People v. Gomez-Ortiz CA4/3 ( 2023 )

Filed 5/2/23 P. v. Gomez-Ortiz CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060857
v. (Super. Ct. No. 17WF0693)
JUAN EDUARDO GOMEZ-ORTIZ, OPI NION
Defendant and Appellant.
Appeal from postjudgment orders of the Superior Court of Orange County,
Scott A. Steiner, Judge. Reversed and remanded with directions.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and
Michael D. Butera, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
I. INTRODUCTION
Appellant Juan Eduardo Gomez-Ortiz challenges the denial of his motion to
vacate a judgment of conviction (based on a guilty plea) pursuant to Penal Code section
1473.6 (all undesignated statutory references are to this code unless otherwise specified).
The appeal also seeks our independent review of the trial court’s ruling on a supporting
1
Pitchess motion for discovery of a former sheriff deputy’s personnel records.
The underlying conviction involves an attempted robbery where the victim
was hospitalized. The matter was investigated by the former deputy, who filed a report
falsely stating pictures of the victim’s injuries had been booked as investigative evidence.
Pursuant to a plea agreement, appellant pleaded guilty to attempted robbery, assault likely
to cause great bodily injury, and admitted inflicting great bodily injury. The trial court
suspended imposition of sentence and its 2017 judgment ordered appellant to serve 180
days in county jail and three years probation.
In 2019, Orange County law enforcement agencies wrote two letters
regarding evidence booking failures that led appellant to file his underlying 2020 vacatur
motion as well as the supporting Pitchess motion. The latter resulted in the trial court
ordering some information from the former deputy’s records to be disclosed. On the
vacatur motion, the court ruled appellant was not entitled to an evidentiary hearing based
on case precedent.
We conclude both rulings were erroneous. On the Pitchess motion, we
cannot determine whether the trial court exercised its discretion about information arising
from investigations. On the vacatur motion, we cannot conclude the denial of an
evidentiary hearing was the correct result. We reverse and remand for further
proceedings.
1
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Investigation of Attempted Robbery and Arrest of Gomez-Ortiz
Based on the investigative report of former Orange County Sheriff’s
Deputy Bryce Simpson, in March 2017, after 2:00 a.m. in the morning on a street in
Stanton, two individuals confronted victim T.B. for his money and then one repeatedly
punched T.B. in the face. T.B. defended himself with his pocketknife by cutting his
attacker, who then fled the scene.
Simpson was part of the law enforcement response and made contact with
T.B. in the back of an ambulance, before it transported T.B. to a medical center.
According to Simpson’s report, T.B.’s face was swollen and his right eye swollen shut.
The report represented T.B.’s version of events, including where he had been “drinking”
before and where he had been going when attacked. The report noted T.B. was unsure he
would be able to identify his attacker.
Simpson continued his interview of T.B. at the medical center and reported
T.B.’s injuries consisted of “[m]ultiple facial fractures above and below each eye socket.”
Simpson’s report lists a doctor and four sheriff’s deputies witnesses, with no description
of what information they purportedly possessed.
During the interview of T.B., appellant arrived at the same medical center
with a cut wound. Simpson had a discussion in English with appellant, who claimed he
had been injured by a broken glass bottle in a home accident.
According to his report, Simpson investigated the explanation and
concluded appellant was T.B.’s attacker. Simpson then conducted an “in-field show-up”
near Simpson’s patrol vehicle where T.B., while standing 10 feet away from appellant,
unequivocally identified appellant as the attacker. When Simpson placed appellant under
3
arrest appellant claimed he only understood Spanish, so a fellow deputy was secured to
2
translate and advise appellant of his Miranda rights.
According to Simpson’s report, after appellant affirmed his understanding
and waiver of rights in Spanish, he maintained he had nothing to do with the attempted
robbery of T.B. Appellant elaborated on explaining his own wound, identified a new
corroborating witness, and explained “his hand and knuckles were swollen from falling
on [his home] stairs.”
In addition to his observations on the night of the attack, Simpson reported
he had taken pictures of T.B.’s injuries and booked as investigative evidence one
“[c]ompact [d]is[c] containing photographs.” The parties discuss the compact disc (CD)
in their briefing as containing three pictures of T.B.’s injuries that have never been
verified.
