Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS in mandate. Frederick N. Wapner, Judge. L.A.S.C. No. BA326964
Michael P. Judge, Public Defender, Albert J. Menaster, Christine Rodriguez, Mark Harvis and Robin Berstein-Lev, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Rockard J. Delgadillo, City Attorney, and Claudia McGee Henry, Assistant City Attorney, for Real Party in Interest City of Los Angeles.
OPINION AND ORDER
We hold that defendant provided a plausible factual scenario sufficient to support his Pitchess motion; accordingly, the motion should have been granted.
BACKGROUND
Danny Hawkins was charged with one count of sale/transportation of cocaine base and one count of sale of cocaine base.
Hawkins moved for discovery of personnel files of several officers: Calderon, Williams, Rodriguez, Green, Kanchan amongkol, Diaz, and Bugarin. In support, Hawkins’s counsel stated in her declaration: “The police report indicates Officer Calderon walked eastbound on 7th Street when Mr. Hawkins asked him ‘what’s up’ and when asked if he was working, Mr. Hawkins responded ‘what do you want[?]’ Officer Calderon replied that he wanted ‘a twenty’ as he allegedly observed Mr. Hawkins reach into his mouth and remove unknown items. After assuring Mr. Hawkins he was not the police, Officer Calderon was allegedly given four items resembling rock cocaine by Mr. Hawkins in exchange for twenty dollars. Officers Williams and Rodriguez also observed this transaction.
“According to the arrest report, as the chase officers arrived on scene, Officer Williams and Detective Green then observed Mr. Hawkins toss a clear plastic bindle containing five off white solids resembling rock cocaine to the ground. Detective Kanchanamongkol later recovered the bindle from the ground. Officers Bu[]garin and Ramirez subsequently placed Mr. Hawkins under arrest and recovered the prerecorded $20 which was verified by Officer Diaz.
“I am informed and believe that these details are false, and that my client did not sell narcotics to Officer Calderon. On the date of the incident, Mr. Hawkins left the home of his girlfriend and was under the influence of cocaine. He was walking in the area of 7th Street on his way to a different location when he was arrested. He never approached Officer Calderon nor did he offer to sell him any narcotics. The narcotics found on Mr. Hawkins were for his personal use. The defense theory is that the officers in this case detained Mr. Hawkins without legal justification, unlawfully searched his person, and planted the prerecorded buy money on his person. I am informed and believe that the officers lied about the interaction with Mr. Hawkins and falsified their report.”
The police report shows that a prerecorded $20 bill was recovered from Hawkins’ back pocket.
Respondent court denied the motion on the basis that Hawkins had not set forth a plausible factual scenario.
DISCUSSION
Due process requires the People to disclose all evidence favorable to the defendant which is material to guilt or to punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87 [83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215] [“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”].)
In Pitchess v. Superior Court (1974) 11 Cal.3d 531, the California Supreme Court held a criminal defendant’s right to discover police personnel files is based on the “fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” (Id. at p. 535.) The Supreme Court explained that “an accused . . . may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial.” (Id. at p. 536.)
In 1978, the California Legislature codified the privileges and procedures of “Pitchess motions” by enacting Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. The Penal Code provisions define “personnel records” (Pen.Code, § 832.8) and provide that such records are “confidential” and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen.Code, § 832.7.) Evidence Code sections 1043 and 1045 set out the procedures for discovery. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81.)
In Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1022-1023, the Supreme Court found the following declaration by defense counsel to be sufficient to support an in-camera hearing: “Defense counsel’s declaration in support of the Pitchess motion . . . denied that defendant had ‘possess[ed] any narcotics for the purpose of sale on the date of his arrest’ and denied that defendant had discarded any rocks of cocaine. Instead, the declaration stated, defendant was at the scene to buy cocaine and, fleeing at the sight of the officers because he feared arrest for an outstanding parole warrant, ran past the actual seller. Defense counsel postulated two explanations—either the officers did not know who had discarded the rocks of cocaine and they falsely accused defendant of having done so, or they knew who had discarded the cocaine but falsely accused defendant. Under either theory, defense counsel asserted, the officers falsely arrested defendant and made false statements in the police report to support his arrest.”
The Supreme Court explained why the declaration was sufficient: “Here, defendant’s version of events is plausible given the factual scenario described in defense counsel’s declaration. The declaration asserted that the officers mistook defendant for the person who actually discarded the cocaine, and falsely accused him of having done so. The scenario described in defense counsel’s declaration is internally consistent; it conflicts with the police report only in denying that defendant possessed any cocaine and that he was the one who discarded the rocks of cocaine found on the ground. Those denials form the basis of a defense to the charge of possessing cocaine for sale. Thus, defendant has outlined a defense raising the issue of the practice of the arresting officers to make false arrests, plant evidence, commit perjury, and falsify police reports or probable cause. [Citations.]” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1027.)
The Supreme Court concluded that “a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred.” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1016.) The Supreme Court explained: “The question remaining is this: What degree or quantity of justification must the moving party offer to establish a plausible factual foundation for the claim of officer misconduct? Here, the Court of Appeal concluded that to be plausible a factual foundation must be reasonably probable or apparently credible and not merely possible. In so doing, the Court of Appeal imposed a greater burden on the party seeking Pitchess discovery than required by our prior cases or the statutory scheme. To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial court’s task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. A trial court hearing a Pitchess motion normally has before it only those documents submitted by the parties, plus whatever factual representations counsel may make in arguing the motion. The trial court does not determine whether a defendant’s version of events, with or without corroborating collateral evidence, is persuasive—a task that in many cases would be tantamount to determining whether the defendant is probably innocent or probably guilty. [Citation.]
