Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. INF052936. Richard A. Erwood, Judge. Affirmed.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Deana L. Bohenek, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant guilty of assaulting a police officer with a knife (Pen. Code, § 245, subd. (c)), resisting an executive officer by force or violence (§ 69), and carrying a concealed dirk and dagger (§ 12020, subd. (a)(4)). He was sentenced to a total term of four years in state prison. Defendant’s sole contention on appeal is that the trial court erred in denying his second Pitchess motion. We reject this contention and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
I
FACTUAL AND PROCEDURAL BACKGROUND
On December 29, 2005, Riverside County Sheriff’s Sergeant George Lee was on patrol when he observed a car without its rear license plate illuminated. Sergeant Lee stopped the vehicle, went to the passenger window, and spoke with defendant, who was the driver. When asked for his driver’s license, defendant stated that he had none. Sergeant Lee then had defendant fill out a field interview card to run his name in the computer. While defendant was doing that, Sergeant Lee’s subordinate, Deputy Juan Garcia, arrived to assist.
After Deputy Garcia approached the driver’s side, Sergeant Lee asked Deputy Garcia to detain defendant for not having a driver’s license. Defendant exited the vehicle and began walking with Deputy Garcia, who was holding defendant’s left arm. When they reached the back of defendant’s vehicle, defendant’s arm tensed up. Defendant stopped walking and told Deputy Garcia to “wait.” Deputy Garcia told defendant to keep walking, but defendant remained stopped. Defendant began to reach with his right hand into the inside of his jacket. Deputy Garcia then saw defendant remove a knife and move it toward the deputy. Deputy Garcia applied a bar hold, seeking to take defendant to the ground and avoid being stabbed. As they went down together, the knife fell to the ground.
Once defendant was on the ground, Deputy Garcia took hold of defendant’s left hand, but defendant’s right hand was under his body. Defendant was flailing his legs and kicking. Deputy Garcia moved toward defendant’s head to avoid being kicked. Deputy Garcia had his left knee over defendant’s shoulder area to try to control him. Defendant was kicking from side to side and trying to get his upper body up so he could stand. Deputy Garcia commanded defendant to take his right hand out from underneath him, but defendant would not. Defendant was strong, difficult to control, and yelling and screaming. Sergeant Lee went to assist Deputy Garcia.
Sergeant Lee heard defendant say something, but he could not make out the words. Sergeant Lee saw Deputy Garcia shift the control hold from left to right as if he were about to handcuff defendant. Sergeant Lee also saw defendant’s right hand come toward his right hip and a knife blade come from under the area of defendant’s pants as Deputy Garcia grabbed defendant’s arm. Sergeant Lee further noted that Deputy Garcia was attempting to push defendant to the ground as the point of the knife came out in an arching manner at shoulder level toward Deputy Garcia. They were eventually able to get defendant’s hand out from underneath him and handcuff him.
Deputy Garcia never heard defendant say he had a knife. He also never told Deputy Garcia that he was trying to hand him a weapon so he would not be hurt. Deputy Garcia noted that defendant spoke both English and Spanish and that he communicated with defendant in both languages. There appeared to be no communication problems with defendant, and defendant did not use the assistance of an interpreter during trial.
Defendant testified he had a knife because he had been cutting carpet earlier that day. He claimed he told Deputy Garcia to wait, and he then took the knife out of his pocket to show Deputy Garcia. As he removed the knife, the deputy immediately pushed him to the ground face down while the knife was falling away. His right arm was pinned and in a lot of pain. He yelled that he was in pain. He further asserted that there was dirt in his mouth so he could not speak; that Deputy Garcia kicked his legs when he could not speak; and that he was left face down for five minutes after he was handcuffed. He denied trying to attack Deputy Garcia. Defendant claimed he had forgotten about the 10-inch knife blade in his rear pocket and that it did not bother him when he was sitting in the car. He conceded that he did not inform the deputies that he had the knife in his back pocket and that his shoulder did not prevent him from cutting and installing carpet.
Dr. Chirag Amin, an orthopedic surgeon, examined defendant beginning in September 2004 for a work-related shoulder injury occurring in June. Defendant had some pain and some decreased range of motion in his right shoulder. Testing showed that defendant had greater strength in his left hand even though he was right handed. Dr Amin opined that it was likely defendant would have experienced pain when the deputy pulled his arms back to handcuff him.
