Opinion
D058360
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. GERARDO MIGUEL GONZALEZ,Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. JCF25221)
APPEAL from a judgment of the Superior Court of Imperial County, Barrett J. Foerster, Judge. Affirmed.
This case arose in March 2010 when Officer Rene McNish of the Brawley Police Department twice shot defendant Gerardo Miguel Gonzalez. According to Officer McNish, Gonzalez was armed with a handgun late at night outside Garcia's Market in the City of Brawley. Nearby residents had complained about banging sounds coming from the business. Following an evidentiary hearing on Gonzalez's motion in limine to suppress incriminating statements he made at the hospital in early April 2010 to Imperial County District Attorney Investigator Rebecca Singh and two police officers, who did not read him his Miranda rights, the court excluded the evidence of those statements from the People's case-in-chief; but, after tentatively finding the statements were involuntary, later found they were voluntary and thus admissible for impeachment purposes in the event Gonzalez testified in his own defense. A jury convicted Gonzalez, who did not testify, of one count of assault with a firearm on a peace officer in violation of Penal Code section 245, subdivision (d)(1) (undesignated statutory references will be to the Penal Code unless otherwise specified), and found true a sentence enhancement allegation that he personally used a firearm within the meaning of section 12022.53, subdivision (b). The court denied Gonzalez's motion for a new trial that was based on two juror declarations showing (he argued) that, during deliberations, members of the jury committed misconduct resulting in a violation of his right to a fair trial by discussing, and making decisions based upon, Gonzalez's failure to take the witness stand. The court sentenced Gonzalez to an aggregate prison term of 14 years.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Gonzalez appeals, contending (1) the court committed prejudicial error when it ruled that his " unMirandized" statements at the hospital were voluntarily made; (2) the court committed prejudicial error when it denied his new trial motion in which he argued that jurors committed misconduct by violating the court's instruction that they not consider or discuss in their deliberations his failure to testify; (3) the court prejudicially erred when it prevented him from introducing evidence of a prior incident of moral turpitude involving Officer McNish; (4) the cumulative effect of the errors committed in this case violated his constitutional rights to a fair trial, an impartial jury, confrontation of witnesses, and fundamental fairness; and (5) this court should independently review the materials from Officer McNish's personnel file that the trial court reviewed during the in camera proceeding it conducted on June 28, 2010, in connection with Gonzalez's Pitchess motion. We affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
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FACTUAL BACKGROUND
A. The People's Case
At around 11:00 p.m. on March 29, 2010, Officer McNish was dispatched to Garcia's Market after nearby residents complained about banging sounds that came from the business. When he arrived, Officer McNish saw Gonzalez walking in a southeasterly direction down the alley behind the market. As Officer McNish removed his firearm from its holster, he heard Gonzalez yell, "Don't you fucking move." Hearing footsteps and seeing Gonzalez moving around the back of the patrol car toward his position, Officer McNish ducked down on the passenger's side of the trunk of his car and ran along the passenger's side in a semi-crouch to the front driver's side quarter panel of his car. Gonzalez was running after him. Although he was unable to pinpoint Gonzalez's exact location, Officer McNish believed he was somewhere around the trunk of the car.
Officer McNish then pointed his firearm, a Glock 22 semiautomatic firearm that shoots .40-caliber bullets, at Gonzalez and illuminated him with the light that was attached to the weapon. Officer McNish twice ordered Gonzalez to drop his handgun, but Gonzalez pointed it at the officer. Officer McNish testified he believed he fired four times at Gonzalez. One bullet struck Gonzalez in the chest and passed through his body, and another bullet hit his right arm. Officer McNish then heard Gonzalez say, "Okay. Okay. Stop shooting." Officer McNish did not see Gonzalez's gun leave his hand, but testified he saw Gonzalez "making a jerking move as if he had thrown the weapon away from him [Gonzalez]," and then he saw the firearm traveling away from Gonzalez's body towards the front of the patrol car.
Officer Thomas Ray of the Brawley Police Department was also dispatched to Garcia's Market. He heard three or four shots at the moment he turned into the alley. Officer Ray saw that Gonzalez was on the passenger's side of Officer McNish's patrol car, and Officer McNish was on the driver's side. As he approached, Officer Ray saw Gonzalez turn his torso towards him (Officer Ray) and then back towards Officer McNish's car. Officer Ray exited his patrol car and watched as Gonzalez staggered about 10 feet beyond the rear of Officer McNish's car and then fell. As Officer Ray drew closer, he noticed a gun on the ground near the front passenger's side wheel well, and blood spatter near the rear passenger's side wheel well, of Officer McNish's patrol car. Officer Ray also saw a trail of blood running from there to the place where Gonzalez fell to the ground.
The nine-millimeter Glock handgun that investigators found near the front passenger's side wheel well of Officer McNish's patrol car had three unexpended rounds in the ammunition clip and one unexpended round in the chamber. Investigators also found three .40-caliber casings from Officer McNish's firearm on the driver's side of his car, and their examination of the weapon revealed he had fired three rounds. The investigators discovered an expended .40-caliber slug in a nearby Caltrans yard. A second .40-caliber slug was recovered from Gonzalez's right arm. The third .40-caliber slug was never located.
Laurence Blum, a police psychologist, testified that after he interviewed Officer McNish, he concluded that Officer McNish had experienced "transient shock reaction" as a result of the fact that the incident moved very quickly from a routine call to a life-threatening event. Dr. Blum opined that under the circumstances presented in this case, an officer could experience a "perceptual lag," which would cause events to outstrip the ability of the brain to register them. He opined that the unanticipated lethal threat would have caused Officer McNish to intensely focus on details essential to his survival to the exclusion of others, and this would explain why his recollection of certain details conflicted in some respects with the physical evidence.
B. The Defense Case
Harry Bonnell, M.D., a forensic pathologist, testified on behalf of the defense that he had examined Gonzalez's X-rays and concluded that one of the bullets entered Gonzalez's upper arm at a 45-degree angle, shattering his humerus as it traveled from right to left and front to back. He also testified the path of the bullet was inconsistent with Officer McNish's testimony in that, if Gonzalez had been pointing his gun at Officer McNish when he was shot, the bullet could not have entered Gonzalez's arm at that angle. On cross-examination, he acknowledged that, if Gonzalez had been shot in the chest first, his torso could have rotated and his arm could have rolled forward and dropped, which would necessarily have changed its position at the time the bullet struck his arm.
