THE PEOPLE v. ROBERT MENZHUBER (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Robert Menzhuber (appellant) appeals from the judgment (order revoking his probation) entered following a hearing on February 5, 2009.   He contends that the court erred in finding that he violated the terms of his probation and in failing to make a record of the in camera hearing conducted pursuant to his Pitchess ¹ motion.   We reject appellant's claim of error with respect to the order revoking probation but conditionally reverse the judgment and remand the matter with directions to hold a new in camera hearing.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2006, appellant pled no contest to false personation (Pen.Code, § 529) ² and was placed on three years' probation.   One of the conditions of probation was that appellant was to submit to search and seizure at any time by any peace officer with or without a warrant or probable cause.

A probation violation hearing was held on February 5, 2009.   Los Angeles County Sheriff's Deputy Jose Martinez testified that on December 17, 2007, he saw appellant riding a motorized scooter in the street.   He estimated the scooter's speed at 40 or 45 miles an hour (he did not utilize a radar gun) and said that it was in the way of passing vehicles.   He stopped appellant and appellant started cussing.   Deputy Martinez asked him for identification and appellant reached for his pocket.   Believing that he was going to reach for a weapon, Martinez held his arm and searched him.   Because appellant could not provide any identification, Martinez detained him in the patrol car.   Appellant continued to swear and refused to provide his name.   Appellant finally gave his name and Martinez issued a traffic citation.   As appellant got out of the patrol car he “bumped into” Martinez with his shoulder.   Martinez felt that this action was intentional because he had moved over specifically so that appellant could exit the vehicle.

Appellant called his neighbor James Hodges as a witness.   Hodges testified that he was across the street working on his car when he saw appellant riding on his scooter.   He estimated that appellant was going only 10 to 15 miles per hour.   He said there was “[v]ery light traffic” at the time, but he did not remember if any cars were going by while he was watching appellant.   Hodges testified he was “too engrossed” in what he was doing, but believed that appellant was handcuffed when he was placed in the back of the patrol car.   He did not see any physical contact between appellant and the deputy.

Appellant called another neighbor, Ernest Lloyd, Jr., who testified that he was in his driveway, which was two houses away from appellant's on the same side of the street.   He estimated that appellant was going about seven or eight miles an hour on his scooter.   He saw one neighbor's car go by.   Lloyd did not see appellant make any contact with the deputies even though he had a clear view of him exiting the patrol car.

Appellant testified that he was riding the scooter in order to fix it and that it did not go anywhere near 35 to 40 miles per hour.   The deputies searched him and he was handcuffed and placed in the back of the patrol car.   He admitted he was cursing at the officers.   He said they threw him up against a fence and arrested him.   He denied making any physical contact with them.

The court stated, “Well, I do have a question about the speed of the scooter.   But that is not the crux of what happened.   The officer stopped him, and he has a responsibility to give his name.   According to [appellant], he did that immediately.   The deputy said no, he wouldn't provide a name.   He started cursing at him.   He was uncooperative from the get go.   And my sense is that [appellant] did, indeed, refuse to give them his name.   That was the reason for placing him in the car.   So I think there is a violation of [section] 148 just based on that single issue.”   The court found appellant in violation of probation.

DISCUSSION

I. Sufficiency of the Evidence

Appellant contends there was insufficient evidence that he violated his probation.   He argues that he did not violate any Vehicle Code provisions while operating his scooter and Deputy Martinez had no reason to detain him and request identification.   He reasons that since the deputy was not exercising his duties lawfully, appellant cannot be punished for his nonviolent resistance.   Next, he asserts that assuming the detention was lawful, he merely delayed providing identification and did not refuse altogether, and thus did not violate section 148.   Finally, he claims that he did not physically resist the officer.

Section 1203.2 authorizes a court to revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe ․ that the person has violated any of the conditions of his or her probation.”   The prosecution must prove a willful violation of the terms and conditions of probation by a preponderance of the evidence.  (People v. Rodriguez (1990) 51 Cal.3d 437, 445-447;  People v. Stanphill (2009) 170 Cal.App.4th 61, 72.)   On appeal, we review the trial court's order revoking probation for abuse of discretion.  (Rodriguez, supra, at p. 443;  People v. Kelly (2007) 154 Cal.App.4th 961, 965.)