B. Charges, Informal Discovery, and Guilty Plea Conviction
Two days after Simpson’s report, the Orange County District Attorney’s
Office filed a complaint alleging appellant had committed attempted second degree
robbery (§§ 664, subd. (a), 211, 212.5, subd. (a)), assault by means of force likely to
cause great bodily injury (§ 245, subd. (a)(4)), and that appellant personally inflicted
great bodily injury on his victim in committing both crimes (§ 12022.7, subd. (a)). The
charges implicated a maximum sentence of six years in prison and two strikes for future
possible sentencing under the Three Strikes law. (See §§ 667, subd. (c), 1170.12.)
At arraignment, appellant pleaded not guilty and his appointed counsel
from the Orange County Public Defender’s Office made an informal request for
discovery to the prosecutor. While some materials were produced in response they did
not include the CD of pictures indicated in Simpson’s report, even though the scope of
2
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
4
the discovery request covered the pictures. (See § 1054.1 [discovery disclosures by
prosecutor should include “[a]ll relevant real evidence seized or obtained as a part of the
investigation of the offenses charged”].)
Based on the record presented, no further discovery efforts were made by
the time of appellant’s plea agreement with the prosecutor, entered six weeks after
arraignment. With assistance from his counsel and a translator, appellant completed and
signed a seven-page form titled “Advisement and Waiver of Rights For a Felony Guilty
Plea” (plea form). It contained the following admissions by appellant, meant to serve as
the factual basis of his guilty plea: “[O]n March 26, 2017[,] I did willfully and
unlawfully by means of force or fear attempt to take the real and personal property of
T[.]B. from his immediate presence and also committed an assault upon his person with
force likely to cause great bodily injury and did personally inflict great bodily injury.”
On the next page, appellant’s counsel signed the plea form representing counsel had
“discussed the charges and the facts with appellant,” as well as “the possible defenses”
and “possible sentence ranges.”
The plea form also included waivers of legal rights that appellant affirmed
were knowingly and voluntarily made. Appellant’s waivers covered, among others, his
rights to a preliminary hearing, to not incriminate himself, to confront witnesses and
evidence against him, and to a speedy and public jury trial.
The same day appellant signed his May 2017 plea form, the trial court
questioned appellant on his understanding of the form’s contents and then accepted his
guilty plea. The court suspended imposition of sentence and placed appellant on three
years of formal probation on the condition of serving 180 days in county jail. According
to the parties, T.B. died the following year of causes unrelated to this matter.
5
C. Postconviction Events
In a letter dated March 29, 2019, a prosecutor of the Orange County
District Attorney’s Office notified the Orange County Public Defender’s Office that
Simpson’s CD of investigation pictures was “never booked into evidence” (the March
letter). In its substantive entirety, the letter communicated the following:
“This letter is to notify you that the evidence in the above referenced case,
to wit: a compact dis[c] with 3 photographs was never booked into evidence at the
Orange County Sheriff’s department. All other items of evidence, including the in Field
Show-Up Form, the signed Medical Release Authorization Form, and the victim’s t-shirt,
blue jeans and shoes, appear to have been booked into evidence. On 5/8/17, the
defendant entered a plea of guilty to 664(a)-211/212.5(c) PC, 245(a)(4) PC, and admitted
two enhancements pursuant to 12022.7(a) PC, and was placed on three years formal
probation and ordered to serve 180 days in jail. Please let me know if you need
additional information.”
Eight months later, in November 2019, the district attorney wrote to the
Orange County Sheriff memorializing that the district attorney had recently been
informed about the sheriff’s department’s February 2019 “wide-scale internal audit” of
its investigation reports (the November letter). According to the November letter, the
department’s audit included a finding where, “in 47 [percent] of . . . 121 reports where
deputies stated they had collected and booked evidence, there was no evidence booked.”
The appellate record is unclear on precisely when the November letter or its information
was delivered to appellant or his counsel, but the point is immaterial to our disposition
3
here.
In June 2020, former deputy Simpson pleaded guilty to a misdemeanor
violation of Government Code section 1222, which prohibits, among other things, a law
3
We have not considered appellant’s briefing citations to news articles.
6
enforcement officer’s “willful omission to perform a duty.” Simpson’s plea form
included the following admissions by him: “During the time period of January 1, 2016
through March 14, 2018, in Orange County, I was a person holding a public trust and
employment and on numerous occasions during this time period, and specifically on or
about October 18, 2017 [i.e., not the March 26 date of the report at issue in this appeal], I
did willfully and unlawfully omit to perform a duty legally required of me as a peace
officer, namely, to book and timely book evidence in a criminal case, and to write and
submit an accurate report concerning the booking of such evidence.”
