People v. Mooc, G023714.

Decision Date30 June 2000
Docket NumberNo. G023714.,G023714.
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Bau A. MOOC, Defendant and Appellant.

Jeffrey Wilens, under appointment by the Court of Appeal, Irvine, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert Shaw and Marilyn L. George, Deputy Attorneys General, Joseph W. Fletcher, City Attorney for the City of Santa Ana, Hugh Halford, and Denah H. Yoshiyama, Assistant City Attorneys, for Plaintiff and Respondent.



Bau A. Mooc was convicted of battery on a police officer. He contends the trial court erred when it denied his Pitchess1 motion, and when it permitted testimony implying that his defense was fabricated by a third party. He also contends his counsel was ineffective, and the abstract of judgment must be modified to correctly reflect the court's order. As we agree the abstract of judgment must be modified and also that prejudicial error occurred, the judgment must be reversed.


Mooc was in jail under an immigration hold. While he was assigned to the "administrative segregation module" — a special area reserved for difficult inmates — he was discovered in the control room by a guard, and a fight broke out between the two. Another officer responded to the call for help and found Mooc and the guard struggling on the floor. As a result of this incident, Mooc was charged with battery on the officer, Frank Garcia.2

In preparing his defense for trial, Mooc filed a motion under Pitchess v. Superior Court, supra, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, seeking to review the officer's personnel file. His request was predicated on his intention to prove that the officer caused the fight and that he merely defended himself. At the hearing on the motion, the court received a file presented by the Santa Ana City Attorney's Office and represented to be the personnel file of the officer in question, retreated to chambers to review it for examples of previous complaints against the officer or evidence of dishonesty, and then denied the motion.

At trial, the defense called two inmates, Le and Vo, who witnessed the assault and who testified Garcia had caused the fight. The prosecutor asked each witness whether another inmate, Solis, had suggested they blame Garcia for the altercation. Both witnesses steadfastly denied any such suggestion was made by Solis or anyone else. Contrary to representations by the prosecutor that another inmate by the name of Puskas would prove that Solis made such a suggestion, no evidence was ever presented by the prosecution to support the idea that Le and Vo — on Solis's suggestion — fabricated the charge that Garcia started the fight. The jury convicted Mooc of the battery.

II Denial of the Pitchess Motion

Mooc argues reversal is required because the trial court abused its discretion in denying his motion brought under Pitchess v. Superior Court, supra, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 to divulge the relevant contents of Garcia's personnel file. Criminal defendants have a right to discover information in an officer's personnel file which can assist in the preparation of their defense in a criminal case. (Id. at p. 535, 113 Cal.Rptr. 897, 522 P.2d 305; see Pen.Code, § 832.7 and Evid. Code, § 1043 et seq.)3 The ruling on a Pitchess motion is addressed to the discretion of the trial court and will not be reversed unless an abuse of that discretion is shown. (Pitchess, supra, 11 Cal.3d at p. 535, 113 Cal.Rptr. 897, 522 P.2d 305; see also City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1145, 79 Cal. Rptr.2d 624.)

In his motion, Mooc requested access and review of the personnel files of Officer Garcia and any other officer whose identity became "apparent during the course of discovery"[.] (Emphasis added.) Specifically, Mooc requested "any and all documents ... as defined in Penal Code section 832.8(e); records maintained pursuant to Penal Code section 832.5(b); and any other records pertaining to the above-mentioned officer(s) and that pertain to: [¶] (a) Record of any incident of force, aggressive conduct or violence ... and/or the giving of false testimony; [¶] (b) Record of any complaints registered ... against the officer) .... alleging force, aggressive conduct, or violence directed at persons detained, arrested, or in custody, and/or the giving of false testimony; [¶] (c) Record of disciplinary actions taken against the officers) or possible disciplinary actions, to be taken as a result of any complaint or investigation related to the above; [¶] (d) The [identifying information] of any person ... submitting complaints ...; [¶] (e) The [identifying information] of any person or persons interviewed in connection with the investigation of force, aggressive conduct, or violence ... and/or the giving of false testimony; ..." (Emphasis added.) Finally, Mooc requested that the order be a continuing one, mandating any newly acquired documents be divulged to the defense through the completion of trial.

The court conducted an in camera review of a file, which the assistant city attorney represented was the personnel file of Frank Garcia. The court, after examining the file's contents, returned to the bench and announced that "candidly there's another incidence [sic] in determining its relevancy as the court's concluded that it has very little, if any, probative value, and based upon that and 1045 of the Evidence Code, the court's going to decline allowing the defendant to peruse the officer's personnel records." On appeal, Mooc requests we review the personnel file submitted to the trial court — which is still unknown to the defense — and determine if the denial of the motion was an abuse of discretion. We attempted to do that, but opened instead a Pandora's box.

The first ill wind escaped the box when we ordered the augmentation of the record on appeal to include — under seal — the personnel file reviewed by the trial court. The response this court received was an application from the city attorney's office to modify our order. This request included a declaration, revealing" (1) the file had never been preserved by the city attorney's office but was presently held by the police department; and (2) the police department and the city attorney's office feared that obedience to our court order would deprive them of maintaining the "chain of custody" of such records as required by Penal Code section 832.5. Finally, the application requested we accept copies of that which the city attorney's office represented was the record reviewed in camera in the criminal case, although the declarant was not the representative present in court at the time of the hearing on the Pitchess motion. We denied the modification request, ordering prompt compliance with the order.

To comply with our order, the city attorney's office proffered a surprisingly small envelope, containing a police report of the incident forming the basis for the criminal charge and a single-paged form dated the day before the incident. This cryptic response — the second chilling breeze to escape the chest — was not only unexpected, but obviously not the personnel file of a peace officer, as such files commonly contain all personnel actions, promotions, demotions, citizens' complaints — investigated or not — commendations, worker's compensation claims and disciplinary actions. Moreover, the trial court's remarks made after it reviewed the file, referring to some other incident which the court deemed irrelevant, did not coincide with this envelope's contents. Due to this confusing ambiguity, we ordered "Hugh Halford, Assistant City Attorney for the City of Santa Ana, [ ] to file a declaration with this Court, under penalty of perjury, attesting as to whether or not the documents ... are the records and documents he submitted to, and were reviewed by, the superior court at the Pitchess motion in this case, and whether the documents lodged in response to our order [were] the same documents he was ordered to maintain."

The declaration we received in response to our order comprised the third icy blast issuing from Pandora's dower. Halford declared that he had appeared at the hearing on the Pitchess motion, "with the original copies [sic] of all potentially responsive records that were in existence in the City of Santa Ana Police Department" (emphasis added) for the officer in question. Furthermore, he declared that "[p]ursuant to court order, after the hearing I requested that the original records reviewed by the court be maintained by the Department for an indefinite period of time." He then swore that he reviewed that which was submitted to this Court in response to our order, "and do not recall any other records that were produced in response" (emphasis added) to the Pitchess motion. Finally, Halford stated that no other records existed for Officer Garcia and that no records regarding this officer had been purged or removed from his personnel file.

We set this case for oral argument even though the parties had waived the appearance, ordering all officers involved in this morass to be present and answer questions regarding the discrepancies. In oral argument, an astounding revelation occurred: We were informed that the Santa Ana Police Department and City Attorney's Office regularly, systematically, and secretly censored all personnel files before conveying them to any court for in camera review, removing all worker's compensation claims or other records the agencies deemed superfluous. This revelation directly contradicted Halford's earlier sworn declaration that "no records of ... Officer Frank Garcia have been purged or removed...

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