Ernest Salazar, one of Gonzalez's fellow inmates at Imperial County Jail, testified that Officer McNish arrested him in April 2010. During that encounter, Salazar was hiding in his girlfriend's closet. When Officer McNish discovered Salazar was in the closet, he yelled to him, "If you don't want to get knocked the fuck out, I suggest you put your hands where I can see them." Salazar testified he felt threatened by the remark. Later, when Salazar was waiting to be transferred to jail from the Brawley Police Department, Officer McNish, who was sitting near him in a fenced area adjacent to the police station, could see Salazar looking at the gate as it opened and said to Salazar, "Don't even think about it." Salazar responded, "It ain't worth it. I ain't trying to get ['Tased']." Salazar testified that Officer McNish, glancing at his service weapon, said, "I'm not talking about a [Taser]." When Salazar replied, "I ain't trying to get shot, either," Officer McNish stated, "Well, that's not what happened to the last person."
Armando Leon, another Imperial County Jail inmate, testified that Officer McNish detained him in late June 2010. On that occasion, Officer McNish found a bindle of drugs lying near where Leon had been mowing a neighbor's lawn. While sitting handcuffed on a curb, Leon began to stand in order to indicate to Officer McNish which house he had come from and explain his purpose for being there. Leon testified that Officer McNish said to him, "If you get up, I'm going to shoot you." Leon replied, "Go ahead," and Officer McNish placed him in his police car. On the way to the police station, Officer McNish told him, "Don't think I wouldn't have shot you, Mr. Leon, because I shot somebody already at Garcia's Market." Leon testified that Officer McNish also said he "did society a favor" by shooting that person.
C. The People's Rebuttal
Officer McNish testified on rebuttal that Leon had been cooperative during the arrest. Officer McNish also stated that Leon had not tried to get up from the curb while handcuffed, he (Officer McNish) had not threatened to shoot Leon, he had not discussed with Leon the shooting at Garcia's Market, and he had not made reference to shooting someone in a way that would "do society a favor."
Officer McNish acknowledged he said to Salazar words to the effect of "Let me see your hands or I'm going to knock you the fuck out," but this was only because he had ordered Salazar three or four times, without a response, to come out, and he was unable to see Salazar's hands while he was hiding inside the closet.
Officer McNish also acknowledged he said to Salazar, "Don't even think about it," and that Salazar replied by asking if he was going to be "Tased" or something to that effect. Officer McNish testified he then pointed to his duty belt and told Salazar he had not been issued a Taser. Officer McNish stated he never threatened to shoot Salazar and denied making any references to the shooting at Garcia's Market.
DISCUSSION
I
VOLUNTARINESS OF GONZALEZ'S UNMIRANDIZED
STATEMENTS RULED ADMISSIBLE AS IMPEACHMENT EVIDENCE
Gonzalez contends the court committed prejudicial error when it denied his in limine motion to suppress the self-incriminating "unMirandized" statements he made at the hospital on April 6, 2010, finding he voluntarily made the statements and ruling that evidence of those statements was admissible as impeachment evidence in the event Gonzalez testified in his own defense. Gonzalez asserts that, "[a]lthough the cold transcript of the law enforcement interview . . . may arguably show a voluntary statement, that appearance is belied by the evidence surrounding the taking of the statement. The totality of the circumstances demonstrate [sic] that the statement was the result of coercive law enforcement conduct and thus was involuntary." We reject this contention.
A. Background
1. Gonzalez's in limine motion to suppress his statements at the hospital
Gonzalez brought a motion in limine to suppress self-incriminating statements he made at the hospital to Investigator Singh and two police officers on April 6, 2010. Gonzalez argued "the statements should be suppressed on the grounds that they violated [his] rights under [Miranda] and that the statements were not voluntarily made in violation of the due process clause of the [Fifth] Amendment," and, thus, "the statements may not be used in any way at time of trial, even for purposes of impeachment."
The People opposed the suppression motion, arguing that Miranda warnings were not required because Gonzalez was not deprived of his freedom in any significant way, he was not under formal arrest and there was no restraint of his freedom of movement from an objective point of view, his detention at the hospital was temporary and solely for investigative purposes, and Gonzalez voluntarily submitted to the interview.
2. Suppression motion hearing
In mid-July 2010, the court conducted an evidentiary hearing on Gonzalez's suppression motion. Radinka Yordanova, a registered nurse employed by the hospital, testified on direct examination by defense counsel that she received a telephone call from someone who told her to hold Gonzalez's discharge from the hospital. She could not remember whether the person who called identified himself or herself as someone who worked for law enforcement. Yordanova indicated she did not tell the "patient who suffered from the gunshot wounds" (Gonzalez) that his discharge was going to be on hold until the person who called Yordanova arrived at the hospital. On cross-examination, Yordanova testified that she did not "have the right[] to hold the discharge," and she transferred the telephone call to the charge nurse.
Joe Alcazar, a private investigator retained by the defense, testified he interviewed Yordanova on June 21, 2010, and she told him the person who had telephoned her to request a hold on Gonzalez's discharge from the hospital was a female who also requested a private room for an interview. Yordanova told Alcazar that "they" were going to hold the patient. On cross-examination, Alcazar testified that Yordanova said she took the information to hold Gonzalez for an interview and have a private room and relayed that information to her supervisor. When asked, "Did [Yordanova] say whether she in fact did [hold the patient] or not?", Alcazar replied, "Only that she was going to hold the patient."
Dulce Gomez, Gonzalez's girlfriend, testified she was with Gonzalez in his room at the hospital on April 6, 2010. She stated that Gonzalez was supposed to be discharged that day, and Yordanova came into the room and told Gonzalez he was not going to be able to leave because somebody was going to talk to him before he left.
