People v. Solomon CA5 ( 2021 )

Filed 3/24/21 P. v. Solomon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F078998
Plaintiff and Respondent,
(Super. Ct. No. 15CMS7201)
v.
VINCENT SOLOMON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Robert Shane
Burns, Judge.
Alex Green, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Following a jury trial, defendant Vincent Solomon1 was convicted of committing
battery upon a correctional officer during defendant’s incarceration (Pen. Code,
§ 4501.5),2 and the jury also found true allegations that defendant had suffered prior
serious felony convictions. Defendant was thereafter sentenced to a two-year prison term
for the battery conviction. (§§ 667, subd. (e)(1), 1170.1, subd. (a), 4501.5.)3 During the
course of pretrial discovery proceedings, the trial court partially granted defendant’s
discovery motion under Pitchess v. Superior Court (1974) 11 Cal.3d 532 (Pitchess) for
review of personnel records of various correctional officers.
On appeal, defendant challenges the trial court’s denial of a portion of his Pitchess
motion, and defendant requests we conduct an independent Pitchess review of the trial
court’s sealed proceedings as to the portion of the Pitchess motion the trial court granted.
Having undertaken an independent Pitchess review of the personnel records, we find no
abuse of discretion by the trial court. The sealed Pitchess proceedings before the trial
court were detailed and thorough. Further, any error in denying defendant’s Pitchess
motion as to racial animus and/or bias related to two correctional officers was harmless.
FACTUAL SUMMARY
According to correctional officer Jesse Arnett, on April 14, 2014, he was doing
paperwork while defendant was scheduled to move to another part of the prison. Staff
informed Arnett that defendant would not exit his cell to perform the transfer. Arnett
1 As defendant notes in his opening brief, this appeal is captioned “People v. Soloman,”
but defendant spells his last name “Solomon,” and the trial records, including the felony
complaint and information filed against him, reflect the correct spelling. This court has
administratively corrected the title caption to address this issue.
2 All further statutory references are to the Penal Code unless otherwise indicated.
3 This sentence was ordered to be served consecutive to another four-year sentence in a
separate case, Kings Superior Court case No. 15CMS-7345B, for an in-prison offense, and a
two-year sentence for an in-prison offense in San Joaquin County, and to defendant’s original
out-of-prison offenses in Sacramento County.
2.
walked to defendant’s cell and defendant told Arnett he would not leave his cell unless he
was allowed to inventory his own property (a task performed by correctional officers).
When defendant would not relent, Arnett notified his chain of command that he and
others were going to perform a cell extraction. This process included giving defendant a
cooling off period to see if he would comply. If not, then a team of officers would
prepare for the extraction by putting on personal protective equipment and preparing a
video camera.
While officers were getting ready, defendant was yelling from his cell that he
would come out, so Arnett then went to get a waist restraint and asked correctional
officer Torres to help him move defendant. After Torres completed an unclothed body
search of defendant, Arnett told defendant to place his hands through the cell door’s food
port so that the waist restraint could be applied. Defendant seemed to be compliant, but
when Arnett went to put the waist restraint on defendant’s left hand, defendant grabbed
Arnett’s left wrist and pulled Arnett’s arm through the food port. When defendant would
not let go of his wrist, Arnett applied pepper spray to defendant and defendant let go.
Arnett was instructed to leave the unit immediately, so he was unsure what
happened to defendant after he left and he did not know what injuries if any defendant
received other than the pepper spray. Arnett also had no idea what happened to
defendant’s property after this incident.
Torres, who was standing behind Arnett during the incident, corroborated this
version of events. When Arnett was placing the restraint on defendant’s left wrist,
defendant grabbed Arnett’s wrist and pulled his arm through the food port. Arnett gave
defendant verbal commands to release his arm, but defendant did not comply. Arnett
then grabbed his pepper spray and gave two or three bursts of spray through the food
port, and defendant released his grasp. The incident only lasted a few seconds, and
Torres was not aware that anyone was videotaping at that time. Torres was also unaware
whether defendant was injured.
3.
