People v. Mathews

Filed 3/9/18 Opinion on Remand from Supreme Court
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A146652
v.
DAMARI MATHEWS, (Alameda County
Super. Ct. No. H55569)
Defendant and Appellant.
A jury convicted defendant Damari Mathews of second degree robbery and
firearms offenses and found true the allegation that a principal personally used a firearm
during the robbery after Mathews robbed the victim and shot himself as he was trying to
escape. The trial court sentenced him to 13 years in prison. On appeal, Mathews
contends that the court erroneously (1) refused to suppress evidence obtained from the
hospital where he was being treated, allegedly in violation of his Fourth Amendment
rights; (2) denied his request for personnel information about two police witnesses under
Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess); and (3) calculated his
presentence credits.
This court ordered the correction of a clerical error but otherwise affirmed the
judgment on October 25, 2017. (People v. Mathews (2017) 16 Cal.App.5th 601.) In
December 2017, Mathews filed a petition for review in the California Supreme Court,
contending that the matter should be remanded to the trial court in light of S.B. 620
(Stats. 2017, ch. 682). This legislation took effect on January 1, 2018, and vests
sentencing courts with discretion to strike or dismiss firearm enhancements, including the
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.B., C., and D.
1
one imposed in this case, in the interest of justice. On February 14, 2018, the Supreme
Court granted the petition and remanded the matter to us with directions to vacate our
prior decision and reconsider the matter in light of S.B. 620. The Attorney General
concedes that S.B. 620 applies retroactively and that the matter should be remanded for
the trial court to consider whether to strike or dismiss the firearm enhancement.
Accordingly, we vacate our decision of October 25, 2017, and remand for the trial
court to exercise its discretion under amended Penal Code section 12022.53,
subdivision (h).1 The Supreme Court’s order does not affect the issues we previously
considered. Thus, in the published portion of this decision, we again conclude that the
court properly denied the motion to suppress based on the estoppel principle announced
in People v. Watkins (2009) 170 Cal. App. 4th 1403 (Watkins). We hold that when a
probationer gives a false name to a police officer, and a record check of that name fails to
reveal that the probationer is in fact subject to a search condition, the probationer is
estopped from challenging the legality of an ensuing search or seizure that would have
been authorized had the officer been aware of the condition. We also again reject
Mathews’s remaining claims and identify a clerical error that must be corrected in the
new abstract of judgment.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Shortly before 6:00 p.m. on the evening of September 21, 2013, the victim, a man
in his early sixties, was walking in San Leandro with his grandson and their family dog.
As the victim was throwing away some garbage, he noticed two men standing nearby.
One of them, whose face was mostly covered, approached the victim and “tried to grab
[the victim’s] things.” The victim surrendered the contents of his pockets, which
included $38, a phone card, and an identification card, and the man then struck the victim
on the head with a gun and fled with his companion.
1
All further statutory references are to the Penal Code unless otherwise noted.
2
After the two men were out of the victim’s line of sight, the victim heard a “boom
sound” like a “gunshot.” Other witnesses also heard the sound of a gunshot from the
direction of the scene of the robbery. Witnesses then saw two men, one of whom
appeared to have an injury to his lower body and was holding a gun, running through the
neighborhood. Some of the witnesses remembered seeing the same two men get out of a
light-colored sedan a few minutes earlier. The same sedan picked the men up and drove
off. No witness was ultimately able to identify Mathews as either suspect.
At around 5:50 p.m., a silver sedan was recorded dropping Mathews off at
Highland Hospital in Oakland. The timing of some of the subsequent events at the
hospital is unclear, and we discuss these timing issues in more detail when addressing
Mathews’s Fourth Amendment claim. Generally, however, Officer Keith Ballard-Geiger
and Officer Pantoja of the San Leandro Police Department arrived at the hospital within
minutes and made contact with Mathews in a trauma room. Officer Ballard-Geiger
observed a perforation in Mathews’s scrotum and a wound to his shin. The officer also
searched a bag of Mathews’s clothing, which included a pair of jeans with blood in the
crotch area and a small, bloodstained hole in the shin area.