Gonzalez also testified in support of his suppression motion. He testified that he was hooked up to a chest tube earlier in the morning on April 6, 2010, before he was interviewed at the hospital. He stated that, as he and Gomez were leaving the hospital, Yordanova came into his room and said he could not leave until somebody came and spoke to him. When Investigator Singh showed up to interview him, he told her he was in a lot of pain and he had received pain medication that morning. Investigator Singh was accompanied by two other people who wore badges and had guns. He was taken to a room. Only he, Investigator Singh, and the two officers were in the room. Gonzalez stated he was not advised of his Miranda rights.
Gonzalez also testified he thought he had to answer the questions that morning in order to be discharged because Yordanova had told him that to be discharged he had to speak to the people who were going to come to the hospital. The door to the interview room was closed and the interview lasted about an hour. Gonzalez testified the officers confronted him like they thought he was telling them something untruthful. He said, "Like, they didn't think I was telling the truth about me not pointing the gun." He acknowledged telling the officers that the officer who shot him did so because he (the officer) felt his life was in danger. Gonzalez indicated he had never been given Miranda rights before, and he would not have granted the interview had he known that his statements to Investigator Singh could be used against him in court during a jury trial.
On cross-examination, Gonzalez indicated that, although he was in pain during the interview, his mind was clear and he was able to tell Investigator Singh the date. He acknowledged that Investigator Singh and the officers told him he was not under arrest, and he understood that he was not under arrest. Gonzalez also acknowledged that, before the interview started, they showed him the door and told him he could leave or walk out any time he wanted to, and he told them he understood he could leave at any time. Gonzalez further acknowledged that he never told them he did not want to talk to them. The prosecutor asked, "But if you didn't have to talk to them, why didn't you just leave?" Gonzalez replied, "I just felt like I had to talk to them so that I could leave the hospital." Yordanova told him that.
Investigator Singh testified on behalf of the prosecution. She stated that when she phoned the hospital staff, she wanted to make sure that Gonzalez was able to speak because she wanted to interview him at the hospital. She denied asking them to hold Gonzalez there until she arrived. Yordanova never told her Gonzalez would be kept at the hospital until she arrived. Investigator Singh did not go to the hospital to arrest Gonzalez, and she did not arrest him. She did not interview Gonzalez in his hospital room because there was another patient there. At no point did Gonzalez express any unwillingness to talk to her. After the interview began, Gonzalez never indicated he wanted to terminate the interview and he never got up to try to move to the door. She indicated she did not promise anything to Gonzalez.
On cross-examination, Investigator Singh testified she did not give Gonzalez his Miranda rights because he was not being detained and "[h]e had every right to leave." She did not advise him he could refuse to answer any question.
3. Court's initial ruling
After hearing the testimony of the witnesses and the arguments of defense counsel and the prosecutor, the court initially found that Gonzalez's unMirandized statements were involuntary and inadmissible. The court stated:
"[Y]ou both have made some very good points and it's a very difficult question, very close. It certainly would have made things a lot easier had the Miranda rights been given, but be that as it may they weren't.
"I have to look at this case from a standpoint of—of how a reasonable person would have viewed the situation, whether that reasonable person felt that he would have been deprived of freedom in a significant way or was led to believe that he was being deprived.
"I have to look at this from an objective set of circumstances, and the totality of the circumstances. So I have laid out for you the totality. And I think what—it's a very, very close balance. What seems to tip the balance is [Gonzalez] wanted to go home. He had his family waiting for him. He knew he was not free to leave the hospital until first he spoke with the police officers. And he did. And he submitted to that.
"Now, there are other surrounding circumstances about him being in pain, or the pain didn't seem to bother him that much. He was quite vociferous in his conversations with [Investigator] Singh, I think to the tune of something like 52 pages [of] transcript. If he was in that much pain, I don't think it would have lasted an hour. I don't think it would have lasted, or there would have been as much conversation that would have taken place. But I think the problem was that they
had ahold—they had—they had him in a vice, in effect. They had him, again, literally but figuratively speaking he couldn't leave that hospital until they—until he completed his conversation with the officer. Yes, he could have left the room, but . . . free to leave means not just—it means being free not only to break the conversation, but to leave—to leave the environment that he was in. And I don't think you can just segment this and chop it up in little pieces and say, well, he could leave this room, but he couldn't leave that room. He could leave this area, but not that area. I don't think you can do it that way. He was in a confined area of the hospital. And I think the Miranda rights should have been given. And unfortunately they were not, and therefore I'm going to find that his statements were involuntary and that they are not admissible." And they're involuntary for the reasons that the Miranda rights were not given.
"And then this is where the other factors do have some play. That he was in pain. In this transcript it states that he was dizzy quite a bit. He was on medications. He hadn't slept.
"There's some countervailing arguments that he seemed to be oriented as far as address, name of his girlfriend, his age, his son's age rather, his location. And clearly he was conversant. But they had a hold—the police agencies had a hold on him. And if they had that hold on him, they should have given him his Miranda rights. That's how I view it. So that's my ruling." (Italics added.)
4. The court's modified ruling
The next day, the court notified the parties it had modified its initial ruling and found that Gonzalez's statements were voluntary and could be used for impeachment purposes. The court explained its modified ruling at a subsequent hearing:
"[W]hat propelled me to rule in [Gonzalez's] favor, as far as not allowing this to come in in the [prosecution's] case in chief, was the fact that—you had to go back to the terminology I used—maybe 'vise' is a little—'being in a vise' is [a] little bit too extreme of a statement, because we're not talking about waterboarding or anything like that. But he didn't really—he wasn't really given a free choice to leave. That's what bothered me about the case.
"Yeah, he was near the door, but—you know, he can go to another room, but he still couldn't get out of the hospital because of the prior instructions given. And that's what bothered me about it, and that's why I felt they couldn't use it in the case in chief.
"But this isn't a case of waterboarding. This isn't a case of the defendant being in such extreme pain under such a lot of medication that he didn't know what he was saying. It's quite the contrary.
"So there was a technical violation of Miranda rights, and they should have been given. That's my view of it anyway. And that's why those statements will be kept out, as far as the People's case in chief [is] concerned."
B. Applicable Legal Principles
"[A] statement taken in violation of [Miranda] is inadmissible at trial in the prosecution's case-in-chief, but is admissible to impeach the defendant's credibility as a witness, so long as the statement otherwise is voluntary." (People v. Peevy (1998) 17 Cal.4th 1184, 1188 (Peevy).)
