People v. Nuno ( 2024 )

Filed 10/17/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H051205
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS101423A)
v.
JUAN NUNO,
Defendant and Appellant.
In this appeal we examine whether, in advance of an evidentiary hearing under
Penal Code section 1172.6,1 the petitioner may obtain discovery of material, exculpatory
evidence in peace officer personnel records under Brady v. Maryland (1963) 373 U.S. 83(Brady) through a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531(Pitchess) and related statutes.
The prosecution of defendant Juan Nuno began in 2010. One year later, following
a preliminary hearing, Nuno pleaded no contest to attempted murder (§§ 664, 187) and
admitted several sentence-related allegations. In accordance with a plea agreement, the
trial court sentenced Nuno to 30 years in prison.
In 2022, Nuno filed a petition to vacate his attempted murder conviction and be
resentenced under former section 1170.95 (now section 1172.6) (petition). The trial court
found that Nuno made the requisite prima facie showing for an evidentiary hearing.
1
All further unspecified statutory references are to the Penal Code.
Nuno subsequently filed a motion for discovery of peace officer personnel records
(discovery motion or motion). The motion sought disclosure of information concerning
two former police officers who had testified at Nuno’s preliminary hearing and whose
prior testimony was to be admitted at the impending evidentiary hearing. After an in
camera hearing, the court ordered disclosure of certain personnel information regarding
each officer. Later, the court held the evidentiary hearing on Nuno’s section 1172.6
petition and denied it.
In his opening brief on appeal, Nuno asked this court to review the officers’
personnel records to ensure the correctness of the trial court’s ruling under Pitchess
standards but did not argue for reversal of the trial court’s order denying his petition. He
contended that if this court “finds that the [trial] court improperly applied the Pitchess
standards, it should conditionally remand the case.” In his initial brief, the Attorney
General did not object to Nuno’s request.
After examining the appellate briefing and record, we requested supplemental
briefing on three questions: (1) whether Nuno’s appellate request for review of the trial
court’s application of Pitchess standards encompassed the Brady component of his
discovery motion; (2) whether the state has a duty to disclose evidence under Brady in
the context of an evidentiary hearing under section 1172.6, subdivision (d); and (3) the
appropriate remedy if this court determines that the trial court may have erred in its
review of the police personnel records for Brady information.
For the reasons explained below, we decide that a petitioner may obtain disclosure
of peace officer personnel information under Brady principles through Pitchess
procedures in advance of a section 1172.6 evidentiary hearing. Because the present
record does not demonstrate whether the trial court considered Brady principles when
ruling on Nuno’s discovery motion, we conditionally reverse the trial court’s order
denying relief under section 1172.6 and remand for further proceedings on the motion.
2
I. FACTS AND PROCEDURAL BACKGROUND
A. Complaint and Preliminary Hearing
In June 2010, the Monterey County District Attorney filed a complaint charging
Nuno and two codefendants, Jesse Daniel Perez and Oscar Pineda Pina, with multiple
counts of willful, deliberate, and premeditated attempted murder (§§ 664, subd. (a), 187
subd. (a); counts 1–11), assault with a semiautomatic firearm (§ 245, subd. (b); counts
12–22) and shooting at an inhabited dwelling (§ 246; counts 23–34), plus one count of
active participation in a criminal street gang (§ 186.22, subd. (a); count 35).2 All the
crimes allegedly occurred on or about May 27, 2010.3 In addition, the complaint
included gang enhancement allegations against all three defendants (§ 186.22, subd.
(b)(1)), several personal firearm-use enhancement allegations against Nuno and Perez
(§ 12022.5, subd. (a)), and a prior strike allegation (§ 1170.12, subd. (c)(1)) and a prior
prison term enhancement allegation (§ 667.5, former subd. (b)) against Nuno.
In September 2010, the trial court held a joint preliminary hearing. The district
attorney presented the testimony of four police officers, including King City Police
Department Officers Abraham Aguayo and Jesus Yanez. The court held Nuno to answer
on 22 charged counts, an additional uncharged offense of possession of a firearm by a
felon (§ 12022), all the enhancement allegations, and the prior strike allegation.
B. Information, Plea, and Sentencing
On September 27, the district attorney filed an information charging Nuno and his
two codefendants (Perez and Pina) with multiple offenses. Against Nuno, the
information alleged 10 counts of willful, deliberate, and premeditated attempted murder
(§§ 664, subd. (a), 187 subd. (a); counts 1–10), 10 counts of assault with a semiautomatic
firearm (§ 245, subd. (b); counts 11–20), shooting at an inhabited dwelling (§ 246; count
2
The complaint also charged codefendant Perez with receiving or concealing
stolen property (§ 496, subd. (a); count 36).
3
Unless otherwise indicated, all dates were in 2010.
3
21), active participation in a criminal street gang (§ 186.22, subd. (a); count 22), and
possession of a firearm by a felon (§ 12022, subd. (a)(1); count 23). As to each attempted
murder count and each assault with a semiautomatic firearm count, the information
alleged that Nuno personally used a firearm (§ 12022.5, subd. (a)) and committed the
offense for the benefit of a gang (§ 186.22, subd. (b)(1)). As to the count for shooting at
an inhabited dwelling, the information alleged that Nuno committed the offense for the
benefit of a gang (§ 186.22, subd. (b)(1)). The information further alleged that Nuno had
suffered a strike prior conviction on May 10, 2004, for assault with a firearm (§§ 245,
subd. (a)(2), 1170.12, subd. (c)(1)) and had served a prior prison term for that offense
(§ 667.5, former subd. (b)).
On August 23, 2011, pursuant to a plea agreement, Nuno pleaded no contest to
one count of attempted murder (count 1) without premeditation and deliberation. He
further admitted the attendant firearm-use and gang enhancement allegations and the
prior strike allegation. Nuno asserted the preliminary hearing transcript and the
discovery disclosed to him provided the factual basis for his plea. Nuno further agreed to
a stipulated 30-year prison sentence comprising the lower term of five years for the
attempted murder conviction, doubled under strike law, plus 10 years for the firearm-use
enhancement and 10 years for the gang enhancement.
On September 8, 2011, in accordance with the plea agreement, the trial court
sentenced Nuno to 30 years in prison.
C. Proceedings on Petition for Resentencing
On February 22, 2022, Nuno filed on his own behalf a petition for resentencing
(§ 1172.6).
The trial court appointed counsel for Nuno, received briefing, and heard oral
argument from the parties.
In June 2022, the trial court found that Nuno had made a prima facie case for relief
and ordered an evidentiary hearing.
4
1. Defense Motion for Discovery under Brady and Pitchess
In August 2022, Nuno’s defense counsel filed a motion for discovery of peace
officer personnel records of King City Police Department Officers Aguayo and Yanez.
Nuno’s motion relied, inter alia, on Brady, Pitchess, Evidence Code sections 1043
through 1046, and state and federal constitutional due process protections. Nuno asserted
that his “defense counsel’s declaration meets the good cause requirements of Pitchess and
the materiality standards of Brady. The officers’ credibility will be the main factors in
determining whether or not Nuno committed attempted murder and various
enhancements.” Nuno further asserted entitlement to “evidence of the officers’ custom
and habit of falsifying police reports” and attached “media accounts detailing the
officers’ misbehavior.”
The City of King City and the King City Police Department (collectively, King
City) filed an opposition to Nuno’s discovery motion (opposition). King City asserted
that the motion “fails to demonstrate ‘good cause’ for [] all of the discovery sought,” fails
to show a “ ‘plausible factual foundation’ . . . for the release of all the confidential
personnel records sought,” and “is overbroad.” Alternatively, King City requested that
any disclosure the trial court deemed proper be limited to “those records which are
relevant to [Nuno]’s defense and for which good cause has been shown, and that a
[p]rotective [o]rder be issued.” King City’s opposition did not specifically address the
Brady component of Nuno’s motion or assert more generally that Nuno’s motion was not
authorized in a section 1172.6 proceeding.