Officer Ballard-Geiger also seized some possessions of Mathews’s, including a
cell phone, that hospital staff had stored in a safe. A subsequent forensic examination of
the phone demonstrated that it was used in the vicinity of the robbery to make a call at
5:40 p.m. and “traveled east from the location . . ., got on the freeway on [Highway] 580,
traveled northbound, and terminated somewhere near Highland Hospital.”
Mathews was charged with one count of second degree robbery, with an
accompanying allegation of a principal’s personal use of a firearm, one count of
possession of a firearm by a felon, and one count of carrying a loaded firearm on one’s
person in a city.2 Before trial, he filed a motion under section 1538.5 to suppress the
clothing, Officer Ballard-Geiger’s observations of his wounds, and the cell phone and
2
The charges were brought under sections 211 (robbery), 29800, subdivision
(a)(1) (firearm possession), and 25850, subdivision (a) (carrying a firearm), and the
personal-use allegation was made under section 12022.53, subdivision (b).
3
evidence derived from it. He argued that the evidence was obtained in violation of his
Fourth Amendment rights. Mathews also filed a Pitchess motion to obtain discovery of
the personnel files of Detective Joshua Brum, who wrote a police report that referred to
the events at Highland Hospital, and Officer Ballard-Geiger. The trial court denied both
motions, and the jury convicted Mathews of all the charges and found true the
enhancement allegation.
The trial court sentenced Mathews to 13 years in prison, comprised of a term of
three years for robbery and a consecutive term of ten years for the accompanying
enhancement, a concurrent term of eight months for firearm possession by a felon, and a
term of eight months, stayed, for carrying a loaded firearm on one’s person in a city.3
II.
DISCUSSION
A. Mathews Is Not Entitled to Relief on His Fourth Amendment Claim.
Mathews claims that the trial court prejudicially erred by denying the motion to
suppress. We disagree. The motion was properly denied as to the cell phone and
resulting evidence, and any error related to Officer Ballard-Geiger’s observations of
Mathews’s clothes and wounds was harmless.
1. Additional facts.
Officer Ballard-Geiger, who was the only witness to testify at the suppression
hearing, stated that at 5:44 p.m. on the day in question, he and Officer Pantoja were
dispatched to the scene of the robbery after receiving a report of “a possible shooting.”4
Shortly after they arrived, dispatch reported that there were two possible male suspects
and that “a shooting victim in a silver vehicle had possibly left the scene.” Dispatch also
“advised [the officers] that there was a shooting victim . . . at Highland [Hospital],” and
they were told to go there.
3
The conviction for carrying a loaded firearm on one’s person in a city is not
listed on the abstract of judgment, and the new abstract must fix this clerical error.
(People v. Mitchell (2001) 26 Cal. 4th 181, 185-186.)
4
A CAD log introduced into evidence was used to establish the precise time of
certain events to which Officer Ballard-Geiger testified.
4
The officers arrived at the hospital at 5:52 p.m. and entered the emergency area,
which included “two trauma rooms.” They were met by Deputy Bixby of the Alameda
County Sheriff’s Department, who told them that the patient who “had been dropped off
with the gunshot wounds” was in one of the trauma rooms and had identified himself as
“Omari Johnson.” At around 6:09 p.m., Officer Pantoja radioed for a record check on the
name “Omari Johnson.”
Meanwhile, Officer Ballard-Geiger called the patrol sergeant, who told him “that
it looked like an armed robbery had actually occurred and that one of the suspects had
possibly shot himself while fleeing the scene.” The officer went into a trauma room,
where he was “directed . . . to the subject [who] had been brought in with the gunshot
wounds,” whom he identified in court as Mathews. Mathews told the officer that “he got
shot,” and he said his name was “Damari Johnson.”
Officer Ballard-Geiger observed Mathews’s injuries, which included “a
perforation to the right side of his scrotum” and what appeared to be “a graze wound to
his lower right leg, his shin area.” The officer was able to see the injuries because either
Mathews or a nurse moved a sheet that covered them. Hospital staff directed Officer
Ballard-Geiger to a bag of clothing that Mathews was wearing when he arrived at the
hospital. Officer Ballard-Geiger inspected the bag’s contents, including a pair of jeans
with blood on the crotch area and lower right pant leg, which also had a small hole in it.