Regarding the factors to be considered when determining whether a defendant's statements were voluntary (hereafter referred to as the Dykes factors), the California Supreme Court explained in People v. Dykes (2009) 46 Cal.4th 731, 752 (Dykes), that courts examine whether a defendant's will was overborne by the circumstances surrounding the giving of a confession. "In making this determination, courts apply a 'totality of the circumstances' test [and look] at the nature of the interrogation and the circumstances relating to the particular defendant." (Ibid.) "With respect to the interrogation, among the factors to be considered are ' " 'the [] element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; [and] its continuity . . . .'"'" (Ibid.) "With respect to the defendant, the relevant factors are ' " 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' " ' " (Ibid.) The Dykes court also explained that " '[a] statement is involuntary [citation] when, among other circumstances, it "was ' "extracted by any sort of threats . . . , [or] obtained by any direct or implied promises . . . "'"'" (Ibid.)
1. Standard of review
"As with Miranda claims, the trial court's legal conclusion as to the voluntariness of a confession is subject to independent review on appeal. [Citations.] The trial court's resolution of disputed facts and inferences, its evaluation of credibility, and its findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence. [Citations.] The state bears the burden of proving the voluntariness of a confession by a preponderance of the evidence." (Dykes, supra, 46 Cal.4th at pp. 752-753.)
C. Analysis
The People concede that Gonzalez's rights under Miranda were violated, but argue his statements to Investigator Singh and the two officers at the hospital were voluntary under the totality of the circumstances, and, thus, admissible for impeachment purposes. After considering the Dykes factors and the totality of the circumstances regarding the nature of the April 6, 2010 interview and the circumstances relating to Gonzalez at the time of the questioning, we conclude the court did not err in finding Gonzalez voluntarily made the statements, evidence of which was therefore admissible for impeachment purposes. (Peevy, supra, 17 Cal.4th at p. 1188.)
Regarding the nature of the interrogation, the evidence shows the interview took place in the hospital in a fairly small room that, according to Investigator Singh, measured about 10 feet by 15 feet. The door to the room was closed and the interview lasted about an hour. Only Gonzalez, Investigator Singh, and the two officers, who according to Gonzalez wore badges and guns, were in the room.
With respect to the issue of coercion, Gonzalez acknowledged that Investigator Singh and the officers told him he was not under arrest and testified he understood he was not under arrest. Gonzalez also acknowledged that, before the interview started, he was shown the door and was told he could leave or walk out any time he wanted to, and he told Investigator Singh and the officers he understood he could leave at any time. Gonzalez further acknowledged he never told them he did not want to talk to them, Although Gonzalez testified that he "just felt like [he] had to talk to them" in order to be able to leave the hospital, he acknowledged that Yordanova, not Investigator Singh or the officers, told him that. Investigator Singh testified she did not threaten Gonzalez in any way and indicated she made no express or implied promises to him to induce him to answer questions. Singh also stated that nothing was said in anger during the interview, neither she nor Gonzalez displayed any anger, and they did not raise their voices.
Regarding the circumstances relating to Gonzalez, he testified he had been hooked up to a chest tube earlier in the morning, before he was interviewed. He stated that when Investigator Singh showed up to interview him, he told her he was in a lot of pain and had received pain medication that morning. The transcript of the interview also shows he told Investigator Singh and the officers during the interview that he "can't even sleep" because of the medications he was taking. However, during his cross-examination, Gonzalez acknowledged that, although he was in pain during the interview, his mind was clear and he was able to tell Investigator Singh the date.
Based on the foregoing record, we conclude that, under the totality of the circumstances, a reasonable person in Gonzalez's situation would not have felt coerced to participate in the interview and would have felt free to end the interview at any time and leave not only the interview room, but the hospital as well, as Investigator Singh assured Gonzalez he could do at any time. Although Gonzalez told Investigator Singh he was in pain, he had taken pain medication before the interview started, and he had been having difficulty sleeping, he acknowledged both that his mind was clear and he understood he could end the interview and leave at any time. Accordingly, we affirm the court's finding that Gonzalez's recorded statements during the interview were voluntarily made, and, thus, the court properly found that evidence of those statements was admissible for impeachment purposes. (See Peevy, supra, 17 Cal.4th at p. 1188.)
II
JUROR MISCONDUCT
Gonzalez also contends the court committed prejudicial error when it denied his new trial motion in which he argued jurors committed misconduct by violating the court's instruction that they not consider or discuss in their deliberations his failure to testify. We reject this contention. Although the evidence in support of Gonzalez's new trial motion shows (as the People concede) that juror misconduct occurred, we conclude the misconduct was not prejudicial.
A. Background
1. Court's instruction
Regarding the fact that Gonzalez did not testify, the court instructed the jury as follows:
"A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way." (Italics added.)
2. Gonzalez's new trial motion
Gonzalez brought a motion for new trial in which he argued the jury committed prejudicial misconduct by "violat[ing] the Court's explicit instruction not to consider or even discuss in the jury deliberations [his] failure to . . . testify," and by "t[ying] that omission to an uncalled for inference that . . . his failure to take the witness stand could be considered against him during the deliberations." (2CT 506, 511:7-24)! In support of his motion, Gonzalez submitted the declarations of jurors Nos. 7 and 12. In her declaration, juror No. 7 stated in part:
"2. During the jury deliberations that commenced on August 5, 2010, some of the jurors commented upon the fact that Mr. Gonzalez did not testify on his own behalf at trial. This subject came up a number of times during the deliberations, that it would have been better had the jury heard the story of Mr. Gonzalez from the witness stand and that he should have testified.
"3. As I stated above, during the deliberations, it was commented upon on numerous occasions, that the defendant did not testify and refused to take the witness stand. I am not sure if this was one of the reasons why some of the jurors decided to find Mr. Gonzalez guilty on Count 2, assault with a firearm on a peace officer. However, I do
know that this was a subject that was brought out by a number of jurors during the course of the jury deliberations."
