Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 05F02778
MORRISON, J.
A jury convicted defendant Rasheen Murdock of the sale of cocaine base (Health & Saf. Code, § 11352, subd. (a)). In bifurcated proceedings, the court found a strike prior (robbery) (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), and a prior prison term allegation (Pen. Code, § 667.5, subd. (b)) to be true.
The court sentenced defendant to state prison for an aggregate term of seven years, that is, the low term of three years, doubled for the strike prior, plus one year for the prior prison term.
Defendant appeals. He contends the trial court erroneously denied his Pitchess /Brady motion thereby denying his rights to due process and a fair trial. We will reverse the judgment and remand for an in camerahearing.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (Brady).
FACTS
At 10:25 p.m. on March 30, 2005, during a buy/bust operation near Broadway and Alhambra, Sacramento Police Detective Jason Kirtlan worked undercover. Detective Kirtlan was clad in jeans and a flannel shirt, drove a green truck and wore a one-way transmitting device so that Officers Little and Bui could hear him speaking. Detective Kirtlan parked his truck in the Bon Fare Market parking lot and defendant approached. Detective Kirtlan rolled his window down and asked defendant, “You got it?” Defendant responded, “Got what?” Detective Kirtland said, “Weed.” Defendant answered that he did not but had “coke.” Detective Kirtlan replied, “That’s cool.” Detective Kirtlan got out of his truck at defendant’s request. Defendant asked how much money Detective Kirtlan had. Detective Kirtlan stated that he only had “twenty.” Wary, defendant commented that “this is that undercover shit.” After saying, “Hell, no, I’m cool,” Detective Kirtlan headed back to his truck. When defendant asked, Detective Kirtlan insisted he was “cool.” Detective Kirtlan asked defendant to walk towards the truck but defendant declined, believing there was a camera. Defendant asked if Detective Kirtlan had a pipe but he did not, claiming “the shit is for my old lady.” Defendant threw a bindle with .14 grams of cocaine base towards Detective Kirtlan’s feet. Detective Kirtlan picked up the bindle, looked at it, and then threw a wadded up $20 bill towards defendant’s feet. Defendant asked if it was a 20 and moved towards the $20 bill. Detective Kirtlan confirmed it was a 20 and left in his truck, giving the signal to the other officers. An unmarked van with the arrest team pulled into the parking lot to make the arrest and defendant ran but was caught nearby. He had no drugs or drug paraphernalia on his person. In the patrol car, defendant stated that he had nothing to say, that he “messed up” but denied selling cocaine base to anyone. There was no audio or video recording of the incident.
Defendant did not testify at trial.
DISCUSSION
Prior to trial, defense counsel sought the personnel records of Detective Kirtlan. Defense counsel set forth a factual scenario that may have occurred which was contrary to the undercover officer’s account. In his initial declaration, defense counsel stated the following: Defendant had been in a convenience store in Oak Park. When he left, he asked for and obtained a cigarette from a man outside the door of the store. Defendant walked away. A white man, who pulled his vehicle in front of defendant, got out and approached defendant “in an angry manner.” Defendant who is African-American feared for his safety and ran away. He was arrested and put in the back of a patrol car. He did not have any contraband in his possession. He denied engaging in contact with anyone on the street other than asking a man for a cigarette. In his subsequent declaration, defense counsel added the following. Defendant had been in the parking lot at the store. As he was walking away, an unknown man, later determined to be Detective Kirtlan, approached. Detective Kirtlan asked for “‘weed.’” Defendant said he had none and kept walking. Detective Kirtlan asked for other drugs and defendant continued to deny he had any. Defendant never threw drugs or money on the ground.
Defense counsel stated that he expected to show that Detective Kirtlan is untruthful as it relates to a material aspect of the People’s case, that is, the version of events by Detective Kirtlan is contrary to that of defendant and that the officer’s version is untruthful. Defense counsel expected to show that Detective Kirtlan “committ[ed] acts of moral turpitude, by filing false police reports and presenting false evidence with the defendant or others similarly situated.” “Such information would be used to establish a custom or habit” of Detective Kirtlan to provide false information and/or testify falsely and to be used to impeach.
Defense counsel stated based on information and belief that on prior occasions, arrestees, their attorneys, friends, or relatives had made complaints that Detective Kirtlan had “committed acts showing dishonesty or falsification of evidence” [initial declaration]” and “committed false reports [sic], acts of moral turpitude [subsequent declaration].”