Correctional officer Nathan Scaife was also standing behind Arnett when the
incident with defendant occurred. According to him, no one was videotaping, and he did
not believe there were any inmates outside of their cells. After the incident was under
control, he and another officer took defendant out of his cell and put him in a shower
because he had been pepper sprayed. After that, he drove Arnett to the prison hospital for
a medical evaluation and took photos of Arnett’s injury. Scaife returned to the housing
unit to take crime scene photographs, and he took a photograph of defendant after he had
been pepper sprayed and returned to his cell. Scaife testified the photograph could not
have been taken more than an hour after the incident. He was unaware whether
defendant had any injuries.
The defense called correctional officer Anthony Randolph, who testified he could
not recall operating a video camera on the day of the incident. Correctional officer
Timothy Sanders was called as a defense witness and, while he remembered the incident,
he did not recall writing any report, interviewing defendant or taking any photographs.
Joshua Fielder, a psychology technician, testified he had interaction with
defendant after the incident when he was taken to the shower to be decontaminated from
the pepper spray. Fielder tried to make sure defendant did not have any issues breathing
or other distress after the incident, and he recalled defendant was breathing and upright
with no visible injuries. Defendant was, however, upset and unhappy with the situation.
Fielder recalled Arnett had redness on his arm, and that he had referred Arnett to the on-
site registered nurse, Brett Marean. Marean testified he documented Arnett’s injuries,
which included redness and an abrasion on Arnett’s left wrist.
Inmate Edward W. testified he had been housed in a cell across from defendant.
He heard defendant in a “ruckus” because an officer would not bring defendant’s stuff
back to him. The officer and defendant were talking, but then defendant’s stuff “got
trashed” and officers “drug [defendant] out,” pepper sprayed and beat him. Two officers
then dragged defendant around the corner and Edward saw nothing further.
4.
Inmate Robert G. was in the upper tier across from defendant’s lower cell and
could see down into defendant’s cell. Robert testified the issues between defendant and
the officers was an “ongoing thing.” He thought defendant was the type of inmate who
would advocate for himself, and there were multiple occasions when there was a lot of
activity at his door. On the day of the incident, officers were walking defendant in
shackles back to his cell and there was an argument about defendant’s property. A bunch
of officers then swarmed defendant, they pepper sprayed him for no reason, and then
“just basically left him.”
Defendant testified Arnett came to his cell that day and ordered him to pack up
because defendant was being transferred to a different unit. Defendant became upset
because he had a documented enemy in the unit to which they were transferring him,
which he explained to Arnett. Arnett then suited up with an extraction team of six or
seven officers, including officers Randolph, Ruiz, Scaife, Gomez and Torres, and
approached defendant’s cell. Arnett threatened to pepper spray defendant, and defendant
asked for a psychology technician. When Randolph, who was videotaping, repeated they
were going to pepper spray him, defendant agreed to come out of his cell. Arnett then
approached defendant’s cell with a waist chain.
When facing the cell door, defendant stuck his hand through the food port. As
Arnett was chaining defendant, Arnett pulled the chain through the food port and started
spraying defendant with the pepper spray. Defendant denied he ever pulled Arnett’s arm
through the food port. After Arnett pepper sprayed defendant, Arnett and Scaife opened
the cell, took defendant to the ground, and started beating him. There were a total of
seven officers present. They put leg irons on defendant and a triangle in his back. They
hogtied him, took him to the shower, and dropped him on his face. As a result, defendant
lost several teeth, had two back eyes, and his lip was “busted.”
Defendant testified he was not decontaminated in the shower, but was instead left
lying there for an hour while officers took everything out of his cell and threw it and
5.
smashed it. Then they picked up defendant in the shower and dropped him back in his
cell. They took off the restraints and told him if he moved they would kill him.
Defendant asked for medical attention, but it was denied for two days. After that,
defendant had to have mouth surgery to remove a broken tooth from his gum that
required three or four stitches.
As to a photograph of him that had been admitted into evidence, defendant
testified it was taken as officers were putting on their extraction suits before the incident,
not after the incident as Scaife had claimed. Defendant also testified officers Randolph,
Wilson and Sanders took pictures and video of his injuries just as they had done of
Arnett.
