks directed appellant to sit in 

the seat farthest from the door because that was where the camera faced. The door was 

open, and Hicks told appellant it was open so “he could leave at any time.” Appellant 

gave no resistance in entering the building and showed no interest in leaving the 

interview. Appellant was not handcuffed or restrained in any way. Detective Dale 

Lingerfelt was present throughout the interview to assist Hicks.

The court viewed the audio/video recording and transcript of the interview. Hicks 

began the interview by telling appellant they were “just gonna get right to the point” and 

that appellant would not be permitted to “carry on like ... last time about stuff that just 

really didn’t amount to anything.” Hicks then told appellant he appreciated appellant 

coming in voluntarily because it made Hicks’s “day a little bit easier.” Hicks went on to 

say, “having said that, realize that at any time you’re free to go as well, alright” and 

informed appellant that was why the door was open. 
13.

Hicks then told appellant he was “not gonna put up with lying anymore.” Hicks 

questioned appellant about why Valverde would have his parents’ things, and appellant 

asserted he did not know. Hicks asked appellant a few times whether appellant gave his 

parents’ things to Valverde, which appellant denied. Hicks responded to appellant’s 

denials by saying he knew “the truth.” Hicks told appellant he wanted appellant to be 

“[o]ne hundred percent honest and truthful.” Appellant told Hicks he had never seen the 

keys to his parents’ house but recognized photos of their wallets. Hicks insisted appellant 

had seen the keys and proceeded to argue with appellant about whether he was lying, 

with Hicks telling appellant they were going to move on because he was lying and Hicks 

was not going to “buy it anymore.” 

Hicks told appellant he had spoken to Valverde and that Valverde “knows he’s in 

trouble.” Hicks went on to say, “When people are in trouble they have something to gain 

and they have something to lose, alright. Ya know, and, and you’re in that same 

position.” Hicks said Valverde told him how everything happened and that he had held 

on to appellant’s parents’ things because he was planning on attempting to get more 

money out of appellant. When appellant stated he was not planning to give Valverde any 

money, Hicks told appellant to stop talking and accused him of not being honest. 

Hicks confronted appellant with the fact appellant had not previously told him 

about Valverde despite giving Hicks contact information for several of his friends. 

Appellant responded that Valverde “really isn’t a friend” and that he did not hang out 

with him much. Hicks then told appellant “don’t say anything” and that he knew 

appellant had had a phone conversation with Valverde the night of his parents’ murder. 

Hicks went on to say, “If you think for a second, alright, that your air tight alibi, or just 

because you weren’t there or you didn’t do it means that you’re not responsible that is 

wrong. That is wrong, wrong, wrong, wrong. The problem with your alibi [appellant], 

it’s too good. It’s way too good. It’s not normal and it’s very predictable. So let’s take a 

right turn here real quick... I’m gonna give you an opportunity to tell me the truth.”
14.

Hicks talked to appellant about the other witnesses he had spoken to and asked 

appellant about his comments that he wished his parents were dead. Appellant responded 

by saying a lot of people say that about their parents. Hicks then gave several options for 

why appellant’s parents were killed: “Perhaps somebody did this based on you running 

your mouth in a bar in a crowd of people and they took it upon themselves and perhaps 

this person later on decides I’m gonna use this against him and exploit him out of a lot of 

money. Perhaps that’s what happened. That could be one version, however, there could 

be another version ya know. Perhaps you just hated your parents”; “Perhaps you wanted 

them dead”; “Perhaps you didn’t like them controlling your life”; and “Perhaps you 

didn’t like your living conditions and, ah, you came up with this, planned it, found people 

to do it and you, ah, built your alibi, and, ah, however, there was a couple things that 

failed, along the way, which gets us to where we are today.” Appellant denied all of 

Hicks’s hypotheticals. 

Hicks went on to tell appellant he (Hicks) could choose not to talk to appellant at 

all, but that appellant “owe[s] it to [his] sister.” Hicks told appellant he had spoken to the 

insurance company and “[e]verything is on hold until I get some answers” and that 

appellant would therefore not be able to buy his $1.3 million house in Georgia. 

Appellant told Hicks his parents were trying to relocate him to Georgia and Hicks told 

him, “No, no, no don’t. That’s not gonna work with me, okay.” Hicks told appellant he 

had a choice to be “honest and truthful” and that the only person appellant was “either 

gonna hurt the most or help the most” was his sister. Hicks told appellant that he was 

going to “test” appellant to see if he was “gonna be selfish, self centered” or “do the right 

thing and help your sister.” He told appellant that people who were not even police 

officers had looked at the case and “know the truth.” 

Hicks again told appellant he knew the truth and that Valverde’s story was 

“somewhat unbelievable, however, very believable if you don’t tell your story or your 

side because he makes it sound like you are a monster. He makes it sound like, ah, you 
15.

are this very evil person. He makes it sound like, um, he took these things so that he 

could ride the wave. He makes it sound like oh, yea, I kept em, and do you know where I 

found this at?”

Hicks went on to discuss the evidence found at Valverde’s house and told 

appellant he tested the keys and learned they fit the locks at his parents’ house. Appellant 

told Hicks he gave Valverde a box of bullets because his .22 does not fire. Hicks 

responded by saying, “You gave him more than that,” which appellant denied. Hicks told 

appellant Valverde had been arrested for murder. Appellant explained that Valverde 

wanted to extort money from his family. Hicks asked appellant why he did not tell him 

this earlier, and appellant said it was because he was “remembering a lot now,” at which 

point Lingerfelt yelled “Bullshit!” and repeated “Bullshit!” several times. Appellant 

continued to insist he was telling the truth, and Lingerfelt and Hicks continued to tell 

appellant he was lying. Hicks told appellant he knew “how much money you were 

supposed to pay [Valverde].” When appellant denied agreeing to give Valverde any 

money, Hicks continued to tell him he was lying. Hicks then told appellant he knew he 

gave $100 to Valverde, to which appellant responded that it was just money for groceries. 

Hicks told appellant to “[s]top, stop, stop, stop, stop, stop” and that the $100 was given to 

Valverde “till the rest of the money comes in.”

Appellant continued to deny that he was lying and Hicks continued to repeatedly 

insist he was lying, saying appellant “made a very bad choice” and “had your parents 

killed by people.” Appellant continued to deny involvement. Appellant told Hicks he 

did not know who killed his parents and Hicks insisted he did. When appellant 

mentioned to Hicks that he understood Hicks thought appellant had something to do with 

it, Hicks replied that he “kn[ew]” appellant had something to do with it. Hicks went on 

to say, “Let’s talk about why you and [Valverde] wanted your parents dead.” Hicks 

asked appellant how Valverde got the keys to appellant’s parents’ house, and when 

appellant replied that he did not know, Hicks stated, “I know how he g[ot] the keys.”
16.

Hicks continued to tell appellant he gave Valverde the keys, and appellant continued to 

deny, and eventually Hicks said, “You’re not gonna convince me of anything other 

because [Valverde] says you gave him the keys and the keys both fit the garage door and 

the front door .... If you think for a minute that anybody, anybody is gonna believe your 

story including your sister you’re mistaken.” Appellant continued to deny giving 

Valverde the keys, and Hicks continued to insist he did. Hicks told appellant he was “not 

buying it” and that he was not “buying” “this whole Asperger’s thing ... either.” Hicks 

started calling appellant a “fake” with regard to many aspects of his life. Hicks told 

appellant he had told Traster he wished his parents were dead, and appellant told him he 

had not seen Traster for two months. Hicks asked appellant about the phone conversation 

with Valverde he had on the night his parents died and appellant said he was asking him 

what they were doing for the weekend.

