Filed 3/20/23 P. v. Marquez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

FELIX MARQUEZ,

Defendant and Appellant.

F083366

(Super. Ct. No. DF013517A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. David Wolf and 

Charles R. Brehmer, Judges.

ǂ

Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jessica C. 

Leal, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Detjen, Acting P. J., Meehan, J. and Snauffer, J.

ǂ Judge Wolf ruled on the discovery issue; Judge Brehmer pronounced judgment.
2.

Defendant Felix Marquez appeals a judgment of conviction following a plea. He 

requests that this court independently review the prosecution’s assertion of an evidentiary 

privilege relating to discovery withheld from the defense. We find no error in this regard 

and affirm the judgment. However, we order the abstract of judgment be amended to 

correct an error. 

FACTS

We draw the facts below from the preliminary hearing transcript. 

Around 10:00 a.m. one October morning, a correctional officer at Kern Valley 

State Prison saw inmate Michael Santos striking another inmate, X, who was pinned up 

against a wall.1 Marquez joined in at about one minute into the attack. Santos and 

Marquez were described as using stabbing motions. X was not fighting back and 

eventually slumped down against the wall. He was stabbed many times in his head and 

torso, suffering a collapsed lung, among other injuries. He was transported to a hospital 

for medical attention. Fortunately, X survived this brutal attack.

A district attorney’s office investigator interviewed X eleven months after the 

attack. X claimed to be a validated member of the Mexican Mafia who was trying to 

drop out of the gang so that he could be placed on a “sensitive needs yard.” X was 

seeking to debrief,2 and to that end he had provided information to the California 

Department of Corrections and Rehabilitation, but officials could not corroborate any of 

the information he had provided. 

1 We refer to the victim as “X” to protect his identity. 

2 Debriefing is the process by which a Security Threat Group (STG) coordinator 

or investigator determines whether an offender (subject) has dropped out of a STG. A 

subject shall be debriefed only upon his or her request, although staff may ask a subject if 

he or she wants to debrief. The Debrief Process may include a two-step process that 

consists of an interview phase (Phase I) and an observation phase (Phase II). (Cal. Code 

Regs., tit. 15, § 3378.5.) 
3.

He told the investigator his attack was “greenlighted” by a member of the Mexican 

Mafia as punishment for his having lost a cell phone that had been used by the gang to 

conduct illegal narcotics transactions. The investigator noted that X changed his story 

during the interview; he claimed that he was “falsely ‘greenlighted,’ ” based on lies he 

told the Mexican Mafia member about the quantity of drugs he was bringing into the 

prison. 

PROCEDURAL HISTORY

On April 12, 2019, the Kern County District Attorney filed an information 

charging Marquez with aggravated assault by a life prisoner (Pen. Code, § 4500;3

count 1) and assault with a deadly weapon, while in prison (§ 4501, subd. (a); count 2). It 

was further alleged, as to each count, that Marquez caused great bodily injury (§ 12022.7, 

subd. (a)); that he had committed an offense resulting in a felony conviction within five 

years of his release from prison (§ 667.5, subd. (b)); that he had suffered five prior felony 

convictions within the meaning of the Three Strikes Law (§§ 667, subds. (a), (c)—(j), 

1170.12, subd. (a)—(e)); and that he had suffered two prior serious felony convictions 

(§ 667, subd. (a)). 

On October 22, 2018,

4

the district attorney moved to restrict release of the audio 

recording of X’s interview with the district attorney investigator and of the interview 

transcript. The district attorney claimed this evidence was privileged under Evidence 

Code section 1040. The district attorney did not give any notice to the defense of this 

motion before the hearing. 

The trial court reviewed the audio recording and transcript of the interview at an in 

camera hearing on November 20, 2018. The district attorney investigator was sworn and 

testified at the hearing. After the hearing, the trial court ordered that the audio recording 

3 Unlabeled statutory references are to the Penal Code. 

4 This was before the information was filed. 
4.

and transcript be turned over to the defense, but with parts of both redacted. The district 

attorney provided this discovery to the defense, along with the investigator’s two-page 

summary of the interview. 