On September 20, 2022, the trial court held a hearing on Nuno’s motion. Neither
King City’s counsel nor the district attorney stated any objection to the Brady component
of Nuno’s motion or argued that the motion itself was unauthorized. The court noted that
Nuno was required to “allege specific facts showing the records [] are material to the
subject matter involved in the pending litigation pursuant to Evidence Code [s]ection
1043.” The court found “there is good cause for discovery of the personnel records of the
5
two specific officers that are referenced in the defense motion, the records which are
sought in this matter in connection with the anticipated asserted defense.” The court
explained that it would “conduct an in-camera hearing to review all potentially relevant
documents that correspond to the particular request in the Pitchess motion.” (Italics
added.) The court did not mention the Brady component of Nuno’s motion.
On September 21, 2022, the trial court conducted an ex parte, in camera hearing to
review the officers’ personnel records.4 Regarding Officer Aguayo, the court found the
“personnel information relevant and order[ed] personnel record information . . . be
disclosed to [d]efense counsel.” The information provided to Nuno comprised
complainant and witness names (and their available contact information) related to two
incidents involving Aguayo that occurred in 2010 (prior to Nuno’s 2011 no contest plea),
plus any discipline imposed on Aguayo for those incidents. The disclosed information
derived from a document in Aguayo’s personnel records (dated March 7, 2011), but the
trial court did not order disclosure of the document itself. Additionally, regarding Officer
Yanez, the court concluded “[t]here were no relevant records responsive to [Nuno]’s
Pitchess motion” (italics added) and ordered disclosure only of the dates of Yanez’s
employment with the King City Police Department.
2. Evidentiary Hearing
In anticipation of the evidentiary hearing, the trial court granted the district
attorney’s motion to admit a redacted version of the preliminary hearing transcript. (See
4
The appellate record includes the reporter’s transcript of the in camera hearing
and two court exhibits comprising the personnel records of Officers Aguayo and Yanez.
The record reveals a potential discrepancy regarding whether the trial court reviewed all
or just some of the personnel records brought to the hearing by King City’s custodian of
records. The hearing transcript suggests that the trial court personally reviewed only one
document from Officer Aguayo’s personnel file that the custodian identified as relevant.
However, a court clerk’s docket entry made while this case was pending on appeal states
that the personnel records contained in the two court exhibits “were reviewed during the
in-camera Pitchess [m]otion on September 21, 2022.” (Italics added.)
6
§ 1172.6, subd. (d)(3).) The redacted preliminary hearing transcript included the
testimony of Officers Yanez and Aguayo.
In June 2023, the trial court held an evidentiary hearing pursuant to section
1172.6, subdivision (d).5
a. Prosecution Evidence
At the evidentiary hearing, the district attorney presented live testimony from nine
witnesses, including codefendants Perez and Pina. The district attorney did not call
Officers Aguayo and Yanez as live witnesses but introduced their redacted preliminary
hearing testimony.
According to Officer Yanez’s preliminary hearing testimony, on May 27, at
approximately 10:40 p.m., Yanez was alone in his patrol car in King City when he heard
multiple gunshots from the direction of North Third Street. Approximately 30 to 45
seconds later, Yanez saw a white Nissan driving away from the area at a high rate of
speed. He followed the Nissan until it came to an abrupt stop at 519 North Mildred.
Yanez identified Pina as the driver of the Nissan, Nuno as a passenger in the right front
seat, and Perez as a passenger in the right rear seat.6
The Nissan’s front passenger door opened and Nuno “fell out of the car.” From
approximately 10 feet away, Officer Yanez saw Nuno holding his waistband and running
toward the north end of 519 North Mildred. Yanez lost sight of Nuno but heard what
sounded like someone jumping over a chain link fence.
Officer Yanez knew that Perez lived at 519 North Mildred. Yanez and other
officers eventually searched that residence and its backyard. The backyard included an
aluminum shed that was close to the yard’s fence. The police found a semiautomatic
5
The same bench officer decided Nuno’s discovery motion and presided over the
evidentiary hearing.
6
On cross-examination, Officer Yanez admitted that he only recognized and
identified Nuno after the police had apprehended him, not during their first encounter.
7
.380 handgun on the top of the shed. The gun had one spent cartridge case lodged in its
chamber.
According to Officer Aguayo’s preliminary hearing testimony, he assisted with the
investigation of the shooting. Aguayo spoke to Officer Yanez and searched the Nissan.
Aguayo found a loaded .22 caliber handgun partially tucked under the right front
passenger seat and some live .22 caliber rounds on the floorboard. In addition, Aguayo
interviewed Perez about his involvement in the shooting.
The next day (May 28), Aguayo (along with Officer Yanez and another officer)
spotted Nuno lying in the backseat of a car on South Mildred. When Nuno failed to
comply with the officers’ orders to show his hands, Aguayo broke into and opened the
car. He and Yanez pulled Nuno out of the car. The police found a loaded .22 caliber
semiautomatic handgun “behind the front passenger [seat] down at the floorboard.”
Officer Aguayo testified Pina had said that “Nuno made the statement ‘we’re
going to shoot at a house.’ ” However, none of the perpetrators ever said anything to
each other about the shooting being gang related. Pina also reported that the only person
he saw with a gun in the car was Perez. Aguayo believed that Nuno lived at 605 North
Mildred—within one block of 519 North Mildred. Pina lived 14 to 16 blocks away from
that area of North Mildred.
According to Officer Steve Hatch’s preliminary hearing testimony, Hatch
examined the scene of the shooting at a house on North Third Street. Hatch found seven
.380 caliber cartridge casings and five .22 caliber cartridge casings on the ground in front
of the house. A car parked on the grass in front of the house had bullet holes in it. In
addition, there were five bullet holes on the front of the house and several bullet
holes/strikes inside the house. The police collected four bullets/projectiles from inside
the house. Hatch also examined the .22 caliber handgun and bullets found inside the
Nissan.
8
The live testimony presented by the prosecution at the evidentiary hearing
included the following facts:
A resident of the house on North Third Street testified that there were
approximately six or seven people inside the house at the time of the shooting. A bullet
hit one person (a nine-year-old child) in the leg.
Codefendant Perez testified that in 2010, he associated with the Norteño street
gang. Nuno never mentioned having any association with the Norteños. For the instant
crime, Perez pleaded guilty to attempted murder with a gang enhancement. He received a
sentence of 18 years and feels he got what he deserved.
Perez refused to testify about the details of the shooting, claiming that he did not
remember the incident and had put it behind him. Nonetheless, Perez admitted that he
had a gun while riding in the car with Nuno and Pina. He also admitted that he exited the
car in front of the house on North Third Street and shot at it. He testified that Nuno was
not present at the shooting and was not a shooter. Perez also testified that Nuno never
said “I want somebody to die. Let’s go shoot somebody.”
Codefendant Pina testified that he had known Nuno for about six months prior to
May 2010. Nuno had told Pina that he (Nuno) was affiliated with the Salinas East
Market Norteño subset. Pina did not think Perez was part of that gang.
On the day of the shooting, Pina got a call from Perez asking for a ride. When
Pina arrived at Perez’s house, Nuno was there. Pina drove them to Taco Bell. Nuno sat
in the front passenger seat, and Perez sat in the right rear passenger seat. After their stop
at Taco Bell, Nuno asked to be dropped off across the street from the scene of the
shooting, saying he needed to talk to a friend. Nuno further “said he had some problems
with some guys that lived across the street [who] he thought were [Sureño] gang
members.” Nuno added that “he had [had] an altercation with them two days” earlier.
