Filed 3/20/14 P. v. English CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. AQUEELAH ENGLISH, Defendant and Appellant. F064895 (Kern Super. Ct. No. BF135310A)



### OPINION

APPEAL from a judgment of the Superi or Court of Kern Co unty. Colette M. Humphrey, Judge. Laurie Wilmore, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Catherine Chatman and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOooINTRODUCTION Appellant/defendant Aqueelah English tu rned herself in at the courthouse in Mojave, Kern County, because she had two no-bail misdemeanor warrants for driving2. under the influence. The deputies took her in to custody and conduc ted an inventory of her personal property. She ha d $287 in cash. The cash was placed in a money envelope in her property bag. The deputies maintained custody of the proper ty bag and defendant did not have access to it. A few hours later, the deputies transported her to the Central Receiving Facility (CRF) jail in Bakersfiel d, and her property ba g was given to the receiving deputies. A receivi ng deputy signed for de fendant and her property after she arrived. When the booking de puty later examined defendant ’s property bag and opened the money envelope, there was only $187 in cash. The senior deputy immediately
decided to conduct a “visual body cavity search” of defenda nt to look for the missing cash – even though defendant never had acce ss to the property bag, and the receiving deputy disavowed having actually received defendant or examined her property bag. The senior deputy told defendant they were going to conduct th e strip search, asked if she would “cooperate,” and defendant said yes. Defendant removed all her clothes, and two female deputies examined he r body without touching he r. They saw a plastic bag concealed between her buttocks which contained mariju ana, and also recovered an amount of methamphetamine c oncealed on her body. The missing cash was never found. Defendant was charged with co unt I, unauthorized possession of methamphetamine in jail (Pen. Code, 1 § 4573.6), and count II, unauthorized possession of marijuana in jail. Defendant filed a motion to suppress th e evidence and argued the visual body cavity search was unreasonable given the natu re of her misdemeanor offenses and the lack of any evidence that she could have ta ken her own money after it had been counted and placed in the property bag. Defe ndant also filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ), for disclosure of the confidential personnel records of two deputies at the Bakersfield jail: De puty Warmerdam, who

1 All further statutory citations are to th e Penal Code unless otherwise indicated.3. signed as the receiving deputy but later cl aimed he never receiv ed or checked her property; and Deputy Deval, who participated in the se arch. Defendant requested discovery of any records recording dishonesty. The superior court found defendant’s Pitchess motion established good cause to review the confidential record s for Deputy Warmerdam but not for Deputy Deval. The court conducted an in camera hearing, re viewed Warmerdam’s files, and advised defendant there was no disc overable information. Th e court then conducted an evidentiary hearing on the valid ity of the search, found defend ant consented to the search when she agreed to “cooperate,” and de nied the suppression motion. Thereafter, defendant pleaded no contest to count II, unauthorized posse ssion of marijuana in jail, and she was placed on probation. On appeal, defendant raises several issues , primarily that the court should have granted her suppression motion because the vi sual body cavity search was unreasonable under the circumstances, and her agreement to “cooperate” did not constitute consent. Defendant also asks this court to review Deputy Warmerdam’s confidential personnel records which were before the superior court during the in camera Pitchess hearing, and determine whether the court abused its disc retion and any records should have been
disclosed. We find the deputies did not have reasonabl e suspicion to conduc t the visual body cavity search, defendant did no t voluntarily consent to the search, the suppression motion should have been granted, a nd the judgment must be reve rsed. We also address the procedural aspects of the Pitchess review because of our concerns about that issue in reference to any future proceedings.4. FACTS 2 At 7:00 p.m. on January 18, 2011, Depu ty Aaron Warmerdam of the Kern County Sheriff’s Department was on duty at the CRF in Bakersfield. Warmerdam testified he was responsible for booking inmates into the jail. Warmerdam testified defendant arrived at the jail that evening. She was already an inmate in custody. She ha d been booked in Mojave by another deputy, and she was transported to Kern County. She was still wearing her own clothes. Warmerdam testified that when defendant was taken into cu stody in Mojave, a deputy counted the money she had on her pe rson and wrote the amount on a form. The money was transported to Kern County in a pr operty bag. When defendant arrived at the Kern County jail, the data entry officer rec ounted the money in defendant’s presence and determined the amount of cash was $100 less th an the amount in the report. The data entry officer advised Warmer dam about the discrepancy. 3 At the preliminary hearing, Warmerdam was asked who recounted the money in Bakersfield. Warmerdam replied: “It was someone from the squad before me, so I do not know. [Defendant] said it was a pretty white deputy. That’s how she explained it.” Deputy Warmerdam testified Senior Depu ty Burnett and Dete ntion Deputy Deval (female deputies) conducted a “strip search” of defendant to dete rmine if she hid the money on her body. 4 Warmerdam conceded the money had never been given back to

2 There are several different versions of what happened in this case. The following facts are from the preliminary h earing transcript. There was additional evidence about defendan t’s custodial status contained in her Pitchess motion, and introduced during the evidentiary hearing for her supp ression motion. We will address these facts below.
3 As we will explain below, Deputy Warmerdam testified at the suppression hearing about a different sequence of events when defendant arrived at the Bakersfield jail.
4 The parties alternatively describe the se arch in this case as both a “visual body cavity search” and a “strip search.” As we will discuss in issue I, post , section 40305. defendant after she was taken into custody, and the cash had been pl aced in the property bag in Mojave. Deputy Warmerdam testified Deputies Burn ett and Deval found a white piece of plastic between defendant’s bu ttocks which contained mariju ana. They also found a package concealed in her body which contained 0. 81 grams of methamphetamine. On cross-examination, de fense counsel asked Deputy Warmerdam if his report about the incident required any correcti ons. Warmerdam testified he might have mistakenly “switched” the weights of the narcotics found on defendan t’s body: “I think the methamphetamine says 2.0 grams total pa ckage weight and the marijuana says .09 grams total weight.” 5
PRETRIAL MOTIONS After the preliminary hearing, defendant filed a Pitchess motion for disclosure of the confidential personnel records of De puties Warmerdam and Deval; and a motion pursuant to section 1538.5 to suppress the narcotics found on her body during the strip
search.
The Pitchess Motion
Defendant’s Pitchess motion moved for discovery of the confidential personnel records of Deputies Warmerdam and Deval, for complaints of acts or instances of

