Filed 7/27/15 P. v Braden CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CEDRIC ANTHONY BRADEN,

Defendant and Appellant.

 B247637

 (Los Angeles County

 Super. Ct. No. BA388617)

APPEAL from a judgment of the Superior Court of Los Angeles County. Gail 

Ruderman Feuer, John S. Fisher and Patricia M. Schnegg, Judges. Reversed with 

directions.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney 

General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Eric E. 

Reynolds, Deputy Attorney General, for Plaintiff and Respondent.

_________________________________
2

Defendant Cedric Anthony Braden appeals from the judgment entered following a 

jury trial in which he was convicted of possessing cocaine base for the purpose of sale. 

Defendant contends the trial court erred by delaying disclosure to defense counsel and 

failing to conduct an evidentiary hearing when the court learned that one or more jurors 

feared a man who had accompanied defendant to court. Defendant further contends the 

trial court erred by denying his motion for disclosure of jurors’ identifying information, 

denying a motion to continue the trial date, and partially denying his motion for discovery 

of police officer personnel records. He also asks this court to review the police officer 

personnel records pertaining to other officers that the trial court reviewed in camera to 

determine whether additional records should have been disclosed to the defense.

We agree that the trial court erred by denying defendant’s motion to continue the 

trial date but are unable to determine whether the error was prejudicial. We also conclude 

the trial court erred by denying defendant’s discovery motion with respect to one police 

officer. Accordingly, we conditionally reverse the judgment with directions for further 

proceedings to address these errors upon remand.

BACKGROUND

On September 6, 2011, a team of about 12 Los Angeles Police Department 

(LAPD) vice officers were out on the streets in the vicinity of Figueroa and 84th Street in 

Los Angeles. Officer Juan Barillas was part of the team, working in an undercover 

capacity. He testified at trial that he observed—from a distance of about 15 feet—a man 

hand defendant some money, and defendant hand the man an object that resembled rock 

cocaine. The man walked past Barillas, who testified he saw an “off-white, rock-like 

substance that resembled rock cocaine” in the man’s open palm. Defendant entered a van 

parked about 25 to 30 feet away on the opposite side of the street, did something, then got 

out and walked away as Barillas informed other members of his team of his observations.

Officers Angela Tumbeiro and Nicholas Hartman both testified at trial. They 

approached defendant in a marked police car and called out to him. Defendant began 
3

backing away from their car. As they got out of their car, defendant dropped two things

from his hand and ran. Hartman chased and caught defendant.

The van was registered to defendant. Officer Leslie Salinas testified at trial that 

she searched it and recovered a cutting board with what appeared to be rock cocaine 

residue on it, a razor blade, plastic sandwich bags, two cell phones, $123 in cash, and 

marijuana. On the grass next to the van she found two pieces of rock cocaine. In the area 

where Tumbeiro saw defendant drop something, Salinas recovered two separately

wrapped rocks of cocaine.

Barillas opined defendant possessed the cocaine to sell it. He based his opinion on 

the sale he observed, the items in defendant’s van, and the absence of smoking 

paraphernalia in defendant’s possession.

Gabriella L., whose father was defendant’s friend, testified that she “heard a 

commotion outside” her house around 6:00 or 6:30 p.m. on September 6, 2011. She 

looked out a window to see what was going on and saw numerous police officers and a 

blue van parked in front of her house. She continued watching out her window until the 

officers took defendant away. Some of the officers appeared to be searching for 

something on the ground but did not pick anything up off the ground. Officers were also 

around the van and may or may not have gone into it, but they did not come out of it 

holding anything or put anything into bags or envelopes.

The jury convicted defendant of possessing cocaine base for the purpose of sale. 

The court found defendant had suffered two prior serious or violent felony convictions

within the scope of the “Three Strikes” law, but the prosecutor elected to seek only 

second-strike sentencing. The court further found true a Penal Code section 667.5, 

subdivision (b)(1)1 prior prison term allegation and sentenced defendant to nine years in 

prison, consisting of a second-strike term of eight years for the offense and one year for 

the prior prison term enhancement.

 

1 Undesignated statutory references pertain to the Penal Code.
4

DISCUSSION

1. Discovery that some jurors feared defendant’s companion

a. Proceedings in the trial court 

After a jury had been selected and excused for the day on September 10, 2012,

2 the

court noted on the record that a courtroom spectator had been making noises and 

statements expressing his displeasure with the court’s rulings. The court told the person

that he had to remain silent while in the courtroom.

At the end of the day on September 11, the court again addressed the spectator 

outside the presence of the jury. The spectator introduced himself as David Jackson and 

said he was defendant’s friend and had been assisting defendant and defense counsel in 

the case. The court remarked that Jackson had been disrespectful as he left the courtroom 

the previous day. The court noted that although Jackson had been quiet in the courtroom, 

the bailiff had told her that Jackson had been cursing at defense counsel in the hallway 

outside the courtroom. The bailiff stated on the record that Jackson had stated to him and 

another deputy that he was “‘going to talk shit to the jury.’” Jackson denied cursing at 

defense counsel and explained that, because he had been sitting quietly in the courtroom, 

he had expressed his displeasure with court personnel who told him he might be banned 

by saying he might as well have been disruptive. He stated, however, that he would not

actually speak to the jury because he did not want to harm defendant’s case.