When Pina stopped his car on North Third Street, Nuno and Perez got out and
went to a house across the street from the one that subsequently was fired on. About a
9
minute after Nuno and Perez exited the car, Pina heard seven to eight gunshots. Pina saw
both Nuno and Perez shooting, but he could not see if they were shooting in the direction
of the house.7 Nuno and Perez ran back to the car. Nuno told Pina to drop him off at
Perez’s house and to not say anything to anyone. As Pina drove toward Perez’s house, he
heard sirens and wanted to stop. Nuno told Pina to keep driving, drop them off, and
leave. When they arrived at Perez’s house, Pina surrendered to police. Nuno got out of
the car and ran toward the backyard of Perez’s house.
On cross-examination, Pina acknowledged pleading guilty to shooting at an
inhabited dwelling for the benefit of a gang and receiving a three-year sentence. He
testified further that neither Nuno nor Perez said he wanted to shoot and kill people. Pina
said he did not know Nuno’s intentions that night.
Monterey County Sheriff’s Office Sergeant Michael Darlington testified that he
found a black bandana and semiautomatic pistol on top of a metal shed in the backyard of
the house on North Mildred. The pistol was not loaded, but a spent cartridge casing was
lodged in it. In addition, the police found several guns inside the house.
Former King City Police Officer Jose Perez testified that around May 2010, King
City was having a problem with gangs, and the Norteños and Sureños “were constantly
fighting and shooting at each other.” On May 3, the police received a report of a
shooting at 519 North Mildred. When Officer Perez arrived there, Nuno and Perez were
present. Nuno said that he was at the house for a barbeque, and someone had shot at him.
Nuno did not want to be named in a police report because he feared retaliation from the
shooter and his family.
Officer Hatch testified that the gun police found on top of the shed following the
May 27 shooting was a .380 caliber handgun. Hatch saw several bullet holes in a car
7
On cross-examination and redirect, Pina clarified that he only remembered
hearing gunshots and said his prior statement to Officer Aguayo (in which he failed to
say that he had in fact seen shooting) was more accurate than his direct testimony.
10
parked in front of the house on North Third Street but did not find any bullets/projectiles
in the car. It appeared to Hatch that some of the bullets passed through the car and hit the
house.
b. Defense Evidence
The defense presented the testimony of four witnesses at the evidentiary hearing,
including Nuno, who testified on his own behalf.
Former Officer Jose Perez testified to knowing codefendant Perez “[f]airly well.”
According to Officer Perez, codefendant Perez associated with the Norteños in 2010.
Nuno’s mother, Teresa V., testified that she knew her son to be an honest person
who did not have a problem with anybody. She did not know him as a violent person or
as having a reputation for violence. She recalled something about a prior shooting for
which Nuno had been arrested. But she did not recall that he had been convicted for
assault with a firearm in 2004.
Sulema E., a former resident of North Third Street who knew Nuno through her
ex-boyfriend, testified to hearing gunshots on the night of May 27. She did not see the
shooting. Nuno had planned to visit Sulema’s apartment that night to hang out, but he
never arrived. Sulema heard the gunshots while waiting for Nuno to show up. Sulema
knew Nuno to be an honest and nonviolent person.
Nuno testified that he was not a gang member at the time of the shooting. He was
a gang “dropout” when he was released from prison in 2004 or 2005. He also was a
tattoo artist, and none of his tattoos are gang related. Nuno believed that Perez was
“somewhat affiliated,” and Pina was a “southerner.” Nuno had known Pina for a couple
of months before the incident and did not know Pina to be violent. They “pretty much
just dr[a]nk” together.
On the day of the shooting, Nuno got off work late. As Nuno drove home past
Perez’s house, Perez flagged him down and asked Nuno if he wanted to drink. Nuno
subsequently walked over to Perez’s house and drank a beer or two before Pina arrived.
11
Perez asked Pina for a ride to Taco Bell. At Taco Bell, Nuno spoke by phone to
Sulema and her boyfriend about visiting Sulema’s home to drink. Nuno asked Pina to
drop him off at Sulema’s place. Nuno rode in the car’s front passenger seat as they drove
to Sulema’s while listening to music. When they arrived at Sulema’s home, Nuno exited
the car with a 12-pack of beer. Perez decided he wanted to join in the drinking and got
out of the car. When Nuno reached the front of Sulema’s home, he heard gunshots.
Perez was a short distance away from Nuno, in the middle of the street firing a gun.
Nuno ducked, dropped his beer, and ran back toward the car. He did not know if anyone
returned fire. Nuno did not have a gun or tell Perez to shoot. Nuno thought Perez was
shooting into the air and “never kn[ew] him to want to shoot anybody.” As the three men
drove away, they were quiet. Pina drove back toward Perez’s house. Someone handed
Nuno a gun that had a black bandana on it. He took the gun because he “didn’t know
what was really going on” and “was scared.” Nuno got out of the car, ran, and “tossed”
the gun.
On cross-examination, Nuno explained that he was never a gang member.
However, when he went to prison, he was “forced to go somewhere,” so he went into
general population and “had to be affiliated with somebody.” He ended up affiliating
with the “North Hispanics.” After being released from prison, he lived in Bakersfield
until 2010. He then moved to King City and planned to open a tattoo shop. Nuno had
lived in Salinas during his senior year of high school. He denied that he was ever
involved with the Salinas East Market subset.
Nuno explained that he hid in a car after the shooting because he knew the police
were after him. In addition, he was not aware of a second gun inside Pina’s car. He only
saw the gun that was “put in [his] lap” after he had said he was going to run. He did not
see whether Perez had fired one gun or two guns. Nuno did not know the people who
were living in the house that was fired on.
12
c. Ruling Denying Nuno’s Petition
On July 13, 2023, the trial court denied Nuno’s section 1172.6 petition.
In its ruling, the trial court described some of the evidence presented through the
preliminary hearing transcript, including that Officer Yanez had seen Nuno fleeing from
the Nissan holding his waistband and that Officer Aguayo had found a loaded .22 caliber
handgun in the Nissan and was told that Nuno had said “ ‘We’re going to shoot at a
house.’ ”
The trial court concluded from the evidence presented at the evidentiary hearing
that “Nuno, with the intent to kill rival Sure[ñ]o gang members that he believed lived at
the North [Third] Street residence, used a .380 caliber semiautomatic handgun to fire live
rounds at that same residence at North [Third] Street alongside Jesse Daniel Perez. And
[Nuno] acted with the intent to kill rival Sure[ñ]o gang members that he believed lived at
that residence when he committed the crime of attempted murder on May 27th of 2010.”
The court further concluded that “Nuno, as one of two shooters that fired several rounds
at the small North [Third] Street residence in which one of those rounds penetrated the
leg of a nine-year-old child, acted with the intent to kill when he committed the offense
of attempted murder.”
II. DISCUSSION
Nuno does not directly challenge the trial court’s finding that the district attorney
proved him guilty of attempted murder under current law (see § 1172.6, subd. (d)).
Rather, in his opening brief, Nuno asked this court to review the police personnel records
of Officers Aguayo and Yanez to determine whether the trial court correctly ruled on his
discovery motion—specifically, whether the trial court properly “applied the Pitchess
standards.” In his brief, Nuno did not mention the Brady component of his motion. In
his respondent’s brief, the Attorney General stated no objection to Nuno’s appellate
request and, like Nuno, did not mention Brady.
13
After examining the parties’ briefing and the record, this court asked for
supplemental briefing on whether Nuno’s appellate request invoking Pitchess standards
also encompassed his motion’s request that the trial court order disclosure of information
favorable to him under Brady.
The parties agree in their supplemental briefing that Nuno’s appellate request
encompasses the Brady component of his discovery motion. Under our Supreme Court’s
precedent, the Pitchess process “ ‘ “operates in parallel with Brady” ’ ” and “all
information that the trial court finds to be exculpatory and material under Brady must be
disclosed, notwithstanding Evidence Code section 1045’s limitations.” (People v.