Officer Ballard-Geiger believed that Mathews “was possibly the person involved in the
robbery, [and] that he might have shot himself.”
Officer Ballard-Geiger ran a record check on “Damari Johnson” at 6:33 p.m. The
officer could not recall whether this occurred immediately after he got the name from
Mathews, and he acknowledged that it could have been as long as 20 minutes later. At
6:36 p.m., Officer Ballard-Geiger was notified of a possible match, but he determined
that the person was not Mathews based on the accompanying photograph.
At some point, Mathews was moved from the trauma room to a hospital hallway.
There, Officer Ballard-Geiger questioned him further, and Mathews “told [the officer] his
true name and date of birth.” Officer Ballard-Geiger ran a check on the name and learned
5
around 6:41 p.m. that Mathews was on probation and subject to a search condition.5
Around this time, the officer arrested Mathews for robbery. Officer Ballard-Geiger left
the hospital sometime after 7:00 p.m.
While Officer Ballard-Geiger was at the hospital, he recovered “a watch, some
cash[,] and a cell phone” belonging to Mathews that hospital staff had placed in a safe. A
hospital employee unlocked the safe and “gave [him] the items” after the officer did some
paperwork. The officer was unable to recall, however, exactly when he seized this
evidence. He testified that he retrieved these items sometime after Mathews was moved
from the trauma room to the hallway. He also testified that he obtained the evidence after
Mathews had told him that his name was “Damari Johnson.” But the officer’s testimony
was inconsistent as to whether he seized the items before or after he knew about
Mathews’s search condition, and he did not know whether the seizure was before or after
he arrested Mathews.
Although Officer Ballard-Geiger recovered the cell phone at the hospital, he did
not search the phone’s contents at that time. Rather, during the ensuing investigation,
Detective Brum turned on the phone, which revealed an image of Mathews on the screen
saver and that the phone was serviced by Metro PCS. Detective Brum obtained search
warrants for information about the phone, and Metro PCS provided information upon
which a prosecution expert witness eventually relied in testifying that around the time of
the robbery the phone traveled from the victim’s neighborhood to the vicinity of
Highland Hospital.
Mathews moved to suppress evidence obtained at the hospital and evidence that
was attainable later only as a result of the seizure of the cell phone. The evidence
obtained at the hospital was Officer Ballard-Geiger’s observations of Mathews’s injuries
and clothes and the phone. The evidence attainable as a result of the phone were screen
5
The trial court took judicial notice of the fact that Mathews was on felony
probation with “a four-way search clause.” The court later read Mathews’s search
condition into the record: “Submit to search and seizure by any probation officer or any
other law enforcement officer at any time of the day, with or without a search warrant,
including: [v]ehicle, residence, person or any property under your control.”
6
shots taken from it, its identification number, and its contents. Mathews also sought to
suppress “[a]ll fruit from the seizure of” the clothing and phone.
At the hearing on the motion to suppress, Mathews argued that all of this evidence
was obtained in violation of his Fourth Amendment rights because, among other reasons,
Officer Ballard-Geiger was not aware of the search condition at the time he observed the
clothing or wounds or seized the cell phone. The trial court found no such violation and
denied the motion. Relying on Watkins, the court ruled that Mathews was estopped from
seeking to suppress the evidence because “by giving a false name, . . . [Mathews] then
precluded the officer, regardless of when the officer ran the check,” from discovering that
Mathews was subject to a search condition. In addition, the court accepted Officer
Ballard-Geiger’s testimony that the officer “got the name Damari Johnson early on in his
contact . . . and that he ran that [name].” The court observed that, had Mathews given
Officer Ballard-Geiger his correct name in the first instance, “information would have
come to light that would have changed everything in terms of how this thing unfolded.”