Hicks then told appellant to “listen to me for a second” and proceeded to speak in 

a monologue fashion about the evidence he had against appellant, including “no less than 

seven crime stopper tips of people telling me ... [appellant] killed his parents” and that he 

was calling appellant’s alibi a “Scott Petterson [sic] alibi.” When appellant tried to 

interject, which he did several times, Hicks never let him, telling him things like “I’m not 

asking for any answers” and “don’t interrupt” and that Hicks wanted appellant to “sit here 

and be quiet.” Hicks told appellant that his “side is based on facts that I can prove 

beyond a reasonable doubt to an ordinary person, okay.” 

Hicks then began to ask appellant more questions about his assertion that Valverde 

was trying to extort money from his family. Appellant stated it was about a month ago. 

Appellant confirmed he gave Valverde the box of bullets after Valverde made the threat 

to his family and that he “could see that was a bad idea.” Appellant also told Hicks that 

he remained friends with Valverde after the threat and continued to have contact and 

phone calls with him. Hicks told appellant he was not “buying this” and was simply 

“making a record of [appellant’s] bullshit.” Lingerfelt called appellant’s explanation a 
17.

“[f]airytale.” Appellant told Hicks he did not have anything to do with his parents’ 

murder and Hicks began arguing with appellant and told him, “You had [Valverde] kill 

your parents.” Lingerfelt then told appellant, “You murdered your parents,” to which 

appellant responded that he loved his parents. Lingerfelt replied, “You loved em so much 

you murdered them. You had em murdered.” Appellant continued to argue with both 

detectives, and stated he wanted to investigate his parents’ murder himself but had not 

started yet. 

Hicks then asked appellant to take a “lie detector test.” Appellant responded, “not 

anytime soon,” because he did not have time and had to get ready to go on a trip. Hicks 

told appellant it would only take 30 minutes and they “could do it right now,” but 

appellant said he needed to get home. Lingerfelt then said he would call appellant’s sister 

to see if she was ready to pick him up, and appellant said that Carter would be picking 

him up. The detectives told appellant that Carter was on a date with someone else earlier. 

Hicks said he had someone ready to administer the polygraph “because I anticipated ... 

you were gonna sit here and lie, lie, lie, lie, lie so I have a guy sitting in another room 

right now willing to give you a polygraph,” and again asked appellant to take the test, to 

which appellant responded, “Not tonight.”

Appellant started talking about how he was upset that Carter was dating, and 

Hicks asked, “Aren’t you more concerned about proving your innocence.” Appellant and 

Hicks continued to argue about whether appellant killed his parents. Appellant continued 

to insist he was not going to take the test that night, and the detectives continued to ask 

him to do so. Appellant said he would take it the next day, to which Lingerfelt 

responded, “No, we’re gonna do it right now.” Appellant repeatedly asked for a 

cigarette, and the detectives told him no. Lingerfelt then told appellant, “You can’t be 

away from us right now, do the test.” Appellant asked, “So what I take the test and then 

I’m free to go,” to which Lingerfelt responded, “Take the test and we’ll see if you’re 

telling the truth or not.”
18.

Eventually appellant said he would rather have a lawyer present. Hicks asked 

appellant, “would you like me to read you your right[s] so you know what they are,” to 

which appellant stated he knew the Miranda rights, he just would rather “have a lawyer 

present that way everybody involved, it’s not like a hearsay thing.” Hicks told appellant,

“Well I have to read them to you.” Then proceeded to advise appellant of his rights. 

Hicks then asked if appellant wanted to answer his questions, to which appellant 

responded, “Not without an attorney present.” Appellant then asked Hicks, “what do I 

do?” to which Hicks responded he was going to go to jail for murder.

Appellant eventually did take the lie detector test after conversing with the 

operator of the test and continued to be interviewed for approximately two more hours. 

Hicks testified he had formed the opinion that appellant was a suspect at the end of 

the interview and this opinion was not based on “a particular thing” and explained “from 

the day I started the investigation until the last time I met with [appellant] was an 

accumulation of facts and evidence that built up to the point where I felt that he was a 

suspect. Probably the final determination was the information about Felix Valverde and 

the evidence that we found at his house.” Hicks further determined that appellant had 

“made omissions about his involvement” that amounted to a confession. Later, Hicks 

testified he called the administrator of the polygraph test, or voice stress analysis, about 

30 or 40 minutes into the interview, which was the point appellant had been converted in 

his mind into to a suspect. Hicks testified, however, he did not decide he was going to 

take appellant into custody until the point where he read him his Miranda rights. 

According to Hicks, prior to that time, appellant would have been free to leave the room.

The court ruled that appellant’s statement up until he stated he wanted an attorney 

present would be allowed into evidence because he was not in custody at the time of the 

questioning, but that the remainder would not be permitted as evidence of guilt as he had 

invoked his right to counsel and his question about what he was supposed to do was not a 

reinitiation of the interview.
19.

B. Analysis

Appellant contends the court erred by admitting statements from the August 17 

interview because they were taken in violation of Miranda. We agree. 

To protect a suspect’s Fifth Amendment right against self-incrimination, prior to a 

“custodial interrogation,” Miranda requires that law enforcement advise a suspect of the 

right to remain silent, that any statement made can be used against him or her in a court 

of law, that the suspect has the right to the presence of an attorney, and that if he or she 

cannot afford an attorney, one will be appointed. (Miranda, supra, 384 U.S. at p. 444; 

People v. McCurdy (2014) 59 Cal.4th 1063, 1085‒1086.) “A statement obtained in 

violation of a suspect’s Miranda rights may not be admitted to establish guilt in a 

criminal case.” (People v. Jackson (2016) 1 Cal.5th 269, 339.) 

Respondent does not dispute that the interview was an “interrogation”; thus, the 

issue before us is whether the interrogation was “custodial” so as to require that appellant 

be advised of his Miranda rights. 

We apply a mixed standard of review, in which we review for substantial evidence 

the trial court’s factual findings regarding the circumstances of the interrogation but 

independently determine whether a reasonable person in appellant’s position would have 

felt free to end the questioning and leave. (People v. Moore (2011) 51 Cal.4th 386, 394‒

395 (Moore).) “The facts surrounding an admission or confession are undisputed to the 

extent the interview is tape-recorded, making the issue subject to our independent 

review.” (People v. Linton (2013) 56 Cal.4th 1146, 1177.) 

It is well-settled that a setting is not “custodial” “simply because the questioning 

takes place in the station house, or because the questioned person is one whom the police 

suspect.” (Oregon v. Mathiason (1977) 429 U.S. 492, 495; California v. Beheler (1983) 

463 U.S. 1121, 1125 (Beheler).) The question is whether there is a “ ‘formal arrest or 

restraint on freedom of movement’ of the degree associated with a formal arrest.” 

(Beheler, at p. 1125.) 
20.

When there has been no formal arrest, the inquiry is whether “under all of the 

objective circumstances, a reasonable person in the suspect’s position would have felt 

free to terminate the interrogation.” (People v. Caro (2019) 7 Cal.5th 463, 491 (Caro).) 

The inquiry does not depend “on the subjective views harbored by either the interrogating 

officers or the person being questioned.” (Stansbury v. California (1994) 511 U.S. 318, 

323.) 

In making this determination, the location of the interrogation as well as whether 

the individual subject to the questioning is a suspect are relevant factors to consider. 