The court told Jackson that because it had “an obligation to protect the security of 

the jurors, the security of counsel, the security of everyone in the courtroom,” and was 

concerned about Jackson’s threat to speak to jurors, it was barring Jackson from the 

courtroom and the 11th floor of the courthouse for the remainder of the trial. Jackson 

failed to obey the court’s order to leave the courtroom and continued speaking until 

bailiffs removed him.

The jury reached its verdict three days later and was discharged.

 

2 Undesignated date references pertain to 2012.
5

Jackson returned to the courtroom on October 12, the date set for defendant’s court 

trial on prior conviction and prison term allegations and sentencing. In the presence of 

counsel but not defendant, the court told Jackson that he was still barred from the

courtroom. Jackson explained that he thought he could attend because the jury had been 

discharged. He assured the court that he had not actually spoken to any jurors and argued 

it was error to bar him. After Jackson argued with the court, the court characterized his 

conduct as disrespectful and stated, “I ordered that you were banned from the courtroom 

because you were interfering with the jury, and I had jurors who came and talked to our 

bailiff and said that they were scared of you and that they wanted to be escorted out of the 

building so they couldn’t come in contact with you. That’s how scared they were of you 

because of comments you had made to them and things you had done.” Jackson denied 

he had ever spoken to the jury. The court banned him from attending any further 

proceedings in defendant’s case.

After defendant arrived, proceedings in his case resumed, and defense counsel 

asked to continue sentencing and the hearing on the motion for a new trial on the ground 

the court’s statement about jurors being afraid of Jackson might constitute an additional 

ground for that motion. The court responded, “I would note in the hearing about Mr. 

Jackson, what I indicated is that one or more jurors had told the bailiff they had a concern 

about Mr. Jackson. They didn’t know him by name, just an individual who was making 

comments in the hallway. I would note there’s no reason for the jury to believe that Mr. 

Jackson was in some—was connected with Mr. Braden. That was never brought to their 

attention.” The court nevertheless granted a continuance of the sentencing hearing to 

give defendant time to file his motions.

Defense counsel filed a motion for disclosure of jurors’ identifying information. 

Counsel’s declaration in support of the motion stated she had observed Jackson and 

defendant “speaking to one another in a place visible to the jurors,” and believed it was 

“probable that the Jurors observed [defendant] and Mr. Jackson together during the trial.” 

The motion argued the verdict may have been influenced by jurors’ fear of Jackson. On 
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October 25, 2012, before the court ruled on the motion, it granted defendant’s motion to 

represent himself. Defendant subsequently filed two identical petitions to obtain access 

to jurors’ identifying information and an amended version of his petition. The “Statement 

of Facts” section of defendant’s hand-printed petition stated that after the verdict was 

taken and the jury discharged, defense counsel spoke with jurors in the hallway “and 

asked if they had deliberated free of threat or intimidation, at which time they denied any 

such pressures.” Defendant’s declaration attached to his amended petition stated that on 

several occasions jurors had observed him “being consoled” and “guided” by Jackson.

Defendant also filed a motion for a new trial in which he argued, inter alia, that the 

court’s October 12 statement to Jackson about jurors fearing him revealed the court had 

engaged in an improper ex parte communication with the jury regarding Jackson.

On January 10, 2013, the court denied defendant’s motion and petition to obtain

jurors’ identifying information. The court stated nothing indicated Jackson actually had 

any contact with jurors and explained: “The court had a concern because, when the jury 

had reached their verdict, they requested to be escorted out of the courtroom because they 

did have a fear of Mr. Jackson. That is something that I learned through the bailiff, who 

was told this by a member of the jury. Again, though, that information does not tell me 

that there was anything improper in the jury room in terms of their deliberations, only that 

they saw an individual in the audience who made them nervous and they wanted to be 

escorted to the car. [¶] I would note that happens in many cases. I have gang cases 

where families of gang members who are on trial sit in the audience. I don’t think 

anything improper happens in the jury room, but the jury requests security to go to their 

car.” The court also cited defendant’s representation that the jurors told defense counsel 

they deliberated free of threats and intimidation.

On March 12, 2013, in ruling upon defendant’s motion for a new trial, the court 

denied it had engaged in any improper ex parte communication with the jury. The court 

reiterated that there was no evidence that Jackson ever spoke with any jurors. It 

explained that when addressing Jackson on October 12, it had stated “at that time that the 
7

jury had a concern for their safety. I believed at the time, although I believe—well, but 

Mr. Jackson said it was not true—that the concern might have been related to the fact he 

did, in fact, talk to them. I did not know whether he did or he did not. That statement 

was not based on any communication by a juror either to myself or the bailiff. At no time 

did any juror say to myself or to the bailiff that, in fact, Mr. Jackson had spoken to them. 

Rather, the comment apparently was made after the verdict was rendered to the bailiff that

the juror—one or more jurors had a concern for their safety and requested an escort. That 

was not put on the record. That is not the type of statement that normally would be put on 

the record. It also was made after the verdict was rendered.” The court also stated, “I’ll 

note there was no evidence that any juror during deliberations was in any way influenced 

by the fact that they had negative views or any fear of Mr. Jackson, and that in any way 

impacted their decision in the case.”