2. General legal standards.
We begin by discussing general Fourth Amendment principles. The Fourth
Amendment protects the “right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures.” (U.S. Const., 4th Amend.) “ ‘A
warrantless search is presumed to be unreasonable, and the prosecution bears the burden
of demonstrating a legal justification for the search [or seizure].’ ” (People v. Suff (2014)
58 Cal. 4th 1013, 1053.) If the prosecution cannot meet this burden, the exclusionary rule
normally requires the suppression of any evidence obtained from the search or seizure.
(Wong Sun v. United States (1963) 371 U.S. 471, 487-488.)
The applicable standards under which we review a trial court’s order refusing to
suppress evidence are well established. In reviewing the denial of a suppression motion,
we consider the record in the light most favorable to the disposition and defer to the
court’s factual findings if supported by substantial evidence. (People v. Tully (2012)
54 Cal. 4th 952, 979 (Tully).) Any conflicts in the evidence are resolved in favor of the
court’s order. (People v. Limon (1993) 17 Cal. App. 4th 524, 529.) The court’s ruling on
7
whether the relevant law was violated is a mixed question of law and fact subject to de
novo review. (People v. Hoyos (2007) 41 Cal. 4th 872, 891.) Thus, we exercise
independent judgment in determining the legality of a search and seizure. (Tully, at
p. 979.)
3. Mathews is estopped from challenging the admission of evidence
derived from the cell phone’s seizure.
In arguing that his Fourth Amendment rights were violated, Mathews does not
clearly distinguish among the various evidence he contends should have been suppressed:
the cell phone and evidence derived from it, the clothing, and Officer Ballard-Geiger’s
observations of his wounds. We first address his claim as it applies to the phone.
“ ‘[O]ne of the specifically established exceptions to the requirements of both a
warrant and probable cause is a search [or seizure] conducted pursuant to consent.’ ”
(People v. Woods (1999) 21 Cal. 4th 668, 674.) Probationers who accept conditions of
probation “may validly consent in advance to warrantless searches [or seizures] in
exchange for the opportunity to avoid service of a state prison term.” (Id. at pp. 674-
675.) Usually, an officer must be aware of a search condition for it to justify proceeding
without a warrant, and a search or seizure cannot be “undertaken for harassment or . . .
for arbitrary or capricious reasons.” (People v. Bravo (1987) 43 Cal. 3d 600, 610.)
In Watkins, the decision the trial court relied on to deny the motion to suppress, a
police officer stopped the defendant’s vehicle, and the defendant stated that he was on
probation but falsely identified himself as his brother. (Watkins, supra, 170 Cal.App.4th
at p. 1406.) A record check of the brother’s name did not reveal that the brother was
subject to a search condition, but the officer nonetheless conducted a search and found
contraband. (Ibid.) After his arrest, the defendant gave his true name, and a record check
revealed that he “was on searchable probation.” (Ibid.) The Court of Appeal held that
even though the officer was not aware of the search condition when he performed the
search, the defendant was estopped from challenged the legality of the search as a
probation search because he had concealed that he was subject to the condition by lying
about his identity. (Id. at p. 1409.)
8
Mathews relies on Myers v. Superior Court (2004) 124 Cal. App. 4th 1247 (Myers)
in arguing that Watkins does not govern here. In Myers, a police officer stopped the
defendant and asked him whether he was on parole or probation. (Myers, at p. 1251.)
Although the defendant was on informal probation, he falsely told the officer “ ‘that he
had discharged [from] parole . . . and was not on probation.’ ” (Ibid.) The officer did no
record check and instead simply searched the defendant “without a warrant, probable
cause, reasonable suspicion, or knowledge [the defendant] was on probation and subject
to a search condition” and discovered contraband. (Id. at pp. 1251, 1256.) The Court of
Appeal held that the evidence should have been excluded because not applying the
exclusionary rule under the circumstances “would reward police misconduct, not deter
it.” (Id. at p. 1256.) The court also rejected the argument that the defendant’s lie was
significant, observing that the defendant’s “response should have prompted [the officer]
to conduct a record check where he would have discovered [the defendant] was on
probation and subject to a search condition.” (Ibid.)
Contrary to Mathews’s position otherwise, Myers does not conflict with Watkins.