II
DISCUSSION
Defendant contends the trial court erred in denying his second Pitchess motion, claiming any complaints filed against Sergeant Lee and Deputy Garcia were relevant to show that the deputies fabricated their version of the events as he was physically incapable of the acts alleged due to his preexisting shoulder injury.
On February 1, 2006, defendant filed a pretrial discovery motion pursuant to Pitchess, supra, 11 Cal.3d 531 and Brady v. Maryland (1963) 373 U.S. 83. He moved for an order directing the release of information on Sergeant Lee and Deputy Garcia, including the identities of persons who have made or been interviewed about complaints or reported misconduct involving either officer, and any remedial or disciplinary action taken by the police department in connection with any complaints or misconduct. Trial counsel’s declaration in support of the motion alleged that defendant believed the officers had fabricated information in their version of the events and that both had used excessive force in the past. The declaration further alleged that defendant was physically incapable of the acts the officers described due to his preexisting shoulder injury. Attached to the motion were the arrest reports prepared by Sergeant Lee and Deputy Garcia. On the report prepared by Deputy Garcia, defendant’s post-Miranda statements were included. Defendant informed the deputy that his girlfriend had placed the knife in his back pocket and that he had forgotten about the knife when he was stopped by Sergeant Lee. He claimed that as he exited the car, the knife came out of his pocket “and fell into his right hand.” He stopped to alert Deputy Garcia of its presence; however, when Deputy Garcia saw the knife, the deputy began pushing him to the ground. Defendant stated that he was trying to hand the knife to the deputy and that he had no intention of hurting anyone.
Miranda v. Arizona (1966) 384 U.S. 436.
On March 3, 2006, following the initial Pitchess motion hearing, the court denied the motion without prejudice, finding defense counsel’s declaration to be inadequate in that counsel never declared that defendant never resisted arrest, stated that the deputy overreacted. or never made a move to try to stab the deputy.
On March 15, 2006, defense counsel filed a second Pitchess motion, requesting the same information as in the first motion. Among other statements, defense counsel declared that defendant was physically incapable of performing the acts alleged by Sergeant Lee and Deputy Garcia due to a needed surgery; that the officers fabricated the information in their police reports; that the officers had used excessive force in the past; and that defendant tried to show Deputy Garcia the knife, but both the officers falsely attested at the preliminary hearing that, when he attempted to show the knife to Deputy Garcia, defendant made “quick and sudden moves with the knife so as to attack [Deputy] Garcia.”
On April 26, 2006, defense counsel filed an amended declaration, stating the same information as above, but adding, in relevant part, that defendant never raised the knife to attack the officer and that, based on medical records and defendant’s statements to him, defendant was physically incapable of trying to stab the officer due to an injury in his right shoulder.
On May 12, 2006, the second Pitchess motion was heard. The prosecutor noted that the refiled motion was not any different than the first, in that the medical reports did not indicate defendant could not commit the crimes for which he was charged of due to the shoulder injury. The court denied the motion, noting defendant had not met the standards under Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick).
In Pitchess, supra, 11 Cal.3d 531, the court held that a criminal defendant could “compel discovery” of certain information in police officer personnel files by demonstrating good cause. Good cause is demonstrated by making “general allegations which establish some cause for discovery” of the information and by showing how it would support a defense to the charge against him. (Id. at pp. 536-538.)
In 1978, the California Legislature codified the holding in Pitchess by enacting Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (Santa Cruz).) To initiate discovery of such records, the defendant must file a written noticed motion supported by affidavits showing “good cause for the discovery or disclosure sought, setting forth the materiality” of the information to the pending litigation and “stating upon reasonable belief” that the police agency has the records or information sought. (Evid. Code, § 1043, subd. (b)(3); Santa Cruz, at p. 82.)
This two-part showing of good cause is a “relatively low threshold for discovery. . . .” (Santa Cruz, supra, 49 Cal.3d at p. 83.) Once the trial court finds good cause has been established, it must examine the records “in chambers” and disclose only those records and information that are relevant and not subject to exclusion from disclosure. (Evid. Code, § 1045, subds. (a) & (b); see also People v. Thompson (2006) 141 Cal.App.4th 1312, 1316 (Thompson).)
