Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. Darryl B. Ferguson, Judge, Tulare Co. S.Ct. No. VCF231205.
Michael B. Sheltzer, Public Defender, Lisa J. Bertolino and Andrew Stark, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest the People.
Dooley, Herr, Peltzer & Richardson, Leonard C. Herr and Ron Statler for Real Party in Interest City of Visalia.
OPINION
Before Ardaiz, P.J., Gomes, J. and Detjen, J.
Petitioner challenges the denial of her motion for inspection of a confidential complaint against Officer Esparza pursuant to Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107.
BACKGROUND
In February 2010, petitioner was charged with assault with a deadly weapon, “to wit, hands and feet.”
In March 2010, petitioner filed a Pitchess motion for information from the personnel file of the arresting officer Carmen Esparza.
After an in camera review of the personnel records, the trial court concluded that there was relevant evidence in one complaint filed against Officer Esparza. On April 1, 2010, the superior court granted petitioner access to the name, phone number and address of the citizen who filed the complaint.
On April 30, 2010, petitioner filed a motion for further inspection claiming (1) that the citizen refused to discuss his complaint with defense investigators which rendered inadequate the remedy of providing only the name/address of the citizen, and (2) that access to the actual complaint was therefore necessary.
On May 26, 2010, a hearing was held, petitioner’s counsel verbally asserted without objection that the citizen refused to talk to defense investigators, and the renewed motion was denied. The trial judge concluded:
“I think you’ve [petitioner] made a sufficient showing in your declaration, but the issue here is the Court reviewed in camera the alleged complaints by the persons involved with the officer. The Public Defender was given the names and phone numbers and the addresses of the complainants. If the complainants elected not to discuss the matter with the investigator for the defense, that’s their choice. They don’t have to talk to anybody.”
DISCUSSION
Real party in interest City of Visalia (RPI) correctly concedes that “Alvarez v. Superior Court[] (2004) 117 Cal.App.4th 1107 … allows for the release of actual complaints where contact with the complainant is unfruitful.”
RPI instead argues that petitioner did not make an adequate showing in her first Pitchess motion.
The declaration submitted in support of the original Pitchess request stated facts and theories that Officer Esparza made misrepresentations in her “incident report to conceal her unreasonable entry and to provide a lawful basis for her to arrest [petitioner], ” that “Esparza forcibly entered the dwelling and detained [petitioner], ” “[t]he information sought would enable [petitioner] to effectively cross-examine [Esparza], ” “[t]he information sought would enable [petitioner] to effectively test the lawfulness of … Esparza’s entry into [petitioner’s] residence, ” “persons who have been detained or arrested by … Esparza have been subject to the use of excessive force, aggressive conduct, unwarranted violence, fabrication of material information, intentional omission of material information, intentional destruction of exculpatory evidence, intentional alteration of evidence, …” that such “persons” have filed complaints, and that such complaints “may identify acts of moral turpitude and establish a propensity … for dishonesty.” One theory was in essence that the complaints could lead to impeachment of Officer Esparza’s truthfulness in her assertions that petitioner committed assault with a deadly weapon when she was arrested.
In reviewing a showing requesting Pitchess materials, the standard is “relatively relaxed.” (5 Witkin, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 57.) An affidavit or evidence from the defendant is not necessary. The showing may be made in a declaration from the attorney on information and belief. (Ibid.)
Under this “relaxed standard, ” this court concludes that petitioner’s showing in her first Pitchess motion was adequate.
RPI next argues that petitioner’s showing in her second Pitchess motion was also inadequate.
The trial court expressly concluded that “I think you’ve made a sufficient showing in your declaration ….” Since the declaration was intended only to show that contact with the complainant citizen was “unfruitful, ” the strong implication is that the court found the prior disclosure of the citizen’s identity to be inadequate.
The declaration signed by trial counsel asserted:
“On April 26, 2010, the said investigator informed me that the witness or witnesses in question had categorically declined to discuss any acts of malfeasance by Officer Carmen Esparza.”
The above quoted sentence can be reasonably interpreted to say that the citizen refused to talk with investigators. The trial court had discretion to credit the declaration’s showing despite the absence of more facts. Moreover, at the hearing defense counsel augmented the declaration by stating without objection: “My investigator talked to this person. This person [citizen complainant] said, ‘I’m not going to discuss it with you.’”
It follows that there were sufficient facts in the declaration coupled with counsel’s verbal assertions to show that providing the identity of the citizen was inadequate because the citizen refused to talk to the investigator-as RPI stated in its opposition, that “contact with the complainant is unfruitful.” The trial court thus did not abuse its discretion in concluding that petitioner “made a sufficient showing.”
The trial court denied the second Pitchess motion because: “If the complainants elected not to discuss the matter with the investigator for the defense, that’s their choice. They don’t have to talk to anybody.”
The reason given by the trial court ignores that under Alvarez v. Superior Court, supra, 117 Cal.App.4th 1107, the critical fact is that “contact with the complainant [was] unfruitful” (as RPI correctly conceded) and not the motive or reason why the complainants did not provide information. Whether the complainant refused or was unable to provide information, the result is the same-disclosure of the identity and contact information for the complainant was inadequate.
DISPOSITION
This court concludes that the trial court abused its discretion in refusing to order disclosure of the complaint.
Nothing in this opinion prevents the trial court from fashioning a protective order as requested by RPI.
The petition expressly prays for a “peremptory writ.” RPI filed opposition on the merits of the petition. A peremptory writ of mandate is proper and should issue. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
Petitioner is entitled to appropriate relief. (Code Civ. Proc., § 1085; see Whitney’s at the Beach v Superior Court (1970) 3 Cal.App.3d 258, 266.)
Let a peremptory writ of mandate issue directing respondent court to vacate its order filed on or about May 26, 2010, in Tulare County Superior Court action no. VCF231205 denying petitioner’s motion for disclosure of the complaint and to enter an order granting said motion.
Trial in Tulare County Superior Court action No. VCF231205 is stayed only until this opinion is final in all courts of this state, the California Supreme Court grants review in this proceeding, or the superior court complies with the directions stated above, whichever shall first occur; thereafter said stay is vacated and dissolved.