As Watkins itself observed in distinguishing Myers, although Myers concluded that the
evidence should have been suppressed despite the defendant’s misrepresentation about
his parole status, the conclusion was reached because it was the officer’s failure to
perform a record check, not the misrepresentation, that prevented the officer from
learning about the search condition. (Watkins, supra, 170 Cal.App.4th at p. 1410.) In
contrast, in Watkins the officer performed a record check, but the “defendant’s lie about
his identity ensured that the . . . check would not disclose his probation search condition
in time.” (Ibid.) Thus, nothing in Myers undermines Watkins’s holding that a defendant
can be estopped from challenging evidence obtained after a record check fails to reveal a
search condition when the check was based on false information provided by the
defendant.
We also reject Mathews’s implication that Watkins is inconsistent with the
exclusionary rule’s goal of deterring police misconduct. It is true, as Mathews points out,
that “the primary purpose of the exclusionary rule [is] to deter police misconduct,” and it
9
is the rationale underlying the general principle that an unlawful search is not “justified
by the circumstance that the suspect was subject to a search condition of which . . . law
enforcement officers were unaware when the search was conducted.” (People v. Sanders
(2003) 31 Cal. 4th 318, 334-335.) It is also true, however, that this deterrent purpose does
not trump all other considerations when determining whether to apply the exclusionary
rule. For example, under the doctrine of inevitable discovery, the fruits of an illegal
search will nevertheless be admitted “if the prosecution can establish by a preponderance
of the evidence that the [evidence] inevitably would have been discovered by lawful
means[.] . . . This is so because the rule is intended to ensure that the prosecution is not
placed in a better position than it would have been had no illegality occurred; the rule
does not require it [to] be put in a worse one.” (People v. Coffman and Marlow (2004)
34 Cal. 4th 1, 62.) A similar principle justifies the holding in Watkins: where the
evidence inevitably would have been lawfully obtained but for the defendant’s
dishonesty, the exclusionary rule should not be applied to bar it.
Having concluded that it is appropriate to follow Watkins, we turn to address its
application in this case. Mathews argues that “[e]ven under Watkins, [Officer Ballard-
Geiger’s] actions violated” the Fourth Amendment. He claims that the evidence shows
that Officer Ballard-Geiger did not run a record check on “Damari Johnson” until after
seizing the cell phone, so it was the officer’s failure to do a record check, not the
provision of a false name, that prevented the officer from learning of the search
condition.
We do not agree with either the trial court or Mathews about the relevant point in
time after which a defendant who provides a false name to a police officer is estopped
under Watkins from challenging the validity of a search or seizure. The court ruled that
estoppel was triggered when Mathews gave a false name, and Mathews argues that it was
triggered when Officer Ballard-Geiger ran the record check on “Damari Johnson.” We
conclude, however, that estoppel is triggered when an officer receives the results from a
record check based on a false name.
10
In many cases, all three events will happen nearly simultaneously, as they did in
Watkins. (See Watkins, supra, 170 Cal.App.4th at p. 1406.) But, as the facts here
illustrate, this is not always the case. Officer Ballard-Geiger testified that it was possible
he did not run a record check on “Damari Johnson” until up to 20 minutes after Mathews
gave the name to him, and the officer received the results a few minutes after running the
check. Until Officer Ballard-Geiger actually ran the record check and received the
results, the false name did not prevent him from discovering the search condition. We
therefore conclude that Mathews is estopped from challenging the seizure of the cell
phone and the evidence derived from it only if the seizure occurred after 6:36 p.m., when
Officer Ballard-Geiger received the results of the record check on “Damari Johnson.”
