Opinion
Dаvy Wycoff appeals the judgment entered after a jury convicted him of selling, transporting, or offering to sell cocaine base (Health & Saf. Code,
1
§ 11352, subd. (a)) and possession оf a controlled substance (cocaine) (§ 11350, subd. (a)). The trial court also found true the allegations that Wycoff had suffered a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had suffered a prior narcotics conviction and served a prior prison term (§§ 11351, 11370.2, subd. (a); Pen. Code, § 667.5, subd. (b)). He was sentenced to eight years in state prison. In addition to contentions challenging the sufficiency and exclusion of evidence, he asks us to independently review the record of the in camera hearing on his
Pitchess
motion.
(Pitchess v. Superior Court
(1974)
At 3:30 a.m. on Seрtember 30, 2006, Los Angeles Police Officer Michael Barrios and his partner were patrolling in Wilmington when they saw Wycoff and Josselle Hernandez standing on a street comer. As they drove closer, Officer Barrios observed Wycoff hand Hernandez something after both of them had been looking down at the open palm of Wycoff’s right hand. When Hеrnandez saw the patrol car, she brought her hand up to her mouth and put something inside. Wycoff turned his back away from the officers, appeared to manipulate his rear waistband, and then dropped a plastic baggy he was holding in his right hand. Officer Barrios recovered the baggy, which contained an off-white substance that resembled rock cocaine. The officer also recovered an off-white substance resembling rock cocaine from Hernandez’s mouth. Wycoff had $9 in cash in his pocket, all in $1 bills, while Hernandez had a total of $7.
Based on his training and experience, Officer Barrios opined that he and his partner had observed Wycoff and Hernаndez engaging in a drag transaction. Although he did not observe money being exchanged, the rocks in the baggy and the lack of a smoking device led the officer to cоnclude that Wycoff possessed the dmgs for sale. The officer estimated that the rock in Hernandez’s mouth would have cost between $2 and $5, while the rocks in the baggy would hаve brought from $2 to $10 each. He also opined that the rock in Hernandez’s mouth was large enough to smoke. A Los Angeles Police Department criminalist who conduсted color screening and microcrystal tests on the rocks recovered from Hernandez’s mouth and the baggy testified that both items were “cocaine in the form of cocaine base.”
Hernandez testified on Wycoff’s behalf. Hernandez pled guilty to simple possession of a controlled substance (§ 11350, subd. (a)) as a result of the dmgs shе had in her mouth when she and Wycoff were arrested. She also pled guilty and was sentenced to prison for the sale of a controlled substance based on a diffеrent incident in January 2007. She also admitted that she had a prior conviction for simple possession in Texas, along with numerous convictions for prostitution. Hernandez told the jury that she and Wycoff were merely talking when Officer Barrios approached her, and claimed that Wycoff had not given her the rock she had in her mouth. She had nеver seen Wycoff sell or use “dope,” and claimed that the baggy Officer Barrios attributed to
DISCUSSION
[[/]] *
in.
Pitchess
Prior to trial, Wycoff filed a motion pursuant to
Pitchess v. Superior Court, supra,
The sealed transcript of the in camera
Pitchess
hearing is part of the appellate record. We have reviewed the transcript, and cоnclude that the record is insufficient for us to determine whether the trial court properly exercised its discretion in denying discovery. “Although the custodian of records wаs required to submit for review only those documents that were potentially responsive to the discovery request, our Supreme Court has directed that ‘[t]he custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s
Pitchess
motion.’ [Citation.] Morеover, ‘if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court.’ [Citation.] [][] Accordingly, in cases such as this whеre the custodian of records does not produce the entire personnel file for the court’s review, he or she must establish on the record what documents оr category of documents were included in the complete personnel file. In addition, if it is
Here, the custodian of records who testified at the
Pitchess
hearing did not provide the officer’s personnel file for the court’s review. While he brought certain documents and prеpared a summary of them, neither those documents nor the summary is included in the sealed record on appeal. Moreover, the custodian did not provide a summary of the documents in the personnel file that were not presented for the court’s review. Accordingly, the record is insufficient for our review. “We therefore conditionally reverse the judgment and remand for a new
Pitchess
hearing in which the proper procedure is followed.”
(Guevara, supra,
In conditionally reversing the judgment for a new
Pitchess
hearing in
Guevara,
we essentially adopted the disposition employed for the same purpose in
People v. Hustead
(1999)
The judgment is conditionally reversed. The cause is remanded to the trial court with directions to hold a new hearing on Wycoff’s Pitchess motion in conformance with the procedures described in this opinion. If the trial court finds there are discoverable records, they shall be produced and the court shall conduct such further proceedings as are necessary and appropriate. If the court finds thеre are no discoverable records, or that there is discoverable information but Wycoff cannot establish that he was prejudiced by the denial of discovery, the judgment shall be reinstated as of that date.
Gilbert, P. J., and Yegan, J., concurred.