defines a “[v]isual body cavity search” as th e “visual inspection of a body cavity.” (§ 4030, subd. (d)(2).) At the very least, the visual inspec tion of an arre stee’s naked body, even with out a visual examination of body cav ities, constitutes a “strip search.” ( Edgerly v. City & County of San Francisco (9th Cir. 2010) 59 9 F.3d 946, 957 ( Edgerly ); People v. Lowe (2013) 221 Cal.App.4th 1276, 1293.) 5 Deputy Warmerdam later testified at th e evidentiary hearing on the suppression motion that he signed as the receiving deputy for defendant, which i ndicated he examined and confirmed the contents of her property ba g, but testified he did not actually receive her when she arrived at the jail, he just si gned as the receiving deputy because the actual deputy failed to do so, and he never bothe red to find out the id entity of the actual receiving deputy. At the preliminary heari ng, however, Warmerdam failed to explain these circumstances when asked if he needed to explain any discrepancies.6. dishonesty, false arrests, and the fabricati on of charges, reports, and/or evidence, to impeach their credibility. In her supporting declara tion, defense counsel stat ed defendant’s money was counted in Mojave and the to tal was $287. When defendantarrived at the Bakersfield jail, the money was counted again and the to tal was $287. Defendant was placed in a cell. Defendant later contacted a bond agen t and arranged to use $200 of her money to make bail. Deputy Warmerdam escorted de fendant from her cell into the cashier’s booth for the release of her money. In Warmer dam’s presence, the cashier opened a sealed envelope which said it contained $287. The cashier counted the money and the total was $187. Defense counsel declared Deputy Warm erdam contacted Deputy Deval and other female deputies to conduct a strip search for the missing cash. Defendant refused to consent. Deputy Deval threatened to take de fendant to the hospital, strap her down, and humiliate her during a body search. Defendan t was searched, the drugs were found, and the money was never recovered. 6 In the responsive pleadings, the prosecu tion conceded defendant established good cause for the superior court to conduct an in camera review of Deputy Warmerdam’s confidential personnel records. The prosec ution opposed review of Deputy Deval’s records since she merely conducted the search. Suppression motion In her suppression motion, defendant argue d the deputies’ decision to conduct the “visual body cavity search” was unreasonable because it violated section 4030,

6 As we will discuss below, the deputies who testified at the evidentiary hearing on the suppression motion described a different se quence of events leading to the search. Defense counsel’s hearsay declaration, which was filed in support of the Pitchess motion, was not admitted into evidence during the suppression hearing, and defendant did not testify at that hearing.7. subdivision (f), which prohibits strip searches of arrestees held on misdemeanors, except for weapons or controlled substances, unless there is reasonable suspicion the arrestee is concealing contraband. Defendant argued th ere was no reasonable suspicion that she took the missing cash from the property bag. In opposition, the People argued the depu ties had reasonable suspicion defendant took the missing cash because “due to the busy nature of the inmate receiving facility, the The People asserted defendant had the opportunity to take the money,” which constituted contraband in jail. 7 The People did not assert defe ndant consented or agreed to the
search. THE PRETRIAL HEARINGS Pitchess hearing On February 16, 2012, the court co nducted a hearing on defendant’s Pitchess motion. The court advised the parties it f ound good cause to co nduct an in camera review of Deputy Warmerdam’s personnel reco rds for any allegations of dishonesty, but concluded defendant failed to establish good cause for review of Deputy Deval’s records. After the in camera hearing, the court retu rned on the record, advised the parties it reviewed Deputy Warmerdam’s records, and found there was no discoverable
information. THE SUPPRESSION MOTION
After the court denied the Pitchess motion, it conducted an evidentiary hearing on defendant’s suppression motion and her cont entions the officers lacked reasonable suspicion to conduct the visual body cavity search. Severa l deputies testified generally

7 As we will discuss below, there was no evidence introduced at the suppression hearing which showed defendant had the opportunity to take her money once it was placed in the proper ty bag in Mojave.8. about the booking, transporta tion and search procedures, and about the events which led
to the search of defendant. Defendant’s arrival in Mojave Deputies Megan Hudson and Br enda Waidleich, who were assigned to the Mojave courthouse, testified defendant checked in at the Mojave counter with two no-bail misdemeanor warrants for driving under the infl uence (DUI). It was already past the cutoff time to add matters to the Mojave court calendar. Deputy Hudson advised defendant she would be taken into custody because of the no-bail warrants. Deputy Hudson testified she took defendant to the jail lo cated in the back of the Mojave courthouse, where inmates are tempor arily housed for court hearings. Hudson “handed her off” to Deputies Waidleich and James Clepacki, the detention deputies. Hudson testified defendant was going to be transported to th e Bakersfield jail because it was too late to appear in the Mojave court. Hudson did not search defendant or check any of her property, and left th at to the detention deputies. Deputy Waidleich testified she search ed defendant in Mojave. Waidleich removed defendant’s property from her pockets and counted her cash. Waidleich testified defendant was upset abou t her money being taken from her. “[Defendant] wanted to count her money in front of me. I never let people count their own money; this day I did. [¶] [Defendant] counted it, she gave it back to me, I recounted it, I aske d her what she got and she told me 287 dollars, and I said that’s exactly what I got. Put it in the envelope .” (Italics added.) Waidleich testified she put defendant’s cashin a small money envelope and wrote the total amount on the envelope and on the field arrest data report. 8