D. Filings on Appellant’s Vacatur Motion
On August 27, 2020, appellant filed the vacatur motion underlying this
appeal. Appellant argued he was entitled to relief based on section 1473.6, subdivision
(a)(3). Appellant contended “the existence of the photographic evidence in [this] case
was fabricated” and, on victim injury, contended there were “no photographs in existence
which depict[ed] any injury to anyone” and “no way to know whether T.B. sustained
injuries from the alleged assault, or whether those injuries were severe.” More broadly,
appellant asserted that “Simpson’s misconduct casts doubt on the veracity of his
representations in this case,” citing to Simpson’s misdemeanor conviction.
The trial court issued an order to show cause inviting the prosecutor to file
a return to show appellant’s motion lacked merit. The prosecutor filed a return and
supporting memorandum that argued: (1) appellant had not shown statutory “fabrication
of evidence,” let alone “newly discovered evidence” of it; (2) in any case, pictures of the
victim’s injuries were not “substantially material and probative” as required by statute,
because they were at best cumulative evidence on victim injuries; and (3) the motion was
filed beyond the statutory 12-month deadline because filing occurred 17 months after the
March letter.
7
Two months after the prosecutor’s return, appellant filed a February 2021
Pitchess motion to discover information from Simpson’s personnel records, to prepare
appellant’s denial (also known as a traverse) of the return. The trial court held a hearing
the next week and conducted an in camera review of records brought by the records
custodian. The court ordered the custodian to disclose contact information for
individuals who had received letters similar to the March letter in this case.
E. Trial Court’s Oral Ruling Denying Vacatur
The trial court held a November 2021 hearing on the parties’ section 1473.6
briefing. According to the hearing transcript, the parties debated whether the court
should consider exhibits filed by the prosecutor, such as purported medical records and
video footage recorded by sheriff’s deputies other than Simpson, without an evidentiary
hearing. The court ruled it would not consider any exhibit and none are in the appellate
record presented for our review.
The prosecutor argued that the question of “what exactly happened with the
photographs” did not require a hearing because there was no reasonable dispute about the
extent of T.B.’s injuries and appellant argued there were enough factual disputes
implicated by the record to require an evidentiary hearing. The trial court concluded
there was “no need for an evidentiary hearing because, like” in People v. Germany (2005)
133 Cal.App.4th 784 (Germany), section “1473.6 simply [did not] apply to this case.”
We discuss Germany infra, after analyzing the court’s Pitchess ruling.
III. DISCUSSION
1. THE PITCHESS MOTION
Appellant and the attorney general agree that we review the in camera
hearing on appellant’s Pitchess motion, which he filed to support his denial of the
prosecutor’s return on appellant’s vacatur motion.
8
A. Standard of Review and Relevant Law
We review for an abuse of discretion the trial court’s in camera review of
the former deputy’s personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
Specifically, we review the sealed transcript of the hearing and not the actual records that
were brought to the hearing. (People v. Myles (2012) 53 Cal.4th 1181, 1209.) “‘Action
that transgresses the confines of the applicable principles of law is outside the scope of
discretion and we call such action an “abuse” of discretion.’” (People v. Jacobs (2007)
156 Cal.App.4th 728, 737.)
Unless the statutory framework for Pitchess motions prohibits disclosure,
relevant evidence determined by good cause is discoverable. (Riske v. Superior Court
(2018) 22 Cal.App.5th 295, 304.) Assuming good cause exists, relevant information
from investigations of the subject officer can be ordered disclosed. (Haggerty v. Superior
Court (2004) 117 Cal.App.4th 1079, 1090 (Haggerty); accord, City of San Jose v.
Superior Court (1993) 5 Cal.4th 47, 55.) On prejudice resulting from an erroneous
Pitchess motion ruling, the movant must carry a burden to subsequently show a
reasonable probability that a different outcome in the litigation underlying the motion
would have resulted absent the error. (People v. Gaines (2009) 46 Cal.4th 172, 182-183
(Gaines).)