Superior Court (Johnson) (2015) 61 Cal.4th 696, 720 (Johnson), quoting City of Los
Angeles v. Superior Court (2002) 29 Cal.4th 1, 14.) Given this general principle, and
because the Attorney General makes no argument that Nuno forfeited appellate review of
the trial court’s ruling under Brady principles by failing to specifically request such
review in his opening brief, we decide that Nuno’s original appellate request
encompasses the principles applicable under both Pitchess and Brady.
Furthermore, until this court requested supplemental briefing, at no point did
counsel for King City or the People assert that Nuno’s discovery motion itself is
unauthorized in a section 1172.6 proceeding. As mentioned ante (pt. I.C.1.), neither King
City’s counsel nor the district attorney argued that the trial court lacked the authority to
grant Nuno’s motion. The Attorney General similarly did not make such an argument in
his respondent’s brief. Instead, the Attorney General said he “does not object to this
[c]ourt reviewing the trial court’s sealed in camera Pitchess motion records and
proceedings.”
Notwithstanding the Attorney General’s initial acquiescence to our review of the
trial court’s ruling on Nuno’s discovery motion, in his supplemental briefing, the
Attorney General states the following about Pitchess motions in section 1172.6
proceedings: “Although most Pitchess motions are filed before trial, courts have
14
permitted such motions to be brought after trial in connection with posttrial motions and
habeas corpus proceedings. [Citations.] It is unclear whether the Pitchess process is
permitted in the context of a resentencing petition.” The Attorney General further states:
“In regard to Brady, there does not appear to be any case law yet on the discovery
obligations imposed on prosecutors when it comes to resentencing hearings . . . as
authorized by Penal Code section 1172.6. However, there is a strong suggestion that the
entitlement to post-conviction discovery is not cognizable in Penal Code section 1172.6
proceedings.”8
Given the lack of any clear opposition by King City or the People (either in the
trial court or on appeal) to the propriety of Nuno’s discovery motion itself, we decide that
Nuno’s motion is authorized in the context of the evidentiary hearing ordered by the trial
court pursuant to section 1172.6. (See Eulloqui v. Superior Court (2010) 181
Cal.App.4th 1055, 1063–1068 (Eulloqui) [permitting disclosure under Brady through
Pitchess procedures in connection with an evidentiary hearing in a habeas corpus
proceeding]; see also People v. Johnson (2013) 218 Cal.App.4th 938, 943 [the Court of
Appeal independently reviewed a trial court’s ruling on a Pitchess motion filed in
conjunction with a probation revocation hearing]; Evid. Code, § 1043, subd. (a).)
Having decided that, under the present circumstances, Nuno’s discovery motion is
authorized and the Pitchess and Brady components of the motion are implicated in our
review of the trial court’s ruling on the motion, we must address whether Brady
principles apply in the context of a motion for discovery of police personnel records filed
in connection with an evidentiary hearing under section 1172.6, subdivision (d).
8
To support this contention, the Attorney General cites People v. Strong (2022) 13
Cal.5th 698, 713 (Strong) and includes the following parenthetical explanation:
“resentencing proceedings under the statute involve ‘prospective relief from a murder
conviction that was presumptively valid at the time,’ not the correction of ‘errors in past
factfinding.’ ”
15
In his supplemental briefing to this court, Nuno asserts that “the duty to disclose
Brady material exists before, during or after trial.” He further contends that “he meets
the standards of Penal Code section 1054.9 and is authorized to conduct post-conviction
discovery.”9 Regarding section 1172.6 specifically, Nuno asserts that that statute
“implicitly authorizes discovery” (citing § 1172.6, subd. (f)10) and “does not limit a
defendant’s right to conduct post-conviction discovery pursuant to section 1054.9.”11
The Attorney General equivocates on whether Brady principles apply to section
1172.6 hearings. He states, for example: “Criminal defendants are not constitutionally
entitled to Brady disclosure in connection with Penal Code section 1172.6 resentencing
hearings because Brady is a pre-conviction trial right and is not applicable to post-
conviction proceedings. However, while there is no constitutional post-verdict discovery
duty, prosecutors are ethically bound to disclose exculpatory material that is known to
them during the resentencing process.” He also suggests, “In the case of evidentiary
9
Section 1054.9 provides in relevant part: “(a) In a case in which a defendant is
or has ever been convicted of a serious felony or a violent felony resulting in a sentence
of 15 years or more, upon the prosecution of a postconviction writ of habeas corpus or a
motion to vacate a judgment, . . . and on a showing that good faith efforts to obtain
discovery materials from trial counsel were made and were unsuccessful, the court shall
. . . order that the defendant be provided reasonable access to any of the materials
described in subdivision (c). [¶] . . . [¶] (c) For purposes of this section, ‘discovery
materials’ means materials in the possession of the prosecution and law enforcement
authorities to which the same defendant would have been entitled at time of trial.”
10
Section 1172.6, subdivision (f) provides: “This section does not diminish or
abrogate any rights or remedies otherwise available to the petitioner.”
11
Notwithstanding Nuno’s reliance on section 1054.9 in his supplemental brief, he
does not point this court to any place in the record where he invoked section 1054.9 in the
trial court as authority for his discovery motion. Likewise, our examination of the record
has failed to locate any mention by Nuno of section 1054.9 in the trial court. Therefore,
we do not consider whether Nuno may be entitled to discovery of police personnel
information under Pitchess and Brady principles pursuant to section 1054.9. (Cf. Hurd v.
Superior Court (2006) 144 Cal.App.4th 1100, 1105 [holding that section 1054.9
authorizes a pre-habeas corpus proceeding motion for discovery of peace officer
personnel records under Pitchess and Evidence Code section 1043].)
16
hearings held in conjunction with the resentencing (as occurred in [Nuno]’s case) [] it is
likely what discovery obligations do exist would be akin to those applicable at other post-
conviction probation or parole revocation hearings.” In concluding his supplemental
argument, the Attorney General contends, “petitioners are not entitled to post-conviction
Brady disclosure in connection with Penal Code section 1172.6 hearings. . . . [T]he
thrust of Penal Code section 1172.6 is ‘prospective relief from a murder conviction that
was presumptively valid at the time,’ not the correction of ‘errors in past factfinding.’
(People v. Strong, supra, 13 Cal.5th at p. 713.) In any event, even assuming that due
process requires the disclosure of favorable material evidence at a Penal Code section
1172.6 evidentiary hearing, the definition of materiality would be tied to the nature of the
hearing.”
As the parties acknowledge, there is no precedent addressing whether the state has
an obligation to disclose evidence under Brady in the context of a section 1172.6
evidentiary hearing. Before analyzing the trial court’s ruling under Pitchess principles
(as jointly requested by the parties in their initial briefing) and whether Brady principles
apply in the present context, we outline relevant principles concerning section 1172.6,
Pitchess, and Brady.
A. Legal Principles
1. Section 1172.6
Senate Bill No. 1437 (Senate Bill 1437) (2017–2018 Reg. Sess.) took effect on
January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) “With the goal of ‘more equitably
sentenc[ing] offenders in accordance with their involvement in homicides’ [citation],
Senate Bill 1437 significantly changed the scope of murder liability for defendants who
did not actually kill or intend to kill anyone, including those prosecuted on a felony-
murder theory.” (People v. Wilson (2023) 14 Cal.5th 839, 868 (Wilson).) “The bill also
altered murder liability under the natural and probable consequences doctrine.” (Ibid.,
fn. 8.) Additionally, Senate Bill 1437 “created a special procedural mechanism for those
17
convicted under the former law to seek retroactive relief under the law as amended.”