Other relevant factors are the duration of the interview, statements made during the 

interview, the presence or absence of physical restraints during the interview, whether the 

individual is permitted to leave at the end of the interview, and the nature and form of 

questioning. (Howes v. Fields (2012) 565 U.S. 499, 509; Caro, supra, 7 Cal.5th at 

pp. 491‒492.) 

California appellate courts have also referred to a more detailed set of factors as 

summarized by People v. Aguilera (1996) 51 Cal.App.4th 1151: “[1] whether contact 

with law enforcement was initiated by the police or the person interrogated, and if by the 

police, whether the person voluntarily agreed to an interview; [2] whether the express 

purpose of the interview was to question the person as a witness or a suspect; [3] where 

the interview took place; [4] whether police informed the person that he or she was under 

arrest or in custody; [5] whether they informed the person that he or she was free to 

terminate the interview and leave at any time and/or whether the person’s conduct 

indicated an awareness of such freedom; [6] whether there were restrictions on the 

person’s freedom of movement during the interview; [7] how long the interrogation 

lasted; [8] how many police officers participated; [9] whether they dominated and 

controlled the course of the interrogation; [10] whether they manifested a belief that the 

person was culpable and they had evidence to prove it; [11] whether the police were 

aggressive, confrontational, and/or accusatory; [12] whether the police used interrogation 
21.

techniques to pressure the suspect; and [13] whether the person was arrested at the end of 

the interrogation.” (Id. at p. 1162; see, e.g., People v. Potter (2021) 66 Cal.App.5th 528, 

539‒540; People v. Torres (2018) 25 Cal.App.5th 162, 172‒173; In re I.F. (2018) 

20 Cal.App.5th 735, 759; People v. Saldana (2018) 19 Cal.App.5th 432, 455 (Saldana).) 

Ultimately, the question is “ ‘whether the relevant environment presents the same 

inherently coercive pressures as the type of station house questioning at issue in 

Miranda.’ ” (Caro, supra, 7 Cal.5th at p. 491.) Miranda’s concern with custodial 

interrogation was the “ ‘inherently compelling pressures,’ ” specifically the 

“psychological pressures ‘which work to undermine the individual’s will to resist and to 

compel him to speak where he would not otherwise do so freely.’ ” (Maryland v. Shatzer

(2010) 559 U.S. 98, 103.) 

We conclude, in considering the totality of the circumstances, the interview was 

custodial. Several of the relevant factors weigh in favor of this finding. First, Hicks 

initiated the interview by going to appellant’s house at 2:00 or 3:00 a.m. to question him 

about his parents’ belongings found at Valverde’s residence and requested he meet with 

Hicks later that day at the police station. As Miranda explained, according to police 

manuals, this “privacy” at the police station helps “ ‘deprive[] [the suspect] of every 

psychological advantage’ ” as opposed to his home where he “ ‘may be confident, 

indignant, or recalcitrant’ ” and be “ ‘more keenly aware of his rights and more reluctant 

to tell of his indiscretions or criminal behavior.’ ” (Miranda, supra, 384 U.S. at pp. 449‒

450.) The early morning visit compounded the pressure of a police-initiated interrogation 

as it occurred at a time when appellant was likely not alert and displayed to appellant the 

police could contact him whenever they wanted. Hicks could have called or texted 

appellant as he had previously done but made the decision not to, which added a degree 

of urgency and dominance to the circumstances of the request that may have reasonably

contributed to appellant’s decision to go to the station. 
22.

That appellant was being questioned as a suspect was express at the outset of the 

interrogation. Respondent contends “the ostensible purpose of the interview appears to 

have been to ask appellant about the property found at Valverde’s residence.” While this 

may have appeared to be the purpose of the interview based upon Hicks’s representations 

to appellant when he went to his house early that morning, it became clear very early in 

the interview itself that Hicks believed appellant was involved in the murder. While 

Hicks’s questioning was initially focused on how Valverde got appellant’s parents’ 

belongings, when appellant stated he did not know, Hicks repeatedly told appellant he 

was lying. Very shortly after this line of questioning, Hicks told appellant he did not 

“want excuses or answers right now” just before telling him his “alibi” was “too good” 

and if appellant thought that he was not responsible for his parents’ murder, he was 

“wrong, wrong, wrong, wrong.” Hicks then started listing possible reasons for why 

appellant might have killed his parents. Hicks made these statements within the first 

10 minutes of the interview.

In addition, the nature of the questioning was exclusively accusatory, with Hicks 

never asking general or neutral questions. “ ‘[A]ccusatory questioning is more likely to 

communicate to a reasonable person in the position of the suspect, that he is not free to 

leave’ than would general and neutral investigative questions. Thus, on the issue of 

custody, courts consider highly significant whether the questioning was brief, polite, and 

courteous or lengthy, aggressive, confrontational, threatening, intimidating, and 

accusatory.” (People v. Aguilera, supra, 51 Cal.App.4th at p. 1164.) Here, Hicks used 

many of the techniques which the court in Miranda discussed as contributing to a 

psychologically coercive environment, including “displaying an air of confidence in the 

suspect’s guilt,” positing the guilt of the suspect “as a fact,” and directing comments 

“toward the reasons why the subject committed the act, rather than ... whether he did it.” 

(Miranda, supra, 384 U.S. at p. 450.) The Miranda court explained these tactics among 

others “are designed to put the subject in a psychological state where his story is but an 
23.

elaboration of what the police purport to know already—that he is guilty. Explanations 

to the contrary are dismissed and discouraged.” (Ibid.) 

Hicks repeatedly manifested a belief appellant had committed the crimes. Hicks 

and Lingerfelt consistently rejected appellant’s answers to their questions and accused 

him of lying over and over. In several instances, Hicks engaged in back and forth type of 

arguing similar to the following exchange which happened fairly early in the interview: 

“HICKS: You made a very bad choice young man.

“[APPELLANT]: I didn’t do anything.

“HICKS: Yea you did.

“[APPELLANT]: No I didn’t.

“HICKS: Yes you did.

“[APPELLANT]: No.

“HICKS: You had your parents killed by people.

“[APPELLANT]: No I didn’t.

“HICKS: Yes you did.

“[APPELLANT]: I didn’t have anybody killed by anybody.” 

At one point, Hicks told appellant he could prove his case beyond a reasonable doubt to a 

jury. (See Saldana, supra, 19 Cal.App.5th at p. 458 [“ ‘ “The awareness of the person 

being questioned by an officer that ... the police have ample cause to arrest him, may 

well lead him to conclude, as a reasonable person, that he is not free to leave, and that he 

has been significantly deprived of his freedom.” ’ ”].) While Hicks did ask appellant to 

expound upon his statement that Valverde was trying to extort his family, the manner of 

this questioning was clearly intended not to gather information but to point out holes in 

appellant’s statement. 

The interview lasted one and a half hours with Hicks controlling the interview the 

majority of the time, and, at one point, laying out his case against appellant and 

repeatedly keeping appellant from interrupting him. Further contributing to the 
24.

oppressive atmosphere were other techniques employed by Hicks, including offering 

several reasons for why appellant committed the murders, rather than asking questions 

about whether he had involvement; appealing to appellant’s attachment to his sister, 

indicating that he could help her by talking and suggesting that insurance funds would not 

be released until he talked; suggesting that if he did not talk, Valverde’s statement alone 

would make appellant look “evil”; and personally attacking appellant, calling him a 

“fake,” and suggesting his Asperger’s was fabricated.

