Opinion
NOT TO BE PUBLISHED
Super.Ct.No. INM185386
ORIGINAL PROCEEDINGS; petition for writ of mandate. Gregory J. Olson, Temporary Judge. Petition Granted.
Ferguson, Praet & Sherman, Steven A. Sherman and Nicole Cieslinski for Petitioner.
No appearance for Respondent.
Mario Rodriguez for Real Party in Interest.
OPINION
McKINSTER, Acting P. J.
In this matter we have reviewed the petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
INTRODUCTION
Real party in interest is charged with being drunk in public and resisting arrest. He made a Pitchess motion seeking discovery of the personnel files of four Riverside County Sheriff’s Department deputies involved in making his arrest. The discovery seeks records relating to complaints against these officers of lying, fabricating evidence, etc.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Trial counsel declared that real party in interest was working at the country club and was not trespassing at the time of his arrest. He was assaulted by these named deputies who placed him in a control hold and wrestled him to the ground; he sustained injuries as a result. Counsel asserts that the deputies assaulted real party in interest without provocation and that they used excessive force. The declaration concluded that the information regarding propensities for violence and fabrication is needed to prove a defense in this case.
The trial court found that this showing was sufficient to warrant an in camera review of the personnel files of two of the four deputies. The Riverside County Sheriff’s Department petitions to set aside this order. For the reasons discussed below, we agree with petitioner that real party in interest’s showing failed to meet even the minimal standards of good cause.
DISCUSSION
A defendant is entitled to discovery of a peace officer’s confidential personnel records if those files contain information that is potentially relevant to the defense. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) The discovery procedure has two steps. First, the defendant must file a motion seeking such records, containing affidavits “showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation.” (Evid. Code, § 1043, subd. (b)(3).) If good cause is shown, the trial court then reviews the records in camera to determine whether any of them are relevant to the intended defense. (Evid. Code, § 1045, subd. (b).)
The threshold for Pitchess discovery is relatively low—that is, the threshold for having the trial court conduct an in camera review. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.) The general standard of review is “abuse of discretion.” (People v. Memro (1995) 11 Cal.4th 786, 830.) The defendant must provide a “specific” or “plausible” “factual scenario” demonstrating good cause for the type of record requested. (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020.)
Good cause requires the defendant to establish a logical link between his proposed defense and the pending charge as well as a showing how the discovery would support such a defense or how it would impeach the officer’s version of events. Moreover, the information discoverable under a Pitchess motion is limited to “instances of officer misconduct related to the misconduct asserted by the defendant.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021 (Warrick).) In short, that misconduct has to be specifically described.
“To determine whether the defendant has established good cause for in-chambers review of an officer’s personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: 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? If defense counsel’s affidavit in support of the Pitchess motion adequately responds to these questions, and states ‘upon reasonable belief that the governmental agency identified has the records or information from the records’ [citation], then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the [peace] officer accused of misconduct against the defendant.” (Warwick, supra, 35 Cal.4th at pp. 1026-1027.)
Here, trial counsel’s declaration fails to set forth a specific version of the arrest that differs from the police report. Counsel says that real party in interest was placed in a control hold and was wrestled to the ground. This statement does not contradict the police report or show that excessive force was used. It is claimed that real party in interest was not trespassing, but whether or not he was is irrelevant to the charge of resisting arrest. Real party in interest does not deny that he was acting crazy or that he resisted arrest. Rather, counsel simply relies on conclusionary claims that the force was excessive.
As a final matter, we reject petitioner’s suggestion that the commissioner did not have authority to act in this proceeding. Although it has never raised this issue directly, either here or in the trial court, petitioner deemed it necessary to mention several times in the instant petition that it never expressly consented to the commissioner. Real party in interest has asserted in his response that the commissioner’s status was blatantly obvious. Petitioner does not deny this assertion, nor does its counsel claim it was unaware of this fact. It is well established that conduct short of an express oral or written stipulation may be tantamount to a stipulation that a court commissioner may sit as a temporary judge. (In re Mark L. (1983) 34 Cal.3d 171, 178-179.)
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order granting in part real party in interest’s Pitchess motion and to enter a new and different order denying the motion.
Petitioner is DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
The parties are to bear their own costs.
We concur: RICHLI J., MILLER J.