(Strong, supra, 13 Cal.5th at p. 708.)
By its express terms, Senate Bill 1437 did not authorize a petition to vacate a
conviction for any offense other than murder. After the enactment of Senate Bill 1437,
the California Courts of Appeal were split on whether Senate Bill 1437 applied to
attempted murder. “In October 2021, the Governor signed Senate Bill No. 775, (Stats.
2021, ch. 551, § 2), effective January 1, 2022.” (People v. Coley (2022) 77 Cal.App.5th
539, 544.) Senate Bill No. 775 resolved the split of authority and amended former
section 1170.95 in several respects, “including (1) clarifying that, in some circumstances,
the same relief available to persons convicted of murder is also available to persons
convicted of attempted murder or manslaughter [citations]; and (2) addressing various
aspects of the petition procedure.” (People v. Birdsall (2022) 77 Cal.App.5th 859, 865,
fn. omitted.) On June 30, 2022, the statute was renumbered as section 1172.6 without
further substantive changes. (Stats. 2022, ch. 58, § 10.)
When the trial court receives a petition under section 1172.6 requesting vacatur of
a conviction and resentencing, and “containing the necessary declaration and other
required information, the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record
in the case establish conclusively that the defendant is ineligible for relief, the trial court
may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708, citing People v. Lewis
(2021) 11 Cal.5th 952, 970–972; § 1172.6, subd. (c).) “Otherwise, the court must issue
an order to show cause [citation] and hold an evidentiary hearing at which the
prosecution bears the burden ‘to prove, beyond a reasonable doubt, that the petitioner is
guilty of murder or attempted murder’ under the law as amended by Senate Bill 1437.”
(Wilson, supra, 14 Cal.5th at p. 869; § 1172.6, subd. (d)(3).)
“The trial court acts as an independent fact finder to determine whether the
prosecution has met its burden [citation] but the trial court’s factual determinations are
18
limited to ‘issues made relevant by the changes to the law effected by [the
amendments].’ ” (People v. Rodriguez (2024) 103 Cal.App.5th 451, 457 (Rodriguez).)
“A section 1172.6 petition for resentencing is a continuation of the petitioner’s
underlying criminal proceeding . . . . It does not permit ‘ “litigat[ing] anew” any trial
issues or allowing “a petitioner to challenge any aspect of the factfinding from the
original trial that [they] wish[] to revisit.” ’ [Citation.] It is not a ‘ “trial de novo on all
the original charges.” . . . [I]t is a postconviction . . . ‘act of lenity’ . . . allowing for the
retroactive application of the new law governing accomplice liability.’ ” (Ibid.; see also
Sandoval v. Superior Court (2023) 95 Cal.App.5th 1274, 1287 [“a postappeal Penal Code
section 1172.6 proceeding does not constitute a new trial” within the meaning of Code of
Civil Procedure section 170.6, subdivision (a)(2)].)
2. Pitchess and Brady
In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court “recognized that a
criminal defendant may, in some circumstances, compel the discovery of evidence in the
arresting law enforcement officer’s personnel file that is relevant to the defendant’s
ability to defend against a criminal charge. ‘In 1978, the California Legislature codified
the privileges and procedures surrounding what had come to be known as “Pitchess
motions” . . . through the enactment of Penal Code sections 832.7 and 832.8 and
Evidence Code sections 1043 through 1045.’ [Citation.] By providing that the trial court
should conduct an in camera review, the Legislature balanced the accused’s need for
disclosure of relevant information with the law enforcement officer’s legitimate
expectation of privacy in his or her personnel records.”12 (People v. Mooc (2001) 26
Cal.4th 1216, 1219–1220 (Mooc).)
12
Former subdivision (b)(1) of Evidence Code section 1045 excluded from
disclosure any “ ‘[i]nformation consisting of complaints concerning conduct occurring
more than five years before the event or transaction that is the subject of the litigation in
aid of which discovery or disclosure is sought.’ ” People v. McDaniel (2021) 12 Cal.5th
19Evidence Code section 1043, subdivision (a) provides in relevant part: “In any
case in which discovery or disclosure is sought of peace or custodial officer personnel
records or records maintained pursuant to [s]ection 832.5 . . . or information from those
records, the party seeking the discovery or disclosure shall file a written motion with the
appropriate court or administrative body upon written notice to the governmental agency
that has custody and control of the records.” The motion must proffer certain information
(id., subd. (b)), including “[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” (id., subd. (b)(3)).
“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. These requirements ensure that
only information ‘potentially relevant’ to the defense need be brought by the custodian of
the officer’s records to the court for its examination in chambers.” (Warrick v. Superior
Court (2005) 35 Cal.4th 1011, 1024; see also People v. Hustead (1999) 74 Cal.App.4th
410, 417 [noting that “cases have held that Pitchess motions are proper for issues relating
to credibility”].)
“Pitchess ‘good cause’ is a ‘relatively relaxed standard[]’ intended to ‘insure the
production for inspection of all potentially relevant documents.’ ” (Young v. Superior
Court (2022) 79 Cal.App.5th 138, 158.) “Good cause for Pitchess purposes must be
supported by an affidavit setting forth a reasonable belief that the requested discovery is
97, 134 (McDaniel.) However, Senate Bill No. 16, effective January 1, 2022, eliminated
the five-year restriction. (Stats. 2021, ch. 402, § 1; see also McDaniel, at p. 134
[explaining that notwithstanding the exclusion period in former subdivision (b)(1) of
Evidence Code section 1045, “disclosure of such information may still be required under
Brady.”].)
20
material to the subject matter of the case. The Pitchess materiality requirement also
places a burden on the movant to ‘propose a defense or defenses to the pending charges’
and a ‘logical link between the defense proposed and the pending charge.’ ” (Id. at
p. 159.)
If the trial court finds good cause, the court must hold an in camera hearing,
during which the custodian of records brings “all documents ‘potentially relevant’ to the
defendant’s motion.” (Mooc, supra, 26 Cal.4th at p. 1226; see also McDaniel, supra, 12
Cal.5th at p. 134.) “Subject to statutory exceptions and limitations . . ., the trial court
should then disclose to the defendant ‘such information [that] is relevant to the subject
matter involved in the pending litigation.’ ” (Mooc, at p. 1226.) “ ‘ “The court may not
disclose . . . conclusions drawn during an investigation, or facts so remote or irrelevant
that their disclosure would be of little benefit.” ’ ” (McDaniel, at p. 134; see also Evid.
Code, § 1045, subd. (b) [court “shall exclude from disclosure”]; id., subd (b)(1) [“[i]n any
criminal proceeding the conclusions of any officer investigating a complaint filed [by a
member of the public] pursuant to [s]ection 832.5”]; id., subd (b)(2) [and “[f]acts sought
to be disclosed that are so remote as to make disclosure of little or no practical benefit”].)
“Although not required by the statutory scheme, the ‘courts have generally refused
to disclose verbatim reports or records of any kind from peace officer personnel files,
ordering instead . . . that the agency reveal only the name, address and phone number of
any prior complainants and witnesses and the dates of the incidents in question.’ ”
(Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107, 1112.) “Nonetheless, the
practice of disclosing only the name of the complainant and contact information must
yield to the requirement of providing sufficient information to prepare for a fair trial.”
(Ibid.) For example, if the movant’s ability to investigate the limited, disclosed
information to determine whether it would lead to the discovery of admissible evidence
has been stymied by a deputy sheriff’s refusal to cooperate, “[t]he only way [movant] can
effectively investigate this matter before trial is to be given the deputy’s statements.
21
[Movant] therefore has established ‘good cause’ for the information within the meaning
of [Evidence Code] section 1043, subdivision (b)(3). To deny him access to this
information would constitute an abuse of discretion.” (Id. at p. 1113, italics omitted.)
