Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. Paul A. Bacigalupo, Judge. Petition granted, L.A.S.C. No. TA104059
Janice Y. Fukai, Alternate Public Defender, Michael Goodman and Matthew Charney, Deputy Alternate Public Defenders, for Petitioner.
No appearance for Respondent.
Rockard Delgadillo, City Attorney, Carlos De La Guerra, Managing Assistant City Attorney and Kjehl T. Johansen, Deputy City Attorney, for Real Parties in Interest.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
THE COURT
As defendant described a factual scenario supporting the claimed officer misconduct, including a denial of the facts asserted in the police report, we conclude respondent court abused its discretion in denying defendant’s request for an in camera review of police personnel files for relevant information.
FACTS
Defendant Rene Sampay, who is charged with one count of violating Health and Safety Code section 11357, subdivision (a), sought the personnel files of Los Angeles Police Department officers Magana and Zaragoza to determine if either officer had engaged in acts of excessive force, bias, dishonesty, coercive conduct or acts constituting a violation of the statutory or constitutional rights of others.
The scenario set forth in the police report is: On December 7, 2008, at approximately 4:05 p.m., Officers Magana (who has been an officer for two years) and Zaragoza (who has been an officer for one year) responded to a report of a man with a gun at 9418 Holmes. Under “Comments of Call,” the police report states: “In front of loc, susp M/B 50 yrs old thin build wearing a black hat/black jacket (NFD) holding a handgun. Susp veh 2dr Red Chevrolet unk lic with white top. Poss. Narco house. Obs arguing with addl person, pointed weapon. Unk if any shots fired. Pr. Goa”
When they arrived at the location, they saw Sampay, who is a male Black and who was wearing a black jacket and black hat. The officers saw a 1994 red Oldsmobile Cutlass car with a white convertible top parked in the driveway. Sampay was not holding a gun.
The officers asked Sampay whether the car was his; he answered, “‘Yes.’” They then asked him if there were anything illegal in the car. Sampay said that there was not and told the officers, “Go ahead and check.” They did and, in the trunk, under a carpet, found $160 in currency and a bindle of a brown tar substance, which they described as heroin, but was determined by later laboratory tests to be concentrated cannabis.
Sampay stated in his motion that “the allegations made by the officers are false. The officers never asked if there was anything illegal in the car and[] the defendant never replied, ‘No, go ahead and check.’ The officers never asked the defendant for consent to search his car. Instead, they took his keys from him and told him that they were going to search his car with or without his consent. Furthermore, the defendant did not have a bindle of concentrated cannabis in the trunk of his car prior to the illegal search. The officers planted the concentrated cannabis during their search.”
At the commencement of the hearing on the motion, respondent court noted that Sampay was not alleging that Officers Magana and Zaragoza had engaged in any violence against him nor that they were biased against him. Respondent court denied the motion, explaining that Sampay had not set forth a plausible factual scenario nor an affirmative defense.”
DISCUSSION
We hold that respondent court abused its discretion in denying the discovery request, because Sampay’s allegations provide a sufficient basis for ordering an in camera inspection of the officers’ personnel records for acts of dishonesty or of violation of the statutory or constitutional rights of others in the past five years.
Standard of review
In general, the trial court’s decision concerning the discovery of material contained in law enforcement personnel files is reviewed for abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
Discovery
Due process requires the People to disclose all evidence favorable to the defendant which is material to guilt or to punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97 [“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”].)
In Pitchess v. Superior Court (1974) 11 Cal.3d 531, the California Supreme Court held a criminal defendant’s right to discover police personnel files is based on the “fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” (Pitchess v. Superior Court, supra, 11 Cal.3dat p. 535.) The Supreme Court explained that “an accused... may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial.” (Id. at p. 536.)
In 1978, the California Legislature codified the privileges and procedures of Pitchess motions by enacting Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. The Penal Code provisions define “personnel records” (Pen. Code, § 832.8) and provide that such records are “confidential” and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, § 832.7.)
Evidence Code sections 1043 and 1045 set out the procedures for discovery. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81.) Section 1043 requires a motion be supported by “[a]ffidavits 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.” (§1043, subd. (b)(2), (3).)
“To initiate discovery, the defendant must file a motion supported by affidavits showing ‘good cause for the discovery,’ first by demonstrating the materiality of the information to the pending litigation, and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue. (§ 1043, subd. (b)(3).) This two-part showing of good cause is a ‘relatively low threshold for discovery.’” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, quoting Santa Cruz, supra, 49 Cal.3d at p. 83.)
In 2005, the Supreme Court explained in Warrick v. Superior Court, supra, 35 Cal.4th at page 1016: “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.”