After listening to defendant’s argument that the verdict could have been affected 

by jurors’ “disdain” for Jackson, the court stated: “The problem is there’s no evidence of 

that. It is fairly common that we have bailiffs escort jurors out of the courtroom. Often 

it’s because the family of the defendant is in the courtroom. Your attorney in her 

declaration said that she assumed the jury saw you and Mr. Jackson together at some 

point in the cafeteria or wherever. So I think you are correct that they may have seen you 

together, but there is no evidence at all before me that there was any influence on the jury 

from any feeling of security concerns with respect to Mr. Jackson, that they were using 

that improperly in the jury room with respect to the verdict. This court cannot speculate 

on that.” The court explained: “You need to bring me evidence of actual misconduct by 

the jury that they did something in response to what Mr. Jackson did. By Mr. Jackson’s 

own statements he never talked to the jury. That doesn’t mean he gave them a scary look 

or he did something that made them concerned or—frankly, they just found the defendant 

guilty, and a friend of the defendant was in the audience. They don’t want to walk past 

that friend before they go back to their cars, but for under the case law, there needs to be 
8

some evidence presented to the court of misconduct and not speculation that the jury did 

something improper.”

Defendant contends that the trial court erred by (1) waiting until after the verdict to 

inform defense counsel that jurors feared Jackson and (2) failing to conduct a hearing to 

inquire whether the jurors’ fear of Jackson resulted in bias against defendant. He argues 

these alleged errors violated his rights to due process, an impartial jury, and the effective 

assistance of counsel.

b. The trial court did not err

Both of defendant’s contentions rest upon an unsupported premise: that the trial 

court had been informed that one or more jurors feared Jackson before the jury rendered 

its verdict and was discharged. Even viewed most favorably to defendant, the record 

reflects only that after the jury rendered its verdict and was discharged, one or more jurors 

asked for an escort to his or her car due to some fear related to Jackson.

In arguing that the trial court erred by failing to hold a hearing, defendant relies 

upon authorities regarding the trial court’s duty when, before a verdict is rendered and 

the jury discharged, the court is put on notice that a juror may have engaged in 

misconduct or been subjected to improper influences. For example, section 1089

provides for the discharge of a sitting juror and substitution of an alternate where the trial 

court has good cause to conclude that a juror is unable to perform his or her duty. 

Similarly, numerous cases provide that when a trial court is on notice that good cause to 

discharge a juror may exist, it must “‘“‘make whatever inquiry is reasonably necessary’ to 

determine whether the juror should be discharged.”’” (People v. Martinez (2010) 

47 Cal.4th 911, 941.) After a verdict is rendered and the jury has been discharged, 

replacement of one or more jurors with alternates is impossible, and no purpose would be 

served by requiring the court to make such an inquiry. For example, in People v. 

Burgener (1986) 41 Cal.3d 505, 518–520, disapproved on another ground in People v. 

Reyes (1998) 19 Cal.4th 743, 756, upon which defendant relies in arguing the trial court 

had a sua sponte duty to inquire about juror misconduct or improper influence, the issue 
9

of juror misconduct materialized during trial, when an inquiry and discharge of a juror 

and substitution of an alternate would have been both a feasible and reasonable approach.

In contrast, postconviction discovery of possible juror misconduct or improper 

influence is properly raised by means of a motion for a new trial, and, where necessary, a 

motion to obtain jurors’ identifying information to attempt to obtain evidentiary support 

for a new trial motion. (See, e.g., People v. Leonard (2007) 40 Cal.4th 1370, 1410 [new 

trial motion based upon a juror’s misconduct discovered after trial].) In the postverdict 

posture, “it is within the discretion of a trial court to conduct an evidentiary hearing to 

determine the truth or falsity of allegations of jury misconduct, and to permit the parties to

call jurors to testify at such a hearing. This does not mean, however, that a trial court 

must hold an evidentiary hearing in every instance of alleged jury misconduct. The 

hearing should not be used as a ‘fishing expedition’ to search for possible misconduct, but 

should be held only when the defense has come forward with evidence demonstrating a 

strong possibility that prejudicial misconduct has occurred. Even upon such a showing, 

an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents 

a material conflict that can only be resolved at such a hearing.” (People v. Hedgecock

(1990) 51 Cal.3d 395, 419, fn. omitted.)

In this case, defendant filed both a motion for a new trial and a motion to obtain 

jurors’ identifying information. Although defendant challenges denial of the latter on 

appeal (as addressed in the next section of this opinion), he does not contend the trial 

court improperly denied his motion for a new trial.

Defendant’s contention that the court erred by waiting until after the verdict to 

inform defense counsel of jurors’ fears of Jackson also lacks merit because, as far as the 

record reveals, the trial court first learned of jurors’ fear after the jury had rendered its 

verdict and been discharged. The trial court cannot be faulted for failing to disclose any

information before it actually acquired it. With respect to the roughly one-month delay

between the time a juror expressed fear and the court’s “disclosure” of this while 

addressing Jackson in the presence of defense counsel, defendant has not even attempted 
10

to show any prejudice. Defendant was then given ample time to file his motions for 

disclosure of jurors’ identifying information and new trial after “disclosure,” and the 

record does not suggest any other form of potential prejudice, e.g., loss of evidence.

Accordingly, defendant’s contentions regarding the trial court’s handling of the 

matter of one or more jurors’ fear lack merit.

2. Denial of motion to obtain jurors’ identifying information

Defendant contends the trial court erred by denying his motion to obtain jurors’

identifying information and that this violated his rights to a fair trial and impartial jury. 