Hicks’s interrogation techniques worked to communicate to a reasonable person in 

appellant’s position that the interrogation would not be over until he made statements 

congruent with Hicks’s theory of the case, which he made very clear throughout the 

interview. (See Saldana, supra, 19 Cal.App.5th at p. 458 [based on techniques such as 

manifesting a belief the defendant was guilty and indicating all denials would fail, “a 

reasonable person in [the defendant’s] position eventually would have realized that 

telling the ‘truth’ meant admitting the detective’s information was correct—and that until 

this ‘truth’ came out, the person could not leave.”].) 

Finally, weighing in favor of the interrogation being custodial, appellant was not 

permitted to leave at the conclusion of the interview. (See Oregon v. Mathiason, supra, 

429 U.S. at p. 495 [finding significant in concluding a noncustodial setting that the 

suspect was able to “leave the police station without hindrance”]; Beheler, supra,

463 U.S. at p. 1121 [same].) Rather, appellant was only read his Miranda rights after 

stating he wanted a lawyer present. 

We acknowledge Hicks thanked appellant for coming in voluntarily and informed 

him he was free to leave at any time. However, “[c]ourts have concluded that, under the 

circumstances of the particular case, advising the suspect that he was not under arrest and 

was free to leave was insufficient to support a conclusion that he was not in custody for 

purposes of Miranda. (See, e.g., U.S. v. Hashime (4th. Cir. 2013) 734 F.3d 278, 284 

[telling the individual being interrogated he is free to leave ‘ “is not ‘talismanic’ or 
25.

sufficient in and of itself to show a lack of custody” ’]; U.S. v. Cavazos (5th Cir. 2012) 

668 F.3d 190, 195 [] [same].)” (Saldana, supra, 19 Cal.App.5th at p. 458.) 

We also acknowledge that appellant was not physically restrained. However, 

appellant was situated in the far corner of the interview room and would have needed to 

walk past both Hicks, who was sitting across the table, and Lingerfelt, who was seated by 

the door, in order to exit the room. The video recording shows both Hicks and Lingerfelt 

were armed during the interview. Weighing these considerations against the others we 

have detailed, the fact that appellant was not physically restrained or handcuffed does not 

render the interview noncustodial. 

Respondent relies heavily on Moore. Moore is factually distinguishable. The 

defendant in Moore, a murder case, was interviewed in a station interview room and was 

not handcuffed or otherwise restrained, and the door was kept open. (Moore, supra, 

51 Cal.4th at p. 398.) The defendant was told he was not under arrest and “was there 

only to make a statement because he was the last person known to have seen the victim.” 

(Ibid.) The detective asked the defendant neutral and general questions about the 

incident, his drug use and past arrests, and personal life. (Id. at pp. 397‒399.) Eventually 

the detective asked a series of questions “suggesting” the defendant might have been 

present at the time of the crime and knew what happened to the victim. (Id. at p. 399.) 

After the defendant denied this, the detective “seemed to back off, but soon began 

questioning [the] defendant about any weapon he might have had with him when he went 

to the [victim’s] house.” (Ibid.) The detective told the defendant the victim had been 

killed and “ ‘this is the time for you to be honest with me.’ ” (Ibid.) 

In concluding the interview was not custodial, the Moore court focused on the 

facts that the defendant was told he was not under arrest, was free to leave, was not 

handcuffed or otherwise restrained, and while the interview was “fairly long” at one hour 

and 45 minutes, it was “not, as a whole, particularly intense or confrontational” and for a 

“substantial period,” the police did not convey any suspicion of the defendant or 
26.

skepticism about his statements. (Moore, supra, 51 Cal.4th at p. 402.) The court noted 

that the police initially contacted the defendant as a witness and even when they “began 

to express some skepticism about [the] defendant’s statements, they did not claim to 

know he was guilty or, until the point [the] investigator ... expressly arrested him, to 

have evidence of his guilt.” (Id. at p. 403.)

While, like the defendant in Moore, appellant was told he was free to leave at the 

outset of the interview and was not physically restrained, the nature of the questioning, as 

we have explained, was significantly different and more oppressive. Unlike the 

interrogation in Moore, Hicks expressed that appellant was a suspect and communicated 

disbelief in all of appellant’s denials from the very beginning of the interview and 

continued to do so for one and a half hours. Any of appellant’s statements that did not fit 

with Hicks’s theory of the case were not met with mere skepticism but outright rejection. 

Further, Hicks communicated he had enough evidence to prove appellant’s guilt before a 

jury. 

We conclude based on all the relevant factors, particularly the nature of the 

questioning, a reasonable person in appellant’s position would not have felt free to 

terminate the interview and leave, and therefore the first interview was custodial. 

Accordingly, appellant’s statements were taken in violation of Miranda and were 

inadmissible to prove guilt. 

We also conclude the admission of the statements was not harmless. “The 

erroneous admission of statements obtained in violation of the Fifth Amendment is 

reviewed under the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24).” 

(People v. Henderson (2020) 9 Cal.5th 1013, 1029.) The People bear the burden “ ‘to 

prove beyond a reasonable doubt that the error complained of did not contribute to the 

verdict obtained.’ [Citation.] The standard is satisfied only if ‘[t]here is no reasonable 

possibility that the verdict would have been more favorable to [the] defendant had [the] 

statements not been admitted.’ ” (Ibid.) 
27.

Respondent cannot meet this burden. Appellant’s defense was that Valverde 

committed the murders alone and he was not involved, and it would not have been 

unreasonable for the jury to consider this defense. While there was ample evidence 

presented that Valverde committed the murders, as well as evidence that appellant made 

statements about wishing his parents were dead and that he was coming into money,

appellant presented evidence rebutting the prosecution’s theory Valverde worked at 

appellant’s behest and evidence from family members and experts offering innocent 

explanations for his incriminating statements. Statements appellant made during the 

August 17 interview, while not direct confessions to the crimes, undermined his defense

and strengthened the link the prosecution needed to make between appellant and 

Valverde. During the interview, appellant claimed for the first time after several police 

encounters that Valverde was trying to extort money from his family but that he 

nonetheless remained friends with him. Appellant also admitted to giving Valverde 

money and bullets after the alleged threats against his family were made. During their 

deliberations, the jury requested “any references to ‘$100’ in the court record,” which 

was the amount of money appellant told Hicks he gave to Valverde after the murders, 

indicating they did consider appellant’s statement in evaluating the evidence. While 

respondent claims the statements made during the interview were largely duplicative of 

other evidence admitted at trial, that is inaccurate, as we can find no other source of this 

information in the record. While the jury could have inferred that appellant had hired 

Valverde to kill his parents based on other circumstantial evidence presented at trial, we 

cannot say appellant’s statements did not factor into their decision. 

We note that under Chapman, it is not enough that “ ‘in a trial that occurred 

without the error, a guilty verdict would surely have been rendered.’ ” (People v. 

Quartermain (1997) 16 Cal.4th 600, 621.) We must instead ask “ ‘whether the guilty 

verdict actually rendered in this trial was surely unattributable to the error.’ ” (Ibid.) 
28.

Here, we cannot answer that question affirmatively. The admission of appellant’s 

statements was not harmless.

II. Denial of Appellant’s Request for Access to Valverde’s Competency Report 

A. Relevant Background

Valverde was a codefendant but was separated from appellant’s trial because he 

was found mentally incompetent to stand trial in July 2020. 