Juror No. 12 stated in his declaration:
"2. During the jury deliberations . . . , some of the jurors commented upon that fact that Mr. Gonzalez did not testify on his own behalf at trial. A number of jurors said it would have been better if they had heard the story of Mr. Gonzalez from the witness stand and that he should have testified. I know that I felt I would have liked to hear his testimony from the witness stand and hear his side of the story.
"3. During the deliberations this was commented upon on numerous occasions, that the defendant did not testify and refused to take the witness stand. I am not sure if this was one of the reasons why some of the jurors decided to find Mr. Gonzalez guilty on Count 2, assault with a firearm on a peace officer. However, I do know that this was a subject that was brought out by a number of jurors during the course of the jury deliberations.
"4. I do not regret or take back my verdict, but I do remember jurors discussing the fact that Mr. Gonzalez did not testify on his own behalf and, because of that fact, he was probably guilty of the charges."
2. The People's opposition
The People opposed the motion, claiming the jury did not commit misconduct. In support of their motion, the People submitted supplemental declarations by jurors Nos. 12 and 7. In his supplemental declaration, juror No. 12 stated:
"1. I did sign a written statement for the defense investigator[, Joe Alcazar]; however, I did not read that statement in its entirety.
"2. The defense investigator skimmed over the contents of the declaration before I signed it.
"3. The issue of the defendant not testifying was brought up in the context that his testimony might have cleared up questions regarding what occurred. [¶] . . .
"5. I made my decision solely based on what I heard during the trial.
"6. Nobody stated that the defendant is guilty because he didn't testify.
"7. I do not regret or take back my verdict."
Juror No. 7 stated in her supplemental declaration:
"2. The subject of the defendant not testifying came up in the context of trying to decide the sequence of events.
"3. Mr. Alcazar asked me if it would have made a difference if the defendant testified and I responded that it would have been helpful to have both sides.
"4. The issue of the defendant not testifying was also raised in the context of not allowing the attorney's comments to be considered as evidence in the case. We were making sure not to substitute counsel's arguments as a substitute for the defendant's testimony.
"5. I found the defendant guilty solely based on the evidence that was presented at the trial."
3. Gonzalez's reply
In his reply to the People's opposition, Gonzalez asserted that, "not only did the jurors discuss an area that they were told not to discuss, the failure of [Gonzalez] to take the witness stand, they also drew the improper inference that he did not testify and therefore the reasons he did not testify was probably because he was guilty." In support of his reply, Gonzalez submitted the declaration of his trial counsel, John Breeze, and Breeze's investigator, Joe Alcazar.
In his declaration, Breeze stated that he drafted juror No. 12's declaration after he spoke to juror No. 12 by telephone. He gave the declaration to his investigator, Joe Alcazar, who "shepherded" the declaration to juror No. 12. Juror No. 12 signed the declaration without making any changes to it, and he (Breeze) did not ask Alcazar to make any comments or representations to juror No. 12 regarding the declaration because he (Breeze) was the one who had spoken with juror No. 12 and had obtained the information contained in the declaration.
In his declaration, Alcazar stated that he merely took to juror No. 12 the declaration drafted by Breeze, and juror No. 12 signed it without making any changes after he read it. Alcazar also stated he did not interview juror No. 12, but he did interview juror No. 7. Specifically, Alcazar stated:
"4. With respect to juror No. 7, . . . I did interview her. She indicated and corroborated [juror No. 12's] declaration that the jurors had discussed the fact that Mr. Gonzalez did not testify at the trial in this matter. She told me that it was commented upon on numerous occasions that [Gonzalez] did not testify and refused to take the witness stand by other jurors. She also stated that this was a subject that was brought out by a number of other jurors during the course of the jury deliberations.
"5. I do not remember ever telling [juror No. 7] whether it made a difference or not to the jurors if [Gonzalez] testified or not. I don't believe that this was a subject that came up during my conversation with her. The interview with [juror No. 7] was done almost a week later . . . . All I did at that point in time is interview her and she indicated that she would be willing to sign a declaration indicating that the jurors discussed the fact that [Gonzalez] did not testify at trial. I took that information to Mr. Breeze and he drafted a declaration to that effect and I took it back to [juror No. 7]. [Juror No. 7] was given every opportunity to make any changes in the declaration that she felt were necessary and in fact Mr. Breeze had told me to advise [juror No. 7] of that. She read the declaration and signed it. She indicated that there were no changes necessary."
4. The People's supplemental opposition
The People thereafter filed a supplemental opposition supported by the declaration of juror No. 11, who stated in part:
"2. The subject of the defendant not testifying came up, if at all, in the context of discussing the judge's instructions.
"3. The judge's instructions were discussed by the jury at length.
"4. I found the defendant guilty solely based on the evidence that was presented by both attorneys at the trial. [¶] . . .
"6. I did not hear any other jurors openly discuss the fact that the defendant is guilty because he did not testify."
5. Ruling
After conducting a hearing on Gonzalez's new trial motion and hearing oral arguments on the matter, the court first found that juror No. 7's declaration created a rebuttable presumption of jury misconduct, but her supplemental declaration rebutted that presumption. The court also found juror No. 12's supplemental declaration refuted the statement in his first declaration that "I do remember jurors discussing the fact that Mr. Gonzalez did not testify on his own behalf and, because of that fact, he was probably guilty of the charges." The court stated that juror No. 11's declaration, which the prosecution submitted in support of its supplemental opposition, "reaffirms [juror No. 12's] second declaration and that was that nobody talked about [Gonzalez being] probably guilty or guilty by failing to testify."
The court then denied Gonzalez's new trial motion. Specifically, the court stated: "So I will find the comments about [Gonzalez] not testifying didn't become part of the deliberative process. It wasn't a factor of the decision made. Therefore, the motion for new trial is denied."
B. Applicable Legal Principles
A defendant has a constitutional right to a trial by an impartial jury. (In re Hamilton (1999) 20 Cal.4th 273, 293.) "An impartial jury is one in which no member has been improperly influenced [citations] and every member ' "is capable and willing to decide the case solely on the evidence before it." ' " (Id. at p. 294.)
"Prejudicial jury misconduct constitutes grounds for a new trial." (People v. Blackwell (1987) 191 Cal.App.3d 925, 929, citing § 1181, subd. 3.) In general, jurors commit misconduct when they directly violate the oaths, duties, and admonitions imposed on them. (In re Hamilton, supra, 20 Cal.4th at p. 294.)