In rebuttal testimony, Arnett claimed defendant had never said anything to him
about having an enemy at the transfer unit; had that happened, Arnett would have looked
into it. Arnett denied that the incident had been videotaped, and stated the video camera
was in his office being charged for the cell extraction that never occurred.
The jury found defendant guilty of battery of a nonconfined person and found true
prior serious felony convictions. Defendant was sentenced to a two-year term (one year
as one-third of the three-year middle term, doubled for a prior strike). (§§ 667,
subd. (e)(1) & (e)(2)(C), 1170.1, subd. (a), 4501.5.) Defendant filed a timely notice of
appeal.
DISCUSSION
I. Pitchess Motion Regarding Racial Bias
A. Background
In August 2017, defendant filed a Pitchess motion seeking discovery from the
personnel files of Officers Arnett, Torres, Ruiz and Randolph regarding (1) prior use of
ethnic or “radical” bias; (2) falsifying information on rules violation reports; (3) planting
evidence; and (4) excessive use of force.
6.
Defense counsel submitted a declaration indicating the requested documents were
relevant to a defense of the charges and it was material for the effective and proper
preparation of a defense, cross-examination and impeachment of the prosecution’s
witnesses, and for assessment of witness credibility.
In September 2017, defendant provided a declaration to support the Pitchess
motion. He stated that after the incident, he was removed by Arnett, Torres, Ruiz and
Randolph and then pepper sprayed and beaten; the incident was videotaped; the charges
against him were false; the version of events described by the officers were false;
derogatory racial statements were made by correction personnel to defendant “and their
dislike of me due to past encounters with their colleagues that resulted in reprimand and
disciplinary actions formed the basis on which their ethnic and racial bias stemmed”; and
defendant’s version of events contradicts the officers’ versions and shows correctional
officer misconduct.
A hearing was held on the motion on September 29, 2017, and the court denied the
motion as to use of force and racial prejudice, but granted the motion as to discovery
relevant to dishonesty/report falsification. An in camera review was set for October 12,
2017, which was subsequently continued to allow defense counsel to clarify the motion
and the supporting declarations and resubmit them.
Defendant filed a supplemental declaration in support of the Pitchess motion on
October 24, 2017. Defendant clarified it was Arnett and Torres who yelled racial epithets
at him when they pepper sprayed him. Defendant also specified that the written reports
of Arnett, Ruiz, Randolph, and Torres were false.
Another hearing was held on October 24, 2017. The court agreed with California
Department of Corrections and Rehabilitation’s argument that Officer Randolph was not
a percipient witness and there was, as such, no support for review of his personnel file
related to falsification of reports, and that as to excessive force allegations, defendant’s
declaration was too general with respect to Officers Ruiz and Randolph. The court did
7.
not specifically address discovery of evidence relevant to racial prejudice as to Arnett and
Torres, and defense counsel submitted the motion for decision without specific argument
about racial prejudice. The court granted the Pitchess motion with respect to discovery
of information related to dishonesty and report falsification as to Officers Arnett, Torres
and Ruiz and as to any alleged use of excessive force by Arnett and Torres. An in
camera review of the personnel records was performed by the court, and 38 names and
contact information were disclosed to defendant.
Defendant argues he established good cause to grant the Pitchess motion with
respect to discovery of evidence relevant to racial bias/prejudice of Arnett and Torres,
and the trial court erred in failing to do so.
B. Legal Standard
To obtain a correctional officer’s personnel information under Pitchess, the
defendant must file a written motion. (Evid. Code, § 1043, subd. (a).) The motion must
describe “the type of records or information sought” and include “[a]ffidavits showing
good cause for the discovery or disclosure sought, setting forth the materiality thereof to
the subject matter involved in the pending litigation and stating upon reasonable belief
that the governmental agency identified has the records or information from the records.”
(Id., subd. (b)(2) & (3).)
The good cause showing required under the statute “is a ‘relatively low threshold
for discovery.’” (Garcia v. Superior Court (2007) 42 Cal.4th 63, 70 (Garcia).) The
affidavits may be predicated on “‘information and belief and need not be based on
personal knowledge [citation], but the information sought must be requested with
sufficient specificity to preclude the possibility of a defendant’s simply casting about for
any helpful information.’” (Ibid.) If good cause is established, the trial court is required
to review the records to determine what, if any, information should be disclosed. (Id. at
pp. 70–71.)