The trial court initially found that defendant had not established good cause because the documents filed in support of the motion included no report or statement attributable to Detective Kirtlan. Instead, other officers’ reports referred to Detective Kirtlan’s version of or conduct during the incident. The court finally decided that although the factual scenario was sufficient, the motion was not specific enough because defense counsel had not claimed that Detective Kirtlan had “planted” evidence and denied the motion without prejudice so that defendant could file a new motion that was more specific. Defendant did not file a new motion.
Analysis
Pitchess held that a criminal defendant may compel discovery of requested information in a law enforcement officer’s personnel file by showing good cause, that is, “general allegations which establish some cause for discovery” of the information and the information’s significance to the defense. (Supra, 11 Cal.3d at pp. 536-538.)
Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045 were enacted to codify the Pitchess holding. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (Santa Cruz).) Under Evidence Code section 1043, the defendant must file a written noticed motion supported by an affidavit showing “good cause for the discovery or disclosure sought, setting forth the materiality” of the information and “stating upon reasonable belief” that the governmental agency has the records or information. (Evid. Code, § 1043, subds. (a) & (b)(3); Santa Cruz, supra, 49 Cal.3d at pp. 82-83.)
The showing of good cause required by Evidence Code section 1043 is a “relatively low threshold for discovery . . . .” (Santa Cruz, supra, 49 Cal.3d at. p. 83.) Upon a showing of good cause, the trial court conducts an in-chambers review of the records and discloses relevant information which is not subject to exception or limitation. (Evid. Code, § 1045, subds. (a) & (b).)
Brady held that a violation of a defendant’s due process right to a fair trial occurs when the prosecution fails to disclose evidence favorable to the defendant and material to the issue of guilt or punishment. (Supra, 373 U.S. at pp. 86-87 [10 L.Ed.2d 215, 218].)
The Pitchess discovery procedure “must be viewed against the larger background of the prosecution’s constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant’s right to a fair trial . . . .” (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc).) “Pitchess, supra, 11 Cal.3d 531, and its statutory progeny are based on the premise that evidence contained in a law enforcement officer’s personnel file may be relevant to an accused’s criminal defense and that to withhold such relevant evidence from the defendant would violate the accused’s due process right to a fair trial. Pitchess and Evidence Code sections 1043 through 1047 also recognize that the officer in question has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily.” (Mooc, supra, 26 Cal.4th at p. 1227.) Mooc noted that the Pitchess discovery procedure protects the defendant’s right to a fair trial as well as the officer’s privacy interest. (Ibid.) The Pitchess discovery procedure “‘operates in parallel with Brady and does not prohibit the disclosure of Brady information.’” (City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 14 (Brandon).)
Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick) more recently explained that 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.) Counsel’s declaration must set forth a defense to the charge that is factually plausible, that is, one that “might or could have occurred[,]” and specify how the discovery sought may lead to relevant evidence or be admissible as direct or impeachment evidence. (Id. at p. 1024, 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.) The court considers the following: “Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial?” (Id. at p. 1027.)
In Warrick, a police report “attributable to three arresting officers” reflected that while on patrol in an area known for violent crime and narcotics activity, the three officers observed the defendant holding and looking at a clear plastic baggie containing “‘off-white solids.’” (Supra, 35 Cal.4th at p. 1016.) The officers got out of their patrol car and the defendant fled, dropping many pieces of a substance “‘resembling rock cocaine.’” One of the officers picked up 42 lumps of the substance off the ground. When the defendant was arrested, he had an empty baggie in his hand and $2.75 in cash and spark plug chips (commonly used to smash car windows) in his pockets. (Ibid.) The defendant was charged with possessing cocaine base for sale. (Id. at p. 1017.) Prior to trial, the defendant filed a Pitchess motion seeking disclosure of prior complaints against the three officers, listing as misconduct, inter alia, false arrests, falsifying police reports, and planting evidence. (Ibid.) Defense counsel averred that when the officers got out of their car, the defendant fled, fearing arrest on an outstanding warrant. The defendant was present at the scene to buy cocaine from a dealer who was also present. The defendant claimed the dealer dropped the cocaine. The officers, not knowing who dropped the cocaine, “falsely arrested defendant and fabricated the facts.” (Ibid.) Warrick found that the defendant had established good cause to entitle him to the trial court’s in-chambers review of the officers’ personnel records. (Id. at p. 1027.)