Section 148, subdivision (a)(1) provides that “Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician ․, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine ․, or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”

Deputy Martinez testified that appellant was traveling about 40 miles per hour on the scooter and was impeding traffic.   He had a reasonable suspicion that appellant was violating Vehicle Code provisions, thus providing sufficient grounds to detain appellant.  (In re Joseph F. (2000) 85 Cal.App.4th 975, 982;  People v. Miranda (1993) 17 Cal.App.4th 917, 927.)   While the two neighbors opined that appellant's speed was under 20 miles per hour, both indicated that they were involved in other activities and could not say with certainty what happened or what the traffic conditions were at the time.   The court's order reflected that, overall, it found the deputy's account credible.   There was sufficient evidence to support the court's findings.  (People v. Christopher (2006) 137 Cal.App.4th 418, 430-431.)

We find no abuse of discretion in the order revoking probation.

II. Pitchess Motion

Appellant filed a Pitchess motion on August 19, 2008, seeking documents from the personnel files of the arresting deputies.   The court heard the motion on September 17, 2008, and denied it without prejudice.   On January 8, 2009, the court reconsidered the motion and found good cause for an in camera hearing.   On January 12, the court announced in open court that it found no discoverable material.   However, there is apparently no record of the in camera hearing.⁴

The People concede that the trial court erred in conducting the in camera hearing without a court reporter so that a transcript of the hearing could be reviewed.  (People v. Mooc (2001) 26 Cal.4th 1216, 1228;  People v. Wycoff (2008) 164 Cal.App.4th 410, 415.)   We accept that concession.

As we have no record to review, we conditionally reverse the judgment and remand the matter to the trial court to hold a new in camera hearing in which the proper procedure is followed.  (See People v. Guevara (2007) 148 Cal.App.4th 62, 69.)   If, after conducting the hearing, the court determines that the requested personnel records contain no relevant information, it is directed to reinstate the judgment.   If it concludes that there is material that should be disclosed to the defense, it shall order disclosure, allow appellant an opportunity to demonstrate prejudice, and order a new probation violation hearing if there is a reasonable probability the outcome would have been different had the information been disclosed.  (People v. Gaines (2009) 46 Cal.4th 172, 181.)

DISPOSITION

The judgment is conditionally reversed.   The matter is remanded to the trial court to conduct a new in camera hearing and proceed in a manner consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Pitchess v. Superior Court (1974) 11 Cal.3d 531..  FN1. Pitchess v. Superior Court (1974) 11 Cal.3d 531.

FN2. All further undesignated statutory references are to the Penal Code..  FN2. All further undesignated statutory references are to the Penal Code.

FN3. Vehicle Code section 40302 provides that any person arrested for a misdemeanor violation of the Vehicle Code, that person must present a driver's license or other evidence of identity, or that person shall be transported to a magistrate.  People v. Hart (1999) 74 Cal.App.4th 479, 492, explains that this type of arrest takes place when the officer has probable cause to believe the person has violated the Vehicle Code and does not normally result in physical custody..  FN3. Vehicle Code section 40302 provides that any person arrested for a misdemeanor violation of the Vehicle Code, that person must present a driver's license or other evidence of identity, or that person shall be transported to a magistrate.  People v. Hart (1999) 74 Cal.App.4th 479, 492, explains that this type of arrest takes place when the officer has probable cause to believe the person has violated the Vehicle Code and does not normally result in physical custody.

FN4. The court reporter submitted an affidavit stating that she searched her notes for January 8 and 12 and did not find a record of an in camera hearing pertaining to appellant's case..  FN4. The court reporter submitted an affidavit stating that she searched her notes for January 8 and 12 and did not find a record of an in camera hearing pertaining to appellant's case.

EPSTEIN, P.J. WILLHITE, J.