This court has explained that "[t]o challenge the validity of a verdict based on juror misconduct, a defendant may present evidence of overt acts or statements that are objectively ascertainable by sight, hearing, or the other senses." (People v. Cissna (2010) 182 Cal.App.4th 1105, 1116, citing People v. Danks (2004) 32 Cal.4th 269, 302 & Evid. Code, § 1150, subd. (a).) "No evidence may be presented concerning the subjective reasoning processes of a juror that can neither be corroborated nor disproved . . . ." (People v. Cissna, supra, 182 Cal.App.4th at p. 1116, citing People v. Danks, supra, at p. 302, In re Hamilton, supra, 20 Cal.4th at pp. 294, 296 & In re Carpenter (1995) 9 Cal.4th 634, 653-654.)
A jury that violates a trial court's instruction not to discuss the defendant's failure to testify commits misconduct. (People v. Leonard (2007) 40 Cal.4th 1370, 1425 (Leonard).) "This misconduct gives rise to a presumption of prejudice, which 'may be rebutted . . . by a reviewing court's determination, upon [an examination of[ the entire record, that there is no substantial likelihood that the defendant suffered actual harm.' " (Ibid.; see also People v. Danks, supra, 32 Cal.4th at p. 303 [applying a similar standard to allegations of juror bias].)
1. Standard of review
"On appeal from a ruling denying a new trial motion based on juror misconduct, we defer to the trial court's factual findings if supported by substantial evidence, and exercise our independent judgment on the issue of whether prejudice arose from the misconduct." (People v. Cissna, supra, 182 Cal.App.4th at p. 1117.)
C. Analysis
The Attorney General acknowledges that, "[b]y discussing the fact that [Gonzalez] had not testified, [the] jurors committed misconduct," and thus a rebuttable presumption of prejudice arose. We accept this concession. (See Leonard, supra, 40 Cal.4th at p. 1425.) Accordingly, the issue presented is whether the presumption of prejudice has been rebutted. (Ibid.)
Independently reviewing the entire record, we conclude the presumption of prejudice has been rebutted because the evidence shows there is no substantial likelihood Gonzalez suffered actual harm as a result of the jury misconduct. Gonzalez supported his new trial motion with the declarations of jurors Nos. 7 and 12. The declaration of juror No. 7 created a rebuttable presumption of prejudice because it showed that some jurors—in direct violation of the court's explicit instruction they were not allowed during deliberations to discuss the fact that Gonzalez did not testify—repeatedly commented on that fact anyway. However, nothing in juror No. 7's declaration suggests that any of the jurors made a statement or engaged in any other objectively ascertainable overt act indicating that one or more of the jurors drew an adverse inference against Gonzalez as a result of his failure to testify. Rather, according to Juror No. 7, some of the jurors commented that Gonzalez should have testified because "it would have been better had [they] heard the story of Mr. Gonzalez from the witness stand." In other words, the jurors' comments on Gonzalez's failure to testify were mere expressions of regret that he had not testified and do not indicate that one or more jurors drew any inference against him as a result of his failure to testify. Juror misconduct in the form of such expressions of regret that the defendant did not testify is not prejudicial. (Leonard, supra, 40 Cal.4th at p. 1425.)
Juror No. 12's original declaration also gave rise to a rebuttable presumption of prejudice because, like juror No. 7's declaration, it showed that some jurors violated the court's instruction they were not allowed to discuss the fact that Gonzalez did not testify. Of particular concern is juror No. 12's statement in that declaration that, "I do remember jurors discussing the fact that Mr. Gonzalez did not testify on his own behalf and, because of that fact, he was probably guilty of the charges." However, in his supplemental declaration, juror No. 12 directly contradicted that statement by attesting, "Nobody stated that the defendant is guilty because he didn't testify." Juror No. 12 adequately explained the contradiction by stating that, when the defense investigator presented the original declaration to him to sign, he (juror No. 12) "did not read that statement in its entirety" and the investigator "skimmed over the contents of the declaration before I signed it."
Juror No. 11's declaration, which the People submitted with its supplemental opposition to Gonzalez's new trial motion, provided additional evidentiary support for juror No. 12's statement that "[n]obody stated that the defendant is guilty because he didn't testify." Specifically, juror No. 11 stated: "I did not hear any other jurors openly discuss the fact that the defendant is guilty because he did not testify."
The record thus supports the court's finding that the presumption of prejudice created by the juror misconduct in this case was rebutted. The court accepted the version of the jurors' comments presented in the supplemental declarations submitted by the prosecution, and we will not disturb that credibility determination, which is supported by substantial evidence. (See People v. Loker (2008) 44 Cal.4th 691, 749.) The California Supreme Court has recognized that "[i]t is natural for jurors to wonder about a defendant's absence from the witness stand." (Ibid., citing Leonard, supra, 40 Cal.4th at p. 1425.) Here, as in Leonard, "the comments on defendant's failure to testify mentioned in defendant's new trial motion merely expressed regret that defendant had not testified, because such testimony might have assisted the jurors in understanding him better." (Leonard, at p. 1425.) We conclude there is no substantial likelihood that Gonzalez was prejudiced by the jury's comments on his failure to testify.
III
EXCLUSION OF EVIDENCE OF MORAL TURPITUDE
REGARDING OFFICER MCNISH
Gonzalez next contends the court prejudicially erred when it prevented him from introducing evidence of what he claims was a prior incident of moral turpitude involving Officer McNish. Specifically, he complains the court prejudicially abused its discretion when it excluded under Evidence Code section 352, "on the bases of remoteness, dissimilar facts, and undue consumption of time," evidence showing that Officer McNish improperly subjected a 23-year-old female stripper, Esther C., to a strip search incident to an arrest. Gonzalez asserts that "a major portion of [his] defense was that Officer McNish lied in conjunction with the instant case," and "the proffered evidence was certainly relevant and admissible as to the issue of Officer McNish's credibility" because, "[i]f the jury had found [he] lied regarding the [Esther C.] incident, it readily could have made the same finding in this case and rejected the entirety of his testimony." We conclude the court did not abuse its discretion by excluding Esther C.'s testimony under Evidence Code section 352.