Marquez’s preliminary hearing took place on April 9, 2019, where he was held to 

answer on both charged counts. The information was filed three days later. On April 29, 

2019, Marquez moved to reveal X’s entire, unredacted interview with the district attorney 

investigator. He queried whether exculpatory evidence may have been redacted from the 

materials he had been given. The district attorney responded to the motion, agreeing that 

the trial court should conduct another in camera review of the withheld information to 

determine whether it should be disclosed to the defense. The court conducted another in 

camera hearing on July 12, 2019, where the district attorney investigator was again sworn 

and testified. The trial court determined after the hearing that Evidence Code 

section 1040 applied to the withheld information and ordered that the material not be 

disclosed to the defense. 

Marquez later moved to dismiss the charges against him based on prosecutorial 

misconduct, claiming that the district attorney’s ex parte motion constituted a prohibited 

ex parte communication with the court about ongoing litigation. The district attorney 

opposed the motion and the trial court denied the motion after hearing argument. 

Marquez eventually pleaded no contest to count 2 and admitted three strike priors, 

though the trial court struck two of the strike convictions for sentencing purposes under 

People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Count 1 and the rest of the 

enhancement allegations were dismissed as part of the plea agreement. The court 

sentenced Marquez to four years, doubled to eight years because of the prior strike, and 

imposed various fines and fees. 

Marquez obtained a certificate of probable cause and filed a notice of appeal. 
5.

DISCUSSION

I. Evidentiary privilege

Marquez requests that we review X’s interview with the district attorney 

investigator and the transcripts of the two in camera hearings to determine whether the 

trial court abused its discretion in upholding the prosecution’s claim of evidentiary 

privilege under Evidence Code section 1040. The People do not oppose Marquez’s 

request. 

Under Brady v. Maryland (1963) 373 U.S. 83, the prosecution must disclose to the 

defense any information favorable to defendant, and material to guilt or punishment. (Id.

at p. 87.) Section 1054.1 requires disclosure by the prosecution of “[t]he names and 

addresses of persons the prosecutor intends to call as witnesses at trial” (id., subd. (a)), 

“[s]tatements of all defendants” (id., subd. (b)), “[r]elevant written or recorded statements 

of witnesses or reports of the statements of witnesses whom the prosecutor intends to call 

at the trial” (id., subd. (f)), and “[a]ny exculpatory evidence” (id., subd. (e)). However, 

“materials or information ... which are privileged pursuant to an express statutory 

provision, or are privileged as provided by the Constitution of the United States” are 

exempt from disclosure by section 1054.6.

The prosecution may withhold evidence where the necessity for confidentiality 

“outweighs the necessity for disclosure in the interest of justice.” (Evid. Code, § 1040, 

subd. (b)(2).) For example, the government may limit the disclosure of information to a 

defendant who was identified through a wiretap, on a showing of good cause, such as 

danger to a witness or the potential of compromising other investigations. (§§ 629.70, 

subd. (d), 1054.7; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1054.) 

The government’s claims of privilege may be tested by the trial court in an ex 

parte in camera proceeding. (Evid. Code, § 915, subd. (b).) The trial court’s discovery 

rulings are reviewed for an abuse of discretion. (People v. Suff (2014) 58 Cal.4th 1013, 

1059.)
6.

The transcript of X’s interview with the district attorney investigator which the 

trial court reviewed at the two in camera hearings, as well as the transcripts of those 

hearings, were transmitted to this court under seal. We have reviewed these transcripts 

and conclude that the district attorney investigator was properly sworn and that the record

is sufficient for our review. We further conclude the record reveals no abuse of 

discretion or violation of Marquez’s due process rights by the trial court.

II. Abstract of judgment

Marquez’s abstract of judgment incorrectly states that he pleaded no contest to 

count 1, a violation of section 4500. However, it correctly states he was sentenced to 

eight years. The abstract of judgment must be corrected to reflect that he pleaded no 

contest to count 2, a violation of section 4501, subdivision (a). 

DISPOSITION

The judgment is affirmed. The superior court clerk is ordered to amend 

Marquez’s abstract of judgment to reflect he pleaded no contest to count 2, a violation of 

Penal Code section 4501, subdivision (a), and to forward certified copies of the amended 

abstract of judgment to the appropriate entities.