“[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. This court has long required that the information sought must be described with some specificity to ensure that the defendant’s request is not so broad as to garner ‘“all information which has been obtained by the People in their investigation of the crime”’ but is limited to instances of officer misconduct related to the misconduct asserted by the defendant. [Citations.]
“This specificity requirement excludes requests for officer information that are irrelevant to the pending charges. [Citation.] And it enables the trial court to identify what types of officer misconduct information, among those requested, will support the defense or defenses proposed to the pending charges. This inquiry establishes the statutorily required materiality prong of the good cause showing that a defendant must make to receive in-chambers review of potentially relevant officer records.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1021-1022.)
“To show good cause as required by section 1043, defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses. These requirements ensure that only information ‘potentially relevant’ to the defense need be brought by the custodian of the officer’s records to the court for its examination in chambers. [Citations.]
“Counsel’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.” (Id. at pp. 1024-1025.)
The Supreme Court went on to explain: “In other cases, the trial court hearing a Pitchess motion will have before it defense counsel’s affidavit, and in addition a police report, witness statements, or other pertinent documents. The 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 to ‘articulate a valid theory as to how the information sought might be admissible’ at trial. [Citation.] Although a Pitchess motion is obviously strengthened by a witness account corroborating the occurrence of officer misconduct, such corroboration is not required. What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citations.]
“A Pitchess motion need not, however, provide a motive for the alleged officer misconduct. We do not require the prosecutor to prove motive at trial in order to obtain a conviction. [Citation.] It would be anomalous to require a criminal defendant to do so in order to obtain discovery. Moreover, because most defendants will only be able to postulate an officer’s motive for misconduct, to require every defendant to demonstrate a motive would require most of them ‘to allege with particularity the very information’ they seek to discover. [Citation.] Imposing a motive requirement would be contrary to the principles of discovery and would, in most instances, require defense counsel to engage in rank speculation.
“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? Here, the Court of Appeal concluded that to be plausible a factual foundation must be reasonably probable or apparently credible and not merely possible. In so doing, the Court of Appeal imposed a greater burden on the party seeking Pitchess discovery than required by our prior cases or the statutory scheme. To require a criminal defendant to present a credible or believablefactual account of, or a motive for, police misconduct suggests that the trial court’s task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. A trial court hearing a Pitchess motion normally has before it only those documents submitted by the parties, plus whatever factual representations counsel may make in arguing the motion. The trial court does not determine whether a defendant’s version of events, with or without corroborating collateral evidence, is persuasive—a task that in many cases would be tantamount to determining whether the defendant is probably innocent or probably guilty. [Citation.]” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1025, 1026-1027.)
The Supreme Court concluded “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. Such a showing ‘put[s] the court on notice’ that the specified officer misconduct ‘will likely be an issue at trial.’ [Citation.] Once that burden is met, the defendant has shown materiality under section 1043.
“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 police officer accused of misconduct against the defendant.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1026-1027.)
Sampay’s scenario is plausible. He denies that the officers asked permission to search his car, and he denies that the trunk of his car held any contraband prior to the officers’ search. As the Supreme Court stated in Warwick, the factual scenario set forth in the defendant’s moving papers “may consist of a denial of the facts asserted in the police report.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1024-1025.)
The Los Angeles Police Department reliance on People v. Thompson (2006) 141 Cal.App.4th 1312, 1315-1316, is unavailing. In that case, numerous other officers watched as the undercover officer and the defendant engaged in a drug transaction. The undercover officer, wearing a wire, transmitted the conversation between himself and the defendant. Uniformed officers who had not been part of the “buy team” arrived and arrested the defendant. The trial court denied the defendant’s motion for discovery, and the appellate court upheld the denial. Here, in contrast, only the two the two arresting officers were present, and there was no transmittal or recording of any transaction.
As Sampay has not alleged that the arresting officers engaged in any violent acts or coercive conduct directed at him or that the officers were motivated by bias, there is no reason for an examination of the officers’ personnel files for any matters relating to violence, coercion, or bias. Consquently, respondent court’s in camera review of the personnel files must be limited to acts of dishonesty and violation of statutory and constitutional rights of others.
The examination of the personnel records here must exclude “[i]nformation consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought.” (Evid. Code, § 1045, subd. (b)(1).)
Sampay having demonstrated that he is entitled to relief, 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., § l088; Alexander v. Superior Court (l993) 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.)
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of February 17, 2009, in Los Angeles Superior Court case No. TA104059, entitled People v. Rene Sampay, denying petitioner’s discovery motion and to conduct an in camera inspection of the Los Angeles Police Department personnel files of Officer Magana (38753) and Officer Zaragoza (39188) to determine whether the personnel files of the two officers contain any information relating to dishonesty or acts constituting a violation of the statutory or constitutional rights of others, but excluding all information of acts that took place more than five years before the arrest of Rene Sampay.
MALLANO, P.J. ROTHSCHILD, J.