On July 27, 2020, appellant’s counsel requested Valverde’s competency reports to 

the extent they contained “something that works to the benefit of [appellant].” The 

prosecutor indicated he did not think he had authority to release them. He further stated 

he saw “[Valverde’s counsel’s] second report” that morning but did not have a copy. He 

went on to say he thought “that would be something the Court would decide if it is 

relevant” and “it would come from the Court or else if I can get a copy of the one, since 

I’m the involved party and order me to release them to [appellant’s counsel], that is fine 

too.” The court responded, “All right. Keep that in mind.”

On July 29, 2020, appellant’s counsel again requested “any documents pursuant to 

Mr. Valverde’s 1368 or 1369 procedure that by law the Court can release to me. I think 

there may be material in there that can go to towards the Defense with [appellant].” The 

court indicated it wanted to hear from Valverde’s counsel in case they objected. The 

court went on to say, “I’m not questioning the fact that you may use it to some fashion. I 

don’t disagree with you, but I don’t know. But I don’t think I should release it.... [¶] So 

I think out of an abundance of caution, I think it would be appropriate for that to be taken 

up with Mr. Valverde and his attorney present.” The court further indicated the court’s 

file contained a report filed June 16, 2020, dated June 2, 2020, from Dr. Brar.

On July 31, 2020, the court conducted a hearing regarding disclosure of 

Valverde’s section 1368 report with Valverde and his counsel present. Valverde’s 

counsel indicated that recently enacted section 1369.5 was “dispositive.” The court 

indicated that because the defense had not “complied with [section] 1369.5 or with the 
29.

relevant Rule of Court 2.551,” the request was “denied without prejudice to them filing 

an appropriate motion.” 

On August 4, 2020, appellant filed a “MOTION FOR THE RELEASE OF 

CONFIDENTIAL DOCUMENTS RE DEFENDANT FELIX VALVERDE PURSUANT 

TO PENAL CODE SECTION 1369.5 AND RULE OF COURT 2.551.” The motion 

indicated appellant was requesting “the confidential and non-confidential documents in 

the court’s file pertaining to the co-defendant FELIX VALVERDE, and relating to the 

report of the court-appointed doctor and including the doctor’s report and evaluation 

under Section 1368 and 1369 of the Penal Code, along with the Court’s finding and Order 

pursuant thereto and such related documents as the Court feels are appropriate and just.” 

Appellant specifically referenced a written report submitted by Dr. Shabneet Brar on 

June 16, 2020, under section 1368 and/or 1369, which resulted in the court’s finding that 

Valverde was incapable of assisting counsel and ordering the criminal proceedings 

suspended as to Valverde. Appellant indicated the contents of the report would “assist 

him in the defense of the charges made against him.” Appellant contended his request 

was “both a matter of ‘Brady’ discovery, and a request by the ‘public.’ ”

Valverde opposed appellant’s request, claiming that appellant had not articulated a 

provision of law permitting disclosure of the report and that he was not among the class 

of persons permitted access to the report. Valverde further alleged the report was 

privileged. 

At the hearing on appellant’s motion on August 11, 2020, the defense presented 

the reporter’s transcript from a hearing on February 20, 2020, wherein Valverde’s 

counsel presented a report prepared by Dr. Karen Fromming at the direction of the 

defense for the court to consider in determining whether to suspend proceedings pursuant 
30.

to section 1368.6 In response, based on counsel’s representations and the report, the 

court ordered criminal proceedings suspended pursuant to section 1368 and appointed 

Dr. Trompetter7to meet with Valverde and prepare a report. 

At the February 20, 2020 hearing, Valverde’s counsel requested the court to seal 

Fromming’s report “so that the co-defendant does not have access to it” and asked that 

the prosecutor “also keep it confidential from the co-defendant.” The court asked what 

authority it had to do so, and Valverde’s counsel responded, “Until Mr. Valverde puts his 

mental state in issue either at trial or at sentencing, all of this should be covered by 

attorney-client privilege, work-product privilege, attorney-patient privilege.” The court 

asked Valverde’s counsel to explain further. Counsel explained that “[u]nder general 

1368 law, ... the contents of the report remain confidential until and unless the defendant 

puts his mental state at issue either at trial or sentencing.” Counsel went on to say, “The 

contents of the report would be significantly beneficial to the co-defendant’s preparation 

of his case and damage our client, Mr. Valverde’s, defense in the process. And for those 

reasons, it should be kept confidential from the co-defendant.” She further indicated that 

in the event Valverde is restored so he can go to trial, they did not “want to give away 

trial procedures, facts, policies, whatever strategies we may have in order to guarantee 

Mr. Valverde his right to be a competent defendant being tried in a special circumstance 

case.” 

The court stated it had not read Fromming’s entire report and had only read the 

conclusions. The court further indicated it would have accepted counsel’s representations 

in suspending criminal proceedings and referring him to a doctor to perform an 

evaluation without regard to the report. The court stated it accordingly would be 

6 The Honorable Dawn Frenchie Reeves presided over the February 20, 2020 

hearing.

7

It appears, based on the record, Dr. Brar ultimately conducted the evaluation and 

prepared the report. 
31.

returning the report to Valverde’s counsel and later consider the court-ordered report, 

once prepared, “in its entirety.” The court then noted the prosecutor would be receiving 

the report directly from the defense, at which point the prosecutor stated, “No. Based on 

the conversation we just had, that creates problems for me. There’s apparently 

evidentiary items in there that I will receive that I may be required to turn over absent an 

order from the Court that I not.” The prosecutor further explained he would have to turn 

over the report to appellant “if there is information there that is applicable to him that 

could be exoneration towards him.” The prosecutor stated he would either need the court 

to order him not to provide the report notwithstanding any potentially exculpatory 

information in it or not get it, to which the court responded, “I say you not get it at this 

time.”

At the section 1369.5 hearing, defense counsel argued that Valverde’s 

February 20, 2020 statements about the contents of Fromming’s report being significantly 

beneficial to appellant raised an inference that there may be potentially exculpatory 

information in Brar’s court-ordered competency report.8 Defense counsel emphasized, “I 

don’t want this 1368 report to be published to the world and inferences or allegations 

notwithstanding. What would probably be appropriate is for the Court to take a look at 

the 1368 report in camera and ascertain whether there is any information therein that is 

not about Mr. Valverde’s mental state, is not about Mr. Valverde’s medical condition, but 

rather it’s something that would be exculpating or Brady material for [appellant].”

Defense counsel indicated that if the court were to conduct an in camera hearing and find 

there was nothing that would be beneficial to appellant, that “ends the motion.” Defense 

counsel reiterated “the other contents of the 1368 would not be relevant to [appellant]. 

8

It was clarified that Fromming was an expert retained by Valverde, and appellant’s 

counsel explained appellant was not seeking Fromming’s report, only the section 1368 

report prepared by Brar.
32.

I’m only looking for exculpatory material, nothing else.” He later noted that the defense 

was not seeking private medical information of Valverde. 

The court asked defense counsel what was relevant to appellant’s defense that had 

to do with Valverde’s mental state at the time of the examination. Defense counsel 

further explained “it may not be his mental state, so much as what he said. I don’t have 

the report, so it’s not something like I can review it and argue about its admissibility. 

