Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05F05588, 03F06750 & 01F03566.
BLEASE , Acting P. J.
Defendant appeals from the judgment of conviction after a jury found him guilty as charged of selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).) The trial court found true the allegation that he had been previously convicted of possession of cocaine base for sale. (Health & Saf. Code, §§ 11351.5, 11370.2, subd. (a).) The court sentenced him to prison for an aggregate term of seven years, found him in violation of probation in case numbers 01F03566 and 03F06750, and in each case sentenced him to a prison term of two years to be served concurrently with the sentence in the present case.
Defendant’s sole contention on appeal is that the trial court abused its discretion when it partially denied his Pitchess motion to discover police officer personnel records and asks this court to review the sealed record to resolve his claim.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We have done so and find no abuse of discretion.
FACTUAL BACKGROUND
A. Prosecution’s Case
On April 5, 2005 at 4:18 p.m., Detective Jason Oliver of the Sacramento City Police Department (SCPD) was working undercover in a “buy-walk” operation at the intersection of Dixieanne Avenue and Oakmont Street, in the Del Paso area of Sacramento County. He was wearing a one-way audio transmitter, which was being monitored by Detective Kevin Patton who was sitting in an unmarked police van about a block away.
Oliver made eye contact with defendant and, using the street term “a twenty,” asked defendant if he knew where he could get $20 worth of cocaine. Defendant responded, “right here.” They walked over to the north side of the street where defendant put his hand to his mouth, retrieved an off-white substance wrapped in clear plastic and handed it to Oliver who gave defendant a prerecorded $20 bill, serial number EL94563155A. The two separated and Oliver signaled Detective Patton that the sale was complete and gave him a physical description of defendant.
Patton immediately relayed defendant’s location and physical description as a light-skinned African-American male, with shoulder-length red hair wearing a black cap. Detective Harshbarger and Officer Boyd arrived at the designated location within minutes of Patton’s call and detained defendant who matched the unusual description. The officers directed defendant to sit on the curb where he dropped a $20 bill into the street. Harshbarger retrieved the bill and wrote down the serial number, noting that it matched the serial number of the bill Detective Oliver had given defendant in the undercover buy. Officer Boyd took a Polaroid photograph of defendant and released him. The photograph showed defendant and Detective Lange, who also worked in the buy-walk operation.
Officer Boyd met Detective Oliver a few blocks from the purchase site and showed him defendant’s photograph, which Oliver identified as depicting the same individual who had just sold him cocaine. Defendant was arrested pursuant to an arrest warrant a month later.
B. Defense
Defendant did not take the stand but presented a thin alibi defense. Taneka Barron, defendant’s girlfriend, testified that she and defendant were living together in April 2005. At that time, defendant attended a school near Stockton Boulevard and worked in a restaurant on Florin Road and 29th Avenue, which was a 20-minute drive from the school. Defendant’s classes began at 7:00 a.m. and ended at 2:30 p.m. After school, he worked from 3:00 p.m. to the closing hour around 11:45 or 12:00 a.m. However, he did not work every day and she had no recollection whether defendant went to school or work on April 5, 2005.
School records for April 5, 2005, showed that defendant was present in school from 9:30 a.m. to the lunch break and attended his culinary arts class from 12:00 p.m. to 3:00 p.m.
Detective Lange had no recollection of seeing defendant or being photographed with him on April 5, 2005, but when shown the photograph of defendant and himself, he assumed the photograph was taken on that date because that was the date written on the photograph.
Detective Oliver conducted two other “buy-walk” undercover operations on April 5, 2005, one involving Gregory Daniel, the other involving a man named “Welcome.” Oliver purchased narcotics from Daniel who was then stopped, searched, and arrested by Officer Lange and his partner. During the search, the officers seized a $10 and a $20 bill from Daniel. The $20 bill was the one Detective Oliver gave to defendant during the undercover buy on April 5th. Officer Lange returned the bill to Oliver who then used it to make the undercover purchase from Welcome.
There was a discrepancy in the police reports regarding the time of Daniel’s arrest. Detective Lange’s report indicated he arrested Daniel at 2:30 p.m. while the reports of Detectives Oliver and Perez indicated Daniel was arrested at 4:51 p.m. After reviewing the other two reports, Lange admitted there was a discrepancy and that he had “some doubt” as to the exact time he contacted Daniel.
DISCUSSION
Defendant requests review of the trial court’s partial denial of his Pitchess motion and decision declining to disclose any information following the in camera hearing. In his motion, defendant sought disclosure of the personnel records of Officers Patton, Oliver, and Harshbarger. On appeal, he requests this court to review counsel’s sealed declaration and the sealed transcript of the in camera hearing to determine whether the trial court erred when it (1) ruled that none of the personnel records were discoverable, (2) denied his request for an in camera review of Officer Patton’s personnel records, and (3) limited its review to records that the officers planted or fabricated evidence. Respondent concedes the request is reasonable.
A. Procedural and Factual Background
Defendant filed a Pitchess motion, seeking an order for pretrial discovery of documents in the personnel records of Officers Patton, Oliver, and Harshbarger. The specific documents requested were “complaints” against the three officers involving the “falsification of evidence or testimony,” “discrimination on the basis of race, national origin, religion, gender or sexual orientation,” and “other alleged acts involving moral turpitude.” The police reports authored by the three officers were attached to the motion. The facts set forth in those reports are consistent with the officers’ trial testimony.
Also filed in support of the motion was counsel’s sealed declaration.
The trial court denied the Pitchess motion in part and granted it in part, directing SCPD to bring the personnel files of Officers Oliver and Harshbarger that contain evidence or information leading to evidence that the detectives planted or fabricated evidence.