8 Deputy Waidleich testified that at some later time, she was repeatedly asked by the sergeant in Mojave abou t how much money defendant had. Waidleich told the sergeant that she could not remember, butthought it was “two hundred and eightysomething maybe.”9. Deputy Waidleich testified defendant a nd other inmates were transported from Mojave to the Bakersfield jail in a bus. De fendant was still in custody. Defendant’s property bag was not given to her. Instead, the transporta tion deputies had the property bag, and they gave it to the receiving de puties when they arrived in Bakersfield. Defendant arrives at the Bakersfield jail Deputy Aaron Warmerdam, who was assi gned to the Bakersfield jail, testified generally that when an inmate is transported to the jail, the transportation deputies will escort the inmate to the receiving center count er. At that location, a deputy will ask medical screening questions, a nd recheck the field arrest da ta report to note the charges against the inmate and the inmate’s arriva l time. The inmate’s property would be checked, and any cash would be co unted to ensure the informati on on the field data arrest form was correct. Deputy Melissa Hunter, a shift supervisor for the jail’s clerical staff, similarly testified that when an inmate is transporte d to the Bakersfield jail, the transportation deputies will bring the inmate’s property bag from the prior facility and give it to the jail’s receiving deputies. Senior Deputy Katherine Burnett testified that when defendant arrived at the Bakersfield jail from Mojave, a deputy at th e receiving counter would have searched defendant, her clothing, po ckets, socks, and shoes. Deputy Warmerdam signs defendant’s field arrest report Deputy Warmerdam testified he went on duty at 7:00 p.m. on the evening that defendant arrived at the Bakersfield jail. By the time Warmerdam started his shift, defendant had already arrived from Mojave and had been booked into the jail. Warmerdam thought she might ha ve arrived around 6:30 p.m. Warmerdam testified he did not receive or process defendant when she arrived. However, Warmerdam testified he signed his name on defendant’s field arrest data report10. and declared he was the deputy who rece ived defendant at th e jail. Warmerdam explained why he did signed for defendant: “Because earlier ... I received another call that there was [a field arrest data report] that wasn’t signed from the people, from Mojave, the transfer from Mojave and it must be signed, and th e date and time must be indicated on the [field arrest data] before they can be entered into [the computer system].” Deputy Warmerdam testified that even though he sign ed for defendant as the receiving deputy, he did not check defendant’s property ba g to determine whether the contents were consistent with the report on th e property envelope and the field arrest data report. Warmerdam testified defendant’s field arrest data report stated there was $287 in her property bag. Warmerdam did not confir m that amount was pres ent in the property bag, even though he signed the field arrest report which declared he received her with that amount of money. Deputy Hunter meets defendant in the control booth Deputy Hunter testified her duties incl uded being in control of the inmates’ property bags at the Bakersfield jail. Hunter explained how property is processed at the jail: “If we’re booking inmates, then the deputies will slide the property bags down to us and we will book the inmates with th e information that they have given to us. The property bags are seal ed, but money envelopes will be on the outside of the bags, where we can access it and count it and put it into our money drawer . And then once the property bags to go the office, then we just take them numerically and transfer them from facility to facility.” (Italics added.) Deputy Hunter testified thatwhen she books an inmate , she counts the money in front of the inmate, adds the amount to th e inmate’s commissary account, and puts the cash into the money drawer.11. Deputy Hunter testified about what she believed happened when defendant arrived at the Bakersfield jail from Mojave. Hunt er believed the Mojave transportation deputies gave defendant’s property bag to th e receiving deputies in Bakersfield. “Well, [defendant] was received by a receiving officer and then she was probably put into a holding cell, and then after the holding cell, then they come into our booking booth. Then at that point in time we already have her property bag which has her money envelope inside of it , and then I would have taken it out... .” (Italics added.) Deputy Hunter believed th e receiving deputies gave de fendant’s property bag to
Hunter. Hunter testified defendant did not ha ve the property bag, and she did not give it
to Hunter. Deputy Hunter testified her first contac t with defendant oc curred about an hour after defendant arrived at the jail. Defe ndant was already sitti ng in the data entry officer’s booth. The booth was one of three se parately enclosed and locked booths where deputies book inmates. Hunter testified each booth was about 6 feet by 20 feet. Hunter did not know which receiving officer escorted defendan t into the booth. Deputy Warmerdam testified he did not escort defendant into the data entry officer’s booth, and he did not know which deputy provided the escort. Deputy Hunter testified there was a gla ss partition in the booth which separated
defendant from Hunter. Each side of the booth could only be en tered with a deputy’s key. There was a countertop on both sides of the glass partition. The glass partition was two feet by three feet, and di d not completely reach the top of the ceiling. There was a small slot-like opening at the bottom of the gl ass partition. The slot was just large enough to slide a receipt and pen from the de puty’s side to the inmate to sign for the property. The slot was nor mally locked on the deputy’s side of the booth.12. Deputy Hunter believed that when she me t with defendant, sh e was going to be released, based on comments defendant made about getting back to Lancaster. Hunter did not know if defendant wa s trying to arrange for bail. 9 Deputy Hunter discovers the cash discrepancy Deputy Hunter testified she processed defendant just like she would do for any other inmate. Hunter received the field arrest data report, which stat ed that defendant had $287 when she was booked in Mojave. There was a money envelope in the property bag, and it also said defendant had $287 when she was booked in Mojave. Deputy Hunter testified she took the mone y envelope out of the property bag and counted the cash. There was only $187, wh ich was $100 less than listed on the form. Defendant was sitting on the othe r side of the glass partiti on when Hunter counted the cash and discovered the discrepanc y. Hunter could not recall if the slot through the glass was open or closed when she counted the cash. Deputy Hunter testified that when sh e realized the money was missing, she immediately searched her side of the control booth, and moved other property bags around to see if something had fallen out, and she did not see anything. Defendant kept asking what was going on with he r money. Hunter told defe ndant they were checking on
it. Defendant remained in the enclosed booth in front of Hu nter for “quite awhile,” and repeatedly asked where was her money, and when was she going to be done. Deputy
Hunter did not search defendant.

9 Defendant did not testif y at the suppression hearing. Defense counsel’s Pitchess declaration stated that defe ndant contacted a bail bond co mpany while in the holding cell; she arranged to make bail for $200; the ba il bond agent was on his way to the jail; and defendant was taken into the da ta entry control booth for the release of her money to pay the bail bond agent. These facts were not introduced at the suppression hearing.13. Deputy Warmerdam’s first contact with defendant After Deputy Hunter searched the area, she called “the receiving officer , ” who was identified as Deputy Warmerdam. Deputy Warmerdam testified that at 10:00 p.m., he received a call from Deputy Hunter that $100 was missing from defendant ’s money envelope. Warmerdam testified his first contact with defendant occurred after that call. Defendant was still in the data entry officer’s booth. Warmerdam did not know if defendant was trying to arrange for
bail. Deputy Warmerdam testified that when he arrived at the booth, he counted the cash in defendant’s money envelope and there was $187, even though the envelope said there was $287 inside. Deputy Warmerdam testified he called Se nior Deputy Burnett and told her about the discrepancy. As they wa ited for Burnett to arrive at the booth, Warmerdam asked defendant how much money she had when sh e was originally b ooked in Mojave. Defendant said she had $287. Warm erdam did not search defendant. Deputy Warmerdam testified that he had si gned for defendant’s arrival at the jail as the receiving officer, but he did not recei ve defendant, and he ne ver investigated who actually received defendant and her property bag when she arrived from Mojave. Senior Deputy Burnett decides to search defendant Senior Deputy Burnett testified Deputy Warmerdam called and advised her that $100 was missing from defendant’s property bag. Burnett’s first c ontact with defendant occurred while defendant was still in the control booth. Warmerdam was present. Deputy Burnett testifie d she spoke to Deputy Hunter, who explained the discrepancy. Burnett confirmed the notatio ns on the money envelope, counted the cash, and agreed there was only $187. Deputy Burnett instructed Hunter to book defendant with the actual amount of cash that was in the bag, and “we would ... attempt to figure out what happened, and14. correct it if we could, if we could find th e money or whatever, but we would have to work on getting an answer to it, how come there was a discrepancy on the money.” Deputy Burnett’s testimony abou t the timing of the search Deputy Burnett initia lly testified that after the di screpancy was discovered, the deputies searched all the in mates in the female holding area, and Burnett searched Deputies Hunter and Miller, the control b ooth officers. The money was not found. Deputy Burnett testified that after these searches were unsuccessful, she decided to conduct a visual body cavity search of defe ndant to look for th e money. Burnett conceded that no one reported to her that defendant had taken the money from the property bag. Burnett explained the reason she decided to search defendant:
“It wouldn’t have been the first time that an inmate saw an opportunity to grab money, be it their own or someone else’s.... [¶] [¶] Everyone knows that if something comes up missing out of our custody, the County is going to repl ace it. And we have had instances where someone, an inmate, we’ve actually found property and/or mo ney belonging either to them or someone else, in past instances.” On cross-examination, ho wever, Burnett consulted her report and clarified the timing of the strip search. Burnett c onceded that she s earched defendant before she
conducted the other searches. Burnett further clarified that after she searched defendant, found the drugs, and did not find the cash, sh e then searched the control booth deputies and the other inmates, and still did not find the money. 10 Deputy Burnett’s testimony abou t defendant’s “cooperation” Deputy Warmerdam testified he escorted defendant to the female “deck” area because Senior Deputy Burne tt was going to conduct a strip search to look for the