That may come later.” Defense counsel went on to say, “I’m happy with the Court 

saying, I’ll give it to you, [defense counsel], but you can’t release it to anyone and you 

can’t use it without further order of the Court.” Defense counsel explained that “I’m 

hoping that the inference is that something Mr. Valverde had said, either within the 

confines of Dr. Fromming’s report or Dr. Brar’s report or both, will help [appellant] at his 

trial and show that he is not responsible for this.” Defense counsel further stated, “this 

isn’t a fishing expedition for his mental health status or whether he loved his parents or 

what he did with his dog. I don’t care about any of that. I only care whether there is 

anything in there that is directly attributable to Mr. Valverde’s statement which would be 

admissible in a trial, and there may not be such to [appellant’s] benefit. [¶] The People 

are alleging Mr. Valverde did this. So it is possible, maybe likely, that Mr. Valverde said 

something which would be incriminating as to him but exonerating as to [appellant] at the 

same time. That’s the gem I’m looking for. And I think [appellant] is entitled to it.”

Valverde’s counsel maintained that appellant had not articulated an adequate legal 

basis for access to the report and the report was “privileged.” Valverde’s counsel’s 

position was that the court should not even do an in camera review of the report. The 

court asked Valverde’s counsel, if the court were to do an in camera review and find 

something in the report that was beneficial to appellant, would appellant’s right to that 

possible defense be overridden by Valverde’s confidentiality as provided for in the 

statute. Valverde’s counsel responded, “Absolutely. Absolutely. Because the statute and 

the statutory scheme and the cases that have flowed from the statutory scheme, all speak 
33.

to what the precondition is that triggers the unsealing or the use of the report in 

proceedings. Those are limited to where a defendant places his state of mind at issue and 

the other situations almost all of which concern the District Attorney’s use at trial of 

these ... reports.”

The court took the matter under submission and delivered its ruling on August 14, 

2020: 

“... Counsel ... explained that [appellant] was entitled to the report 

because it was relevant to Valverde’s credibility and to his motivation in 

allegedly committing the two homicides. 

“While Valverde is a codefendant, his proceedings are suspended at 

this time and most likely will remain suspended while [appellant] proceeds 

to trial on August 24th. Moreover, the People have filed their witness list 

and Valverde is not listed as a potential witness.

“In light of his status as a codefendant, it seems highly unlikely that 

Valverde will be compelled to testify during [appellant’s] trial. While it is 

possible that statements allegedly made by Valverde could be offered 

during [appellant’s] trial, at this point that is entirely speculative. 

Parenthetically, the Court notes that because it is [appellant’s] motion, he 

bears the burden of proof in this matter.

“In essence, [appellant] argues that he has a due process right to the 

Brar report. It is correct that in certain criminal cases the courts have 

created a due process exception to the psychotherapist-patient privilege for 

criminal defendants where the records contain evidence of disorders 

especially probative of the ability of an important Prosecution witness to 

comprehend and accurately relate the subject of his or her testimony.

“The constitutional Confrontation Clause has been held to prevail 

over a statutory privilege, such as in People versus Reber, R-E-B-E-R, 

177 Cal.App.3d 523 at 530, which has been disproved by Hammon. The 

Defense in this instance is then entitled to use these records to impeach the 

patient; People versus Caplan, 193 Cal.App.3d 543 at 558.

“Both Reber and Caplan were disproved by Hammon, which is 

15 Cal.4th 1117. Hammon limited Reber and held that the Defense has no 

right to obtain pretrial discovery of privileged information in the hands of 

third party providers. Hammon did not address the question of obtaining 
34.

such documents pretrial from the possession of a government agency or 

from the court. 

“Importantly, the right to disclosure is discussed in Reber and 

narrowed by Hammon applies to the records of Prosecution witnesses. 

Salient hereto, Hammon does not allow for pretrial discovery of privileged 

information and that the discovery is limited to Prosecution witnesses.

“Applying those principles to the case at bar suggests, if not 

compels, the denial of [appellant’s] motion. If during the course of the trial 

Valverde’s statements are presented as admissible evidence, only then 

would [appellant] have the right to request release of Dr. Brar’s report, 

which is clearly confidential pursuant to Penal Code §1369.5.

“Additional support for this ruling can be found in Nielsen, N-I-E-LS-E-N, v Superior, 55 Cal.App.4th 1150. Therein it was held that a 

defendant is not able to obtain the psychological records of a codefendant 

who it was believed would at some future date enter into a deal with the 

Prosecution to testify. 

“Accordingly, [appellant’s] motion for an order that this Court 

provide [appellant] with a copy of Dr. Brar’s report is denied without 

prejudice. In the event [appellant’s] right to the report ripens, he is 

certainly entitled to renew his motion. 

“Presently, until evidence of Valverde’s statements are received in 

evidence during the course of the trial, Valverde’s right of confidentiality 

must prevail over [appellant’s] due process rights.” 

B. Analysis

Appellant contends the court erred by declining to conduct an in camera review of 

the contents of Valverde’s court-ordered competency report in order to see if they 

contained discoverable exculpatory evidence. We agree. 

We review issues of statutory construction de novo. (People v. Gonzales (2018) 

6 Cal.5th 44, 49.) Our goal is to determine the legislative intent of the statute. “Because 

the statutory language is generally the most reliable indicator of that intent, we look first 

at the words themselves, giving them their usual and ordinary meaning.” (Alford v. 

Superior Court (2003) 29 Cal.4th 1033, 1040.) When the statutory language is 
35.

unambiguous, its plain meaning controls. We also “generally must ‘accord[] 

significance, if possible, to every word, phrase and sentence in pursuance of the 

legislative purpose,’ and [the California Supreme Court] ha[s] warned that ‘[a] 

construction making some words surplusage is to be avoided.’ ” (People v. Valencia 

(2017) 3 Cal.5th 347, 357.) “ ‘ “ ‘The words must be construed in context in light of the 

nature and obvious purpose of the statute where they appear....’ [Citation.] The statute 

‘must be given a reasonable and commonsense interpretation consistent with the apparent 

purpose and intention of the Legislature, practical rather than technical in nature, and 

which, when applied, will result in wise policy rather than mischief or absurdity.’ ” ’ ”

(Harris v. Appellate Division of Superior Court (2017) 14 Cal.App.5th 142, 148.) Where 

the language supports more than one reasonable construction, we may look to extrinsic 

aids, including the legislative history, for additional guidance. (People v. Ruiz (2018) 

4 Cal.5th 1100, 1105–1106.) We apply these traditional rules of statutory interpretation 

in interpreting the language of the California Rules of Court. (Harris v. Appellate 

Division of Superior Court, at p. 148.)

Under the California Constitution, the public has a right of access to the meetings 

of public bodies or the writings of public officials and agencies. (Cal. Const, art. I, § 3.) 

In addition, there is a common law public right of access to records from judicial 

proceedings. (KNSD Channels 7/39 v. Superior Court (1998) 63 Cal.App.4th 1200, 

1203.) It “ ‘serves the important functions of ensuring the integrity of judicial 

proceedings in particular and of the law enforcement process more generally’ ” (Ibid.) It 

is “not absolute, but ‘must be reconciled with legitimate countervailing public or private 

interests ....’ [Citation]. However, the fundamental nature of the right gives rise to a 

‘presumption’ in favor of public access.” (Ibid.) 

Senate Bill No. 557 (2019-2020 Reg. Sess.; Senate Bill 557) added section 1369.5, 

effective January 2020, which made documents submitted to the court regarding a 

criminal defendant’s competency to stand trial presumptively confidential. The 
36.

Legislature stated the following justification for the limitation of the public’s 

constitutional right of access to the reports: “In order to protect the privacy of defendants 

with respect to personal information contained within expert reports and other documents 

that are prepared as part of mental competency hearings, it is necessary that those 

documents be presumptively confidential, except as otherwise provided by law.” (Stats. 