Upon counsel’s request, the trial court clarified that it had denied the request for complaints of falsifying police reports, which it viewed as different from fabricating evidence. Defendant does not challenge this distinction on appeal.
At the in camera hearing, the custodian of records for the SCPD testified. After reviewing the motion, the supporting documents including the sealed declaration, and the sealed transcript, we find no abuse of discretion.
B. Analysis
In Pitchess, supra, 11 Cal.3d 531, the court held that a criminal defendant may “compel discovery” of certain information in police officer personnel files by demonstrating good cause. (Id. at pp. 536-538.) In 1978 the Legislature codified that holding 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.)
The procedure for initiating discovery of such records is contained in Evidence Code section 1043. The defendant must file a written noticed motion (Evid. Code, § 1043, subd. (a)) supported by affidavits showing “good cause” for the discovery or disclosure of the documents sought. Good cause is shown by setting forth the “materiality” of the information sought to the subject matter of the pending litigation and stating “upon reasonable belief” that the identified governmental agency has the records or information sought. (Evid. Code, § 1043, subd. (b)(3); City of Santa Cruz, supra, 49 Cal.3d at p. 82.) This two-part showing is a “relatively low threshold for discovery . . . .” (Id. at p. 83.)
To establish the materiality prong of the good cause requirement, the defendant must establish “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.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021 (Warrick).) In establishing that 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. (Id. at p. 1024.) A factually plausible scenario is one that “might or could have occurred.” (Id. at p. 1026.) The trial court must then determine “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 four questions: (1) has the defense made a logical connection between the charges and the proposed defense? (2) and was the affidavit supporting the motion factually specific and tailored to support its claim of officer misconduct? (3) and 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? (Warrick, supra, 35 Cal.4th 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 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, 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. The affidavit in support of the motion asserted 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 that it was the seller who tossed the cocaine as defendant ran passed him.
The Supreme Court in Warrick found the defendant had made a sufficient showing of good cause to entitle him to an in-chambers record review by the trial court. The court reasoned that defendant’s version of the events was plausible because it was internally consistent and formed the basis of a defense to the pending charge. (Warrick, supra, 35 Cal.4th at pp. 1016-1017, 1024.)
Once the trial court finds good cause has been shown, 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).)
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.)
With these principles in mind, we turn to defendant’s specific requests for review.
1. Officer Patton
Defendant contends the trial court abused its discretion by denying his request to discover the personnel files of Detective Patton. We find no abuse of discretion because Patton’s personnel files were not material to the defense. (People v. Collins (2004) 115 Cal.App.4th 137, 151 [in prosecution against a prisoner for possession of heroin and battery on a nonconfined person, defendant failed to establish good cause for disclosure of personnel records of two prison officials who were not present during the unclothed body search of the defendant in which prison officers discovered several balloons of heroin in the defendant’s possession].)
Defendant was charged with selling a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) Although defense counsel’s declaration asserted facts that were inconsistent with those related by Officers Oliver and Harshbarger in their police report, counsel did not allege any specific factual scenario of misconduct involving Detective Patton. Moreover, according to Patton’s police report, his participation in the undercover buy operation was limited to monitoring Officer Oliver’s audio transmission, at which time he observed an interaction between Oliver and “a light-skinned male black adult, later identified as Michael Melton.” Thus, Patton was not directly involved in the undercover buy or defendant’s detention, he did not personally identify defendant as the individual who sold Detective Oliver the narcotics, and the facts asserted in his report are not necessarily inconsistent with those asserted by defendant. Defendant has therefore failed to establish a specific factual scenario establishing a “plausible factual foundation” for allegations of misconduct by Detective Patton that would justify discovery of complaints of misconduct against him.
2. Personnel Records
Next defendant asks that we determine whether the trial court erred in ruling that none of the personnel records were discoverable. After reviewing the sealed transcript, we find no abuse of discretion because the evidence at the in camera hearing showed that the officers’ personnel files did not contain any documents that fell within the scope of the trial court’s order.
3. Limiting Review to Evidence of Fabrication and Planting
Last, defendant asks that we determine whether the trial court erred in limiting its review of records to complaints that the officers planted or fabricated evidence. We find the trial court properly limited its review.
Defendant requested documents of complaints against the three named officers involving “falsification of evidence or testimony; [¶] discrimination on the basis of race, national origin, religion, gender or sexual orientation; [¶] other alleged acts involving moral turpitude.”
For the reasons discussed ante, the trial court properly denied the request for disclosure of complaints against Officer Patton and because the request was overbroad, the court properly limited the request as to the other two detectives.
The trial court may properly narrow an overbroad discovery request to misconduct similar to that alleged. (People v. Jackson (1996) 13 Cal.4th 1164, 1220.) Only records of past officer misconduct similar to the misconduct alleged by the defendant in the pending litigation are relevant and subject to discovery. (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021.)
With respect to the request for complaints of discrimination, counsel’s declaration only asserted a factual scenario arising from racial and ethnic bias and discrimination and that assertion was made in connection with a factual scenario that the two officers made false reports and fabricated evidence. Thus, defendant only asserted a plausible factual scenario of misconduct involving the filing of false reports and the fabrication of evidence against young African-American males. However, defendant did not seek complaints that the officers filed false reports and the trial court’s order for disclosure of complaints against the officers for fabricating and planting evidence was broad enough to include all such complaints whether or not motivated by racial or ethnic bias against African-American males.
The request for complaints involving “moral turpitude” was likewise overbroad because it was not limited to complaints regarding the planting and fabrication of evidence. The trial court therefore properly limited its order to those complaints. Accordingly, we therefore find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , J. NICHOLSON , J.