Having found defendant failed to establish good cause, the trial court declined to hold an in-chambers examination of the information. Defendant contends he made an adequate showing of good cause. We disagree.
The trial court is granted wide discretion when ruling on a motion to discover police officer records (People v. Memro (1995) 11 Cal.4th 786, 832), and we review that ruling for abuse of discretion (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; see also People v. Mooc (2001) 26 Cal.4th 1216, 1228).
The California Supreme Court has recently clarified the defendant’s burden of proof in establishing the first part of the good cause requirement. (Warrick, supra, 35 Cal.4th at p. 1016.) In order to show materiality, the defendant must show “a logical link between the defense proposed and the pending charge . . . [and] articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Id. at p. 1021.)
In establishing the necessary link, counsel’s declaration must propose a defense to the pending charge that is factually plausible and articulate how the discovery sought may lead to relevant evidence or be admissible as direct or impeachment evidence. (Warrick, supra, 35 Cal.4th at p. 1024.) A factually plausible scenario is one that “might or could have occurred.” (Id. at p. 1026.) The trial court then determines “whether defendant’s averments, ‘[v]iewed in conjunction with the police reports’ and any other documents, suffice to ‘establish a plausible factual foundation’ for the alleged officer misconduct and . . . ‘articulate a valid theory as to how the information sought might be admissible’ at trial.” (Id. at p. 1025.) This inquiry is made by asking the following questions: (1) has the defense made a logical connection between the charges and the proposed defense?; (2) was the affidavit supporting the motion factually specific and tailored to support its claim of officer misconduct?; (3) will discovery of the requested information support the proposed defense, or is it likely to lead to information that would support the proposed defense?; and (4) under what theory is the requested information admissible? (Id. at p. 1027.)
In Warrick, the defendant was charged with possessing cocaine base for sale. Three officers, patrolling an area known for violent crime and narcotics activity, observed the defendant standing next to a wall looking at a clear plastic baggie he was holding and which contained off-white solids. When the officers exited their patrol car, the defendant fled, throwing numerous pieces of a substance resembling rock cocaine. One officer retrieved 42 lumps from the ground, and the defendant was arrested, at which time he was found to be in possession of an empty baggie and $2.75 in cash. He filed a Pitchess motion seeking disclosure of previous citizen complaints against the three arresting officers for making false arrests, falsifying police reports, or planting evidence. In support of his motion, he submitted an affidavit that stated his version of the events, namely, that when the officers exited their car, he fled, fearing arrest for an outstanding warrant. He was at the scene to buy cocaine from a seller who was also there, and it was the seller who tossed the cocaine as defendant ran past him. The court found the defendant had made a sufficient showing of good cause to entitle him to an in-chambers record review by the trial court. (Warrick, supra, 35 Cal.4th at pp. 1016-1017, 1024.)
In Thompson, supra, 141 Cal.App.4th 1312, the Court of Appeal found the defendant’s factual scenario insufficient because it was “not internally consistent or complete[,]” “[c]ounsel’s declaration simply denied the elements of the offense charged[,]” and the defendant did not “present a factual account of the scope of the alleged police misconduct [nor] explain his own actions in a manner that adequately support[ed] his defense.” (Id. at p. 1317.) The defendant in Thompson, who was arrested for selling drugs to an undercover officer and receiving marked money in exchange, said he did not sell drugs or receive marked money and that the arresting officers fabricated the alleged events using narcotics already in their possession to frame the defendant and cover up their own mishandling of the situation. (Ibid.) The appellate court found the defendant’s scenario insufficient in that he gave no nonculpable explanation for his presence in a popular drug-selling area, offered no factual basis for being singled out by police, and gave no further information about the police’s alleged mishandling of the situation. (Ibid.) The Thompson court distinguished Warrick, in which the defendant “did not merely make bald assertions that denied the elements of the charged crime” but “provided an alternate version of the events” through a specific factual scenario that explained the facts set forth in the police report. (Thompson, at p. 1318.)
