People v. Heath CA1/2

Filed 7/7/16 P. v. Heath CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A146051

v. (Contra Costa County DARVIN DAVID HEATH, Super. Ct. No. XX-XXXXXXX) Defendant and Appellant.

INTRODUCTION At the prosecutor’s request, the trial court held an in camera hearing outside the presence of the defendant and his attorney to determine whether the prosecution was required to disclose certain material to the defendant under Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady). The trial judge determined that there was nothing to disclose. Defendant Darvin David Heath asks us to independently review the in camera proceedings to determine whether the trial court erred. The Attorney General does not oppose our independent review of the in camera proceeding. We have done so, and will affirm the conviction. FACTUAL AND PROCEDURAL BACKGROUND We recite the facts and procedural history only briefly as they pertain to the narrow issue on appeal. Defendant was charged with three felonies involving domestic violence against his wife, Robin Williams-Heath, all arising out of the same incident occurring on February 1

13, 2015, in a park off the Pittsburg/Antioch Highway in Pittsburg. He was charged with infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a))1; assault with a deadly weapon (§ 245, subd. (a)(1))); and aggravated false imprisonment involving infliction of great bodily injury (§§ 236, 237, subd. (a)). Each of the felonies was charged as a serious felony (§§ 1192.7, subd. (c); 667), and each included enhancements for personal use of a dangerous or deadly weapon, that is, a letter opener (§ 12022, subd. (b)(1)) and for one “prison prior” (§ 667.5, subd. (b)). In a bifurcated trial, a jury found the defendant guilty of the three offenses and found the three deadly-weapon enhancements true. After the trial court indicated that it would not grant probation, the prosecution decided not to go forward with a court trial on the “prison prior” enhancement. Defendant was sentenced to an aggregate term of five years. Clayton Sills, 23 years old at the time he testified at trial on July 7, 2015, was a bystander who happened to be at the park with his child and fiancée when the incidents occurred on February 13, 2015. He did not know defendant or the victim before the incident; he called 911 to report it. Sills testified at trial about what he saw and heard. DISCUSSION During in limine motions on July 6, 2015, defense counsel noted that the prosecution had disclosed there may be information regarding witness Sills that could only be disclosed pursuant to an “827 petition,” presumably referring to Welfare and Institutions Code section 827, which governs access to juvenile records. Defense counsel had not filed a petition for such documents. The next day, on the record and outside the presence of the jury, the court stated, “My understanding is that the clerk of the court has no file in reference to a criminal adjudication—juvenile—it may be some sort of a civil matter. If there is, then it strikes me as having a fairly remote chance that there would be some pertinent information in a—what they call a 300 case, a dependency case. From what I understand, the case may