2020, ch. 251, § 2.) 

Section 1369.5 provides, as relevant here, that “[a] document submitted to a court 

[pertaining to an inquiry into a defendant’s competence], including, but not limited to, 

Sections 1369, 1370, 1370.01, 1370.1, and 1372, is presumptively confidential, except as 

otherwise provided by law.” (§ 1369.5, subd. (a).) The statute mandates such a 

document “be retained in the confidential portion of the court’s file” and “[c]ounsel for 

the defendant and the prosecution shall maintain the documents as confidential.”

(§ 1369.5, subd. (b).) The statute further provides: “The defendant, counsel for the 

defendant, and the prosecution may inspect, copy, or utilize the documents, and any 

information contained in the documents, without an order from the court for purposes 

related to the defense, prosecution, treatment, and safety of the defendant, and for the 

safety of the public.” (§ 1369.5, subd. (c)(1).) 

Section 1369.5, subdivision (c)(2) provides that “[a] motion, application, or 

petition to access the documents shall be decided in accordance with subdivision (h) of 

Rule 2.551 of the California Rules of Court.” (§ 1369.5, subd. (c)(2).) California Rules 

of Court,9rule 2.551(h), is generally applicable to documents sealed by court order, 

rather than documents made confidential by statute, and provides, in pertinent part, that 

“[a] party or member of the public may move, apply, or petition, or the court on its own 

motion may move, to unseal a record.” (Rule 2.551(h)(2).) A court may decide to unseal 

the record “entirely or in part” or “only as to certain persons.” (Rule 2.551(h)(5).) 

9 Further rule references are to the California Rules of Court.
37.

Rule 2.551(h)(4) provides: “In determining whether to unseal a record, the court must 

consider the matters addressed in rule 2.550(c)-(e).” Rule 2.550(c) provides that court 

records are presumed to be open unless confidentiality is required by law. In order to 

seal a record, according to rule 2.550(d), the court must expressly find facts that 

establish: “(1) There exists an overriding interest that overcomes the right of public 

access to the record; [¶] (2) The overriding interest supports sealing the record; [¶]

(3) A substantial probability exists that the overriding interest will be prejudiced if the 

record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less 

restrictive means exist to achieve the overriding interest.” (Rule 2.550(d).) Finally, rule 

2.550(e) sets forth that the court must specifically state the facts supporting the findings 

and direct sealing of only those documents and pages or portions thereof, if practical, 

containing the material needing to be sealed. 

The author of Senate Bill 557 stated the following about the bill:

10

“If a person is charged with a crime and is suspected of being incompetent 

to stand trial, written reports prepared by psychiatrists or psychologists are 

submitted to the court. These reports detail extremely sensitive medical 

and mental health information about the person, including information 

about the person’s mental health history, current functioning, symptoms of 

mental illness, current and prior medications, and mental health diagnosis. 

This confidential information is currently open to the public, since it is 

contained in a criminal file, which is not confidential. If the court finds the 

person incompetent to stand trial, many additional records are required to 

be submitted to the court as part of the treatment process, and those too 

contain confidential information.

“Under current law, certain court records are presumptively confidential, 

such as records in juvenile cases (Welfare and Institutions Code § 827), 

conservatorship cases (Welfare and Institutions Code § 5118 and 5328), 

records of the family conciliation court (Family Code § 1818(b), paternity 

10 Respondent has requested we take judicial notice of the Legislative Counsel’s 

Digest to Senate Bill 557 and a Senate Floor Analysis of SB 557, dated August 14, 2019. 

Appellant does not object. Accordingly we grant respondent’s motion. (See Evid. Code, 

§§ 452, 459.) 
38.

case files (Family Code § 7643(b)) in forma pauperis applications (Cal. 

Rules of Court, rules 3.54 and 8.26), search warrant affidavits sealed under 

People v. Hobbs (1994) 7 Cal.4th 948, and personal information of a 

witness or victim contained in a police, arrest, or investigative report (Penal 

Code § 964).

“Outside of court records, medical and mental health records are normally 

deemed confidential, under both federal law (the Health Insurance 

Portability and Accountability Act, or HIPAA) and state law (Civil Code 

§ 56.10).

“SB 557 would make certain court records in criminal competency 

proceedings presumptively confidential. The records in a particular case 

could be made public if ordered by a judge. Any member of the public or 

press would be able to ask a judge to make this order. SB 557 preserves the 

defendants’ privacy interests in protecting highly sensitive medical 

information, making this consistent with the treatment of medical records in 

other contexts.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis 

of Sen. Bill 557, Aug. 24, 2019.)

Here, the court denied appellant’s request for access to Valverde’s competency 

report without conducting an in camera review of the document. This was error. First,

the trial court’s failure to do such a review was based on misplaced legal authority. The 

two cases the court relied on in denying appellant’s request, People v. Hammon (1997) 

15 Cal.4th 1117 and Nielsen v. Superior Court (1997) 55 Cal.App.4th 1150, dealt with a 

criminal defendant’s entitlement to information protected by the psychotherapist-patient 

privilege for impeachment purposes. These cases were not applicable to the present case, 

however, because the document sought by appellant was not protected by the 

psychotherapist-patient privilege. The psychotherapist-patient privilege does not apply in 

a competency proceeding (Evid. Code, § 1025) or in any situation where the 

psychotherapist is appointed by order of a court to examine the patient except where the 

defense attorney requests an evaluation to provide the lawyer with information needed so 

that he or she may advise the defendant whether to enter or withdraw a plea based on 

insanity or to present a defense based on his or her mental or emotional condition (id., 

§ 1017). (Cf., People v. Gurule (2002) 28 Cal.4th 557, 593 [communications made by 
39.

client to psychotherapist retained by defense as experts protected by psychotherapistpatient and attorney-client privilege].)11 Nor does section 1369.5, as Valverde’s counsel 

appeared to suggest below, create any new legal privilege.12 Rather, it made a class of 

documents presumptively confidential subject to a court’s own motion or a motion by 

any member of the public for an order otherwise. The cases relied on by the trial court 

were further inapposite because appellant was seeking exculpatory evidence, not 

impeachment evidence and not information about Valverde’s mental health.

Further, requiring appellant to make a threshold legal showing to justify an in 

camera review of the report was contrary to the statute. Valverde’s counsel suggested 

below that appellant was required to establish a constitutional right to access the report 

before the court could review it. This position is belied by the plain language of the 

statute and the court rules it incorporates by reference. The statute provides for no 

threshold requirement in order to justify an in camera review of the report. Rather, we 

conclude the court was required by the relevant authority to review the report in camera 

to determine whether it should grant access to appellant. 

Under section 1369.5 and rule 2.551, confidentiality of competency documents is 

not absolute; rather, the Legislature has determined that when any party or member of the 

public seeks access, the court should use the same procedure as determining whether to 

unseal a record sealed by court order. According to that procedure, the court clearly has 

discretion to order access to the record, but in determining whether to do so, it “must” 

consider the factors set forth in rule 2.550. (Rule 2.551.) These factors require a 

balancing of the relevant interests of the individual or entity seeking the record to remain 

11 We note that while the report Fromming prepared at the direction of the defense 

referred to at the February 20, 2020 hearing may have contained privileged information, 

appellant was expressly not seeking that report, only the report prepared by the courtordered doctor for the purpose of the competency proceedings. 