Applying these principles, we find defendant failed to establish a link between the charges and the proposed defense and the relevancy of the alleged misconduct to that defense. Defense counsel declared his belief that there are prior complaints against Sergeant Lee and Deputy Garcia involving use of excessive force and fabricating information in police reports in connection with their use of excessive force. He described the acts of misconduct by Deputy Garcia and Sergeant Lee to be their purported false statements in the police reports and at the preliminary hearing concerning defendant’s conduct (i.e., the officers testified that defendant made “quick and sudden moves with the knife so as to attack [Deputy] Garcia”) and their use of excessive force. Defense counsel also declared his belief, based on defendant’s statements and his medical records, that defendant was incapable of the conduct described by the officers due to his preexisting shoulder injury. Defense counsel’s declaration is conclusory because it fails to articulate any defense to the charges or show how the officers’ alleged acts of dishonesty are connected to that defense.
The declaration is also devoid of any statement setting forth any factual scenario that could or might have happened. While defendant raised denial to the resisting-arrest charge and claimed he was physically incapable of committing the acts, the declaration does not identify, factually or categorically, either of these defenses. Instead, counsel alleged generally that the officers’ version of events is contrary to that of the defense. In addition, the medical reports submitted in support of defense counsel’s declaration do not establish that defendant was physically incapable of resisting arrest or attempting to stab Deputy Garcia. Additionally, counsel failed to specify what statement or statements in Sergeant Lee’s and Deputy Garcia’s reports were false and how they were false. Thus, the declaration lacked the requisite specificity to show these statements were contrary to the defense version of the events.
With respect to defendant’s claim of use of excessive force, the declaration likewise failed to establish a link between the claimed misconduct and a defense. Because the declaration failed to articulate a specific defense strategy and a plausible factual scenario, there is no way to determine whether the requested materials would have been relevant to that defense.
The cases relied on by defendant are inapposite because in each case the police officer was the sole material eyewitness to the crime and therefore the specific police misconduct was relevant to the defense. (People v. Hustead (1999) 74 Cal.App.4th 410, 418 (Hustead) [charged with evading arrest for a high speed chase, the defendant asserted the arresting officers falsely described the manner of his driving]; People v. Gill (1997) 60 Cal.App.4th 743, 750-751 (Gill) [charged with possession of cocaine, the defendant claimed the arresting officer planted the contraband on defendant to cover up his use of excessive force].) By contrast, there were two officers and defendant’s passenger, Brook Torro, present during defendant’s arrest. Nonetheless, Torro did not provide a declaration to support defendant’s version of the events, and counsel failed to declare why Torro did not provide a declaration to support defendant’s version of the events.
Moreover, in both Hustead and Gill, the respective counsels’ declarations articulated a viable defense theory that could occur and might assist the defendants’ exonerations at trial. In addition, the defense theory conformed to the potential trial evidence. In Hustead, defense counsel provided a complete explanation of how the discovery would be useful as proof at trial. (Hustead, supra, 74 Cal.App.4th at pp. 416-418.) In Gill, in his motion for discovery of complaints against the officer pertaining to acts of aggressive behavior or excessive force, the defendant indicated that “‘[i]t will be a defense in this matter that the alleged contraband was placed on [the defendant] by [the officer] to cover up for his use of excessive force and that the officer has [a] pattern of fabricating probable cause in dope cases.’” (Gill, supra, 60 Cal.App.4th at p. 750.)
In contrast to these cases, the showing here was deficient. Defense counsel’s declaration failed to establish “a logical link between the defense proposed and the pending charge . . . [and] articulate how the discovery . . . would support such a defense or how it would impeach the officer’s version of events.” (Warrick, supra, 35 Cal.4th at p. 1021.) Here, there is no factually plausible scenario tied to the potential evidence in the case that might or could have occurred. (Id. at p. 1026.) There was no allegation by defense counsel that the officers used excessive force or how the circumstances of the incident “occurred in a manner significantly different” from the version attributed to the officers.
As such, we find the trial court did not abuse its discretion in concluding that defendant did not meet the standard for permitting discovery of information from police personnel files. Moreover, even were we to find that the trial court erred in finding that defendant had made no showing of good cause to support his Pitchess motion, defendant has not shown “there was a reasonable probability that the outcome of the case would have been different had the information been disclosed to the defense” (Hustead, supra, 74 Cal.App.4th at p. 422), and such error would be harmless in light of all the other evidence linking defendant to the crimes of which he was convicted (see People v. Samuels (2005) 36 Cal.4th 96, 110).
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.