B. Disclosure Analysis
In this case, appellant’s Pitchess motion specifically sought, from the
Orange County Sheriff’s Department’s personnel files for Simpson, “records, documents,
or items pertaining to” the following topics: “[(1)] Lack of credibility by falsifying police
reports and/or providing false testimony; [(2) a]ny acts involving moral turpitude; [(3)
4
a]ny Brady[ ] material in the former officer’s personnel files, including material that is
4
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
9
more than five years old; [(4) a]ny investigation (Internal Affairs or otherwise) into the
former officer’s actions in the evidence booking scandal conducted by any law
enforcement agency, including (but not limited to) the Orange County Sheriff’s
Department; and [(5) w]hether disciplinary or termination proceedings were imposed on
the former officer and the nature of that discipline in any incident involving the above-
mentioned conduct.”
On good cause, appellant asserted that responsive information would
“reflect on the character, habit, and custom of Simpson and . . . tend to prove how he
behaved on the day of [appellant]’s arrest and when [Simpson] book[ed], or fail[ed] to
book, evidence [in this] case.” Counsel for the Orange County Sheriff’s Department filed
a responsive brief that did not oppose appellant’s good cause assertions, but did assert
that discoverable information should be limited to the last five years of relevant
5
information.
The trial court conducted a February 2021 in camera review, two-and-a-half
months before appellant filed his denial of the prosecutor’s return. The in camera hearing
transcript shows a custodian of records appeared and, after being placed under oath,
presented several sets of documents the court reviewed before making its disclosure
ruling. According to its minutes, the court ordered a limitation on the use of information
to be disclosed (Evid. Code, § 1045, subd. (e)), and ordered the sheriff’s department to
disclose limited contact information for potential witnesses. According to the hearing
5
At the time of the 2021 in camera hearing at issue, separate and apart from Brady
material which does not become irrelevant solely because of time (see City of Los
Angeles v. Superior Court (2002) 29 Cal.4th 1, 14), the statutory framework for Pitchess
motions deemed information “concerning conduct occurring more than five years before
the event or transaction that is the subject of the litigation” irrelevant as a matter of law
(Stats. 2002, c. 391, § 2). That time limitation was recently removed by the Legislature.
(Stats. 2021, c. 402, § 1.)
10
transcript, the indicated witnesses received letters similar to the March letter that
appellant received in this case.
We cannot discern whether the trial court exercised its discretion about
information arising from investigations (see Haggerty, supra, 117 Cal.App.4th at p. 1090
[concluding some information from internal affairs report discoverable]; see also Rezek v.
Superior Court (2012) 206 Cal.App.4th 633, 643 [discussing when officer’s privacy
interests are “implacated less”]; but see Galindo v. Superior Court (2010) 50 Cal.4th1, 12
[discussing first stage of disclosure]), that could potentially shed light relevant to this
case (see Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1048-1049 [“the
materiality standard [for Pitchess motions] is met if evidence of prior complaints is
admissible or may lead to admissible evidence”]).
C. Prejudice
Based on our independent but limited review of the trial court’s in camera
review, we cannot conclude what prejudice, if any, resulted from the court’s order on
appellant’s Pitchess motion. Under the circumstances of this appeal, our remand is not
conditional. (See Gaines, supra, 46 Cal.4th at pp. 182-183 [in jury conviction context,
defendant whose Pitchess motion was erroneously denied is entitled to demonstrate a
“reasonable probability” that if post-remand information been disclosed before, the
outcome would have been different].) Instead, we direct the court to allow further
proceedings for both appellant’s Pitchess and vacatur motions because we cannot
conclude the court reached the correct result on the vacatur motion, for the reasons
discussed below. (§ 1260 [appellate court “may, if proper, remand the cause to the trial
court for such further proceedings as may be just under the circumstances”].)
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2. THE MOTION TO VACATE JUDGMENT
On appellant’s vacatur motion, while the parties dispute the correctness of
the trial court’s ruling, they agree the court relied on Germany. The appellate court there
affirmed a summary denial of a vacatur motion after it deduced there was no
postjudgment revelation of misconduct that could justify relief. (Germany, supra,
133 Cal.App.4th at p. 793.) As noted, the court here concluded there was “no need for an
evidentiary hearing because, like Germany . . . [section] 1473.6 simply doesn’t apply to
this case.” We read the court’s oral statement of reasons for its denial order as relying on
Germany’s deductive reasoning.