“Moreover, a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language and with our previous decisions requiring only that defense counsel’s affidavit or declaration supporting a defendant’s Pitchess motion be made on information and belief. [Citations.] As we have previously noted, the legislative history of section 1043 shows that the ‘Legislature expressly considered and rejected a requirement’ that counsel’s affidavit be made on personal knowledge. [Citation.] Because defense counsel would only rarely be present when the alleged officer misconduct occurred, counsel has little information to offer based on counsel’s personal knowledge.
“What standard must a moving party meet to show a ‘plausible’ factual foundation for the Pitchess discovery requested? We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing ‘put[s] the court on notice’ that the specified officer misconduct ‘will likely be an issue at trial.’ [Citation.] Once that burden is met, the defendant has shown materiality under section 1043.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1025-1026, emphasis in bold added.)
In Garcia v. Superior Court (2007) 42 Cal.4th 63, 71, the Supreme Court (in determining that a defendant may file a Pitchess motion under seal) reiterated, “A scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense. [Citation.]”
City of Los Angeles relies on People v. Lewis, supra, 39 Cal.4th at p. 992, in which the Supreme Court, on automatic appeal of a death penalty case, held that the defendant’s pro. per. Pitchess motion had been properly denied, because his allegations that the officers engaged in “one or more grandiose conspiracies to frame and murder him” was not plausible.
In People v. Thompson (2006) 141 Cal.App.4th 1312, 1315, review denied, our colleagues in Division Six concluded that the trial court had properly denied the defendant’s Pitchess motion: “Although his factual showing is possible, it is not plausible by any rational standard.” Division Six explained at pages 1316-1317: “Depending on the circumstances of the case, the denial of facts described in the police report may establish a plausible factual foundation. [Citation.] A factual scenario does not have to be reasonably probable or credible. . . .
“Thompson’s Pitchess motion asserted that, according to the police report, Officers Vbarilla, Jackson, Curry, Rubalcava, Vizcarra, and Suviate witnessed Saragueta conduct the drug transaction; Detectives Mossman and Kanchahamongkol monitored the wire; Officer Fernandez found money in Thompson’s possession; and Officer Diaz confirmed that it was the buy money. The motion sought identification of all persons who filed or were interviewed regarding complaints against any of the officers concerning acts of false arrest, illegal search and seizure, fabrication of evidence, planting evidence, dishonesty, and other forms of misconduct. The motion also sought copies of statements from complainants, copies of investigative reports and psychological evaluations of the officers, and records of disciplinary actions and board of rights hearings.
Respondent court stated at the hearing on the motion that the officers involved here were the same as the officers involved in Thompson.
“A declaration from defense counsel stated that ‘the officers did not recover any buy money from the defendant, nor did the defendant offer and sell drugs to the undercover officer.’ The ‘officers saw defendant and arrested him because he was in an area where they were doing arrests.’ When ‘defendant was stopped by the police and once they realized he had a prior criminal history they fabricated the alleged events and used narcotics already in their possession and attributed these drugs to the defendant.’ The charges ‘are a fabrication manufactured by the officers to avoid any type of liability for their mishandling of the situation and to punish the defendant for being in the wrong area, at the wrong time and for having a prior criminal history. . . . ’
“This showing is insufficient because it is not internally consistent or complete. We do not reject Thompson’s explanation because it lacked credibility, but because it does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense. Thompson, through counsel, denied he was in possession of cocaine or received $10 from Officer Saragueta. But, he does not state a nonculpable explanation for his presence in an area where drugs were being sold, sufficiently present a factual basis for being singled out by the police, or assert any ‘mishandling of the situation’ prior to his detention and arrest. Counsel’s declaration simply denied the elements of the offense charged.”
Unlike the showing in Thompson, Hawkins offered a plausible scenario presenting “an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Warrick v. Superior Court, supra, at p. 1026.) Hawkins maintained that he left his girl friend’s home and was walking in the area of 7th Street on the way to another location. He was under the influence and was arrested. He denied approaching Officer Caldron and offering to sell him narcotics. The narcotics found on Hawkins were for his personal use. Thus, Hawkins accounted for his actions, which he claimed were innocent of drug trafficking, and did not merely state that the police lied and fabricated charges as did the defendant in Thompson. Accordingly, in denying the motion, respondent court abused its discretion. (People v. Lewis (2006) 39 Cal.4th 970, 992, citing Pitchess, supra, 11 Cal.3d 531, 535; see People v. Prince (2007) 40 Cal.4th 1179, 1285.)
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § l088; Alexander v. Superior Court (l993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the Court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of February 20, 2008, denying petitioner’s motion for the discovery of the personnel files of Officers Calderon, Williams, Rodriguez, Green, Kanchanamongkol, Diaz, and Bugarin, and to issue a new and different order granting same, in Los Angeles Superior Court case No. BA326964, entitled People of the State of California v. Danny Hawkins.
MALLANO, P. J. VOGEL, J. ROTHSCHILD, J.