As previously set forth, the court denied defendant’s motion because it concluded nothing 

indicated Jackson actually had any contact with jurors, defendant’s motion had 

represented that the jurors told defense counsel they deliberated free of threats and 

intimidation, and, in the court’s experience, it was not unusual for jurors to request an 

escort after rendering a guilty verdict.

a. Disclosure of jurors’ identities and contact information

When a verdict in a criminal case is recorded, jurors’ identifying and contact 

information is sealed. (Code Civ. Proc., § 237, subd. (a)(2)–(3).) A defendant may 

petition the court for access to these records, but must show good cause for disclosure: 

“The petition shall be supported by a declaration that includes facts sufficient to establish 

good cause for the release of the juror’s personal identifying information. The court shall 

set the matter for hearing if the petition and supporting declaration establish a prima facie 

showing of good cause for the release of the personal juror identifying information, but 

shall not set the matter for hearing if there is a showing on the record of facts that 

establish a compelling interest against disclosure.” (Id., subd. (b).) Good cause requires 

showing facts sufficient to support a reasonable belief that jury misconduct occurred,

diligent efforts to contact jurors through other means, and the necessity of further 

investigation to provide the court with adequate information to rule on a motion for a new 

trial. (People v. Carrasco (2008) 163 Cal.App.4th 978, 990 (Carrasco).)
11

We review the trial court’s ruling on the petition for disclosure for abuse of 

discretion. (Carrasco, supra, 163 Cal.App.4th at p. 991.)

b. The trial court did not abuse its discretion by denying defendant’s 

motion

Defendant’s motion did not establish good cause for disclosure because it did not 

establish facts sufficient to support a reasonable belief that jury misconduct or improper 

influence upon jurors occurred. It was based instead upon speculation that the juror or 

jurors who requested an escort after rendering their verdict had been adversely influenced 

by Jackson against defendant in reaching their verdict. The motion itself undermined this 

speculative inference by revealing that jurors told defense counsel they deliberated free of 

threats and intimidation. Although defendant attempts to downplay the significance of 

this statement by arguing it was not in a declaration, it was nonetheless part of the 

“statement of facts” he presented to the court in support of his motion. It is difficult to 

believe defendant, who was representing himself at the time, included that statement 

inadvertently or that he would have included that statement in his hand-printed motion if 

it had not been conveyed to him by trial counsel.

Even assuming, for the sake of argument, that the juror or jurors who requested an 

escort had been intimidated by Jackson, this would not be sufficient to support a 

reasonable belief that jury misconduct occurred and that their verdict had been influenced 

by Jackson. They may have deliberated and reached their verdict without improper 

influence, but simply have wanted to avoid a confrontation with Jackson or defendant 

himself. Moreover, the record reflects that in the presence of the jury Jackson made 

noises and audible comments about the court’s rulings during jury selection. Despite 

seeing Jackson’s behavior in the presence of the jury, defendant and his counsel 

expressed no concern at that time that such behavior could improperly influence jurors. 

This supports the trial court’s implied finding that such misconduct was not of a character 

that would probably prejudice defendant or influence the verdict. (People v. Lucero

(1988) 44 Cal.3d 1006, 1022 [“Misconduct on the part of a spectator is a ground for 
12

mistrial if the misconduct is of such a character as to prejudice the defendant or influence 

the verdict. [Citations.] A trial court is afforded broad discretion in determining whether 

the conduct of a spectator is prejudicial.”].)

On this record, defendant’s request for jurors’ identifying information was a 

“fishing expedition.” The trial court did not abuse its discretion by denying his motion.

3. Partial denial of Pitchess motion

a. Proceedings in the trial court

Defendant filed a motion for discovery of personnel records of LAPD Officers 

Barillas, Bell, Padilla, Tumbeiro, Hartman, Salinas, Manlove, and Willers pursuant to 

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The motion sought records 

pertaining to bias, dishonesty, fabrication of evidence or police reports, perjury, lying in 

police reports or to cover up misconduct, excessive force, false or misleading internal 

reports, and disciplinary actions and investigations. The theory set forth in defense 

counsel’s supporting declaration was that defendant possessed marijuana, but no rock 

cocaine; defendant did not engage in a sale of a controlled substance; officers swarmed 

upon him while he was visiting friends and immediately grabbed him by the throat and 

repeatedly kicked and punched him; officers fabricated observing defendant making a 

sale and discarding off-white solids; officers fabricated defendant’s resisting them; 

officers failed to report their own excessive use of force; and officers searched 

defendant’s van without probable cause.

Counsel’s declaration in support of the Pitchess motion identified Barillas, 

Tumbeiro, Hartman, Bell, and Padilla as involved in detaining defendant, and Salinas as 

the officer who searched defendant’s van and recovered rock cocaine from the van and 

from the area in which Tumbeiro and Hartman claimed they saw defendant discard 

objects. The declaration did not mention Officers Manlove and Willers. Police reports 

and photographs were attached as exhibits to the motion.

Judge John Fisher granted the motion with respect to Officers Barillas, Bell, 

Padilla, Tumbeiro, and Hartman and with respect to fabricating or planting evidence and 
13

the use of excessive force, but denied it with respect to other officers and types of 

conduct.