Regarding the state’s obligation to disclose information under Brady, “[t]he
Fourteenth Amendment to the federal Constitution prohibits states from denying any
person due process of law. This guarantee of due process affords criminal defendants the
right to a fair trial, ‘impos[ing] on States certain duties consistent with their sovereign
obligation to ensure “that ‘justice shall be done.’ ” ’ ” (Association for Los Angeles
Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 39 (Association).)
“One special obligation that a prosecutor bears under our system pertains to the
disclosure of evidence favorable to a defendant. That duty ‘trace[s] its origins to early
20th-century strictures against misrepresentation and is of course most prominently
associated with [the United States Supreme] Court’s decision in Brady . . . .’ [Citation.]
‘Under Brady . . . and its progeny, the prosecution has a constitutional duty to disclose to
the defense material exculpatory evidence, including potential impeaching evidence [(so-
called “Brady material”)].’ [Citation.] ‘ “The obligation is not limited to evidence the
prosecutor’s office itself actually knows of or possesses, but includes ‘evidence known to
the others acting on the government’s behalf in the case, including the police.’ ” ’ ” (In
re Jenkins (2023) 14 Cal.5th 493, 504–505 (Jenkins).)
“ ‘For Brady purposes, evidence is favorable if it helps the defense or hurts the
prosecution, as by impeaching a prosecution witness.’ [Citations.] Evidence is material
‘ “if there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” ’ ” (Association, supra, 8
Cal.5th at p. 40.) “This materiality standard applies both after judgment, when evaluating
whether Brady was violated, and before judgment, when evaluating whether evidence
favorable to the defense must be disclosed. [Citations.] Because it may be difficult to
know before judgment what evidence will ultimately prove material, ‘the prudent
22
prosecutor will resolve doubtful [Brady] questions in favor of disclosure.’ [Citations.]
Statutory and ethical obligations may require even more.” (Ibid.)
A Pitchess motion may be used to obtain Brady material contained in a peace
officer’s confidential personnel file. (Johnson, supra, 61 Cal.4th at pp. 705–706.)
Because the Pitchess process operates in parallel with Brady, a trial court must disclose
all information that is exculpatory and material under Brady, “notwithstanding Evidence
Code section 1045’s limitations.” (Id. at p. 720; see also People v. Gaines (2009) 46
Cal.4th 172, 184 (Gaines) [“the Brady duty of disclosure, like the duty announced in
Pitchess, extends to impeachment evidence”].) When a Pitchess motion involves a
request for potential Brady material, a defendant must provide some explanation to the
trial court regarding how the officer’s credibility might be relevant to the proceeding.
(Johnson, at p. 721.) “If the movant shows that the request is ‘relevant to the pending
charges, and explains how, the materiality requirement [of Evidence Code section 1043,
subdivision (b)(3)] will be met.’ [Citations.] If information is ‘material’ within the
meaning of Brady, it is necessarily material ‘to the subject matter involved in’ a criminal
prosecution.” (Association, supra, 8 Cal.5th at pp. 41–42; see also Johnson, at pp. 711–
712, 721.)
“ ‘[T]rial courts are granted wide discretion when ruling on motions to discover
police officer personnel records.’ ” (California Highway Patrol v. Superior Court (2000)
84 Cal.App.4th 1010, 1019.) “On appeal, this court is required to review the ‘record of
the documents examined by the trial court’ and determine whether the trial court abused
its discretion in refusing to disclose the contents of the officer’s personnel records.”
(People v. Rodriguez (2011) 193 Cal.App.4th 360, 366; see also People v. Jackson (1996)
13 Cal.4th 1164, 1220 [“A trial court’s decision on the discoverability of material in
police personnel files is reviewable under an abuse of discretion standard.”].)
“[T]he proper remedy when a trial court has erroneously rejected a showing of
good cause for Pitchess discovery and has not reviewed the requested records in camera
23
is not outright reversal, but a conditional reversal with directions to review the requested
documents in chambers on remand.” (Gaines, supra, 46 Cal.4th at p. 180.) “After
reviewing the confidential materials in chambers, the trial court may determine that the
requested personnel records contain no relevant information” and “reinstate the
judgment.” (Id. at p. 181.) “It is also possible for the trial court to determine on remand
that relevant information exists and should be disclosed. . . . [I]n that event, that the trial
court ‘must order disclosure, allow [defendant] an opportunity to demonstrate prejudice,
and order a new trial if there is a reasonable probability the outcome would have been
different had the information been disclosed.’ ” (Ibid.)
A defendant is not entitled to reversal per se. “To obtain relief, [] a defendant who
has established that the trial court erred in denying Pitchess discovery must also
demonstrate a reasonable probability of a different outcome had the evidence been
disclosed.” (Gaines, supra, 46 Cal.4th at p. 182.) “The reasonable-probability standard
of prejudice [courts] have applied in Pitchess cases is the same standard [courts] have
applied generally to claims that the prosecution improperly withheld exculpatory
evidence in violation of a defendant’s right to due process” under Brady. (Id. at p. 183.)
“[A] trial court’s finding that information is material within the meaning of the Pitchess
scheme does not mean that it is material within the meaning of Brady, for these two legal
schemes ‘employ different standards of materiality.’ [Citation.] ‘Our state statutory
scheme allowing defense discovery of certain officer personnel records creates both a
broader and lower threshold for disclosure than does the high court’s decision in Brady
. . . . Consequently, a finding that material evidence was wrongfully withheld under
Pitchess does not invariably mean that a defendant’s right to due process was denied,
‘since “the Constitution is not violated every time the government fails or chooses not to
disclose evidence that might prove helpful to the defense.” ’ ” (Ibid.)
24
B. Analysis
In ruling on Nuno’s discovery motion, the trial court ordered disclosure of only
complainant and witness names and contact information related to two 2010 incidents
involving Officer Aguayo, as well as Officer Yanez’s dates of employment with the King
City Police Department. (See pt. I.C.1., ante.) Bearing Pitchess principles in mind, this
court has reviewed the transcript of the trial court’s September 21, 2022 in camera
hearing and the personnel records of Officers Aguayo and Yanez that the trial court
transmitted to us. Based on that review, we conclude the trial court did not abuse its
discretion under Pitchess principles in ordering the disclosure of only limited information
regarding Officers Aguayo and Yanez.13
Notwithstanding the correctness of the trial court’s ruling on Nuno’s discovery
motion under Pitchess principles, we turn to whether further disclosure of information
concerning the officers may have been required under Brady principles.
We acknowledge that Brady is essentially a trial right (see Izazaga v. Superior
Court (1991) 54 Cal.3d 356, 378 (Izazaga); United States v. Ruiz (2002) 536 U.S. 622,
628; see also People v. Gutierrez (2013) 214 Cal.App.4th 343, 348–349 [Brady
obligation applies to preliminary hearings]) and may not directly apply in postjudgment
proceedings. (See District Attorney’s Office for Third Judicial Dist. v. Osborne (2009)
557 U.S. 52, 69 (Osborne) [“Brady is the wrong framework” to assess due process
concerns postjudgment]; see also People v. Davis (2014) 226 Cal.App.4th 1353, 1366
(Davis) [“A convicted defendant does not have a right to a postjudgment discovery order
‘based on Brady alone, independent of section 1054.9.’ ”]; cf. Barnett v. Superior Court
13
As noted above (see fn. 4, ante), there is some uncertainty in the record whether
the trial court reviewed all the personnel records that were transmitted to this court.
Given this uncertainty and because we otherwise remand this matter for in camera review
of the personnel records, if the trial court did not previously review the complete
personnel files brought by the custodian of records, the court on remand should review
the complete personnel records of Officers Aguayo and Yanez to fully ensure disclosure
of all discoverable information under Pitchess principles.