10 Deputy Hunter confirmed that Deputy Burnett searched Deputy Miller and herself for the missing cash, and the money wa s not found. Hunter thought defendant was still in the control booth when Burnett se arched them.15. missing cash. No other depu ty had contact with defendan t when Warmerdam escorted
her from the control booth to Deputy Burnett’s area. Deputy Burnett testified th e deputies followed the depart ment’s protocol and filled out a form to request to conduc t a “visual body cavity search ” of defendant to look for the missing cash. Burnett was not sure if the form was completed by Deputy Deval or
herself. 11 Defense counsel asked Deputy Burnett whether she told defendant it would be easier if she agreed to the vi sual body cavity se arch, because otherwise defendant would be taken to the hospital and placed naked on a gurney, wh ere everyone could see her. Burnett said no and explained:
“I believe that’s out of context. [Defendant] actually agreed to the search. When I told her that we wanted to do a visu al body cavity search , and I specifically, and I do it every time, I ask them are you going to cooperate with that, and [defendant] said yes .” (Italics added.) 12 Deputies Burnett and Deval conducted the strip search. Burn ett testified they found a small amount of marijuana conceale d between defendant’s buttocks. Burnett testified that once they found the marijuana, she “knew” something else was there.
Burnett testified she told defe ndant she would obtain a search warrant “to get it if that’s what it took, and I would take her to [the hospital] and I would have a doctor remove

11 This form was attached as an exhibit to defendant’s Pitchess motion, but stated that Deputy Warmerdam, again identified as the receiving deputy, requested to conduct the strip search for the missing cash, and Se nior Deputy Burnett granted the request.
12 Deputy Burnett’s report about the se arch was included as an exhibit to defendant’s Pitchess motion, but the hearsay statements were not introduced at the suppression hearing. In her report, Burne tt describes her interac tion with defendant: “Prior to searching [defendant], I explained to her what we were doing and why. I told her if she had the money, she could give it to me and avoid any further trouble. She said she did not have any money on her person, and would not st eal money from herself. She agreed to submit to the search.”16. it ....” Burnett never said defendant would be placed on a gurney. The officers also found a small amount of methamphetamine hidd en in another part of defendant’s body. 13
The court’s denial of the suppression motion The court denied the suppression motion and found defendant consented to the visual body cavity search: “It’s apparent to me that the par ties involved were actually legitimately searching for the money. They didn’t just search [defendant], they also searched all the other inmates that we re in the holding cell at the time. They also searched the ot her employees that were ne arby. So they weren’t just focusing on [defendant]. “With regard to the actual strip search, Deputy Burnett testified that [defendant] consented to the search and then after they found the marijuana, apparently sh e became somewhat resistan t, and at that point Deputy Burnett said I’ll get a warrant if I have to, and apparently at that point [defendant] cooperated. So, I don’t think there was any Fourth Amendment violation. I don’t know if there was a violation of some other sheriff’s protocol .... But in terms of a Fourth Amendment violation, I don’t see it in this situation, so I amgoing to deny th e motion.” (Italics added.) The court did not address whether the depu ties needed or had reasonable suspicion
to conduct the search.

13 At the evidentiary hearing, Deputy Burn ett simply testified they also found methamphetamine hidden in defendant’s body . Neither the prosecutor nor defense counsel asked Burnett further details about how they found the second amount of drugs Defendant attached Deputy Burnett’s investigativ e report about the search as an exhibit to her Pitchess motion. According to Burnett’s report, after they found th e marijuana on her body, Deputy Deval instructed defendant to squat down, cough, and perform other maneuvers in order conduct a more thorough sear ch of her body. Ultimately, Burnett told defendant that if she did not remove it, they would obtain a search warrant, take her to the hospital, and have a doctor remove it. Af ter hesitating for several minutes, defendant produced a small amount of methamphetamine. This version of the second part of the search was not introduced at the suppression hearing.17. Plea and sentence Thereafter, defendant pleaded no contest to count II, unauthorized possession of marijuana in jail, which was based on the firs t amount of drugs found on her body; and to two unrelated misdemeanor offenses. Th e court dismissed count I, unauthorized possession of methamphetamine in jail, whic h had been based on the second amount of drugs found in her body. Th e court also dismissed another unrelated charge. She was placed on probation for three years for count II, subject to certain terms and conditions, including serving 176 days in jail. DISCUSSION
I. The deputies did not have reasonable suspicion to conduct the search
Defendant contends her s uppression motion should have been granted because the visual body cavity search was unconstitutiona l and violated her due process rights.
Defendant asserts the search violated section 4030, whic h regulates custodial strip searches; the deputies needed reasonable suspicion to conduct the search since she was being detained for nonviolent and minor o ffenses; and they lacked any reasonable suspicion she took her money from the property bag. A. Standard of review On appeal from the denial of a suppressi on motion, this court upholds any factual findings, express or implied, that are s upported by substantial evidence, but we independently determine, as a matter of law, whether the challenged search conforms to constitutional standards of reasonableness. ( People v. Hughes (2002) 27 Cal.4th 287, 327 ( Hughes ).)
B. Section 4030 We begin with defendant’s contention (repeat edly raised before the superior court) that the deputies violated section 4030, subd ivision (f) when they conducted the visual body cavity search. This sec tion states in relevant part:18. “No person arrested and held in custody on a misdemeanor or infraction offense , except those involving weap ons, controlled substances or violence ... shall be subjected to a strip search or vi sual body cavity search prior to placement in th e general jail population , unless a peace officer has determined there is reasonable suspicion based on specific and articulable facts to believe such person is concealing a weapon or contraband, and a strip search will resu lt in the discovery of the weapon or contraband. No strip search or visual body cavity search or both may be conducted without th e prior written authorization of the supervising officer on duty. The authorization shall includ e the specific and articulable facts and circumstances upon which the reas onable suspicion determination was made by the supervisor.” (§ 4030, subd. (f), italics added.) Section 4030 was enacted “to protect the state and federal constitutional rights of the people of California by establishing a stat ewide policy strictly li miting strip and body cavity searches.” (§ 4030, subd. (a).) It provides for civil and criminal remedies upon violations of its terms. (§ 4030, subds. (n) & (p).) 14 Despite these provisions, however, secti on 4030 does not stat e the basis for an exclusionary rule or a violation of the Fo urth Amendment. Instead, evidence found during a visual body cavity search is subject to suppression only if it is the product of a search conducted in vi olation of the United States Constitution. ( People v. McKay (2002) 27 Cal.4th 601, 609-610; People v. Wade (1989) 208 Cal.App.3d 304, 307-309.) C. Florence and custodial detainees
We thus turn to the constitutional sta ndards to conduct vi sual body cavity
searches. In Bell v. Wolfish (1979) 441 U.S. 520, the Unite d States Supreme Court held that strip and visual body cavity searches ma y, in certain instances, be conducted on