8.
A good cause showing of materiality, as supported by affidavits, “‘must propose a
defense or defenses to the pending charges’” (Garcia, supra, 42 Cal.4th at p. 71.) To
show materiality, there must be a logical link between the defense proposed and the
pending charge, and an articulation how the discovery sought would support such a
defense or how it would impeach the officer’s version of events. (Ibid.) “The
information sought must be described with some specificity to ensure that the defendant’s
request is ‘limited to instances of officer misconduct related to the misconduct asserted
by the defendant.’” (Ibid., quoting Warrick v. Superior Court (2005) 35 Cal.4th 1011,
1021 (Warrick).)
Counsel’s affidavit must also describe a factual scenario that would support a
defense claim of 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.” (Warrick, supra, 35 Cal.4th at pp. 1024–1025.) “In other cases, the trial court
hearing a Pitchess motion will have before it defense counsel’s affidavit, and in addition
a police report, witness statements, or other pertinent documents. The court then
determines whether [the] defendant’s averments, ‘[v]iewed in conduction 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.” (Id. at p. 1025.)
“Corroboration of or motivation for alleged officer misconduct is not required.
[Citation.] Rather, ‘a plausible scenario of officer misconduct is one that might or could
have occurred.’ [Citation.] A scenario is plausible when it asserts specific misconduct
that is both internally consistent and supports the proposed defense. [Citation.] ‘A
defendant must also show how the information sought could lead to or be evidence
potentially admissible at trial.’ [Citation.] A defendant who meets this burden has
demonstrated the materiality requirement of [Evidence Code] section 1043.” (Garcia,
supra, 42 Cal.4th at p. 71.)
9.
“A motion for discovery of peace officer personnel records is addressed to the
sound discretion of the trial court, reviewable for abuse.” (Alford v. Superior Court
(2003) 29 Cal.4th 1033, 1039, disapproved on another ground in Facebook, Inc. v.
Superior Court (Touchstone) (2020) 10 Cal.5th 329, 345, fn. 6.)
C. Analysis
Defendant argues his sole defense was that officers were lying when they reported
defendant had assaulted Arnett. In his supplemental declaration, defendant attested
Arnett and Torres yelled racial epithets at him, which he argues clearly implicated part of
his defense that officers’ racial animus was a possible motive for the assault and their
false reports and bore on their credibility.
The People respond that defendant’s declarations failed to specify the content of
the racial epithets and contained merely a boilerplate allegation rather than a specific and
plausible factual scenario that the officers acted due to racial bias.
One legitimate goal of discovery is to obtain information for possible use to
impeach or cross-examine adverse witnesses, and Pitchess motions are proper for issues
relating to credibility. (People v. Hustead (1999) 74 Cal.App.4th 410, 417, citing
Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 28–33 & Pierre C. v. Superior
Court (1984) 159 Cal.App.3d 1120, 1122–1123.) Defendant’s allegation of racial animus
and/or bias exhibited by Torres and Arnett is relevant to their credibility and
circumstances that might lend support to defendant’s version of events.
However, even assuming defendant set forth good cause for discovery of
information relevant to racial bias or animus, the failure to grant this portion of
defendant’s Pitchess motion and review Arnett’s and Torres’s personnel records on this
basis was harmless. Each custodian of records was placed under oath and attested,
pursuant to the trial court’s questioning, they had produced all personnel records related
to Arnett and Torres, not just those that might be responsive and relevant to defendant’s
motion and supporting declarations. (See People v. Mooc (2001) 26 Cal.4th 1216, 1229
10.
(Mooc) [“The custodian should be prepared to state in chambers and for the record what
other documents (or category of documents) not presented to the court were included in
the complete personnel record, and why those were deemed irrelevant or otherwise
nonresponsive to the defendant’s Pitchess motion.”].) The trial court’s review of these
records was both thorough and detailed. Pursuant to our independent review of the
proceedings and documents considered, as defendant requests and as discussed further
below, confirms no materials or information relevant to racial bias or prejudice was
withheld. Thus, the trial court’s failure to grant defendant’s Pitchess motion to review
Arnett’s and Torres’s records for information relevant to potential racial animus or bias
was harmless.4
II. Independent Pitchess Review
Defendant requests that we conduct an independent Pitchess review on appeal to
ensure the trial court’s in camera review of Arnett’s, Torres’s, and Ruiz’s records as to
allegations of fabrication and use of excessive force was performed in the proper manner
and did not constitute an abuse of discretion. The People do not object.