Contrary to Mathews’s position otherwise, substantial evidence in the record
shows that the seizure occurred after 6:36 p.m. In arguing that Officer Ballard-Geiger
seized the cell phone before running a check on “Damari Johnson,” Mathews fails to
recognize that we must view the evidence in the light most favorable to the trial court’s
ruling and resolve any conflicts in favor of that ruling. (Tully, supra, 54 Cal.4th at
p. 979; People v. Limon, supra, 17 Cal.App.4th at p. 529.) We acknowledge that the
officer’s testimony was inconsistent on the timing of some events at the hospital. He
initially testified that he seized the phone based on the search condition, and he later
indicated that he was unsure whether the seizure occurred before or after he knew about
the condition. But throughout his testimony, he remained clear that he ran the check on
“Damari Johnson” before he “took physical custody of the phone.” Because it is not
reasonable to infer that Officer Ballard-Geiger obtained the phone from the safe during
the two or three minutes it took for the results of the check to come back, this testimony
is sufficient to establish that the phone was not seized until after the officer would have
known about the search condition but for Mathews’s dishonesty.6 Therefore, under
6
Because we conclude that there is substantial evidence that Officer Ballard-
Geiger ran and received the results of a record check on “Damari Johnson” before seizing
the cell phone, we need not address the Attorney General’s argument that Mathews is
11
Watkins, Mathews is estopped from challenging the admission of the phone and the other
evidence derived from it.
4. Any error in the failure to suppress Officer Ballard-Geiger’s
observations of Mathews’s clothes and wounds was harmless.
Initially, we note that Mathews does not argue that Officer Ballard-Geiger’s
observations of Mathews’s clothing and wounds led to the discovery of any other
evidence that should have been excluded as fruit of the poisonous tree. (See People v.
Brendlin (2008) 45 Cal. 4th 262, 268.) Nor does Mathews suggest that, had these
searches not occurred, probable cause for his arrest would have been lacking. Instead, his
only argument for why Officer Ballard-Geiger’s observations of the clothing and wounds
mattered is the cursory claim that “there was little evidence . . . [of] guilt” without this
evidence and the evidence related to the cell phone.
The admission of evidence in violation of the Fourth Amendment is not reversible
per se. Instead, if such error is harmless beyond a reasonable doubt under Chapman v.
California (1967) 386 U.S. 18, reversal is not required. (People v. Moore (2011)
51 Cal. 4th 1104, 1128-1129.) We conclude that Officer Ballard-Geiger’s observations of
Mathews’s injuries and clothes did not appreciably contribute to the verdict. Evidence
independent of those observations was introduced that demonstrated that Mathews was
admitted to the hospital for a gun injury and had been shot in the area of his groin and
leg. In particular, Mathews’s hospital medical records, the introduction of which
Mathews does not contest on appeal, described the injuries. In light of this evidence, any
error in the admission of Officer Ballard-Geiger’s observations of Mathews’s clothing
and wounds was harmless beyond a reasonable doubt.7
estopped from challenging any evidence obtained after 6:09 p.m., when Officer Pantoja
ran a record check on “Omari Johnson.”
7
Because Mathews has failed to demonstrate prejudice, we need not decide
whether Officer Ballard-Geiger’s observations of Mathews’s clothing and wounds were
constitutional. Substantial authority, however, suggests that they were. (See, e.g., U.S. v.
Davis (4th Cir. 2012) 690 F.3d 226, 238 [officer’s observations of gunshot wounds and
clothing while victim in emergency room was lawful as part of shooting investigation];
United States v. George (9th Cir. 1993) 987 F.2d 1428, 1432 [police could enter hospital
12
B. The Trial Court Did Not Abuse Its Discretion by Summarily Denying
Mathews’s Pitchess Motion.
Mathews next contends that the trial court erred by summarily denying his
Pitchess motion. We are not persuaded.
Mathews’s Pitchess motion sought “discovery as to prior acts of fabrication and/or
misstatement of facts[,] . . . the fabrication of charges and/or evidence[,] and the
authoring [of] or acquiescing to false or misleading police reports” by Officer Ballard-
Geiger and Detective Brum. The motion also sought “discovery as to acts involving
illegal search and seizure” by Officer Ballard-Geiger. The accompanying affidavit stated
that the discovery was relevant for a motion to suppress and at trial because it bore on the
credibility of both officers. In particular, the affidavit contended that the officers had
intentionally created the false impression that the cell phone was recovered from
Mathews’s person incident to his arrest, not from the hospital safe, based on Officer
Ballard-Geiger’s statement in his report that he had “recovered $464.00 in U.S. currency,
a black LG cell phone, and a black G-Shock watch that was found in [Mathews’s]
possession” and Detective Brum’s statement in his report that “[t]he cell phone . . . was
recovered from Mathews during his arrest.” (Some capitalization omitted.)
