Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS091573A
ELIA, J.Petitioner Gerardo Hernandez, an inmate at the Correctional Training Facility in Soledad (CTF), seeks a writ of mandate directing the superior court to set aside an order denying his motion for pretrial discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) as codified in Evidence Code sections 1043 and 1045. Petitioner was charged with the crime of possession of a controlled substance in prison (Pen. Code, § 4573.6) and pleaded not guilty. His Pitchess motion sought information in the personnel records of two CTF correctional officers. The trial court concluded that petitioner had failed to demonstrate good cause for an in camera review of the correctional officers' personnel records. In response to the petition for mandate and prohibition, this court stayed all trial court proceedings until further order of this court.
All further statutory references are to the Evidence Code unless otherwise specified.
We issued an order to show cause why petitioner is not entitled to the relief requested by the petition. After reviewing the trial court's ruling for an abuse of discretion (People v. Lewis (2006) 39 Cal.4th 970, 992; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039), we now conclude that petitioner established good cause for limited discovery under Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick).
A. Background
According to the incident report of Correctional Officer Amaya of the California Department of Corrections and Rehabilitation (CDCR), an incident involving petitioner, who was an inmate, began at about 8:30 a.m. on January 23, 2009 in Dorm Four of CTF's South Facility. Officer Amaya ordered petitioner to come into the dorm office. Petitioner turned and walked away. Officer Amaya again ordered petitioner to come into the office. Petitioner instead began to run down an aisle between bunks toward the west dayroom and Officer Amaya followed. According to Officer Amaya, Officer Macias pressed her alarm. As petitioner and Officer Amaya approached the dayroom, Officer Amaya ordered defendant to get down but he did not. Officer Amaya put his arms around petitioner and ordered him to get down. Petitioner tossed a ball of toilet paper into the air. Amaya released petitioner and picked up the ball of toilet paper from the top of a bunk. The officer returned to defendant and again ordered him to get down. Instead of complying, petitioner went into the dayroom. Officer Amaya then placed his arms around petitioner and ordered him to get down, which he did. Two other officers handcuffed petitioner and escorted him to the south medical health services. Officer Amaya's report stated that the ball of toilet paper contained two bindles of suspected black tar heroin. Officer Amaya stated that he placed the evidence into an evidence locker at 10:50 a.m. on January 23, 2009.
According to the incident report of Correctional Officer Macias, at approximately 8:30 a.m. on January 23, 2009, Officer Macias observed Officer Amaya order petitioner to step into the office. Instead of complying, petitioner walked away. The report stated that Officer Amaya ordered petitioner to stop several times but he did not comply. Petitioner began to run toward the west dayroom. Officer Macias saw Officer Amaya wrapping his arms around petitioner's waist and petitioner resisting. At this point, Officer Macias pressed her personal alarm. According to the report, petitioner "then threw an object over his head behind C/O Amaya." Officer Amaya released petitioner and recovered the object. Officer Macias ordered petitioner to get down and he did not comply. Officer Amaya again wrapped his arms around petitioner's body and ordered him to "prone out, " which petitioner did. Responding staff arrived, handcuffed petitioner, and escorted him to south medical health care services.
Petitioner's Pitchess motion, filed on March 10, 2010, sought discovery from the personnel records of Correctional Officers Amaya and Macias. The motion sought records of complaints, investigations of complaints, and discipline resulting from investigations of complaints against Correctional Officers Amaya and Macias, pertaining to the performance of duty "including but not limited to instances of errors or falsifications in reports, instances of dishonesty, deception, or falsehood, instances of falsification of evidence or evidence tampering, and instances of improper behavior."
Defense counsel's declaration in support of the Pitchess motion stated, on information and belief, that "the unidentified object thrown by [petitioner] was a cell phone." Defense counsel also stated, among other things, that he was "informed and believe[s] that Officer Amaya took an extraordinary amount of time to process the evidence during which time it was susceptible to falsification and tampering, into the appropriate locker" and that "if the officers involved... processed any evidence, it has been fabricated in order to cast [petitioner] in a negative light." Counsel further declared that he was "informed and believe[s] that the officers involved... acted in concert to falsify reports in order to corroborate each other's story and case against [petitioner]." His declaration contained numerous additional statements, made on information and belief, concerning the circumstances at the time of the incident and the handling of the evidence and investigation.