14 Based on the exhibits submitted with defendant’s Pitchess motion, it appears the deputies complied with section 4030, subdivision (f)’s requirement for written authorization – Deputy Warmer dam filled out the form a nd officially requested to conduct the search, and Deputy Burnett signed the form to give her approval. These documents were not introduced into eviden ce at the suppression hearing. As noted above, however, Burnett testified at the suppression hearing that she made the decision to conduct the search, and she wa s not sure if the form was completed by Deputy Deval or herself.19. prisoners and pretrial detainee s in institutional settings with less than probable cause. ( Id

. at p. 561.) To determine wh ether an institutional search policy is reasonable under the Fourth Amendment, the court must balance “the need for the particul ar search against the invasion of personal rights that the search entails....” ( Id . at p. 559.)
In Florence v. Board of Chosen Freeholders (2012) ___ U.S. ___ [132 S.Ct. 1510], the court held law en forcement officers do not need reasonable suspicion to conduct strip searches of pretrial detainees who enter the general population in a jail or prison, even if they have been arrest ed for nonviolent or minor offenses. ( Id . at pp. 1522–1523.) “[T]he seriousness of an offense is a poor predictor of who has contraband ...,” and “[p]eople detained for mi nor offenses can turn out to be the most devious and dangerous crim inals. [Citations.]” ( Id . at p. 1520.) “There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population .” ( Ibid ., italics added.)
Florence held the key question is not whether the detainee has been charged with a minor, nonviolent offense, but whether the de tainee has been classifi ed for housing in the custodial facility’s general population at the tim e of the strip search. The court concluded that requiring individualized su spicion would undermine the ab ility of custodial officers
to maintain the securi ty of the facility. ( Florence , supra , 132 S.Ct. at pp. 1522–1523; see
also Bull v. City and County of San Francisco (2010) 595 F.3d 964, 981–982 ( Bull ); Edgerly , supra , 599 F.3d at p. 957.) 15

15 It is well-settled that prisoners alrea dy in general population are validly subject to “visual body cavity searches” after engaging in “certain activities such as a visit to the law library, infirmary, or exercise r oom or an encounter with an outsider irrespective of whether the prison officials entertained a reasonable suspicion the prisoners had concealed contraband on their persons [,]” based on “the legitimat e penological need to prevent drugs and weapons from being introduced into or transported throughout a prison and the relative lack of intrusiven ess involved in the search,...” ( People v. Collins (2004) 115 Cal.App.4th 137, 154, italics in original.)20. However, the majority opinion in Florence clarified it was not addressing “the types of searches that would be reasonable in instances wher e, for example, a detainee will be held without assignment to the general ja il population and without substantial contact with other detainees ....” ( Florence, supra , 132 S.Ct. at pp. 1522–1523, italics added.) As an example, Florence cited Atwater v. Lago Vista (2001) 532 U.S. 318, 324, where officers took the arrestee’s “ ‘ “mug s hot” ’ and placed her, alone, in a jail cell for about one hour, after which she was taken be fore a magistrate and released on $310 bond.’ ” ( Florence , supra , 132 S.Ct. at p. 1523.) Florence noted “[t]he accommodations provided in these situations may diminish the need to conduct some aspects of the searches at issue. [Citation.]” ( Ibid .) Florence thus did not disturb a series of federal circuit cases which have consistently held that prison officials must have individualized reasonable suspicion to conduct strip searches of “arrest ees charged with minor offenses who are not classified for housing in the ge neral jail population . [Citation.]” ( Edgerly , supra , 599 F.3d at p. 957, italics added; Bull , supra , 595 F.3d at pp. 972–973.)
D. Analysis Defendant argues the strip search was unc onstitutional because the deputies lacked reasonable suspicion as required by section 4030, since she wa s being held for nonviolent misdemeanor offenses. As we have explaine d, however, section 4030 does not state an exclusionary rule, and evidence seized during a strip search may be excluded only if the search violated the Fourth Amendment. ( People v. McKay, supra, 27 Cal.4th at pp. 609– 610; People v. Wade, supra, 208 Cal.App.3d at pp. 307–309.) Instead, the reasonableness of this search is dependent on Florence , which held that custodial officials may co nduct strip searches of detain ees, even if they are being held for nonviolent and minor offenses, if th e detainees are being housed in the general population of a jail or prison. In this case, however, there is no evidence defendant was being placed in any type of general population. Defendan t turned herself in at the21. Mojave courthouse for misdemeanor no-bail warrants for driving under the influence. She remained in her own clothes during the en tirety of the incident. She was taken to
Bakersfield because she had arrived too late to have her matter placed on the Mojave court calendar. There is no evidence she was m oved to the Bakersfield jail to be placed in the general population. In addition, there is no evidence defenda nt was going to be placed in the jail’s general population once she arrived in Bakersfi eld. Deputy Hunter testified about her interaction with defendant in the control booth, and that de fendant’s statements indicated she was going to be released. The record suggests defendant was in a holding cell between her arrival in Bakersfield and th e strip search, based on Deputy Burnett’s testimony that she later searched other female inmates who had been in the holding cell with defendant.
Florence’s standard for strip search es would not apply in th is case given the lack of evidence that defendant was going to be placed, or was already housed, in the jail’s general population. Thus, the deputies’ de cision to conduct the strip search required individualized, reasonable suspicion that defendant had taken he r own money at some point between Mojave, where Deputy Waidle ich counted the cash and placed it in the money envelope, and the control booth in Bake rsfield, where Deputy Hunter opened the property bag and discoveredthat $100 was missing. Reasonable suspicion is a lesser standard than probable cause, but “to be reasonable, the officer’s suspicion must be supported by some specif ic, articulable facts that are ‘reasonably “consistent with crimin al activity.” ’ [Citation.] The officer’s subjective suspicion must be objectively re asonable,” and cannot be “ ‘predicated on mere curiosity, rumor, or hunc h ... even though th e officer may be acting in complete good faith. [Citation.]’ [Citation.]” ( People v. Wells (2006) 38 Cal.4th 1078, 1083.) At the evidentiary hearing, Deputy Burn ett testified she decided to conduct the strip search because “[i]t woul dn’t have been the first ti me that an inmate saw an22. opportunity to grab money, be it their own or someone else ’s.... [¶] ... [¶] Everyone knows that if something comes up missing outof our custody, the County is going to replace it. And we have had instances where someone, an in mate, we’ve actually found property and/or money belonging either to them or someone else, in past instances.” Deputy Burnett’s stat ed justification was obviously based on her experience in the jail. Based on Florence and other circuit cases, however, individualized reasonable suspicion is required to conduc t a strip search of an arre stee for a minor, nonviolent offense who was not being placed in genera l population. There was no evidence that defendant had access to her money after De puty Waidleich seized her property in Mojave. The only possible ev idence that defendant coul d have taken her own money
could be based on Waidleich’s testimony that she allowed defe ndant to initially count her money when they were in Mojave, and defendant counte d $287. However, Waidleich
further testified that defendant then handed the cash to Waidleich, Waidleich counted it herself, and she also counted $287. Waidle ich testified she placed $287 in the money envelope attached to defendant’s property bag, and wrote the amount on the relevant
documents. The prosecution did not introduce any evidence that Burn ett knew about the manner in which Waidleich conducted the search in Mojave. 16 More importantly, there is no evidence defendant had access or contro l of the property bag after that point. Instead, the transportation deputies who es corted defendant fro m Mojave gave her property bag to the receiving de puty in Bakersfield. At th at time, the receiving deputy