12 We note respondent, on appeal, does not allege the report was privileged or 

contained privileged information.
40.

sealed and the interest of the public or of the individual or entity seeking access to the 

record, as well as an evaluation of whether the sealing order is narrowly tailored enough 

to protect the relevant privacy interests and whether there are less restrictive means

available to do so. (See rule 2.550(c).) The court cannot make such considerations

without reviewing the contents of the record. (See H.B. Fuller Co. v. Doe (2007) 

151 Cal.App.4th 879, 894 [“[A] reasoned decision about sealing or unsealing records 

cannot be made without identifying and weighing the competing interests and concerns. 

Such a process is impossible without (1) identifying the specific information claimed to 

be entitled to such treatment; (2) identifying the nature of the harm threatened by 

disclosure; and (3) identifying and accounting for countervailing considerations.”].) 

Thus, since the court “must” consider the factors set forth in rule 2.550 when faced with a 

request for access to records under section 1369.5, we conclude the court “must” review 

the document or documents sought in order to rule on such a request. This is not to say 

the court must grant appellant access to the report; rather, the reason for access set forth 

by the requestor—here for discovery of potentially exculpatory evidence—is relevant to

the determination of whether he is ultimately granted access. In addition, we do not 

mean to suggest in any way that the court erred by hearing from Valverde’s counsel on 

the issue. Valverde’s position, like appellant’s, is relevant to the balancing analysis the 

court must do when deciding whether to grant the requested access.

Because we conclude section 1369.5 and the rules it incorporates by reference do 

not require any threshold showing of good cause to justify an in camera review of the 

records, we reject respondent’s arguments that appellant did not make such a showing. 

Despite asserting appellant had a “burden” of showing good cause to warrant an in 

camera review, respondent cites no legal authority to support this contention. While 

respondent is correct that a requestor under section 1369.5 has the burden to overcome 

the presumption of confidentiality in order to gain access to a report made confidential by 
41.

the section, as we have explained, the court must consider the contents of the requested 

report in determining whether that burden has been met.13

As we are reversing the judgment and remanding for a new trial based on our 

conclusion regarding appellant’s Miranda claim, our remedy is limited. If upon remand, 

appellant brings a new request for access to Valverde’s competency report, we conclude 

section 1369.5 requires the court to review the report in camera to determine whether 

appellant should be granted access in accordance with the relevant court rules. We 

express no opinion on whether the court should disclose any information to appellant but 

respectfully advise the trial court to consider that appellant has raised a strong 

countervailing consideration to the presumptive confidentiality of the record intended to 

protect Valverde’s private information. Notably, appellant was not seeking Valverde’s 

sensitive medical information, which the statute was enacted to protect, and was not 

seeking to make any of the contents of the report open to the public. Rather, he was 

seeking statements made by Valverde which may have been exculpatory as to him.14 

The court should also consider that any incriminating statements made by Valverde could 

not be used against him in a trial. (See People v. Pokovich (2006) 39 Cal.4th 1240, 

1244‒1254.) We also express no opinion on whether, if the trial court grants disclosure 

of statements made by Valverde within the competency report, any such statements 

would be admissible in trial. 

13 Because it is not the issue before us, we take no position here as to whether a court 

may summarily deny a request to access a record under section 1369.5 where no reason 

for access is alleged. 

14 Appellant was arguably entitled to such evidence under Brady, as this was 

information to which the prosecution had legal access. (See J.E. v. Superior Court 

(2014) 223 Cal.App.4th 1329 [in camera review under Welf. & Inst. Code, § 827 was the 

proper mechanism to resolve a defense Brady disclosure request involving information in 

a juvenile file].)
42.

Because we conclude appellant was statutorily entitled to an in camera review of 

the report he sought to access, we need not address his claim that his due process rights 

were violated. 

III. Improper Instruction on Natural and Probable Consequences Doctrine

The parties agree the court erred by instructing the jury on the natural and 

probable consequences doctrine and disagree only on the issue of whether the error 

constituted reversal. We need not consider this contention as it has been rendered moot 

by our decision to reverse on other grounds. 

IV. Independent Review of Pitchess Materials

Appellant requests we independently review the record of the trial court’s in 

camera Pitchess proceedings to determine whether it erred and violated his due process 

rights in determining nothing was discoverable. Respondent does not oppose this 

request.

Under Pitchess, a defendant may bring a motion for disclosure of certain relevant 

information in the personnel files of police officers by showing good cause for discovery 

and how it would support a defense to the charge against him. (Warrick v. Superior 

Court (2005) 35 Cal.4th 1011, 1018‒1019; §§ 832.7, 832.8; Evid. Code, §§ 1043‒1045.) 

When the court finds good cause and conducts an in camera review pursuant to 

Pitchess, the court must hold an in camera hearing, during which the custodian of records 

brings “all documents ‘potentially relevant’ to the defendant’s motion.” (People v. Mooc

(2001) 26 Cal.4th 1216, 1226.) “Subject to statutory exceptions and limitations ..., the 

trial court should then disclose to the defendant ‘such information [that] is relevant to the 

subject matter involved in the pending litigation.’ ” (Ibid.)

The court must make a record that will permit future appellate review. (People v. 

Mooc, supra, 26 Cal.4th at pp. 1229‒1230.) The court may preserve the record by either 

copying the documents and placing them in a confidential file, preparing a sealed list of 
43.

the documents it reviewed, or “simply state for the record what documents it examined” 

and seal that transcript. (Id. at p. 1229.) 

“A trial court’s decision on the discoverability of material in police personnel files 

is reviewable under an abuse of discretion standard.” (People v. Jackson (1996) 

13 Cal.4th 1164, 1220–1221.)

Here, Valverde, joined by appellant, moved for disclosure of prior complaints of 

misconduct against Hicks and two other officers. The trial court granted appellant’s 

Pitchess motion as to Hicks with regard to “false report, dishonesty, or coercive interview 

techniques.” An in camera hearing was conducted on November 13, 2015. The court 

delivered its ruling in open court on December 2, 2015, that no records of the nature 

sought were to be disclosed. 

We have reviewed the confidential reporter’s transcript of the in camera hearing 

conducted on November 13, 2015. We have also reviewed a confidential settled 

statement prepared by the trial court at this court’s direction executed on May 17, 2021. 

In the settled statement, the trial court described one file presented to it and noted the 

court did not retain a copy of the file. The court explained it subsequently issued an order 

to the relevant custodian of records to provide the file produced at the November 13, 

2015 in camera hearing and conducted an in camera proceeding on May 7, 2021, where 

the court was informed the file had been destroyed pursuant to Modesto Police 

Department records retention policy. The superior court was provided with documents 

related to the destruction of the file and forwarded those documents to this court. 

We conclude the documents provided by the superior court comprise an adequate 

record for review. (See People v. Jackson, supra, 13 Cal.4th at p. 1221, fn. 10 [where 

records were destroyed and the appellant showed no bad faith, reviewing court could rely 

on the court’s record of the proceedings to determine whether the trial court abused its 

discretion].) After reviewing the documents provided to us, we conclude the trial court 

did not abuse its discretion in declining to disclose any information to appellant. 
44.

V. Cumulative Error

We need not address appellant’s contention that the cumulative prejudicial effect 

of the alleged errors warrants reversal because we have found prejudicial error. 

DISPOSITION

The judgment is reversed and the matter is remanded for a new trial and 

proceedings consistent with the views expressed in this opinion. 

 DE SANTOS, J.

WE CONCUR:

HILL, P. J.

DETJEN, J.