Defense counsel stated, on information and belief, that "C.O. Macias was at least thirty feet from C.O. Amaya and Mr. Hernandez, " "given the distance, and the fact that the personal alarm is very small, C.O. Macias could not have seen C.O Amaya actually press the button on his personal alarm, yet claims that that she did see C.O Macias press the button in her report, " "between C.O. Macias and C.O. Amaya there were at least 160 people moving around the dorm, involved in numerous activities, obstructing her view, " "there were bunks placed every three feet in the dorm, which further obstructed Officer Macias [sic] view, " "according to both the statements of C.O. Amaya and Macias, C.O. Amaya voluntarily released his control of Mr. Hernandez in order to recover alleged evidence, " "according to both the statements of C.O. Amaya and Macias, after C.O. Amaya released Mr. Hernandez, Mr. Hernandez, who previously was alleged to have been fleeing, merely stood in place and waited for C.O. Amaya to return, and then proceeded to allegedly disobey C.O. Amaya, " and "the officers involved... did not find any drug on Mr. Hernandez' person." We note that it is actually Officer Amaya's report that states that "Officer L. Macias pressed her alarm." Officer Macias reported only that she pressed her own personal alarm. Further, nothing in Officer Amaya's report indicates that he necessarily saw Officer Macias press her alarm. It is conceivable that Officer Amaya knew that fact because he heard it (assuming it was not silent), he deduced it because other officers responded, or, after the incident, Officer Macias told him that she had pressed her alarm. In any case, Officer Amaya's statement regarding Officer Macias pressing her alarm is not in conflict with defendant's version of the facts and there was no showing that it was a falsehood.
Defense counsel stated, on information and belief, that "no photos were taken of the alleged evidence, " petitioner was "not tested for any possible drugs in his system, " "none of the proper procedures for drugs were followed in this situation, " the alleged evidence, including the paper wrapping, was not "tested for fingerprints or any other identifying marks, " "the individual on whose bunk the alleged evidence was found... was not detained or questioned, " none of the "160 or so inmates in the room at the time" "were detained or questioned regarding the alleged incident, " "no other officers were listed as being in the dorm, " and "no other officers were questioned whether they heard or observed anything during the alleged incident."
On April 16, 2010, the superior court concluded that an in camera review was not warranted and denied petitioner's Pitchess motion.
B. Pitchess Motion
1. Requisite Good Cause Showing
"Evidence Code sections 1043 and 1045, which codified [the Supreme Court's] decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531..., allow discovery of certain relevant information in peace officer personnel records on a showing of good cause." (People v. Samuels (2005) 36 Cal.4th 96, 109.) A good cause showing of materiality requires the defense counsel's supporting affidavit to propose a defense or defenses to the pending charges, establish a logical relationship between a pending charge and the proposed defense or defenses and explain how the requested discovery would support the proposed defense(s) or impeach the officer's version of events. (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.)
"A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. (Chambers v. Superior Court (2007) 42 Cal.4th 673, 679....)" (People v. Gaines (2009) 46 Cal.4th 172, 179.) "The relatively low threshold for a showing of good cause under section 1043 is tempered, in turn, by the specific exclusions, in camera review procedures, and exacting standards for disclosure of section 1045." (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 94.)
In Warrick, supra, 35 Cal.4th 1011, the Supreme Court clarified the showing required to establish good cause for Pitchess discovery under section 1043. (Id. at p. 1024.) "Essentially, the defendant must propose a potential defense to the pending charge, articulate how the discovery might lead to or constitute evidence providing impeachment or supporting the defense, and describe an internally consistent factual scenario of claimed officer misconduct. Depending on the circumstances of the case, the scenario may be a simple denial of accusations in the police report or an alternative version of what might have occurred. (Warrick, supra, 35 Cal.4th at pp. 1024-1026....)" (Garcia v. Superior Court (2007) 42 Cal.4th 63, 72.)
"Counsel's affidavit must also describe a factual scenario that would support a defense claim of officer misconduct. (Warrick, supra, 35 Cal.4th at pp. 1024-1025....) 'That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.' (Ibid.) 'In other cases, the trial court hearing a Pitchess motion will have before it defense counsel's affidavit, and in addition a police report, witness statements, or other pertinent documents. The 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 to "articulate a valid theory as to how the information sought might be admissible" at trial.' (Id. at p. 1025....)" (Garcia, supra, 42 Cal.4th at p. 71.)