Defendant contends the trial court erred by denying the motion with respect to 

Salinas, Manlove, and Willers.

b. Discovery of police officer personnel records

To obtain discovery of a police officer’s personnel records and complaints against 

such officers, a defendant or petitioner must file a motion describing the type of records 

sought and showing, inter alia, the materiality of the information to the subject of the 

pending action and good cause for disclosure. (Evid. Code, §§ 1043, 1045.) “To show 

good cause as required by [Evidence Code] section 1043, defense counsel’s declaration in 

support of a Pitchess motion must propose a defense or defenses to the pending charges. 

The declaration must articulate how the discovery sought may lead to relevant evidence 

or may itself be admissible direct or impeachment evidence [citations] that would support 

those proposed defenses.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024

(Warrick).) “Counsel’s affidavit must also describe a factual scenario supporting the 

claimed officer misconduct. That factual scenario, depending on the circumstances of the 

case, may consist of a denial of the facts asserted in the police report.” (Id. at pp. 1024–

1025.) “[T]he good cause requirement embodies a ‘relatively low threshold’ for 

discovery.” (People v. Samuels (2005) 36 Cal.4th 96, 109.)

“The court then determines whether defendant’s averments, ‘[v]iewed in 

conjunction with the police reports’ and any other documents, suffice to ‘establish a 

plausible factual foundation’ for the alleged officer misconduct and to ‘articulate a valid 

theory as to how the information sought might be admissible’ at trial. [Citation.] 

Although a Pitchess motion is obviously strengthened by a witness account corroborating 

the occurrence of officer misconduct, such corroboration is not required. What the 

defendant must present is a specific factual scenario of officer misconduct that is 

plausible when read in light of the pertinent documents.” (Warrick, supra, 35 Cal.4th at 

p. 1025.) “[A] plausible scenario of officer misconduct is one that might or could have 
14

occurred. Such a scenario is plausible because it presents an assertion of specific police 

misconduct that is both internally consistent and supports the defense proposed to the 

charges.” (Id. at p. 1026.)

c. The trial court erred by denying defendant’s Pitchess motion with 

respect to one officer

With respect to Officers Manlove and Willers, defendant did not show good cause 

for discovery. Neither defense counsel’s declaration nor the police reports attached to 

defendant’s Pitchess motion set forth any plausible scenario of officer misconduct by 

these two officers. Counsel’s declaration states they were “assigned to vice wearing plain 

clothes.” The police reports indicate these two officers were part of the team working the 

area at the time of defendant’s arrest and that Willers strip-searched defendant at the time 

he was booked, but found no contraband. Nothing suggests either officer fabricated

evidence against defendant or used force on him at any time.

With respect to Salinas, the propriety of the court’s ruling is less clear. Counsel’s 

declaration states that Salinas searched defendant’s van, where she found money, a 

cutting board with “off white residue,” a razor blade, packaging materials, “two off white 

rocks resembling crack cocaine,” and marijuana. The declaration also states that Salinas 

“also recovered a rock resembling crack cocaine from the yard where [defendant] 

discarded a similar item.” The police reports attached to the motion reflect the same acts 

by Salinas. Because Salinas was the officer who found and recovered the contraband 

defendant asserted he did not possess, the theory that Salinas either planted the 

contraband or falsely claimed to have found it in defendant’s van and on the sidewalk fell 

squarely within the plausible factual scenario the trial court concluded defendant’s motion 

had established. Indeed, if contraband were planted, Salinas was the officer most likely 

to have planted it. Accordingly, we conclude the trial court erred by failing to grant the 

motion with respect to Salinas and thereby failing to conduct an in camera review of the 

officer’s personnel file.
15

Defendant must show prejudice from the erroneous denial of discovery. (People v. 

Gaines (2009) 46 Cal.4th 172, 181.) Because neither we nor the parties know whether 

there was any discoverable material within Salinas’s personnel file, much less what use 

defendant may have been able to make of any such material, the proper remedy is to 

remand for the trial court to conduct an in camera review of Salinas’s personnel file for 

matters falling within the categories as to which the court should have granted the motion. 

(Id. at pp. 180–181; People v. Hustead (1999) 74 Cal.App.4th 410, 419, 423.) If the in 

camera review reveals no discoverable information in Salinas’s personnel file that would 

lead to admissible evidence helpful to defendant’s defense, defendant is not entitled to 

reversal of the judgment due to Pitchess error. If the in camera review reveals 

discoverable information that could lead to admissible evidence helpful to defendant’s 

defense, the trial court shall grant the requested discovery, allow defendant an opportunity 

to demonstrate prejudice, and order a new trial if defendant succeeds in showing 

prejudice. (Hustead, at p. 419.)

As we will explain in part 5 of this opinion, conditional reversal and further 

proceedings upon remand also are required to address trial court error regarding

defendant’s motion for a continuance. Whether the judgment and sentence will be 

reinstated depends upon the combined outcome of all such proceedings.