16 In her incident report, Burnett stated her belief that defendant might have been able to “pick up the money o ff of the counter without bei ng noticed” because they were busy during the shift change “when the Mojave remands were brought in” to Bakersfield. Neither Burnett nor any other deputy testified to this belief at the evidentiary hearing. Moreover, there was no eviden ce that defendant had access to the property bag when she arrived at the jail. Instead, Burnett simp ly testified she believed defendant took the money to obtain reimbursement from the county.23. was supposed to sign for defendant and attest that he/she confirmed the contents of the property bag and counted the cash in the m oney envelope. Deputy Warmerdam signed as the receiving deputy. Deputy Hunter testified to her belief that Warmerdam was the receiving deputy who wo uld have given the property bag to her. However, Warmerdam disavowed his status as receiving deputy and testified he merely signed to correct a clerical error, sinc e the actual receiving deputy failed to do so. Warmerdam also testified he never checked defendant’s property bag or the money envelope prior to the discovery that defenda nt’s money was missing. He never tried to discover the actual identity of the receivi ng deputy who pur portedly failed to sign for defendant’s arrival in Bakersfield. Deputy Hunter testified sh e opened the property bag and money envelope after defendant had been pla ced on the other side of the gla ss partition in the control booth. There was only a small opening in the glass between the booth’s two sides, and it was supposed to be kept locked on the deputy’s side. Hunter never testified the small opening was unlocked, that defendant reached through it, that she had the oppo rtunity to do so, or that she could have reached the property bag and money envelope at any time she was in
the control booth. Given these circumstances, there is no evidence to support the reasonable suspicion that defendant could have removed the cash after her belongings were seized and inventoried in Mojave, placed in the prope rty bag, and delivered to the deputies in Bakersfield. Defendant remained in custody for the entire period. There is no evidence she had access to the property bag, or she co uld have or tried to reach for the money envelope when she was sitt ing in the control booth. Despite the absence of any reasonable su spicion that defendant took the money, Deputy Burnett’s immediate decision was to conduct the strip search. Based on the testimony at the suppression hearing, Burne tt made this decision even before she searched other inmates in the holding cell, or any deputies who had access to the property24. bag. She also made the decision before she traced the path taken by the property bag and money envelope, which would have revealed Deputy Warmerdam’s admission that he falsely signed as the receiving de puty who confirmed the contents of the property bag. In addition, Burnett testified she decided to co nduct the strip search of defendant solely because of her general belief th at custodial inmates will like ly steal their own money to file false claims against the county. At the evid entiary hearing, Burnett never testified that she (or any other deputy) had an individualized suspici on that defendant could have taken her money, and any such suspicion would not have be en reasonable based on the record presented to this court. We thus conclude the deputies were re quired to have reasonable suspicion to conduct the strip search because there is no evidence defendant was going to be placed in general population, and there is no evidence to support any type of reasonable suspicion that she could have taken her own money. II. Defendant’s agreement to cooperate In ruling on defendant’s suppression motion, the superior court did not address defendant’s argument about wh ether there was reasonable suspicion to support the search. Instead, the court found the deputies acted in good faith and defendant consented to the search when she agreed to cooperate. Defe ndant now conten ds there is no evidence to support the court's conclusion that she consented to the strip search. We
agree. A. Consent “It has been long recognized that polic e officers, possessing neither reasonable suspicion nor probable cause, may nonetheless se arch an individual without a warrant so long as they first obtain the voluntary consent of the individual in question. [Citation.]” ( United States v. Blake (11th Cir. 1989) 888 F.2d 795, 798; People v. Jenkins (2000) 22 Cal.4th 900, 971.)25. “The voluntariness of consen t is a question of fact to be determined from the totality of circumstances. [Citations.] If the validity of a consen t is challenged, the prosecution must prove it was freely and vo luntarily given – i.e., ‘that it was [not] coerced by threats or force, orgranted only in submission to a claim of lawful authority.’ [Citations.]” ( People v. Boyer (2006) 38 Cal.4th 412, 445-446, first brackets in original.)
“The absence of official coercion is a sine qua non of effective consent, as it is axiomatic that ‘where there is coercion, there cannot be consent.’ [Citations.]” ( United States v. Gonzalez (11th Cir. 1996) 71 F.3d 819, 828, citing Bumper v. North Carolina (1968) 391 U.S. 543, 550; Florida v. Bostick (1991) 501 U.S. 429, 438.) A defendant’s consent to search may be express or implied, and may be demonstrated by conduct as well as words. ( People v. Superior Court ( Chapman ) (2012) 204 Cal.App.4th 1004, 1012.) “ ‘The existence of consent to a search is not lightly to be inferred,’ [citation], and the government ‘alw ays bears the burden of proof to establish the existence of effective consent.’ [Citations.]” ( United States v. Shaibu (9th Cir. 1990) 920 F.2d 1423, 1426.) The court must determine wh ether the officer’s belief th at defendant consented to the search is objectively reasonabl e under the circumstances. ( People v. Lazalde (2004) 120 Cal.App.4th 858, 865.) “The standard fo r measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness – what would the typical reasonable person ha ve understood by the exchange between the officer and the suspect ? [Citations.]” ( Florida v. Jimeno (1991) 500 U.S. 248, 251, italics added; People v. Crenshaw (1992) 9 Cal.Ap p.4th 1403, 1408.) In asking for consent to s earch, officers are not required to advise the suspect of the right to refuse consent. ( United States v. Drayton (2002) 536 U.S. 194, 206–207.) “ ‘The mere asking of permission to ... make a search carries with it the implication that the person can withhold permission for such an entry or search.’ [Citations.]” ( People v.
James (1977) 19 Cal.3d 99, 116.)26. B. Analysis While we must defer to the trial cour t’s factual findings when supported by substantial evidence, there are no disputed facts about the exch ange between Deputy Burnett and defendant regarding their conv ersation about “cooperation.” Deputy Burnett was the only witness who testified about this conversation, and defendant did not testify or offer a different version of events. 17 Thus, the issue of whether this exchange constituted defendant’s voluntary consent to a visual body cav ity search raises a question of law subject to our independent review. However, defendant was never asked if sh e would “consent” to the visual body cavity search. Instead, Deputy Warmerdam esco rted defendant from the control booth to a private deck area, where she was met by De puties Burnett and Deval. Deputy Burnett asked defendant a different question:
“When I told her that we wanted to do a vis ual body cavity search , and I specifically, and I do it every time, I ask them are you going to cooperate with that, and [defendant] said yes .” (Italics added.) It is important to recognize exactly whatdefendant was being asked to “cooperate” with. As discussed ante , the parties and testifying witn esses alternatively described the search in this case as a “visua l body cavity search” and a “s trip search.” Section 4030 defines a “ ‘[v]isual body cavity search’ ” as th e “visual inspection of a body cavity,” and a “ ‘[p]hysical body cavity search’ ” as the “ physical intrusion into a body cavity for the purpose of discovering any obj ect concealed in the body cav ity.” (§ 4030 , subds. (d)(2), (d)(3).) The United States Supreme Court has observe d that the term “strip search” is “... imprecise. It may refer simply to the inst ruction to remove clothing while an officer