A. Standard of Review and Relevant Law
We independently review the trial court’s ruling to determine whether it
reached the correct result. (See People v. Ault (2004) 33 Cal.4th 1250, 1266
[“independent appellate review of a mixed law and fact question is crucial when an
excessively deferential appellate affirmance risks error in the final determination of a
party’s rights”]; see also People v. Fruits (2016) 247 Cal.App.4th 188, 205 [focus on
result and not reasoning].) For the reasons discussed below, given the limited record
presented on appeal, we agree with appellant that the “court’s reliance on Germany was
misplaced.”
Relevant to appellant’s contentions, section 1473.6 states in part as follows:
“(a) Any person no longer unlawfully imprisoned or restrained may prosecute a motion to
vacate a judgment for any of the following reasons: . . . [¶] (3) Newly discovered
evidence of misconduct by a government official committed in the underlying case that
resulted in fabrication of evidence that was substantially material and probative on the
issue of guilt or punishment. Evidence of misconduct in other cases is not sufficient to
warrant relief under this paragraph. . . . [¶] (b) For purposes of this section, ‘newly
12
discovered evidence’ is evidence that could not have been discovered with reasonable
diligence prior to judgment.”
On timeliness, the statute requires in relevant part that a vacatur motion
“must be filed within one year of . . . [¶] (1) The date the moving party discovered, or
could have discovered with the exercise of due diligence, additional evidence of the
misconduct or fraud by a government official beyond the moving party’s personal
knowledge.” (§ 1473.6, subd. (d).)
Section 1473.6’s purpose is to allow vacatur to a defendant whose sentence
has been served but learns of sufficient government official misconduct that occurred in
the defendant’s case. (See Germany, supra, 133 Cal.App.4th at pp. 791-792 [discussing
legislative history].) The section explicitly adopts rules for petitions for writs of habeas
corpus (§ 1473.6, subd. (c); see Cal. Rules of Court (CRC), rule 4.551 [governing
noncapital habeas corpus petitions]), which include a rule that “[a]ny order denying a
petition for writ of habeas corpus must contain a brief statement of the reasons for the
denial” (CRC, rule 4.551(g); see Rose v. Superior Court (2000) 81 Cal.App.4th 564, 569
(Rose) [discussing predecessor rule]).
On the three ruling outcomes that were possible here, we have previously
explained that if a trial court issues an order to show cause and formal briefing is
complete, “the trial court ‘must either grant or deny the relief [requested] or order an
evidentiary hearing. An evidentiary hearing is required if, after considering the [motion
to vacate], the return, any denial, any affidavits or declarations under penalty of perjury,
and matters of which judicial notice may be taken, the court finds there is a reasonable
likelihood that the [moving party] may be entitled to relief and the [moving party’s]
entitlement to relief depends on the resolution of an issue of fact.”’ (People v. Murillo
(2021) 71 Cal.App.5th 1019, 1025-1026, in part quoting Germany, supra, 133
Cal.App.4th at pp. 790-791; in part quoting CRC, rule 4.551(f).)
13
B. Section 1473.6 Analysis
1. Germany is not dispositive of the presently limited record
The trial court stated Germany was “on point” and that it was not ordering
an evidentiary hearing because appellant’s motion did not “fall within the meaning of
6
[section] 1473.6.” Given appellant’s “reasonable likelihood” burden at the hearing and
the governing provisions just quoted, the court’s conclusion could have reasonably meant
appellant failed to sufficiently demonstrate one or more of the following required points:
(1) the existence of an unresolved factual dispute; (2) the existence of newly discovered
evidence of misconduct that resulted in fabricated evidence substantially material and
probative on guilt or punishment; (3) that the newly discovered misconduct did not arise
only from conduct in other cases; (4) that reasonable diligence could not have led to
prejudgment discovery of the misconduct; and (5) a timely-filed motion. (§ 1473.6,
subds. (a)(3), (b), (d)(1); CRC, rule 4.551(f).) Germany held the third point was where
the motion in that case failed.
The movant in Germany had been prosecuted for possession of drugs and a
pipe for using drugs. (Germany, supra, 133 Cal.App.4th at p. 788.) During a preliminary
examination hearing, the movant asserted he was being framed (ibid.) and that he had
witnessed the arresting officer destroy the same pipe the prosecutor claimed to possess as
physical evidence (id at p. 787 [“‘How are you going to come up with a pipe you then
crushed?’”]).