The trial court summarily denied the motion, concluding that Officer Ballard-
Geiger’s reference to the items being in Mathews’s “possession” was not misleading.
The court explained, “When at the hospital, the emergency personnel take his clothing
and take his watch and his phone and his money, it’s still his money. It’s his stuff. It’s in
his possession. They’re keeping it for safekeeping. . . . If he walks out of the hospital
freely of his own accord, they’re going to hand it back to him. It’s in his possession. . . .
[¶] I can’t see that it’s anything more than a semantic distinction. I don’t find it to be
material or deceptive. I don’t find it to be an omission.”
room and search bedpan for contraband since patient had no reasonable expectation of
privacy]; People v. Brown (1979) 88 Cal. App. 3d 283, 291 [whether patient has
reasonable expectation of privacy in hospital room depends on the circumstances].)
13
In Pitchess, our state Supreme Court held that “a criminal defendant [can] ‘compel
discovery’ of certain relevant information in the personnel files of police officers by
making ‘general allegations which establish some cause for discovery’ of that
information and by showing how it would support a defense to the charge [or charges]
against him.” (Warrick v. Superior Court (2005) 35 Cal. 4th 1011, 1018-1019 (Warrick).)
This holding was later codified in sections 832.5, 832.7, and 832.8 and Evidence Code
sections 1043 through 1047. (People v. Mooc (2001) 26 Cal. 4th 1216, 1226 (Mooc); see
also Warrick, at p. 1019.) Pitchess and the resulting statutory scheme attempt to balance
a criminal defendant’s “due process right to a fair trial” with an officer’s “strong privacy
interest in his or her personnel records.” (Mooc, at p. 1227.)
To obtain discovery of an officer’s personnel records, a defendant must file a
motion that includes an affidavit establishing “good cause” for discovery of the records,
“setting forth the materiality thereof to the subject matter involved in the pending
litigation and stating upon reasonable belief that the governmental agency identified has
the records or information from the records.” (Evid. Code, § 1043, subd. (b)(3).) Thus,
establishing good cause, a “ ‘relatively low threshold for discovery,’ ” requires that the
affidavit “propose a defense or defenses to the pending charges” and “articulate how the
discovery sought may lead to relevant evidence or may itself be admissible direct or
impeachment evidence [citations] that would support those proposed defenses.”
(Warrick, supra, 35 Cal.4th at pp. 1019, 1024; see also Giovanni B. v. Superior Court
(2007) 152 Cal. App. 4th 312, 319-321 [good cause may be demonstrated based on
discovery sought to support motion to suppress].) If the trial court concludes that good
cause is lacking, the motion is summarily denied, and the court does not conduct an in
camera review of the officer’s personnel records. (See Mooc, supra, 26 Cal.4th at
pp. 1228-1229; People v. Gaines (2009) 46 Cal. 4th 172, 176.) We review the court’s
summary denial of a Pitchess motion for an abuse of discretion. (People v. Lewis and
Oliver (2006) 39 Cal. 4th 970, 992.)
Mathews claims that the trial court “ignored” various points in reaching its ruling,
but he does not clearly explain how this amounted to an abuse of discretion. He states
14
that the court ignored his argument that the cell phone and other property was seized
from the hospital safe before his arrest, not incident to it. The portion of the record he
cites does not reveal that he made such an argument, and in any event Officer Ballard-
Geiger testified that he seized this evidence based on the search condition. Mathews also
argues that the court ignored his claim, “clearly spelled out in . . . [the] affidavit,” that
Officer Ballard-Geiger’s deception involved whether the officer was aware of the search
condition when he obtained the property. Again, however, we do not agree with
Mathews’s reading of the record. The affidavit’s sole theory for why the police reports
were misleading was that they made it sound like the property was recovered directly
from Mathews, not the hospital safe, and the affidavit did not even mention the search
condition.