17 A slightly different version of this conversation was se t forth in defense counsel’s declaration in support of the Pitchess motion, but this hearsay declaration was not before the court at the suppression hearing.27. observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to rais e arms, to display foot instep s, to expose the back of the ears, to move or spread th e buttocks or genital areas, or to cough in a squatting position....” ( Florence , supra , 132 S.Ct. at p. 1515.) Th e visual inspection of an arrestee’s naked body, even wi thout a visual examination of body cavities, constitutes a “strip search.” ( Edgerly , supra , 599 F.3d at p. 957; People v. Lowe , supra , 221 Cal.App.4th at p. 1293.) As we have explained, “[t]he standard for measuring the scope of a suspect’s
consent under the Fourth Amendment is that of ‘objective’ reasonableness – what would the typical reasonable person have understoo d by the exchange between the officer and the suspect ? [Citations.]” ( Florida v. Jimeno, supra , 500 U.S. at p. 251, italics added.) A stated desire to cooperate, standing alone, may be insufficient to constitute consent. ( Honeycutt v. Aetna Ins. Co . (7th Cir. 1975) 510 F.2d 340, 344; cf., People v. Jenkins , supra , 22 Cal.4th at p. 973.) “Under some ve ry limited circumstances,... courts will infer consent from the cooperative attitude of a defendant. [Citations.]” ( United States v. Impink (1984) 728 F.2d 1228, 1232.) Office rs may reasonably rely on a suspect’s apparent consent in situations where the susp ect “ ‘ “deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence” ’ [citation.]” and was “unfailingly cooperative and remained ea ger to prove his veracity ....” ( Ford v. Superior
Court (2001) 91 Cal.App.4th 112, 128.)

As we have also explained, however, “the absence of official coercion is a sine

qua non of effective consent, as it is axiomatic that ‘where there is coercion, there cannot be consent.’ [Citations.]” ( United States v. Gonzalez, supra, 71 F.3d at p. 828, citing Bumper v. North Carolina, supra, 391 U.S. at p. 550; Florida v. Bostick, supra, 501 U.S. at p. 438.) Thus, consent is not voluntar y when given in acquiescence to a claim of28. lawful authority. ( Bumper v. North Carolina , supra , 391 U.S. at pp. 548–549; Florida v. Royer (1983) 460 U.S. 491, 497; People v. Boyer , supra , 38 Cal.4th at pp. 445–446.) Defendant was not asked if she would cons ent to a strip search. Instead, Deputy Burnett flatly told defendantthe deputies were going to conduct the visu al body cavity search to look for her missing money. Burn ett never gave defendant the option to agree or disagree with what was about to happen. Burnett’s inquiry ab out whether defendant was going to “cooperate” was not the equivalent of asking for her consent or agreement to be searched in that manner. A typical reasonable person woul d have understood Deputy Burnett’s statem ents to mean that they were go ing to conduct the strip search regardless of defendant’s consent, and Burne tt was trying to determine whether defendant was going to cooperate or comply with thei r orders to remove her clothing and follow their directives, or whether she would resist the strip search. When defendant said, “yes” to Burnett’s question, the plai n meaning of the response unde r the circumstances was that she would cooperate and would not resist the deputies’ pe rformance of the strip search. We thus conclude that, as a matter of la w, the undisputed facts establish that defendant was not asked for and did not give her consent to be subject to a visual body cavity search. Given the absenc e of both reasonable suspici on to conduct the search, and any actual or reasonably infera ble consent, we also conc lude defendant’s motion to suppress the narcotics found du ring the illegal visual body search should have been granted, and defendant’s conviction based on her no contest plea to unauthorized possession of marijuana in jail must be reversed. III. Defendant’s Pitchess motion While our resolution of the suppression motion will result in the reversal of defendant’s conviction, we find it important to address an additional issue regarding
defendant’s Pitchess motion. As we will explain, we are concerned about the manner in which the custodian of record s responded to the superior court’s directive to produce certain confidential personnel records at the in camera Pitchess hearing.29. A. Pitchess motions We begin with the well-se ttled standards for the Pitchess discovery procedure, which has two steps. First, the moving party must file a written motion describing the type of records sought, supp orted by “ ‘[a]ffidavits showin g good cause for the discovery or disclosure sought, setting forth the material ity thereof to the subject matter involved in the pending litigation and stating upon reason able belief that the governmental agency
identified has the record s or information from th e records.’ ” (Evid

. Code, § 1043, subd. (b)(3); People v. Mooc (2001) 26 Cal.4th 1216, 1226 (Mooc ).) Once the superior court finds good cause, it must conduct an in camera review of the pertinent documents to dete rmine which, if any, are relevant to the case, typically disclosing only identifying information concerning those who filed complaints against the officers. ( Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) “The trial court may not disclose complaints more than five years old, the ‘conclusions of any officer’ who investigates a citizen complain t of police misconduct, or f acts ‘so remote as to make [their] disclosure of little or no pr actical benefit.’ [Citations.]” ( Ibid., first brackets in original.) Even upon a show ing of good cause, the de fendant is only entitled to information that the court, after the in camera review, concludes is relevant to the case. ( People v. Johnson (2004) 118 Cal.App.4th 292, 300.) When the superior court conducts the in camera review, it must make a record that will permit future appellate review. ( Mooc, supra, 26 Cal.4th at pp. 1229–1230; People
v. Guevara (2007) 148 Cal.App.4th 62, 69.) The court may do so by either copying the documents and placing them in a confiden tial file, preparing a sealed list of the documents it reviewed, or “simply state for the record what documents it examined[]” and seal that transcript. (Mooc, supra, 26 Cal.4th at pp. 1229–1230.)
The trial court has broad discretion in rulin g on both the good cause and disclosure components of a Pitchess motion, and its ruling will not be disturbed absent an abuse of30. that discretion. ( Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086; Hughes , supra , 27 Cal.4th at p. 330.) On appeal, this court is required to revi ew the “record of th e documents examined by the trial court,” and determ ine whether the superior court abused its discretion in refusing to disclose the contents of the officer’s personnel records pursuant to Pitchess. ( Mooc, supra, 26 Cal.4th at p. 1229; Hughes, supra, 27 Cal.4th at p. 330.) Defendant is entitled to “meaningful appellate review” of th e confidential files which were before the superior court when it denied his Pitchess motion for disclosure. ( Mooc, supra, 26 Cal.4th at p. 1228.) If there is any uncertainty in the record as to which do cuments were reviewed by the superior court, we may remand the matte r with directions to conduct a hearing and clarify the materials it reviewed in camera before it denied the Pitchess motion. ( Mooc,

