Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDING; petition for writ of mandate. Norm Shapiro, Judge, L.A.S.C. No. BA315007.
Michael P. Judge, Public Defender, Albert J. Menaster, Alla Eksler and Mark Harvis, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Rockard J. Delgadillo, City Attorney, and Suzanne Carter, Deputy City Attorney, for Real Parties in Interest.
SPENCER, P. J. MALLANO, J. ROTHSCHILD, J.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
The trial court abused its discretion when it denied defendant Levite McMillon’s (McMillon) Pitchess motion. Accordingly, we grant the petition for writ of mandate.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexander v. Superior Court (1993) 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.)
INTRODUCTION
On January 3, 2007, at about 5:20 p.m., 29 Los Angeles Police Department officers were working a narcotics buy/bust operation in the downtown Los Angeles skid row. Officer A. Williams wrote the arrest report detailing the arrest of McMillon and three others. Officer Williams first wrote about how he walked up to Alice Yumana (Yumana) and allegedly purchased drugs from her. Officer Williams wrote that while he was waiting to obtain the drugs from Yumana, Officers Jackson and Saragueta saw McMillon and Tammy Delsied (Delsied) standing on the sidewalk amid a crowd of five to six people, including Yumana and Guillermo Hernandez (Hernandez). McMillon told Delsied to “get with it, ” which the officer said refers to narcotics sales. McMillon said “dimes and dubs, ” referring to $10 and $20 worth of drugs. Delsied gave each of the persons standing near her white solids from a “Crazy Glue” container and collected money. Officer Saragueta saw Hernandez give McMillon money. Delsied gave Hernandez a rock. Officer Saragueta tried to purchase narcotics from Delsied, but she told him they were out. Delsied put the container in her waistband.
Hernandez was arrested and he told the police that Delsied and McMillon each gave him a rock and he paid Delsied. Police recovered a “Crazy Glue” container with white residue from Delsied. The police took $659 from McMillon in $20’s, $10’s, $5’s, and $1’s.
On March 6, 2007, McMillon filed a pretrial Pitchess motion in which he alleged that although he was present at the location, he did not participate in any drug transaction. He did not say what the police claimed he said, he did not give drugs to anybody, and he did not take money from anybody. McMillon was merely present at a location where others were selling drugs. McMillon requested disclosure of any previous citizen complaints against the two officers for making false arrests and falsifying police reports.
In her declaration, attached as part of the motion, counsel declared, in relevant part: “Defense intends to show at trial, based on information and belief, that Officers Jackson #30772 and Saragueta #32806 made false statements in the police reports or made false statements to the author of the police report relating to what they saw Mr. McMillon do. Specifically, officers Saragueta and Jackson falsified that they saw Mr. McMillon give money or cocaine to any of the parties. They falsely stated for purposes of the police report that they also heard Mr. McMillon say ‘get with it’ or ‘dimes and dubs’. They further falsified that he then accepted money from any of the individuals. In fact, Mr. McMillon had absolutely nothing to do with the transaction whatsoever. He did not say anything, he did not take money from anyone, he did not give cocaine to anyone. Mr. McMillon was standing in front of the hotel with a group of individuals. The other defendant approached and gave the money to one of the numerous people standing with Mr. McMillon. He did not encite or say anything. He had no part of the transaction. After that exchange, Mr. McMillon walked away with some of the other individuals when the police pulled up, stopped and searched the entire group. Mr. McMillon had money on him he had just got from his work and, therefore, the officers arrested him for sales. [¶] . . . [¶] The honesty of the officer may well be an issue at trial, in that the defense may contend that the officer(s) misrepresented facts on the police report.”
On March 27, 2007, the trial court denied McMillon’s Pitchess motion on the ground that counsel’s allegations in her declaration amounted to no more than a denial of guilt, which was not sufficient to establish good cause for discovery.
DISCUSSION
A trial court ruling on a Pitchess motion is reviewed for abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
The California Supreme Court has ruled that the basic principle underlying defense discovery stems from the “‘fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonable accessible information.’ (Pitchess v. Superior Court, supra, 11 Cal.3d 531, 535.) Pitchess made it clear that ‘an accused . . . may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial.’” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.)
In order to obtain discovery of the type requested in this case, a criminal defendant must first meet the requirements of Evidence Code section 1043. The threshold showing here is “relatively low.” (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at p. 83.)
Evidence Code section 1043 provides:
“(a) In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosure shall file a written motion with the appropriate court or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought.
“(b) The motion shall include all of the following:
(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and place at which the motion for discovery or disclosure shall be heard.
(2) A description of the type of records or information sought.
(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.
“(c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the records.”
Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick) is the Supreme Court’s most recent detailed examination of the Pitchess procedure. The Supreme Court reiterated the relatively low threshold showing required and stated that in some situations a simple denial of the charges would be sufficient to justify Pitchess discovery. The Supreme Court held that “a plausible scenario of officer misconduct is one that might or could have occurred.” (Warrick, supra, 35 Cal.4th at p. 1026.)
At issue in Warrick was the first part of the good cause requirement—the materiality to the pending litigation of discovery sought. “Specifically, the question is this: What must the defendant show to warrant the court’s in-chambers review of documents or information in the officer’s personnel file that is potentially relevant to the claimed misconduct? We hold that to obtain in-chambers review a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred.” (Warrick, supra, 35 Cal.4th at p. 1016.)
“At issue here is the showing of good cause required for Pitchess discovery.” (Warrick, supra, 35 Cal.4th at p. 1019.) “[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.” (Id. at p. 1021.)
Also, “[c]ounsel’s affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.” (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) “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?” (Id. at p. 1025.) “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.” (Id. at p. 1026.)
McMillon’s version of events is plausible given the factual scenario described in defense counsel’s declaration. The declaration offers an innocent scenario of McMillon’s conduct and denies the facts asserted in the police report establishing a plausible factual foundation for the claim of officer misconduct, to wit, falsely accusing McMillon of being involved in a drug transaction. The scenario described is internally consistent, forms the basis of a defense to the charge of selling a controlled substance and is one that could have occurred. Thus, McMillon has shown that the information sought of officers’ making false arrests and falsifying police reports, could lead to potentially admissible evidence at trial. McMillon has established good cause for Pitchess discovery.
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of March 27, 2007, denying McMillon’s Pitchess motion, and to issue a new and different order granting same, in Los Angeles Superior Court case No. BA315007, entitled People v. Levite McMillon.