NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

THE COURT:*

On appeal, appellant J.V. asks this court to review the sealed transcript of the in camera hearing conducted pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the trial court abused its discretion when it ruled there were no records to be produced that were responsive to his discovery motion. We find the court abused its discretion in declining to turn over information regarding a confidential officer file relating to an allegation of excessive force, but conclude that the failure to turn over the confidential file would not have changed the outcome of this matter, and thus affirm the judgment.

I

FACTS

J.V. was declared a ward of the Orange County Juvenile Court after four counts of commercial burglary and four counts of petty theft were sustained against him. (Petitions One and Two.) A third petition alleged he absconded from probation supervision, and a fourth petition alleged he violated the terms and conditions of his probation. After he failed to appear for a scheduled hearing, the court issued a warrant for his arrest.

While his warrant was outstanding, he was arrested by the Anaheim Police Department. His arrest resulted in the filing of a fifth petition, where he was charged with misdemeanor assault and misdemeanor battery against Anaheim Police Officers Arellano and Brydges; resisting and obstructing them in their duties; and with giving them false information. In April 2010, the court found the allegations alleged against appellant in the fourth and fifth petitions to be true. He was sentenced to 159 days at an appropriate juvenile institution, and 60 days of time previously stayed as to the third petition, was re-imposed by the court.

The Facts Related to the Fifth Petition

In the early morning of September 6, 2009, Anaheim Police Officers Christopher Arellano and Mark Brydges were working patrol when they were dispatched to a disturbance call regarding the corner of Benmore and Acacia, an area known for its high crime and gang activity. As they drove down Acacia Street they observed a car parked on the left side of the street that was facing in their direction. As the police officers approached, the car turned on its flasher lights, and a person ran from the car to an apartment complex located nearby. Arellano observed three people sitting inside of the vehicle, and saw that it was parked against a red curb with a "no parking" sign next to it.

As Arellano walked towards the vehicle, the driver who appeared to be a gang member based on his dress and his shaved head, started acting "panicky," and began to quickly move his hands about. Arellano asked the driver and the front seat passenger if they were on probation and both of them said they were. Appellant, who was sitting in the backseat, and who was sending text messages at the time, said that he was not on probation.

The three passengers were asked to exit the vehicle, and were then asked to sit on the curb. They were not handcuffed. They were all asked for their names and birthdays. The driver and the front seat passenger provided their information and they were identified as being gang members. Appellant told Arellano that his name was "Marvin V." and that his birthday was "September 5, 1992." Arellano looked up appellant's name. His search did not turn up the name of "Marvin V." However, appellant's correct name came up along with a picture that resembled appellant. Arellano asked appellant if he had a twin and appellant responded "no." Appellant then told Arellano that the person with the correct name who came up in Arellano's search was actually his cousin and that they looked a lot alike. Arellano became frustrated and said to appellant, "What is your fucking name?"

Appellant said he lived across the street and pointed to his mother who was standing at the door to their residence. Arellano went over to appellant's mother and asked her if the person he was talking to was her son. She told him appellant's name was J.V. and that his birthday was August 5, 1992. Arellano became concerned because he did not know who appellant was, and he believed that appellant had given him false information because he had a warrant pending. Arellano asked appellant to put his hands behind his back, but appellant refused to comply and asked Arellano "why?" Arellano told him it was because he would not tell them his real name, and because he was in violation of curfew.

When Arellano tried to pull appellant's hands behind his back so that he could place cuffs on him, appellant responded by resisting and attempting to pull his arms forward. Arellano told appellant to stop resisting and then tried to pull appellant's arms back. As Arellano held appellant's left arm, appellant pulled out of Arellano's grasp, stood up, then turned around and punched Arellano in the chest with a closed fist. Arellano wrapped his arms around appellant in a bear hug, and then pulled him to the ground to take him into custody before anyone got hurt.

At some point Brydges came over and tried to help Arellano gain control of appellant. When Arellano saw Brydges get kicked a few times in the legs, he attempted to stop appellant by placing him in an arm lock. The arm lock failed to contain him, and appellant continued to fight the officers. Appellant then began to bite Arellano's thigh. Arellano tried to break appellant's arm with an arm bar, or by pulling appellant's arm to the ground, and by putting enough pressure on the arm to break it. This technique failed as well, and appellant continued to resist the officers.

Brydges became concerned because appellant's arms were moving towards Arellano's gun belt, and it looked like he was trying to grab onto something for leverage. Brydges became even more concerned when he observed that Arellano looked winded, out of breath, and appeared to be too tired to even retain his weapon. Brydges decided to taser appellant. The tasering had no effect, and after five seconds appellant continued to kick, fight, and resist Arellano, as well as attempting to grab the taser away from Brydges. Brydges fired the taser again from a further distance away, and saw that it had finally begun to work as appellant eventually stopped punching and kicking. Along with the assistance of another officer who had arrived as back up, the three policemen were able to turn appellant over, handcuff him, and then place him in the patrol car to take him to the hospital.

