P. v. Yang 3/24/05 CA4/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: G033659

Case Date: 06/09/2005

Preview:Filed 3/24/05 P. v. Yang CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. SEUNG BUM YANG, Defendant and Appellant. G033659 (Super. Ct. No. 03NF0701) OPINION

Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber and Richard F. Toohey, Judges. Affirmed in part, reversed in part and remanded. Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and Andrew S. Mestman, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Seung Bum Yang was convicted of driving under the influence of alcohol and driving when his blood alcohol was 0.08 percent or more, violations of Vehicle Code sections 23152, subdivisions (a) and (b). His pretrial motions requesting disclosure of peace officer personnel records were denied by the trial court. We conclude the trial court did not abuse its discretion when it concluded there was no discoverable material and refused to disclose the contents of officer personnel files. Defendant's sentence included revocation of his driving privileges for five years. Vehicle Code section 13352, subdivision (a)(7) provides for a four-year revocation upon a conviction under Vehicle Code section 23152. We remand the matter so the trial court may engage in the required weighing process for sentencing. The sentence is reversed and the matter is remanded for resentencing consistent with this opinion. In all other respects, we affirm the judgment. I FACTS Buena Park Police Officer Thomas Reyes and Reserve Officer Waldo Miller, were assigned to the Buena Park DUI Task Force at 11:25 p.m. on January 17, 2003, when they observed a vehicle crossing back and forth over the white painted line dividing traffic lanes. The vehicle failed to stop or signal before making a right turn. Reyes observed the clothing worn by both the driver and the front seat passenger. Reyes activated his overhead lights and attempted to conduct a traffic stop. Although the driver looked into his rearview mirror several times, the vehicle did not slow. Both officers illuminated the vehicle with their side spotlights. The vehicle made another right turn into a strip mall and slowed to five miles per hour. Reyes reported the driver dove into the back seat and the passenger jumped into the driver's seat.

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Defendant's brother Hak Yang was in the driver's seat when the officers approached the vehicle. Reyes reported he smelled the strong odor of alcohol emitting from Hak Yang's breath, that he had bloodshot, watery eyes and spoke with a thick, slurred speech. Reyes told Hak Yang to exit the vehicle and he did not comply. Reyes opened the door and pulled Hak Yang outside. Defendant was extracted from the backseat. He had an unsteady gait and trouble maintaining his balance. He spoke with a slur and had the odor of alcohol on his breath. His eyes were bloodshot, droopy and watery. He was uncooperative and refused to take the field sobriety test or answer Reyes's questions. The information alleges defendant violated Vehicle Code section 23152, subdivision (a), driving under the influence of alcohol and Vehicle Code section 23152, subdivision (b), driving when blood alcohol was 0.08 percent or more. A jury found defendant guilty of both counts on February 26, 2004. It was further alleged that defendant had previously been convicted of violation of Vehicle Code section 23152, subdivision (a) on October 18, 2000. He was on probation at the time of the current offense. The Honorable Richard F. Toohey found that aggravating factors outweighed the mitigating factors and sentenced defendant to the upper term of three years in prison. "Under 4.421A6, the court would note that the defendant's conduct upon being contacted by the police and subsequent certainly interfered with the judicial process under that sentencing rule. The fact that he -- and without question the court having heard this case, particularly in my many years on the bench and as a lawyer, I found the testimony particularly about the reserve officer extremely credible. There's absolutely no question that this defendant switched places with his brother in this court's view. And he -- that action and the subsequent process of this case in the court I think falls within that rule." Additionally, the trial court revoked defendant's driving privileges for five years.

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Prior to trial, defendant filed a motion for discovery of peace officer personnel records of Reyes and Miller. A sealed declaration of defense counsel was attached to the motion. Counsel for the City of Buena Park opposed the motion on two grounds. First, it objected because it was not given an unredacted declaration. Second, it asserted the redacted declaration it received failed to establish good cause and materiality for disclosure of the records. The Honorable Ronald P. Kreber read and considered the moving, opposing and reply papers and denied the motion after conducting a hearing on August 29, 2003. A few days later, Judge Kreber conducted another hearing and issued another order: "The Court will change [its] ruling which was made on August 29, 2003 in regards to defense's motion re: discovery of peace officer personnel records (Pitchess). The defendant is in custody and his jury trial is set for September 8, 2003. This issue needs to be litigated on its merits and the defendant need not have waived time to get the motion heard. The Court will order the sealed affidavit be released to the Police Officer's Attorney on September 3, a sealed response is ordered by September 4, and the matter will be scheduled for September 5, 2003. The Court will make a removal order for defendant to be present on September 5. If the defense does not want their affidavit released to the Police Officer's attorney, then the clerk in Department C42 should be notified by Tuesday, September 3 9:00 AM, and the order of August 29 will remain in place. It is further ordered that the defense's affidavit will not be shared with members of the Orange County District Attorney's Office, Prosecuting Team in any way. The Law Office representing the City and the police officers will maintain strict security with this affidavit." The record is unclear with regard to what happened next. Defendant filed a petition for a writ of mandamus on September 2, 2003. He then voluntarily withdrew his petition and this court summarily denied his petition as moot.

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Another motion for peace officer personnel records was filed on January 16, 2004 by defendant. Both a redacted declaration and a sealed declaration in support of the motion were filed. On February 9, 2004, Judge Kreber conducted a hearing on the motion. A sealed minute order was filed on February 11, 2004. Judge Kreber ruled that Reyes's personnel files were ordered submitted for an in camera hearing. A copy of the minute order was given to attorneys for defendant and for the city. On February 17, 2004, Judge Kreber stated in open court: "The court previously indicated there is good cause by the moving party for the disclosure. The court will inspect the records that are material in this matter. And so the court will have an in camera hearing at this time." The judge then conducted a hearing outside the presence of the district attorney and defense counsel. Sergeant Richard Forsyth was sworn and examined by the court in camera. Forsyth stated he had records for both Reyes and Miller. The court instructed him to look at Reyes's files. Later, the court declined to inquire about Miller's files. The minute order states: "The court after examining files 1 through 9 finds there are no discoverable issues in any of these files. Court orders the transcripts from this hearing to be sealed." II DISCUSSION Peace officer personnel records Defendant asks this court to review the sealed transcript of the custodian of records after the trial court denied his request under Pitchess v. Superior Court (1974) 11 Cal.3d 531. In his brief, defendant states the trial court ruled he showed good cause to obtain personnel records concerning the two arresting officers. However, while Judge Kreber ruled defendant made a sufficient showing for the court to examine Reyes's

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records in camera, nothing in the record before us indicates the court ever made such a ruling about Miller's records. Peace officer personnel records are confidential and shall not be disclosed except by discovery pursuant to Evidence Code sections 1043 and 1045. The guidelines and motion procedure for such discovery were first established by the California Supreme Court in Pitchess v. Superior Court, supra, 11 Cal.3d 531. "`In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as "Pitchess motions" . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. [Citations.]'" (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019.) The moving party must provide a description of the type of records or information sought and file affidavits supporting good cause for the release of the information. (Evid. Code,

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