4. In camera review of Pitchess materials

Defendant requests that we review the record of the in camera proceedings to 

determine whether the trial court ordered disclosure of all responsive material relating to 

Officers Barillas, Bell, Padilla, Tumbeiro, and Hartman. We have done so and determine 

that the trial court made a proper record (People v. Mooc (2001) 26 Cal.4th 1216, 1229) 

and properly exercised its discretion (People v. Jackson (1996) 13 Cal.4th 1164, 1220–

1221). It examined and described the nature of every complaint produced by the 

custodian and directed the disclosure of each one that fell within the grounds upon which 

the court had granted the motion.
16

5. Denial of continuance

Defendant contends the trial court erred by denying his motion, made on the eve of 

trial, for a continuance. As we will explain, the court erred and we conditionally reverse 

the judgment and remand for further proceedings.

a. Proceedings in the trial court

Defendant’s Pitchess motion was granted, in part, on July 17, and Judge Fisher 

conducted an in camera review of the files produced by the custodian of records for the 

LAPD on July 20. The court found 17 complaints against four officers alleging the use of 

excessive force or “falsity issues” such as making false statements. The court ordered the 

custodian to provide defense counsel with the information regarding those complaints by 

July 31.

On July 24, the case was called for trial and defense counsel asked the court to 

continue the trial date to August 22 as day 0 of 20 so that she could obtain the Pitchess

discovery from the LAPD, then find and interview the complainants and witnesses. 

Defendant objected that the trial court lacked jurisdiction and he wanted “to have this 

matter go before county counsel.” The court found good cause and granted the 

continuance.

On September 6 (day 15 of 20), defense counsel moved to continue the trial to 

October 9 because she needed additional time for her investigators to locate and interview 

12 people out of “approximately 30” identified in “Pitchess hits.” Counsel noted that 

defendant opposed a continuance.

Judge Norman J. Shapiro addressed defendant at length: “The reason Miss 

Salzman wants to put this case over on your behalf is to investigate these various matters 

that have been brought to her attention through the Pitchess discovery process; okay? [¶] 

Now do you understand the officers who were involved in your case, they have personnel 

records. The judges—I guess it was Judge Fisher reviewed the personnel records, and he 

saw, according to Miss Salzman, 30 different instances where there’s been claims of

some type of misconduct by the police. [¶] Miss Salzman is going to investigate those or 
17

is in the process of investigating those. So if the case does go to trial, she’ll be able to use 

that information on your behalf. [¶] If I sent this to trial right now, which I’m happy to 

do if you are not willing to waive time, she’s not going to have that information, and so 

you are going to be in somewhat of a disadvantage, not through any lack of skill or effort 

by your attorney, but you haven’t given her enough time to have her investigators cover 

these areas. [¶] So that’s what you should think about. [¶] Further, you are not in 

custody, and I understand, we have this type of situation occur with people in custody, 

and they want to get on with their case because they think they are going to be successful, 

and they don’t want to wait any longer. [¶] But in your case, all you’d have to do is come 

back on October 9. A Pitchess investigation will be complete. Miss Salzman may sit 

down and talk to Miss Gruber or whoever is handling this case on behalf of the District 

Attorney and say, listen. Look at what we have here. Maybe you want to make a better 

offer with this gentleman or handle this case in a certain way. [¶] I don’t know. But I’m 

suggesting that all that can happen, if you give your attorney the time.”

Defendant nonetheless refused to waive time. The prosecutor noted that defense 

counsel had noticed a suppression motion for the next day and witnesses had been put on 

call for that motion. The prosecutor asked “to trail this till tomorrow, and then they can 

decide.” The court agreed to do so and remarked, “[T]hat would give [defendant] an 

extra day to think about the situation.” The court warned defendant, “I would be very 

careful about rushing into this, because your attorney won’t be able to use perhaps some 

impeachment information regarding the witnesses against you.” The court trailed the case 

until the next morning and advised defendant, “[T]hink about what I explained to you. 

[¶] Okay?”

A minute order reflects that after the parties left, Judge Shapiro “advance[d] and 

vacate[d] 9-7-12 court date in department 115. At the direction of the supervising judge 

of the criminal court[.]”

When the parties appeared before Judge Shapiro on September 7, defense counsel 

withdrew her suppression motion, but filed another motion to continue. Judge Shapiro
18

stated, “[W]e’ve cleared the matter with department 100, and they want the case there 

immediately. I filled out the transfer memo, but I did that after you folks left court 

yesterday.” The court stated it would cross out its entry on the transfer memo that a 

suppression motion was pending and instead indicate that a motion for continuance was 

pending. After the court and counsel discussed the estimated duration of the trial, 

charges, enhancements, maximum potential sentence, and prior settlement offer, the court 

stated, “The matter will be transferred forthwith to department 100, so they are waiting 

for this at this time.”

Defense counsel told the court defendant requested “15 minutes to have some time 

to think, possibly consult with family, and I believe he wishes to address the court.” The 

court responded, “[H]e can still have 15 minutes. I’m going to send this case up. If for 

some reason he wants to accept the People’s offer or perhaps counter and discuss the 

case, department 100 will send it right back here. I’ll be here all day. So the matter is 

transferred to department 100.” While the clerk prepared the file for transfer, defendant 

conferred with his attorney, who announced, “Your honor, [defendant] is stating that he 

will agree to a continuance at this time.”