In Warrick, 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." (Warrick, supra, 35 Cal.4th at p. 1022.) The declaration explained that the "defendant was at the scene to buy cocaine" but he fled "at the sight of the officers because he feared arrest for an outstanding parole warrant" and "ran past the actual seller." (Id. at pp. 1022-1023.) "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." (Id. at p. 1023.)
"[T]he Court of Appeal concluded that defendant's factual scenario was implausible, not because his version of events could not have occurred, but because in the court's view that version of events was unlikely." (Id. at p. 1024.) The Supreme Court made clear that the appellate court had "elevated the showing of good cause for Pitchess discovery beyond that required by law" (ibid.) and "imposed a greater burden on the party seeking Pitchess discovery than required by our prior cases or the statutory scheme" (id. at p. 1026). The appellate court had applied the wrong legal standard when it concluded that, to be plausible, "a factual foundation must be reasonably probable or apparently credible and not merely possible." (Id. at pp. 1025-1026.) In assessing a Pitchess motion, it is not the trial court's task to "weigh or assess the evidence." (Id. at p. 1026.)
The Supreme Court stated in Warrick that "[w]hat the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citations.]" (Id. at p. 1025.) "[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." (Id. at p. 1026.)
"A Pitchess motion need not, however, provide a motive for the alleged officer misconduct." (Id. at p. 1025.) In addition, "[a]lthough a Pitchess motion is obviously strengthened by a witness account corroborating the occurrence of officer misconduct, such corroboration is not required." (Ibid.) A defendant is not required to show that his version of events was probable or likely (id. at p. 1024) or to present a credible or believable factual account of officer misconduct (id. at p. 1026).
In People v. Hustead (2005) 74 Cal.App.4th 410, which was cited with approval in Warrick, the defendant was charged, and later convicted, of felony evasion of arrest (Veh. Code, § 2800.2) after he allegedly sped away from and tried to evade an officer attempting to make a vehicle stop. (Id. at p. 412.) The defendant's "counsel asserted in his declaration that the officer made material misstatements with respect to his observations, including fabricating [the defendant's] alleged dangerous driving maneuvers" and "[h]e also stated that [the defendant] asserted that he did not drive in the manner described by the report and that his driving route was different from that found in the report." (Id. at pp. 416-417.)
In Hustead, the appellate court reviewing the denial of the defendant's Pitchess motion had stated: "These allegations were sufficient to establish a plausible factual foundation for an allegation that the officer made false accusations in his report. It demonstrated that appellant's defense would be that he did not drive in the manner suggested by the police report and therefore the charges against him were not justified." (Id. at p. 417.) The Supreme Court in Warrick agreed with the determination in Hustead: "[D]efense counsel's declaration in Hustead made allegations sufficient to 'establish a plausible factual foundation' for a defense that the defendant did not drive in the fashion described in the police report and that the officer's report was untrue. (Id. at p. 417....)" (Warrick, supra, 35 Cal.4th at p. 1025.) The Supreme Court in Warrick determined that "[b]y denying the factual assertions made in the police report-that he possessed and discarded the cocaine-defendant established 'a reasonable inference that the [reporting] officer may not have been truthful.' (People v. Hustead, supra, 74 Cal.App.4th at p. 418....)" (Id. at p. 1023.)
2. Showing as to Correctional Officers Amaya and Macias
In the trial court, the Attorney General (A.G.), representing the CDCR, argued in opposition to the Pitchess motion that defense counsel's supporting declaration did not state a plausible factual scenario or explain defendant's actions and merely contained "simple denials" and "conclusory and opinionated assertions." The A.G. argued that petitioner's actions were not explained in "any meaningful way" or "in a manner that adequately supports a defense to the charges as required by Sanderson and Thompson, " two appellate cases decided after Warrick. The trial court impliedly agreed with these arguments, stating "For the reasons stated in [the A.G.'s] response, the Court finds that the defendant has failed to state reasonable cause to justify an in camera review of the requested documents." The court stated that the "speculative suggestion, the officers on the fly, for no apparent reason, formulated a conspiracy to entrap this defendant... simply does not in my view state a plausible scenario sufficient to justify the exercise."
The A.G. is now challenging defense counsel's supporting declaration on the ground it contains statements of "mere opinion, conclusion, and speculation." We cannot reject the declaration on this basis. A supporting declaration may be based merely on "information and belief" and need not be based on personal knowledge. (Garcia v. Superior Court, supra, 42 Cal.4th at p. 70; City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 86-90; see City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1145.) We next turn to the two cases cited by the A.G. in opposition the motion below.