A. Background
The People brought a motion in limine to exclude, under Evidence Code section 352, Esther C.'s testimony regarding the November 2005 strip search incident, which the People asserted was investigated by the Hemet Police Department and resulted in no disciplinary action against Officer McNish, who then worked as a police officer with the Hemet Police Department. Gonzalez responded by bringing an in limine motion requesting an order allowing Esther C.'s testimony regarding the incident.
During the hearing on the motions, defense counsel informed the court he had successfully requested in a Pitchess motion a copy of the Hemet police report Officer McNish had prepared regarding the Esther C. incident. After the court conducted an in camera review of the report, outside the presence of the prosecutor and defense counsel, it summarized the contents:
"[The report] was written on November 29th, 2005. The day before, [Officer McNish] indicates that he had received a call from dispatch pertaining to Esther [C.] at the address, and that she had several fictitious bills and possibly methamphetamines.
"[Officer] McNish drove to the space, noticed a vehicle parked near Space 36, saw a passenger—no—he knocked on the door of Space 36, contacted [Esther C.], who was sitting on a couch, and then there proceeded to be a discussion between [Esther C.] and the officer, whereby he asked if she had anything illegal on her. He asked if he could search her person, and she said yes.
"After searching [Esther C's] person, he asked if she had anything stuffed in her bra, and she said yes. And then he removed some money from the bra, two $100 bills, to be specific. Asked where she got the money from, and she said she was a stripper, received the two bills as tips for services she provided. Gave her Miranda advisement, and then she told him . . . that she had met an old man who gave her the money. And then he asked to remove the money from the bra. She complied. Then he noticed the two $100 bills were fictitious; they didn't have the color-shifting ink or watermark. Apparently, she was already on probation, and he arrested her.
"That's not the entire report, but that's a quick synopsis of it."
The court found that Officer McNish's report contained discoverable information, turned it over to both parties, and asked for their arguments regarding its admissibility. Defense counsel noted that Officer McNish's report made no mention of the details regarding the purported strip search and argued it was "relevant on the issue of falsification of police reports and whether he made a false statement in that report." He continued:
"Because if the jury were to determine that Esther [C.] was a credible witness on the witness stand, then the question is if they made that determination that [Officer] McNish lied about the report, I think they would have a tendency to believe that he may have lied about the report of [Gonzalez] pointing a weapon at him in a threatening manner. And for that reason, I think it's relevant evidence. I don't think it will take up too much of the court's time, in terms of consumption of time, because we're only dealing here with one witness, Esther [C.]. [¶] And I'm sure that Officer McNish is going to get up here and probably say that the event never occurred. And then the jury can make a determination as to who's telling the truth about that incident."
The prosecutor argued that allowing Esther C. to testify would result in a "fullblown minitrial":
"First, there won't be just one witness. We're going to have a fullblown minitrial if [Esther C.'s] allowed to testify. And the reason is that I'm going to bring rebuttal witnesses in, people that she—I haven't determined who these people are yet, but I've been told that throughout the course of this she had made statements to other people that she was going to lie about this and she was going to really get [Officer] McNish.
"And if I have to, I'll get these people down here from Hemet, and they'll testify to what she's said, and we'll litigate the issue. But that aside, we have an officer here who in six or seven years of service has one complaint filed against him. One. It was unfounded. It was found to be baseless, groundless, and they took no action."
The prosecutor also argued the incident was too remote in time, Esther C.'s testimony could not be used for impeachment purposes, and her testimony would result in undue consumption of time for purposes of Evidence Code section 352:
"Now, if there's a string of complaints lasting through the years, there might be something to this. But the fact that this is one instance, one day, six years ago, from a person that he arrested, that internal affairs looked into and took no action on, who's now in jail for a crime of moral turpitude, who is now being held with a $2 million bail for a crime of moral turpitude, and to say that that has some bearing on a shooting that occurred six years later?
"It's not a crime of violence. It's not a crime that involved a gun. You cannot impeach him with this because he never wrote a report in this case, so there would be no lying on the report. [¶] . . .
"More to the point, under [Evidence Code section] 352 it will be an undue consumption of time. It's just going to add numerous witnesses to the People's rebuttal case. It will be prejudicial because we're essentially saying, 'Hey, here's a person who you arrested who hates you, and they have something to say about you.' And we're going to have the jury determine issues that are ancillary to this case, they have no relevance to this case—issues that have no relevance to this case and no bearing on the facts of this case."
1. Ruling
After hearing additional argument from defense counsel, the court excluded the proffered testimony of Esther C. under Evidence Code section 352, stating:
"I'm going to find that under Evidence Code section 352, the probative value of this testimony—potential testimony—of Esther [C.] is substantially outweighed by the considerations under [that section].
"The Court can take into consideration the prejudicial effect on the jury that—we're talking about allegations of sexual harassment, that this was six years ago when this happened. It's more remote in time, certainly, than the other incident that was brought to our attention on Mr. Salazar, that I think it will probably create an undue
consumption of time, in view of the fact that we have a—there was an internal affairs investigation conducted and there were several officers involved in that investigation. I can perceive them testifying on behalf of the People.
"And we are going to get sidetracked on an issue that really isn't, I don't think, terribly critical in determining this officer's reliability to tell the truth. We did not have a police report in this case, whereas we did in the Esther [C.] case, so we can't compare the two in that respect.
"I think for all the reasons that [the prosecutor] has indicated, that this goes—this is really a matter well within the reach of Evidence Code [section] 352 and it should be excluded on that ground[]."
B. Applicable Legal Principles
Evidence Code section 352 provides:
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The trial court's exercise of that discretion "'will not be disturbed on appeal except upon a showing the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (Ibid., italics omitted.)
"[T]he latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler (1992) 4 Cal.4th 284, 296, italics added.)