6
The California Supreme Court has explained “[t]he phrase ‘reasonable likelihood’
denotes a lesser standard of proof than ‘more probable than not.” (Martinez v. Superior
Court (1981) 29 Cal.3d 574, 578 [motion for trial venue change context]; see § 1033,
subd. (a) [movant must show “reasonable likelihood that a fair and impartial trial cannot
be had in the county”].) We apply the same proposition to section 1473.6 analysis. On
ultimate entitlement to relief, e.g., at an evidentiary hearing, “the petitioner must prove by
a preponderance of the evidence the [necessary] facts.” (In re Masters (2019)
7 Cal.5th 1054, 1077 [habeas corpus relief].)
14
Despite his pre-plea assertion of evidence fabrication, the movant
subsequently entered a nolo contendre plea agreement. (Germany, supra,
133 Cal.App.4th at p. 788.) The trial court accepted the plea, convicted movant, and in
1998 imposed a two-year prison sentence. (Ibid.) Subsequently, the movant discovered
his arresting officer had been involved in multiple instances of misconduct in other cases,
during the same relevant timeframe. (Ibid. [alleging 9 out of 25 cases involving
misconduct overturned].) The movant filed his 2003 vacatur motion the same year the
section went into effect, i.e., making motion timeliness irrelevant in that case. (§ 1473.6,
subd. (d)(2) [motion timely if filed within one year of section’s effective date].)
The movant cited the other instances of misconduct and argued the officer
had planted the at issue drugs in the movant’s case. (Germany, supra, 133 Cal.App.4th at
p. 787.) The trial court summarily denied the motion and the appellate court affirmed,
holding the record indisputably showed the movant had not identified any qualifying
“newly discovered evidence” of misconduct required by section 1473.6, subdivision
(a)(3). (Id. at pp. 787, 789, 794.)
To explain the basis for its holding, the appellate court identified four
categories of evidence relied on and observed the first three presented information that
the movant either personally knew or “had notice of” before deciding to enter his plea
agreement. (Germany, supra, 133 Cal.App.4th at pp. 792-793.) For example, the court
observed the movant personally knew about the purported destruction of the pipe at the
time of his arrest and, 10 days before the nolo contendre plea, “had notice of” a witness’s
favorable statement to the movant’s investigator. (Ibid.)
The appellate court explained that none of the first three categories of
information could qualify as requisite “newly discovered evidence” because they were
discovered prior to judgment and therefore barred by section 1473.6, subdivision (b),
which provides that “‘newly discovered evidence’ is evidence that could not have been
15
discovered with reasonable diligence prior to judgment.” (Germany, supra, 133
Cal.App.4th at pp. 790, 792-793.)
The appellate court then examined the final information category
remaining: his arresting officer’s alleged instances of misconduct in other cases. The
court concluded the information was directly covered by the final sentence of section
1473.6, subdivision (a)(3), which still provides that “[e]vidence of misconduct in other
cases is not sufficient to warrant relief under this paragraph.” (Ibid.; Germany, supra,
133 Cal.App.4th at p. 793.) In other words, the Germany court deduced that the only
“new” evidence the movant could rely on for his motion was deemed by statute to be
insufficient standing alone.
Germany’s analysis is sound but factually distinguishable from this case’s
present posture. There, the record was undisputed that either the movant or his
investigator personally knew, before judgment, about the evidence presented in the
motion that could satisfy the statute’s demand for “newly discovered evidence.”
(§ 1473.6, subds. (a)(3), (b).) Accordingly, it was irrefutable the movant made his plea
decision with all of the information about purported police misconduct that occurred in
his case which he later asserted in his vacatur motion.
In contrast, the presently limited record here does not allow the same
deductive reasoning before an evidentiary hearing. That is, the record does not compel a
conclusion that postjudgment information appellant learned, or could have learned with
reasonable diligence, was statutorily barred from qualifying as “newly discovered
evidence” in this case. (§ 1473.6, subd. (a)(3).) Germany’s reasoning depends on points
not yet deducible here, so applying it now does not justify an affirmance.