In People v. Thompson (2006) 141 Cal.App.4th 1312, the defendant, who had been convicted of selling cocaine base (Health & Saf.Code, § 11352, subd. (a)), unsuccessfully argued that the trial court had erroneously denied his Pitchess motion under the standard set forth in Warrick. (People v. Thompson, supra, 141 Cal.App.4th at pp. 1314-1316.) The appellate court found the defendant's factual scenario was "not plausible by any rational standard." (Id. at p. 1315.)
In Thompson, the police reports described an undercover drug transaction, which had been monitored by wire, and the recovery of the "buy money" from the defendant. (Id. at p. 1317.) "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.' " (Ibid.) It was further stated that "[w]hen '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.' " (Ibid.) It was also claimed that "[t]he 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....' " (Ibid.)
The appellate court in Thompson explained that this did not meet the "plausible factual scenario" standard of Warrick because the showing was "not internally consistent or complete." (Ibid.) The court explained: "Thompson, through counsel, denied he was in possession of cocaine or received $10 from Officer Saragueta. But, he does not state a non-culpable 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." (Ibid.) The court concluded, that unlike the defendant in Warrick, defendant Thompson had not "provide[d] an alternate version of the facts regarding his presence and his actions" and had not "explain[ed] the facts set forth in the police report." (Id. at p. 1318.)
The appellate court further declared: "Warrick did not redefine the word 'plausible' as synonymous with 'possible, ' and does not require an in camera review based on a showing that is merely imaginable or conceivable and, therefore, not patently impossible. Warrick permits courts to apply common sense in determining what is plausible, and to make determinations based on a reasonable and realistic assessment of the facts and allegations." (Id. at p. 1318-1319.)
We agree that Warrick did not equate "implausible" with inherently impossible. However, we think it is significant that in Thompson the defendant sought Pitchess discovery against 11 officers, which included Officer Saragueta, the undercover officer who purchased cocaine base from the defendant, "six officers who saw the transaction, the two detectives who monitored Saragueta's wire, the arresting officer who found two five dollar bills in Thompson's possession, and the officer who identified the bills as Saragueta's buy money." (Id. at pp. 1315-1316.) The appellate court determined that the defendant had failed to show that it was plausible that 11 officers conspired to "completely misrepresent what they saw and heard as percipient witnesses" in the absence of an alternate version of the facts explaining the defendant's presence and his actions. (Id. at p. 1318.)
Thompson was relied upon in People v. Sanderson (2010) 181 Cal.App.4th 1334. In Sanderson, the police officers responded to a 9-1-1 call and then overheard threats made by the defendant over the telephone, which "was on 'loudspeaker, ' so everyone in the room could hear the conversation." (Id. at p. 1337.) The defendant "did not deny making the phone call or engaging in a telephonic conversation... at the time the police were present at the house." (Id. at pp. 1340-1341, fn. omitted.) Because defendant Sanderson "failed to present 'an alternate version of the facts' regarding the reason and nature of his telephonic exchange..., " the appellate court concluded that, as in Thompson, "the trial court acted within its discretion to the extent that it made a 'common sense' determination that defendant's version of events was not plausible 'based on a reasonable and realistic assessment of the facts and allegations.' (Id. at p. 1319....)" (Id. at p. 1341.)
In contrast, in this case petitioner did provide an alternative version of the incident as to the pivotal fact, the object thrown by him. While defense counsel's declaration did not directly deny that defendant toss the toilet paper containing heroin, it specified that defendant threw an object and that object was a cell phone. The clear implication was that the object thrown by defendant was not a ball of toilet paper containing two bindles of black tar heroin. Thus, defense counsel's declaration proposes an alternate factual scenario and suggests that insofar as the correctional officers reported that petitioner discarded heroin, their statements were false. (See Warrick, supra, 35 Cal.4th at pp. 1024-1025; Garcia v. Superior Court, supra, 42 Cal.4th at p. 71.)
The A.G. contends that, because defense counsel's declaration did not explicitly deny that petitioner tossed a ball of toilet paper or possessed heroin, petitioner might have thrown two objects, a cell phone and a ball of toilet paper containing two bindles of suspected black tar heroin. Neither incident report suggested that two objects were thrown by petitioner and the declaration adequately and impliedly states that the object thrown was not bindles of heroin wrapped in toilet paper but instead a cell phone.