25
(2010) 50 Cal.4th 890, 894 [concluding that defendants seeking postconviction discovery
under section 1054.9 “must show a reasonable basis to believe that specific requested
materials actually exist,” but “they do not additionally have to show that they are material
within the meaning of Brady”].)
Although Brady “secure[s] a fair trial as required by the due process clause”
(Izazaga, supra, 54 Cal.3d at p. 378), California appellate courts have acknowledged that
“the People’s obligations under Brady are ongoing, even postjudgment.” (Davis, supra,226 Cal.App.4th at p. 1366; People v. Garcia (1993) 17 Cal.App.4th 1169, 1179 [“The
duty of disclosure [] does not end when the trial is over.”].) In the same vein, our
Supreme Court recently “conclude[d] that where a habeas corpus petitioner claims not to
have received a fair trial because a trial prosecutor failed to disclose material evidence in
violation of Brady – and where the Attorney General has knowledge of, or is in actual or
constructive possession of, evidence that the trial prosecutor suppressed in violation of
Brady – the Attorney General has a constitutional duty under Brady to disclose the
evidence.” (Jenkins, supra, 14 Cal.5th at p. 512, fn. omitted.) Our high court explained
that the purpose of habeas corpus proceedings is to “ ‘ “ ‘hold open a final possibility for
prisoners to prove their convictions were obtained unjustly.’ ” ’ ” (Jenkins, supra, 14
Cal.5th at p. 508.) The court added, “Under Brady and its progeny, securing a conviction
by failing to disclose material exculpatory evidence violates due process. [Citations.]
Imposing a continuing duty of disclosure on the government in this context is consistent
with both the due process right on which Brady is based, and the ‘principles of substantial
justice’ on which our state’s long-standing habeas corpus tradition is founded.” (Ibid.)
In addition to relying on Brady principles, the Jenkins court invoked Rule 3.8(d)
of the Rules of Professional Conduct (Rule 3.8(d)) to conclude that “in responding to a
petition for writ of habeas corpus alleging a Brady violation, the Attorney General has an
ethical duty to make timely disclosure to the petitioner of all evidence or information
known to the Attorney General that was available but not disclosed at trial that the
26
Attorney General knows or reasonably should know tends to negate the guilt of the
petitioner, mitigate the offense, or mitigate the sentence, except when the Attorney
General is relieved of this responsibility by a protective order of the tribunal.”14 (Jenkins,
supra, 14 Cal.5th at p. 518, fn. omitted.)
Unlike a habeas corpus proceeding—which “ ‘ “often represents a prisoner’s last
chance to obtain judicial review” of a criminal conviction’ ” (Jenkins, supra, 14 Cal.5th
at p. 508)—a proceeding under section 1172.6 “seek[s] prospective relief from a murder
conviction that was presumptively valid at the time.” (Strong, supra, 13 Cal.5th at
p. 713.) Thus, a section 1172.6 proceeding is distinct from a habeas corpus proceeding in
that the former does not involve a review of the conviction to “correct[] errors in past
factfinding.” (Ibid.) Nevertheless, our Legislature has afforded petitioners in section
1172.6 proceedings certain procedural rights that seemingly enhance their ability to
obtain relief, including the right to appointed counsel upon submission of a facially
sufficient petition. (§ 1172.6, subd. (b)(3).)
At the evidentiary hearing stage, the Legislature has placed on the prosecution the
burden “to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or
attempted murder under California law as amended by the changes to [s]ection 188 or
189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).) The Legislature also has
mandated that the admission of evidence is governed by the Evidence Code (with an
exception for previously admitted evidence that is admissible under current law), the
prosecution and the petitioner may proffer new evidence, and if the prosecution fails to
sustain its burden, the murder or attempted murder conviction must be vacated, and the
14
In Jenkins, the evidence underlying petitioner’s Brady claim comprised juvenile
court adjudications subject to disclosure restrictions contained in Welfare and Institutions
Code section 827. (Jenkins, supra, 14 Cal.5th at pp. 523–524.) The Jenkins court
described the statutory procedures allowing a juvenile court to conduct an in camera
review of juvenile records for Brady material and explained how the Attorney General
could comply with his disclosure duties without contravening the statutory restrictions.
(Id. at pp. 524–527.)
27
petitioner must be resentenced. (Ibid.) While section 1172.6 makes no mention of
discovery at any stage of the proceeding, “[a] state-created right can, in some
circumstances, beget yet other rights to procedures essential to the realization of the
parent right.” (Connecticut Board of Pardons v. Dumschat (1981) 452 U.S. 458, 463.)
In turn, traditional principles of fundamental fairness apply to state-created procedures
governing postconviction relief. (See Osborne, supra, 557 U.S. at pp. 69–70.)
In examining whether fundamental fairness encompasses disclosure of peace
officer personnel information under Brady principles in advance of a section 1172.6
evidentiary hearing, we are mindful that such a hearing “is not a ‘ “trial de novo on all the
original charges” ’ ” but “ ‘ “a postconviction . . . ‘act of lenity.” ’ ” (Rodriguez, supra,
103 Cal.App.5th at p. 457.) Hence, a section 1172.6 petitioner does not enjoy “the full
panoply of rights” due a defendant at a criminal trial (Morrissey v. Brewer (1972) 408
U.S. 471, 480) and the State “has more flexibility in deciding what procedures are needed
in the context of postconviction relief.” (Osborne, supra, 557 U.S. at p. 69.)
A petitioner who seeks relief under section 1172.6 has previously been convicted
at a presumptively fair trial proceeding. Nonetheless, once the trial court issues an order
to show cause (OSC) and orders an evidentiary hearing on a section 1172.6 petition, the
prosecution bears the burden of proving beyond a reasonable doubt petitioner’s guilt
under murder/attempted murder law effected by Senate Bill 1437. In this respect, a
section 1172.6 evidentiary hearing resembles a criminal trial. (See Torres v. Superior
Court (2023) 94 Cal.App.5th 497, 515 [acknowledging that “a hearing under section
1172.6, subdivision (d)(3) more closely resembles a trial” than a resentencing hearing on
remand after an appeal]; cf. Osborne, supra, 557 U.S. at p. 68 [noting that the state “has
more flexibility in deciding what procedures are needed in the context of postconviction
relief” because “ ‘[g]iven a valid conviction, the criminal defendant has been
constitutionally deprived of his liberty’ ”].) Given the similitude of a section 1172.6
hearing and a criminal trial, the disclosure of Brady material in connection to a section
28
1172.6 evidentiary hearing promotes the search for truth in adjudicating petitioner’s guilt
under the law as amended by Senate Bill 1437. (In re Ferguson (1971) 5 Cal.3d 525, 531
(Ferguson) [“The search for truth is not served but hindered by the concealment of
relevant and material evidence.”].)
The importance of disclosure of Brady material at a section 1172.6 evidentiary
hearing is further bolstered by a comparison to discovery procedures applicable to post-
OSC habeas corpus proceedings. “A habeas corpus petitioner bears the burden of
establishing that the judgment under which he or she is restrained is invalid. [Citation.]
To do so, he or she must prove, by a preponderance of the evidence, facts that establish a
basis for relief on habeas corpus.” (In re Visciotti (1996) 14 Cal.4th 325, 351.) As with
section 1172.6, there is no statutory authority expressly authorizing discovery in a habeas
corpus proceeding (except under section 1054.9). (See Board of Prison Terms v.