Pitchess motions are the well-settled mechanism by which defendants can screen
law enforcement personnel files for evidence that may be relevant to their defense
without compromising the officer’s reasonable expectation of privacy in those records.
(Mooc, supra, 26 Cal.4th at p. 1227.) Subject to various restrictions not relevant here, a
trial court must conduct an in camera review of potentially relevant personnel files if the
defendant makes a showing of good cause for the discovery. (Id. at p. 1226.)
“The trial court may not disclose complaints more than five years old, the
‘conclusions of any officer’ who investigates a citizen complaint of police misconduct, or
facts ‘so remote as to make [their] disclosure of little or no practical benefit.’ [Citations.]
4 As we reach defendant’s claim of error in this regard, and the People do not claim the
issue was forfeited, we decline to address defendant’s alternative claim of ineffective assistance
of counsel in failing to preserve the issue for appeal.
11.
Typically, the trial court discloses only the names, addresses, and telephone numbers of
individuals who have witnessed, or have previously filed complaints about, similar
misconduct by the officer. [Citation.] That practice ‘imposes a further safeguard to
protect officer privacy where the relevance of the information sought is minimal and the
officer’s privacy concerns are substantial.’” (Warrick, supra, 35 Cal.4th at p. 1019.)
This process is effectuated by having a custodian of records collect all potentially
relevant documents from identified personnel files and present them to the trial court.
The custodian “should be prepared to state in chambers and for the record what other
documents (or category of documents) not presented to the court were included in the
complete personnel record, and why those were deemed irrelevant or otherwise
nonresponsive to the defendant’s Pitchess motion.” (Mooc, supra, 26 Cal.4th at p. 1229.)
The trial court must then make a record of what documents it has examined to
permit future appellate review. (Mooc, supra, 26 Cal.4th at p. 1229.) “If the documents
produced by the custodian are not voluminous, the court can photocopy them and place
them in a confidential file. Alternatively, the court can prepare a list of the documents it
considered, or simply state for the record what documents it examined.” (Ibid.) These
proceedings are then sealed. (Ibid.)
On appeal, we independently examine the record made by the trial court to
determine whether the trial court abused its discretion in determining what records would
or would not be disclosed. (People v. Prince (2007) 40 Cal.4th 1179, 1285.)
The trial court determined there were 38 names and contact information in the
personnel records that were responsive to defendant’s Pitchess motion that required
disclosure. We have reviewed the entire set of transcripts and documents relevant to this
issue. The trial court thoroughly complied with the required Pitchess procedures. Three
custodians of record were present and placed under oath. Potentially relevant documents
were reviewed and considered in light of defendant’s discovery motion. The court
created an accounting of what was received, produced the relevant information, and
12.
placed on the record why any undisclosed information was not relevant or subject to
production. These proceedings were recorded stenographically by a court reporter.
(Mooc, supra, 26 Cal.4th at p. 1229.) We conclude the trial court did not abuse its
discretion in these proceedings with respect to its review of the materials in Officer
Arnett’s, Torres’s and Ruiz’s personnel files.
DISPOSITION
Defendant was sentenced in this case (Kings Super. Ct. case No. 15CMS-7201)
along with another case (Kings Super. Ct. case No. 15CMS-7345B) where he was
convicted of additional in-custody offenses. Separate appeals were taken in each case.
Due to a sentencing error in Kings Superior Court case No. 15CMS-7345B (case
No. F078997), resentencing in both cases will be required as specified in our opinion
issued in case No. F078997. (Cal. Rules of Court, rule 4.452.) The judgment is
otherwise affirmed.
MEEHAN, J.
WE CONCUR:
FRANSON, Acting P.J.
SNAUFFER, J.
13.