supra, 26 Cal.4th at p. 1231.) If this court determines that the superior court abused its discretion by denying disclosure of confidential records it had review ed, reversal is not required unless the error was prejudicial under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. ( People v. Samuels (2005) 36 Cal.4th 96, 110; People v. Gaines (2009) 46 Cal.4th 172, 182–183 ( Gaines ).) There must be a reasonable prob ability of a different outcome if potential impeachment evidence had been disclosed. ( Gaines , supra , 46 Cal.4th at p. 182.) The determination of whether th e court’s error was prejudicial “involves an assessment or weighing of th e persuasive value of the evid ence that was presented and
that which should have been presented. [Citations.]” ( Ibid ., italics added.)
B. The court’s original in camera review As explained ante , defendant’s Pitchess motion was filed in conjunction with her motion to suppress evidence. The Pitchess motion sought disclosure of Deputy Warmerdam’s personnel records for complaints of acts or instances of dishonesty, false arrests, and the fabrication of charges, reports, and/or evidence, to impeach his31. credibility, based on defendant’s allegations that one of th e deputies took the cash from defendant’s property bag and it was unreas onable to conduct the strip search. In this case, the prosecution conceded, an d the superior court found, defendant’s
Pitchess motion established good cause for the supe rior court to conduct an in camera review of Deputy Warmerdam’s confidential personnel records for any allegations of dishonesty. On February 16, 2012, the court conducted an in camera review of Warmerdam’s confidential personnel records. After the in camera hearing, the parties returned to the courtroom, and the court advised them th at it had reviewed Deputy Warmerdam’s records, and found there was no discoverable in formation. The court then conducted the evidentiary hearing on defe ndant’s motion to suppress. C. This court’s order fo r a settled statement On appeal, defendant asked this cour t to review Warmerdam’s confidential personnel records and the sealed transcript of the in camera hearing pursuant to Mooc , and determine whether the superior court abus ed its discretion when it denied discovery. When the appellate record was prepared, this court dete rmined the superior court did not keep copies of Warm erdam’s confidential records it reviewed at the in camera hearing, and there were no records filed with this court which purported to be the records reviewed by the superior court at the in camera Pitchess hearing. On July 2, 2012, this cour t ordered the superior cour t to augment the appellate record with the confidential r ecords it reviewed during the Fe bruary 16, 2012, in camera
Pitchess hearing, and to seal the records filed with this court, in orde r for this court to review defendant’s Pitchess contentions. We further ordered that if the superior court did not keep copies of those file s, it should order the custodia n to produce those records, conduct another confidential hearing, and prep are a confidential settled statement stating whether the records received from the custodi an were the same re cords it previously reviewed; whether it had review ed additional records at the previous in camera hearing;32. and any other pertinent informati on, with all records and transcripts to be filed under seal with this court.
D. The superior court’s settled statement On July 20, 2012, the superior court cond ucted a confidential in camera hearing to prepare the settled statement on the Pitchess motion, as ordered by this court. Thereafter, the superior court filed a sealed settled statem ent with this court, and stated that the custodian of records appeared and presented certain files, a nd “[u]pon review of the files the [superior] court finds that there are mate rials contained in the file which were not reviewed by the court at the time of the in camera hearing held on February 16, 2012.” Thereafter, the superior court transmitted the confidential settled statement and accompanying exhibits to this court under seal , in compliance with th is court’s order to perfect the appellate record. 18
E. Analysis As noted above, the trial court has broa d discretion in ruling on the disclosure components of a Pitchess motion, and its ruling will not be disturbed absent an abuse of that discretion. ( Alford v. Superior Court, supra, 29 Cal.4th at p. 1039; Haggerty v. Superior Court, supra, 117 Cal.App.4th at p. 1086; Hughes, supra, 27 Cal.4th at p. 330.) On appeal, this court is required to review the “record of the docu ments examined by the trial court” and determine whet her the superior court abused its discretion in refusing to
disclose the contents of the office r’s personnel records pursuant to Pitchess. ( Mooc,

supra, 26 Cal.4th at p. 1229; Hughes, supra, 27 Cal.4th at p. 330.) However, this court cannot conduct the review required by Mooc when the
custodian of records fails to co mply with the superior court’s Pitchess order to present the

18 With the exception of the sentence quot ed herein, we hereby order that the entirety of the superior court’s settled st atement of July 20, 2012, together with accompanying exhibits, shall remain sealed until furthe r order of this court.33. entirety of the personnel records, in order for that court to conduct the discretionary review required by statute. ( Mooc, supra, 26 Cal.4th at p. 1229; Hughes, supra, 27 Cal.4th at p. 330.) We are very concerned about the custodi an’s apparent failure or inability to comply with the superior cour t’s initial order to present th e entirety of the confidential records at the February 16, 2012, Pitchess hearing. The superior court could not have known that it was not reviewing the entirety of the file when it conducted the initial
Pitchess review. The custodian’s error was di scovered simply through the happenstance of the superior court’s failure to preser ve copies of the confidential documents it reviewed on February 16, 2012 , and this court’s order for a sealed settled statement to perfect the appellate record. In an analogous situation, the proper remedy when the superior court “has erroneously rejected a sh owing of good cause for Pitchess discovery and has not reviewed the requested records in camera is not outright reversal, but a conditional reversal with directions to review the re quested documents in chambers on remand. [Citation.]” ( Gaines , supra , 46 Cal.4th at p. 180.) Thus, if the superior court had initially
declined to conduct any in camera review, and we found it abused its discretion by making that ruling, we would conditionally re verse defendant’s plea, remand for another
Pitchess hearing, and direct the court to con duct the necessary review of confidential
documents. A similar remedy would have been approp riate if further proceedings had been necessary in this case. Ba sed on this court’s resoluti on of the suppression motion, however, we find it unnecessary to order fu rther additional procee dings pursuant to
Pitchess . We have concluded that the depu ties were required to have reasonable suspicion to conduct the visu al body cavity sear ch, they did not have any reasonable suspicion, and defendant did not consent to the search. We expect the custodians who34. respond to the superior court’s Pitchess orders will fully comply with their statutory duties to present the entirety of th e records requested by the court. 19
DISPOSITION Defendant’s plea is vacated and the judgment is reversed. The superior court’s confidential settled statement of July 20, 2012, and the confidential records filed with this court as e xhibits to the settled st atement, shall remain under seal with this court. The confiden tial personnel records shall not be subject to
routine destruction until further or der of this court. (See, e.g., City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 11–13.)

_____________________ Poochigian, J. WE CONCUR:

_______________________ Levy, Acting P.J.

_______________________ Kane, J.

19 Given our resolution of defendant’s su ppression motion, we need not address her remaining issues.