A trial court’s ruling on a Pitchess discovery motion will not be disturbed absent a showing of an abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
Defendant contends the trial court erroneously denied his Pitchess motion, rendering a new motion unnecessary. The Attorney General simply states, “[defendant] did not file a subsequent motion, therefore he should not now be able to complain on appeal that the trial court erred in denying his Pitchess motion.” We conclude that defendant has the better argument; the motion before the trial court was sufficient so a new motion was not required.
Here, we find that defendant established a link between the charges and the proposed defense and the relevancy of the alleged misconduct to that defense. The factual scenario proposed by defendant’s motion was that defendant asked for and obtained a cigarette from a man outside the door of the store as defendant left the store. As defendant walked away, a white man pulled his vehicle in front of defendant, got out and approached defendant “in an angry manner.” Defendant who is African-American ran away, fearing for his safety. Defense counsel added in a subsequent declaration that the unknown man, later determined to be Detective Kirtlan, asked for marijuana as well as other drugs but defendant denied he had any and walked away, denying that he ever threw any drugs or money on the ground. Defendant’s version conflicted with Detective Kirtlan’s version. Defendant’s claim is that Detective Kirtlan lied about defendant throwing a bindle of cocaine base towards Detective Kirtlan’s feet. The trial court found defendant’s factual scenario plausible. In denying the motion without prejudice, the trial court determined that defendant’s motion was missing certain words, that is, planted evidence. Defense counsel sought discovery of Detective Kirtlan’s personnel records for acts showing dishonesty or falsification of evidence or showing he falsified police reports and for acts of moral turpitude. Such language encompasses planting evidence. We conclude that the trial court abused its discretion in determining that an in camera review for prior complaints involving planting false evidence had not been requested in defense counsel’s claim.
To summarize, defense counsel’s declaration established good cause, this is, it proposed a defense to the pending charge, articulated how the discovery sought may lead to relevant evidence admissible as impeachment evidence and described a plausible factual scenario supporting the claimed officer misconduct which consisted of a denial of the facts asserted in the police reports. Defendant is not required to establish that it is reasonably probable that his version actually occurred, only that it might or could have occurred. Defense counsel’s affidavit did that.
We thus consider the appropriate remedy. The Attorney General argues that prejudice cannot be determined on this record because the motion was denied without an in camera hearing so remand is required as in People v. Hustead (1999) 74 Cal.App.4th 410, 418 (Hustead). We agree. Whether the evidence sought to be discovered from Detective Kirtlan’s personnel file is prejudicial turns on what is discovered. (Id. at pp. 418-419.) Under Hustead, the remedy is remand for the trial court to conduct an in camera review. Discovery is limited to instances of misconduct related to the misconduct asserted by defendant. If the court finds no discoverable information, then the court reinstates the judgment and sentence. If the court finds relevant discoverable information, then the defendant is given an opportunity to determine if information would have led to any relevant admissible evidence to present at trial. If defendant demonstrates prejudice, then the trial court orders a new trial. If defendant cannot show prejudice, then the conviction is reinstated and the judgment is affirmed. (Id. at p. 419.)
With respect to defendant’s Brady claim, the Attorney General argues that the information in the confidential personnel files was not information in the prosecution’s possession and thus the prosecution had no duty to review and disclose any negative information. We disagree. “[I]t is incumbent upon the prosecutor to learn of any favorable evidence ‘known to the others acting on the government’s behalf in [a] case, including the police.’ [Citations.] The prosecution’s disclosure duty under Brady applies even without a request by the accused; it pertains not only to exculpatory evidence but also to impeachment evidence. [Citations.]” (Brandon, supra, 29 Cal.4th at p. 8.) On remand for the trial court’s in-camera review under Pitchess, any information the trial court finds to be material and exculpatory is subject to disclosure. (Brandon, supra, at p. 14.)
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for its in camera review of Detective Kirtlan’s personnel records. If the court finds no discoverable information, then the court must reinstate the judgment and sentence which is affirmed. If the court finds relevant discoverable information, then the defendant must be given an opportunity to determine if information would have led to any relevant admissible evidence to present at trial. If defendant demonstrates prejudice, then the trial court must order a new trial.
We concur: BLEASE, Acting P.J., DAVIS, J.