When read in light of the incident reports, petitioner's proffered factual scenario is plausible, even if not probable or likely to be believed. Inmates are not allowed to possess, without permission, a cellular telephone. (Cal. Code Regs., tit. 15, § 3006, subd. (c)(19).) Unauthorized possession may result in disciplinary action. (Cal. Code Regs., tit. 15, § 3006.) Even the A.G. recognizes that "it is obvious that an inmate in possession of a cell phone poses a serious security threat in a prison setting."
In Warrick, the Supreme Court was not persuaded by the appellate court's conclusion that defendant's factual foundation was not "plausible." (Warrick, supra, 35 Cal.4th at p. 1023.) The high court stated: "[Defendant Warrick's] proposed defense to the charge of possessing cocaine base for sale was straightforward: he asserted he did not possess, and therefore could not have discarded, the 42 rocks of cocaine. By denying the factual assertions made in the police report-that he possessed and discarded the cocaine-defendant established 'a reasonable inference that the [reporting] officer may not have been truthful.' (People v. Hustead, supra, 74 Cal.App.4th at p. 418....)" (Ibid.)
The same result applies here with regard to the truth or falsity of Correctional Officer Amaya's statement, contained in the incident report, that petitioner had tossed a ball of toilet paper containing two bindles of suspected black tar heroin. The proposed defense that petitioner actually threw a cell phone, and impliedly not the heroin, raised an inference that Officer Amaya may not have been truthful in his report and indicated a scenario of officer misconduct "that might or could have occurred, " and, thereby, established a "plausible factual foundation" establishing good cause for discovery against Correctional Officer Amaya. (Warrick, supra, 35 Cal.4th at pp. 1023, 1026.)
Petitioner did not make a good cause showing of materiality with respect to Correctional Officer Macias. Correctional Officer Macias's incident report stated that she observed petitioner throw an object and saw Officer Amaya recover the object, which is entirely consistent with petitioner's version of the facts. Although defense counsel stated that he is "informed and believe[s] that the officers... acted in concert to falsify reports in order to corroborate each other's story and case against [petitioner], the motion did not identify any material difference between the defense version of events and the version of the incident in Officer Macias's report or any purported falsehood in that report that is material to petitioner's defense that he threw a cell phone, not heroin.
Defense counsel's declaration did contain some very broad insinuations of impropriety with regard to the post-incident investigation of the alleged offense. Petitioner failed to link any implied investigatory irregularity to Officer Amaya and Macias and he failed to link those insinuations to his proposed defense that Officer Amaya was lying when he reported that petitioner discarded a controlled substance rather than a cell phone. "[A] showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1021.)
3. Scope of Discovery
In his motion, petitioner sought disclosure pertaining to "instances of errors or falsifications in reports, instances of dishonesty, deception, or falsehood, instances of fabrication of evidence or evidence tampering, and instances of improper behavior." (Emphasis omitted.) A Pitchess discovery request must be sufficiently specific to preclude a defendant from "simply casting about for any helpful information. [Citation.]" (People v. Mooc (2001) 26 Cal.4th 1216, 1226; see Garcia v. Superior Court, supra, 42 Cal.4th at p. 71 ["The information sought must be described with some specificity to ensure that the defendant's request is 'limited to instances of officer misconduct related to the misconduct asserted by the defendant.' [Citation.]"].) "This specificity requirement excludes requests for officer information that are irrelevant to the pending charges. (See, e.g., People v. Hustead, supra, 74 Cal.App.4th at p. 416... [prior complaints of excessive force by arresting officer 'irrelevant' after charge of resisting arrest was dropped and remaining charge was evasion of arrest in an automobile].)" (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1021.) A trial court must "identify what types of officer misconduct information, among those requested, will support the defense or defenses proposed to the pending charges." (Ibid.)
In this case, petitioner established good cause for limited Pitchess discovery based on his proposed defense that he discarded a cell phone rather than bindles of heroin wrapped in toilet paper as reported by Officer Amaya. This proposed defense entitles him to an in-camera review of that officer's personnel records. But petitioner's showing below did not support open-ended discovery of "instances of improper behavior" or reporting errors not involving intentional falsehood.
Disposition
Let a peremptory writ of mandate issue directing the superior court to (1) vacate its April 16, 2010 order denying petitioner's Pitchess motion and (2) grant the motion with respect to discovery of Correctional Officer Amaya's personnel records as specified in this opinion and (3) conduct an in camera review in accordance with applicable law. The stay issued by this court is dissolved upon the finality of this decision.
WE CONCUR: PREMO, Acting P. J. DUFFY, J.