After a pause in the proceeding, the prosecutor informed the court, “I believe 

outside we have all of our officers ready to go on this trial. We[’]re ready. We’re asking 

to proceed with the trial on this case, your honor.” The court told defense counsel it 

understood her situation with the outstanding Pitchess discovery and referred to 

defendant’s prior unwillingness to waive time. The court then told defendant, “[W]hat 

you have caused is this: You have caused the district attorney to go into another gear to 

get ready on this case. They have all the witnesses here. They are ready to go. [¶] I was 

prepared to hear the [suppression motion] this morning, and that’s probably why the 

witnesses are here. . . . [¶] What I’m going to do, I’m going to transfer the matter to 

department 100. If Judge Schnegg wants to grant you a continuance in this matter or send 

it back here with the request that I continue it, I’ll be happy to do that. But at this point, 

I’m going to let the matter go to department 100.”
19

In department 100, with Judge Patricia Schnegg presiding, defense counsel told the 

court she had filed motions for continuances that day and the day before, and explained 

that although defendant had been unwilling to waive time the day before, “[t]oday he says 

he will.” After a discussion with counsel off the record, the court stated, “Judge Shapiro 

denied that motion and basically has sent you up for trial. And at the bench, [defense 

counsel] has renewed the motion. And at this point in time, since it was just denied this 

morning by Judge Shapiro, no changed facts, I’m also going to deem you ready and send 

you out for trial today.”

Defense counsel informed the court that the previous day Judge Shapiro had urged 

defendant to use the night to reconsider his decision not to waive time and represented he 

would revisit the issue that morning; after reconsidering the issue overnight, defendant 

expressed a desire to waive time that morning. Counsel then explained, “Judge Shapiro 

did express, to my recollection this morning, that he was going to deny the [continuance 

motion], but that we were free to renew it in 100. And then he did repeatedly express to 

[defendant] that if we need to go back, he would be welcome to have us back. It might be 

that he was anticipating we would renew the [continuance motion] and his finding was 

not necessarily binding. He had anticipated that 100 would consider it anew.” Judge 

Schnegg stated she lacked authority to do so and explained, “Equal jurisdiction, I can’t 

overrule him.” The court transferred defendant’s case to Judge Feuer for trial.

b. Principles governing continuance motions

“A continuance in a criminal case may be granted only for good cause. (§ 1050, 

subd. (e).) Whether good cause exists is a question for the trial court’s discretion. 

[Citation.] The court must consider ‘“‘not only the benefit which the moving party 

anticipates but also the likelihood that such benefit will result, the burden on other 

witnesses, jurors and the court and, above all, whether substantial justice will be 

accomplished or defeated by a granting of the motion.’”’ [Citation.] While a showing of 

good cause requires that both counsel and the defendant demonstrate they have prepared 

for trial with due diligence [citation], the trial court may not exercise its discretion ‘so as 
20

to deprive the defendant or his attorney of a reasonable opportunity to prepare.’

[Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 450 (Doolin).)

“A reviewing court considers the circumstances of each case and the reasons 

presented for the request to determine whether a trial court’s denial of a continuance was 

so arbitrary as to deny due process. [Citation.] Absent a showing of an abuse of 

discretion and prejudice, the trial court’s denial does not warrant reversal.” (Doolin, 45

Cal.4th at p. 450.)

A defendant has both state and federal constitutional rights and statutory rights to a 

speedy trial. (People v. Harrison (2005) 35 Cal.4th 208, 225.) Tension sometimes arises 

between the exercise of the right to a speedy trial and a defendant’s constitutional right to 

the effective assistance of counsel. (People v. Frye (1998) 18 Cal.4th 894, 938–939, 

disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) “If the 

defendant is represented by counsel, counsel has the authority to waive defendant’s 

statutory right to a speedy trial, at least in the absence of evidence showing incompetence 

of counsel.” (Harrison, at p. 225.) However, “‘a criminal defendant may not juggle his 

constitutional rights in an attempt to evade prosecution. He may not demand a speedy 

trial and demand adequate representation, and, by the simple expedient of refusing to 

cooperate with his attorney, force a trial court to choose between the two demands, in the 

hope that a reviewing court will find that the trial court has made the wrong choice.’” 

(People v. Lomax (2010) 49 Cal.4th 530, 556.)

c. The trial court erred by denying defendant’s motion for continuance

A careful review of the record demonstrates that Judge Shapiro did not deny 

defendant’s motion for a continuance, but instead deferred ruling on it and left the 

decision to Judge Schnegg because department 100 wanted the case transferred

immediately. Indeed, preparation for that transfer apparently began the day before, soon 

after Judge Shapiro strongly urged defendant to accept a continuance to permit defense 

counsel to complete her investigation and even gave defendant directions to reconsider 

his stance overnight.
21

Judge Shapiro suggested Judge Schnegg could either grant a continuance “or send 

it back here with the request that I continue it.” Thus, Judge Schnegg’s belief that she 

could not grant a continuance because Judge Shapiro had denied the motion was 

erroneous. Defense counsel clearly contributed to this error by failing to correct Judge 

Schnegg’s misunderstanding and, in fact, representing that Judge Shapiro had denied the 

motion. Nonetheless, the trial court did not exercise its discretion in ruling upon 

defendant’s motion, but instead improperly denied it based upon a misunderstanding of 

the facts leading to a belief she lacked jurisdiction to grant it. 

The Attorney General argues denial was proper because defendant had repeatedly 

opposed continuances and did not agree to waive time until after Judge Shapiro had 

ordered the case transferred to department 100. This might have justified denying a 

continuance, but it was not the basis of Judge Schnegg’s denial. Moreover, although 

defendant’s timing was poor, he did what Judge Shapiro had invited him to do on 

September 6: he thought about the situation and decided to waive time to allow his 

attorney to complete the outstanding Pitchess discovery. Thus, resort to defendant’s prior 

unwillingness to waive time cannot support Judge Schnegg’s denial of the renewed 

September 7 continuance motion.

d. Further proceedings are required to determine prejudice

Defendant argues the error interfered with his constitutional right to the effective 

assistance of counsel by forcing “defense counsel to proceed to trial unprepared,” and 

“wholly prevent[ing] [him] from developing evidence crucial to his defense, namely that 

the officers had lied about what they had seen and/or planted evidence to establish 

probable cause to search the van or to cover up the use of excessive force to detain” him. 

