Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F06433
BLEASE, Acting P. J.
Defendant appeals from the judgment after a jury found him guilty as charged of one count of possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) He was sentenced to the middle term of two years, execution of sentence was stayed, and he was placed on five years probation.
On appeal, he challenges the trial court’s ruling on his Pitchess motion and asks this court to review the sealed record of the in-camera hearing to determine whether there was any error. We have done so. Finding no error, we shall affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL BACKGROUND
On July 25, 2006 at 1:00 a.m., Officer Corey Johnson of the Sacramento Police Department was on patrol when he received a dispatch to a Quick Stop market located at 3296 Marysville Boulevard. The officer was advised that someone was in the parking lot panhandling customers and was refusing to leave the premises after being requested to do so.
When Officer Johnson arrived at the scene, he spoke to the clerk who directed him to defendant. The officer searched defendant and found a pill bottle in his pant pocket that contained two small white rock-like substances that appeared to be cocaine. Defendant said, “[t]hat’s fake stuff, I found the bottle on the ground.” After the officer conducted a presumptive test of the substances to confirm that they were rock cocaine, he arrested defendant and transported him to the police station. The two rocks were later tested and determined to be cocaine base.
DISCUSSION
Defendant asserts that after conducting an in-camera hearing, the trial court denied his Pitchess motion for pretrial discovery of Officer Johnson’s personnel records. He asks this court to review the sealed record to determine whether the trial court erred. Respondent agrees that upon request, this court may review the sealed record.
Defendant mis characterizes the trial court’s ruling. The court did not deny his request. Rather, it conducted the requested hearing and found there was discoverable information, which it ordered produced. Nevertheless, we have reviewed the record and the applicable law and find no error.
A. Factual and Procedural Background on Pitchess Motion
Defendant filed a Pitchess motion for pretrial discovery of Officer Johnson’s personnel records relating to all documented complaints by citizens or other persons alleging that Officer Johnson made an illegal arrest, planted evidence, made perjured statements, falsified evidence, testimony, or probable cause, or engaged in any other acts involving moral turpitude. Additionally, defendant sought any separate files containing copies of complaints by members of the public that have been deemed frivolous, unfounded, or exonerated and maintained pursuant to Penal Code section 832.5, subdivision (c).
Counsel filed a declaration in support of the motion. As that declaration is not under seal and appears in the clerk’s transcript, we summarize the pertinent good cause allegations.
According to the defense, on July 25, 2006, defendant was standing in front of the Quick Stop Market alongside his shopping cart while other transient individuals were standing next to him. When Officer Johnson arrived, the other individuals dispersed and the officer contacted defendant and searched him pursuant to a condition of probation. He did not pull a pill bottle from defendant’s left tool pocket, he had never seen the pill bottle that the officer said he found on his person, and he never told the officer that he found the pill bottle on the ground.
The defense expected to show that Officer Johnson’s version of the events is false and that defendant’s version is contrary to the officer’s version. The defense alleged on information and belief that it intended to show the pill bottle may have been discarded by other individuals who were at the Quick Stop Market, that the officer discovered the discarded bottle and attributed it to defendant, and then fabricated the police report to reflect a different version of events.
Complaints of a similar nature by other citizens against Officer Johnson were relevant to prove that the officer had a habit or custom of providing false information and/or testifying falsely or planting evidence and to impeach him for prior acts of moral turpitude.
The court granted the motion as to documents relating to complaints that Officer Johnson falsified police reports, planted evidence, or falsified evidence. It denied the motion for lack of a factual basis for documents relating to complaints of acts involving moral turpitude, illegal arrest, and falsifying evidence for probable cause.
Defendant does not challenge this portion of the court’s ruling.
The sealed record of the in-camera hearing includes the testimony of the Custodian of Records, Sergeant Hargadon of the Sacramento Police Department. Hargadon testified that he brought with him the internal affairs files containing all of the complaints filed against Officer Johnson. He had thoroughly reviewed all of Officer Johnson’s pertinent personnel files containing “all of the complaints against the officer and any records that are related thereto.” The court looked at that file.
The underscored matter will be omitted from the final opinion.
Hargadon advised the court that he had found only one complaint in Officer Johnson’s file that “might be relevant” and summarized the facts for the court. The court examined the 50-page file relating to that complaint, found it was relevant to the issue of falsifying a police report, and indicated that it would order that the file be produced.
He advised the court that this complaint involved an individual who was arrested in 2003 for drunk driving and providing a false name. Two years after pleading guilty to the charges, the individual filed a complaint alleging inter alia, that Officer Johnson made a false arrest because he, the complainant, had denied that he was the driver and had told the officer that he was not the driver.
At the hearing, the custodian of records testified regarding the files he had brought and the trial court made a record of the documents it considered and examined. After the hearing, the court advised the parties that it had found there was some information that needed to be disclosed and ordered the prosecutor to produce it to defense counsel.
B. Analysis
A criminal defendant has the right to “compel discovery” of certain information in police officer personnel files by demonstrating good cause. (Pitchess, supra, 11 Cal.3d at pp. 536-538.) That right is codified in 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.)
A request for discovery of such records must be made by 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.” (Santa Cruz, supra, 49 Cal.3d at. 83.)
To establish the materiality prong of the good cause requirement, the defendant must establish “a logical link between [what] 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.) To do so, 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) 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.)
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).) To facilitate meaningful appellate review, the trial court must make a record of the documents it considered before ruling on the motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230.)
We review the trial court’s ruling for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
Defendant does not challenge the trial court’s ruling on good cause. He asks only that we determine whether the trial court erred in denying his motion after the in-camera hearing. We have done so and conclude that the trial court made an adequate record for appellate review. Moreover, we find the trial court looked at the officer’s personnel file and granted the motion by ordering that the only relevant complaint in the file be produced. Accordingly, we find no error.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, J., ROBIE, J.