Mathews also claims that the trial court ignored his claim that the requested
discovery was material to Officer Ballard-Geiger’s credibility, but he does not explain his
reasoning except to quote from his trial counsel’s argument below that the officer’s report
contained a material misstatement. In any event, a defendant must “articulate how the
discovery being sought . . . would impeach the officer’s version of events” to make a
showing of good cause (Warrick, supra, 35 Cal.4th at p. 1021, italics added), not simply
claim that the discovery might be useful to impeach the officer’s general credibility. The
court’s ruling that further discovery was unwarranted was based on its determination that
the wording of Officer Ballard-Geiger’s report was not deceptive as to where the property
was recovered—the only theory upon which Mathews argued that the officers had
misrepresented what happened—and we cannot say that the court’s interpretation of the
reports constituted an abuse of discretion. In sum, Mathews fails to demonstrate any
error in the court’s summary denial of his Pitchess motion.
C. The Trial Court Correctly Calculated Presentence Credits.
Mathews also claims that the trial court incorrectly calculated his presentence
custody and conduct credits. We disagree.
Mathews was arrested on September 21, 2013, and he was released on
September 24, 2013, a total of four days in custody. He was then rearrested on
15
December 20, 2013, and he remained in custody until he was sentenced on September 24,
2015, a total of 644 days in custody. The trial court awarded him 648 days of custody
credits and 97 days of conduct credits, for a total of 745 days of presentence credits.
Mathews argues that he was actually entitled to 733 days of custody credits and
109 days of conduct credits, calculated at 15 percent of his custody credits. He bases this
claim on the probation report’s misstatement that he had spent 738 days in custody, a
number apparently derived from the incorrect assumption that he was never released after
his first arrest in September 2013. The probation report also shows, however, that he was
in fact released later that September and rearrested that December. Thus, we agree with
the Attorney General that the trial court correctly determined that Mathews was entitled
to 648 days of custody credits (see § 2900.5, subd. (a)) and 97 days of conduct credits
(see § 2933.1, subd. (a)).
D. Remand Is Required for the Trial Court to Consider Whether to Strike or
Dismiss the Firearm Enhancement.
Shortly before our prior decision in this case, the Legislature passed S.B. 620,
which took effect on January 1 of this year. The legislation affected sentencing courts’
discretion to strike or dismiss various firearm enhancements, including the enhancement
under section 12022.53, subdivision (b) imposed here. Previously, a court could not
strike an enhancement under section 12022.53. (Former § 12022.53, subd. (h).) Now,
however, the statute provides that “[t]he court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise
required to be imposed by this section. The authority provided by this subdivision
applies to any resentencing that may occur pursuant to any other law.” (§ 12022.53,
subd. (h).)
The Attorney General properly concedes that S.B. 620 applies retroactively to
non-final judgments. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091; see also
People v. Conley (2016) 63 Cal. 4th 646, 656.) He also does not oppose a remand for the
trial court to exercise its discretion whether to strike or dismiss the firearm enhancement
16
at issue. Therefore, we remand the matter to the court for it to consider whether to strike
or dismiss the enhancement.
III.
DISPOSITION
Mathews’s convictions are affirmed, but the case is remanded for the trial court to
consider whether to strike or dismiss the firearm enhancement imposed under Penal Code
section 12022.53, subdivision (b). The new abstract of judgment should reflect
Mathews’s conviction of count three, carrying a loaded firearm on one’s person in a city
under Penal Code section 25850, subdivision (a), which the trial court stayed pursuant to
Penal Code section 654.
17
_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Banke, J.
18
People v. Mathews A146652
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Trial Court:
Superior Court of the County of Alameda
Trial Judge:
Hon. Kevin R. Murphy
Counsel for Defendant and Appellant:
Hilda Scheib, First District Appellate Project
Counsel for Plaintiff and Respondent:
Xavier Becerra, Attorney General
Gerald A. Engler, Chief Assistant Attorney General
Jeffrey M. Lawrence, Senior Assistant Attorney General
Sharon Wooden, Deputy Attorney General
Dorian Jung, Deputy Attorney General
20
People v. Mathews A146652
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