2. Appellant’s reasonable likelihood of entitlement to relief
In addition to our disagreement with the trial court’s application of
Germany, we cannot conclude the denial of an evidentiary hearing was correct because of
16
a different ground. The record presents unresolved factual questions on the following
points: (1) what fabricated evidence, if any, appellant personally knew or reasonably
should have known about before deciding to enter his plea agreement; (2) what other
independent sources of evidence might render any fabricated evidence immaterial, for
example, as merely cumulative; and (3) the entirety of information Simpson
misrepresented in his report. Either of the first two points could obviate the need for a
finding on the third.
The closest question in our review is what materiality and probativeness
any fabricated evidence would have had at the time judgment was entered. (§ 1473.6,
subd. (a)(3) [fabricated evidence must be “substantially material and probative on the
issue of guilt or punishment”]; CRC, rule 4.551(f) [question for evidentiary hearing is
whether there is a “reasonable likelihood” of satisfying statutory conditions for relief];
see In re Masters, supra, 7 Cal.5th at p. 1078 [construing habeas corpus statute:
“Materiality is shown if there is a reasonable probability the result would have been
7
different without the false evidence”].) We cannot make a dispositive conclusion on
appeal because the record does not show (1) what other sources of evidence existed at the
time of judgment nor (2) what potentially fabricated evidence appellant personally knew
or reasonably should have known about before deciding to enter his plea agreement. On
the first issue, as noted, the trial court did not consider any of the exhibits the prosecutor
filed with his return in the court and none are in the appellate record presented for our
7
Indeed, the trial court commented at one point in the underlying hearing that the
movant in Germany “was denied relief [even though] he had arguably a more credible
claim to” relief than appellant here. We understand the court to have meant the
materiality of the claimed fabricated evidence in Germany was clearer than the
materiality that could be claimed here. We agree on the point as a general proposition,
but it only reinforces our reading that Germany’s holding was not based on an
insufficient materiality ground. That reading further reinforces our broader conclusion
that the court’s reliance on Germany does not justify an affirmance in this appeal, given
the court’s oral statement of reasons for its ruling made no explicit finding on materiality.
17
review. This means we have no independent evidence by which to assess the materiality
and probativeness of any claimed fabricated evidence.
On the second issue, although the prosecutor’s return asserted that “prior to
his plea, [appellant] was provided with,” among other things, “a copy of” Simpson’s
report, appellant controverted the allegation through his general denial and neither the
trial court nor the parties specifically confirmed or refuted the point at the hearing on
appellant’s vacatur motion. This left open the question of what information appellant
should have known Simpson misrepresented. In sum, the limited appellate record
prevents us from dispositively concluding that no unresolved factual issue could
sufficiently influence the “reasonable likelihood” of fabricated evidence that was
“substantially material and probative on the issue of guilt or punishment.” (§ 1473.6,
subd. (a)(3).)
We hold the merits of appellant’s vacatur motion rest on factual issues that
cannot be determined based on the presently limited record and that the trial court’s
ruling to deny an evidentiary hearing based on Germany was incorrect. The parties are
entitled to further briefing on section 1473.6 relief prior to the court’s decision on
whether to (1) order an evidentiary hearing or (2) grant or deny relief without a hearing.
(See People v. Barragan (2004) 32 Cal.4th 236, 248 [discussing effect of law-of-the-case
doctrine on new proceeding after remand].) To support his section 1473.6 briefing,
appellant is entitled to another opportunity to seek Pitchess discovery governed by the
newly-amended version of Evidence Code section 1043, subdivision (b)(1), which no
longer has a five-year limitation on past conduct otherwise relevant to the underlying
litigation. (Stats. 2021, c. 402 (S.B. 16), § 1, eff. Jan. 1, 2022.) If the court rules an
evidentiary hearing is required for appellant’s vacatur motion, we note “[t]he petitioner
must be produced at the evidentiary hearing unless the court, for good cause, directs
otherwise.” (CRC, rule 4.551(f).)
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IV. DISPOSITION
The trial court is directed to allow appellant to renew his Pitchess motion to
determine whether he is entitled to receive more information from the Orange County
Sheriff’s Department’s personnel files of former deputy Bryce Simpson. The court is
ordered to state the reasons for its ruling on any Pitchess motion during the court’s in
camera review so that the resulting sealed transcript promotes efficient appellate review.
The court’s November 5, 2021 order denying appellant’s motion to vacate judgment is
reversed and the matter is remanded for further proceedings to be conducted consistent
with the views expressed in this opinion.
DELANEY, J.
WE CONCUR:
O’LEARY, P. J.
SANCHEZ, J.
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