Superior Court (2005) 130 Cal.App.4th 1212, 1241.) Nevertheless, discovery is
available to a petitioner in a habeas corpus proceeding “once [a court] ha[s] issued an
order to show cause” (In re Scott (2003) 29 Cal.4th 783, 814) and “[t]he nature and scope
of discovery in habeas corpus proceedings has generally been resolved on a case-by-case
basis.” (Id., at p. 813.) Trial courts are tasked “with ‘fashion[ing] a fair discovery rule’ ”
in habeas corpus proceedings (Jimenez v. Superior Court (2019) 40 Cal.App.5th 824,
831), and “the discovery . . . must be relevant to the issues upon which the petition states
a prima facie case for relief and an order to show cause has issued.” (Board of Prison
Terms, at p. 1243.) Further, regarding the applicability of Pitchess and Brady principles
in habeas corpus proceedings, one Court of Appeal has upheld the disclosure of police
personnel information relevant to impeachment under Brady through Pitchess procedures
in connection to a habeas corpus evidentiary hearing. (See Eulloqui, supra, 181
Cal.App.4th at p. 1068.)
Under section 1172.6, if the prosecution fails to sustain its burden of proof at the
evidentiary hearing, a petitioner’s “prior conviction, and any allegations and
29
enhancements attached to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Id., subd. (d)(3).) Thus, petitioners who state a
prima facie case for relief attain a significant interest in the potential vacatur of their
murder or attempted murder conviction and reduction of their sentence following the
evidentiary hearing. Disclosure of material exculpatory evidence in conjunction with the
evidentiary hearing protects that significant interest. It also protects the state’s and
petitioner’s interest in an accurate determination of the facts satisfying the prosecution’s
beyond-a-reasonable-doubt burden in the face of any defense petitioner may present.
(See Ferguson, supra, 5 Cal.3d at p. 531 [the district attorney’s duty “is not to obtain
convictions, but to fully and fairly present to the court the evidence material to the charge
upon which the defendant stands trial”]; People v. Gray (2023) 15 Cal.5th 152, 163
[noting that “ ‘both the People and the probationer or parolee have a continued post-
conviction interest in accurate fact-finding and the informed use of discretion by the trial
court’ ”].)
Moreover, in accord with the Attorney General’s acknowledgement here that
“prosecutors are ethically bound to disclose exculpatory material that is known to them
during the [section 1172.6] resentencing process,” disclosure of material exculpatory
evidence by the trial court upon an in camera review of peace officer personnel records is
consistent with a prosecutor’s ethical duty under Rule 3.8(d).15 (Johnson, supra, 61
15
Rule 3.8(d) provides that the prosecutor in a criminal case shall “make timely
disclosure to the defense of all evidence or information known to the prosecutor that the
prosecutor knows or reasonably should know tends to negate the guilt of the accused,
mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of
this responsibility by a protective order of the tribunal.” Regarding peace officer
personnel records, our Supreme Court has explained that “[i]f the prosecution informs the
defense of what it knows regarding information in confidential personnel records, and the
defense can seek that information itself [by filing a Pitchess motion], no evidence has
been suppressed.” (Johnson, supra, 61 Cal.4th at p. 715; see also id. at p. 716 [“the
prosecution fulfills its Brady obligation if it shares with the defendant any information it
30
Cal.4th at p. 717 [noting that the United States Supreme Court “has held that when
confidential records might contain exculpatory material, the trial court’s in camera review
of those records, followed by disclosure to the defense of any Brady material that review
uncovers, is sufficient to protect the defendant’s due process rights.”].)
Considering the nature and purpose of a section 1172.6 evidentiary hearing, the
precedent concerning discovery and disclosure of exculpatory evidence in the context of
habeas corpus proceedings, and the ethical obligations of a prosecutor in a criminal
proceeding, we decide that principles of fundamental fairness require disclosure of
material exculpatory evidence (including potential impeaching evidence) that exists in a
peace officer’s personnel file upon a sufficient motion filed under Brady, Pitchess, and its
statutory progeny after the trial court has ordered an evidentiary hearing under section
1172.6, subdivision (d).
Having decided that disclosure of peace officer personnel information under Brady
principles through Pitchess procedures in advance of a section 1172.6 evidentiary hearing
may be required, we turn to examining the instant record to determine whether the trial
court satisfied that requirement in ruling on Nuno’s discovery motion. The Attorney
General asserts that if this court determines that Nuno is entitled to Brady disclosure in
connection with his evidentiary hearing and “the Brady disclosure falls within the limited
scope of matters material to whether [Nuno] intended to kill when he committed the
offense of attempted murder, then the appropriate remedy should be similar to that
described in People v. Gaines (2009) 46 Cal.4th 172 as relevant to the appellate review of
Pitchess proceedings.” By contrast, Nuno asserts that if this court were to conclude that a
has regarding whether the personnel records contain Brady material, and then lets the
defense decide for itself whether to file a Pitchess motion”].) The present record does not
indicate whether the district attorney made any disclosure to Nuno regarding the
personnel records of Officers Aguayo and Yanez prior to Nuno filing his discovery
motion.
31
Brady violation occurred, the appropriate remedy is a reversal and remand for a new
evidentiary hearing.
As detailed ante (see pt. I.C.1.), King City did not respond to the Brady
component of Nuno’s discovery motion, and the trial court did not mention Brady when
addressing the motion. Hence, it is unclear whether the trial court in fact considered if,
under Brady principles and notwithstanding the limitations of Evidence Code section
1045 or other Pitchess principles, disclosure of information beyond that which was
ordered disclosed to Nuno regarding Officers Aguayo and Yanez would be appropriate.16
Because the record does not disclose whether the trial court considered Brady
principles in deciding Nuno’s discovery motion, a conditional reversal and remand are
appropriate to allow for consideration of the Brady component of Nuno’s motion by the
trial court in the first instance. (See Gaines, supra, 46 Cal.4th at p. 180; People v.
Moreno (2011) 192 Cal.App.4th 692, 703.)
If, after reviewing the personnel records, the trial court decides that nothing more
need be disclosed to Nuno under Brady principles, it should state its reasons and reinstate
its order denying Nuno’s section 1172.6 petition. On the other hand, if the trial court
determines that additional information must be disclosed to Nuno under Brady principles,
the court should order disclosure, allow Nuno an opportunity to demonstrate prejudice,
and order a new section 1172.6 evidentiary hearing if there is a reasonable probability the
outcome would have been different had the information been disclosed. (Gaines, supra,46 Cal.4th at p. 181; see also id. at p. 183 [“The reasonable-probability standard of
prejudice we have applied in Pitchess cases is the same standard we have applied
16
As noted ante (pt. I.C.1.), the limited information provided to Nuno regarding
Officer Aguayo derived from a March 7, 2011 document in his personnel records. Thus,
the source of the disclosed information was created after the preliminary hearing at which
Aguayo testified (in September 2010) but before Nuno’s no contest plea (in August 2011)
and sentencing (in September 2011).
32
generally to claims that the prosecution improperly withheld exculpatory evidence in
violation of a defendant’s right to due process.”].)
III. DISPOSITION
The July 13, 2023 order denying defendant Juan Nuno’s Penal Code section
1172.6 petition is conditionally reversed, and the matter is remanded to the trial court
with directions to conduct a new, in camera review of the personnel records of Officers
Aguayo and Yanez consistent with this opinion. If the court finds there is discoverable
information that was not previously ordered disclosed, it shall determine whether Nuno
was prejudiced by the denial of discovery. If the court confirms the lack of any
additional discoverable information or finds that Nuno was not prejudiced by any denial
of discovery, the order denying Nuno’s petition shall be reinstated. In all other respects,
the order is affirmed.
33
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Bamattre-Manoukian, Acting P. J.
____________________________________
Bromberg, J.
H051205
People v. Nuno
Trial Court: County of Monterey
Trial Judge: Honorable Rafael Vazquez
Counsel: Eric Weaver, by appointment of the Court of Appeal under the Sixth
District Appellate Program, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General,
Catherine A. Rivlin, Supervising Deputy Attorney General and Kevin
J. Lindsley, Deputy Attorney General, for Plaintiff and Respondent.
H051205
People v. Nuno