Defendant argues that prejudice should be presumed or assessed under the standard of 

Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824], i.e., the Attorney General 

would have the burden of proving beyond a reasonable doubt that the error did not 

contribute to the verdict. The Attorney General argues the error was one of state law 

only, to be evaluated pursuant to People v. Watson (1956) 46 Cal.2d 818, 836, i.e., 
22

defendant would have the burden of establishing a reasonable probability that, absent the 

error, he would have obtained a more favorable outcome. The Attorney General notes 

that although the Pitchess motion was granted with respect to the use of excessive force, 

the trial judge excluded all evidence of excessive force, so some or all of the Pitchess

revelations would not have led to admissible evidence. The Attorney General contends

defendant “has not established that the investigation would have resulted in any relevant, 

admissible information regarding the testifying officers.”

We conclude the appellate record is inadequate to permit a determination of 

prejudice under either standard or even whether the error actually infringed upon 

defendant’s right to the effective assistance of counsel. The Pitchess “hits” pertained to 

three officers who testified at trial and one who did not, and the allegations included both 

excessive force and “falsity issues.” On September 6, defense counsel represented there 

were only 12 complainants or witnesses out of about 30 whom she still needed to locate 

and interview. Although counsel apparently developed nothing relevant and admissible 

from the 18 or so people who had been interviewed, it is possible that one or more of the 

remaining 12 could have provided her with credible impeachment evidence she could 

have utilized at trial to undermine the prosecution’s case. It is equally possible that 

counsel would have developed either no relevant, admissible evidence or only very weak 

evidence from the pursuit of the 12 remaining complainants or witnesses. The only just

and reasonable approach to determining whether the erroneous denial of the continuance 

motion prejudiced defendant is to reverse conditionally to allow further development of

the record regarding the incomplete discovery.

6. Directions to the trial court upon remand

Given the erroneous denial of the Pitchess motion with respect to Officer Salinas 

and the uncertainty whether the erroneous denial of defendant’s continuance motion 

prejudiced defendant, we exercise our power under section 1260 to conditionally reverse 

the judgment and “remand the cause to the trial court for such further proceedings as may 

be just under the circumstances.”
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Upon remand, the trial court is directed to grant defendant’s Pitchess motion with 

respect to Officer Salinas and conduct an in camera review of all records produced by the 

custodian of records for the LAPD. If the in camera review reveals no discoverable 

information in Salinas’s personnel file that would lead to admissible evidence helpful to 

defendant’s defense, defendant is not entitled to reversal of the judgment due to Pitchess

error. If the in camera review reveals discoverable information that could lead to 

admissible evidence helpful to defendant’s defense, the trial court shall grant the 

requested discovery, allow defendant a reasonable opportunity to determine whether the 

information would have led to any relevant, admissible evidence that he could have 

presented at trial. If defendant is able to demonstrate to the trial court that he was 

prejudiced by the denial of the discovery, the trial court must order a new trial.

The court shall also allow defendant a reasonable opportunity to complete an 

investigation with respect to the remaining 12 complainants or witnesses previously 

disclosed upon Pitchess review that defense investigators had not yet located and 

interviewed at the time defendant’s continuance motion was denied on September 7, 

2012. If defendant determines that completion of his investigation regarding these 12 

individuals would have led to any relevant, admissible evidence that he could have 

presented at trial, the court must allow defendant a reasonable opportunity to demonstrate 

that he was prejudiced by the inability to present such evidence. If defendant establishes 

prejudice, the trial court must order a new trial. If defendant is unable to show any 

prejudice with respect to either of the aforementioned errors, the trial court shall reinstate 

the original judgment and sentence, which shall stand affirmed.

DISPOSITION

The judgment is conditionally reversed. Upon remand, the trial court shall conduct 

an in camera review of the discoverable material in Officer Salinas’s personnel file and 

order disclosure of any relevant information. The trial court must allow defendant a 

reasonable opportunity to investigate any information disclosed to determine whether the 

information would have led to any relevant, admissible evidence that he could have 
24

presented at trial. The trial court must also allow the defense a reasonable time to 

complete its investigation with respect to the Pitchess disclosure ordered July 20, 2012, to 

the extent the investigation had not been completed as of September 7, 2012, to determine 

whether completion of that investigation would have led to any relevant, admissible 

evidence that he could have presented at trial. The trial court must allow defendant a 

reasonable opportunity to demonstrate prejudice from either (1) the failure to previously 

order disclosure matters from Salinas’s personnel file, if any, or (2) the September 7, 

2012 denial of a continuance to permit the defense to complete its investigation. The trial 

court must order a new trial if there is a reasonable probability the outcome would have 

been different had information regarding Salinas been disclosed and/or the continuance 

granted. If defendant is unable to show any prejudice with respect to either of the 

aforementioned errors, the trial court shall reinstate the original judgment and sentence, 

which shall stand affirmed. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

MOOR, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.