At some point, 20 to 30 people from the neighborhood began taunting the police, and accusing them of beating up appellant for no reason. A number of observers took their cell phones out to record the events, and told the police they had the whole scenario on video.

Arellano who was five feet 10 inches tall, and 200 pounds noted that appellant was unusually strong for his size. Brydges who was six feet five inches tall and 240 pounds found it "odd" that appellant was causing the officers such a hard time because he was smaller than both he and Arellano.

At the hospital, appellant gave another officer his correct name and birth date.

The Pitchess Motion

Appellant filed a Pitchess motion pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, seeking information regarding whether Arellano and Brydges falsified police reports; made illegal arrests, had engaged in illegal searches, and seizures; had committed prior acts involving moral turpitude; had used excessive force; or had otherwise acted improperly. The Pitchess motion also included a request for Brady v. Maryland (1963) 373 U.S. 83, material as well.

Finding good cause to grant appellant's Pitchess motion, the court conducted an in camera hearing. Following the confidential in camera hearing, the court found no discoverable items or materials which related to prior allegations of untruthfulness, fabrication of evidence, or fabrication of probable cause.

Appellant's Trial

At trial, appellant raised the defense of self-defense, and claimed the officers used excessive force against him. The court however, declined to believe appellant's version of the events, and found the defense witnesses to be not credible. As the court stated, it was "almost inherently drawn to a conclusion that the [prosecution's] witnesses were more credible. . . I did not find them [the defense witnesses] credible. It was odd to say the least. And it was a circumstance where each witness who testified seemed to be in fact more incredible than the last."

II

DISCUSSION

On appeal, appellant asks this court to independently review the in camera proceeding. (People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 3.) And, although appellant also asks this court to examine Arellano and Brydges's personnel records produced at the in camera hearing, retention of the records is not required, and the trial court's description of the documents received from the officers' personnel files at the in camera hearing constitutes an adequate record for appeal review. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.)

Our independent review of the sealed transcripts of the in camera hearing, reveals that the trial court reviewed the personnel records of Arellano and Brydges for those issues relating to excessive force, dishonesty, untruthfulness, and lack of veracity.

One of the officer's personnel files contained a claim involving the excessive use of force. However as to this particular claim, the court noted the officer had been fully exonerated; no further action had been taken, and that "all involved agreed with those findings."

"A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion." (People v. Hughes (2002) 27 Cal.4th 287, 330.) `"The appropriate [appellate test] for abuse of discretion is whether the trial court exceeded the bounds of reason.'" (People v. Andrade (2000) 79 Cal.App.4th 651, 654, fn. 1.) Moreover, if the reviewing court determines the superior court erroneously denied disclosure under Pitchess, a defendant must also demonstrate a reasonable probability of a different outcome had the evidence been disclosed. (People v. Gaines, supra, 46 Cal.4th at pp. 182-183.)

Here, appellant sought the officer records to support his self defense claim, and his claim that the officers used excessive force against him. Appellant's motion for discovery was based on a strategy of attacking the officers' credibility and establishing they were not credible, or had fabricated their version of the events; they had a history for using excessive force, and that he had acted in self defense.

We conclude the court abused its discretion when it declined to order discovery of the confidential internal affairs complaint alleging excessive force, even though the court indicated on the record that the officer had been fully exonerated.1 It appears that the trial court in the present case found this complaint not discoverable because the officer had been exonerated. The trial court was incorrect. Evidence Code section 1043 makes records maintained pursuant to Penal Code section 832.5, subdivision (c) discoverable. Penal Code section 832.5, subdivision (c) requires complaints determined to be frivolous, unfounded or exonerated, to be maintained elsewhere than the officer's general personnel file. Inasmuch as exonerated complaints are required to be maintained pursuant to Penal Code section 832.5, subdivision (c), they are discoverable under Evidence Code section 1043.

Nonetheless, even if the court here erroneously denied disclosure of the particular confidential record under Pitchess, appellant is still required to demonstrate "a reasonable probability of a different outcome had the evidence been disclosed. [Citations.]" (People v. Gaines, supra, 46 Cal.4th at pp. 182-183.) In this case, even if the excessive force complaint had been disclosed, it was not reasonably probable that the outcome of this case would have been different. (See, e.g., People v. Marshall (1996) 13 Cal.4th 799, 842-843.)

Appellant called numerous defense witnesses to testify regarding their observations of the events that culminated in his arrest. The court found their testimony to be "incredible." Moreover, introduction of the excessive force complaint, particularly because the court had reviewed the facts behind the complaint; and acknowledged the officer had been exonerated; would have had little, if any, import on the court's ultimate findings, particularly because the court as the trier of fact here overall found appellant's version of the events to be not credible.

In sum, because the outcome of this case would not have changed had the court disclosed the information to the defense, the judgment will not be disturbed on appeal. (People v. Gaines, supra, 46 Cal.4th at p. 181.)

III

DISPOSITION

The judgment is affirmed.