C. Analysis
The court did not abuse its broad discretion under Evidence Code section 352 by excluding Esther C.'s testimony, which the defense claimed was admissible as impeachment evidence on the issues of whether Officer McNish made false statements in his Hemet police report regarding the 2005 Esther C. incident, and whether his reporting in this case that Gonzalez pointed a gun at him in a threatening manner was credible. The record shows any probative value Esther C.'s testimony may have had was substantially outweighed by the probability that its admission would have necessitated undue consumption of time within the meaning of Evidence Code section 352. We are not persuaded by defense counsel's argument that Esther C.'s testimony would not "take up too much of the court's time" because (counsel asserted) "we're only dealing here with one witness, Esther [C.]"; and we conclude the court properly found her testimony would "probably create an undue consumption of time, in view of the fact that . . . there was an internal affairs investigation conducted and there were several officers involved in that investigation." The prosecutor represented to the court that he had obtained information that Esther C. had made statements to other people that she was going to lie about the incident, and that the prosecution would "add numerous witnesses to the People's rebuttal case" if Esther C. were allowed to testify. We agree with the prosecutor's assessment that such a turn of events would result in a "full-blown minitrial" focused on an unrelated incident that was remote in time, had been investigated by internal affairs, and had resulted in no disciplinary action against Officer McNish. For this reason alone the court's exclusion of Esther C.'s testimony was a proper exercise of the court's broad discretion under Evidence Code section 352, as it served to prevent the trial from "degenerating into [a] nitpicking war[] of attrition over collateral credibility issues." (People v Wheeler, supra, 4 Cal.4th at p. 296.)
To the extent Esther C.'s testimony likely would have suggested to the jury that Officer McNish had sexually harassed her, we also conclude that, for purposes of Evidence Code section 352, any impeachment value her testimony may have had was also substantially outweighed by the probability that its admission would have resulted in undue prejudice to the prosecution and confusion of the issues the jury was being asked to decide in this case. Accordingly, we affirm the court's decision under Evidence Code section 352 to exclude Esther C.'s testimony.
IV
CLAIM OF CUMULATIVE ERROR
Gonzalez also claims "the cumulative prejudicial effect of all the errors" in this case violated his constitutional rights. Specifically, he claims he was "denied his constitutional rights to a fair trial, due process, effective assistance of counsel, confrontation, to present a defense, a reliable determination of guilt and penalty, and fundamental fairness" under the United States and California Constitutions, because the court "improperly denied [his] new trial motion based on prejudicial jury misconduct[,] improperly and prejudicially found [his] unMirandized statement to have been voluntary[, and] prejudicially excluded evidence impeaching the reliability of the main prosecution witness." Gonzalez's claim is unavailing.
A series of trial errors, though harmless when considered independently, may in some circumstances rise by accretion to the level of prejudicial, reversible error. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) Here, Gonzalez has failed to meet his burden of substantiating any of his claims of error. Accordingly, we conclude his claim of cumulative error is also unsubstantiated.
V
PITCHESS MOTION
Last, Gonzalez requests that this court independently review the materials from Officer McNish's City of Hemet Police Department and City of Brawley Police Department personnel files that the trial court reviewed during the in camera proceeding it conducted on June 28, 2010, in connection with Gonzalez's Pitchess motion. As the Attorney General does not oppose this request, we grant it.
A. Background
Gonzalez filed a Pitchess motion, seeking (1) any materials in the personnel records of the Hemet Police Department and Brawley Police Department that "relat[e] to complaints by civilians, private citizens, law enforcement officers, or other public officials against former Hemet City police officer Rene McNish or current Brawley police officer Rene McNish for use or threats of excessive use of force, . . . violence, or harassment towards individuals and for complaints relating to any history of misstating or fabricating facts, making material misstatements in reports concerning charged incidences or providing false information regarding any arrest or incident in which said police officer filed any report or made any statements"; (2) the identity and contact information for any persons who made any such complaints or were interviewed as witnesses or victims in response to any such complaint; and (3) "[a]ll psychological and psychiatric test records" relating to Officer McNish.
In support of his motion, Gonzalez stated that "the personnel records and other records sought . . . contain evidence and [are] relevant to the issue of whether [Officer McNish] misstated or fabricated facts or made material misstatements in his report of the alleged contact with [Gonzalez] in the City of Brawley on March 30, 2010."
On June 28, 2010, the court conducted a hearing on Gonzalez's Pitchess motion and found Gonzalez had demonstrated good cause for an in camera review of the identified personnel records regarding two issues: "[E]xcessive force and falsification of records."
After the in camera review proceeding, the transcript of which was sealed, the court ruled in open court that it found no discoverable material in the Brawley Police Department personnel records, and "one citizen complaint" in the Hemet Police Department personnel records "that would arguably be discoverable in the area of falsification." The court stated that it provided to the parties the "contact information regarding the single complainant," which the record shows was Esther C.
B. Controlling Law
Section 832.7, subdivision (a) provides in part: "Peace officer . . . personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code."
Evidence Code sections 1043 and 1045 prescribe the procedures for discovery and require the moving party to file a written motion that includes an affidavit showing "good cause" for the disclosure sought and the "materiality [of the records] to the subject matter involved in the pending litigation." (Evid. Code, § 1043, subd. (b)(3).) These statutes codify the California Supreme Court's decision in Pitchess, which permitted discovery of police officer files on a proper showing of materiality, relevance and necessity. (See City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 883, 889.)
The Pitchess statutory scheme recognizes that evidence contained in a law enforcement officer's personnel file may be relevant in a lawsuit, but that the officer "has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily." (People v. Mooc (2001) 26 Cal.4th 1216, 1227.) To balance these competing interests, Pitchess and the implementing statutory scheme "require the intervention of a neutral trial judge, who examines the personnel records in camera . . . and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations. In this manner, the Legislature has attempted to protect [a party's] right to a fair trial and the officer's interest in privacy to the fullest extent possible." (Mooc, supra, at p. 1227; City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53.)
C. Analysis
As the Attorney General does not oppose Gonzalez's request that this court independently review the sealed materials and determine whether there is any additional discoverable information in those materials, we grant his request. We ordered the sealed materials produced for our independent review. Having received and reviewed Officer McNish's personnel records, we agree with the trial court that no additional materials in the files should be disclosed in response to Gonzalez's Pitchess motion. Accordingly we find no error in the trial court's review of the records.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR:
HALLER, J.
AARON, J.