Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. BA319858 ORIGINAL PROCEEDINGS in mandate. Patricia J. Titus, Judge. Petition granted.
Michael P. Judge, Public Defender, Albert J. Menaster, Terry Shenkman and Mark Harvis, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Rockard J. Delgadillo, City Attorney, Carlos De La Guerra, Managing Assistant City Attorney, Jess J. Gonzalez, Assistant City Attorney, Kjehl T. Johansen and Kim Rodgers Westhoff, Deputy City Attorneys, for Real Parties in Interest.
EPSTEIN, P. J.
This petition for writ of mandate challenges the denial of a motion for in camera review of police personnel records filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and Evidence Code sections 1043 and 1045. We conclude the trial court erred in denying the motion, and grant the requested relief.
FACTUAL AND PROCEDURAL SUMMARY
On March 30, 2007, Los Angeles Police Officers Luna and Baley were working a narcotics detail with other officers in an area known for drug dealing. According to the police report, the officers saw a woman, Theresa Bradley, walk up to petitioner Michael Scott with folded money in her hand. She handed the money to petitioner, who put it in his left front pants pocket. Petitioner opened his cupped right hand and the officers saw several white rocks, which appeared to be cocaine. Petitioner put one in Bradley’s hand. She walked away and petitioner remained where he was. Other officers took Bradley into custody, and recovered a cocaine rock from her hand. As this occurred, petitioner looked in the direction of the police activity, got on a bicycle, and left. He was stopped by other officers, and was found to be in possession of a glass cocaine pipe and $29. Petitioner was arrested and charged with one count of selling a controlled substance in violation of Health and Safety Code section 11352.
Petitioner filed a motion seeking pretrial discovery of information about complaints filed against Officers Luna and Baley relating to false arrests, illegal seizure, fabrication of charges, preparation of false police reports, and other evidence of dishonesty, lying, planting of evidence, or improper tactics, including copies of investigative reports, reports of disciplinary proceedings, and reports, by psychiatrists, psychologists, superior officers and fellow officers. Petitioner’s counsel filed a declaration under seal setting out a version of events supporting the requested discovery.
The Los Angeles Police Department opposed the motion, asserting there was no factual support in petitioner’s motion or his counsel’s supporting declaration to justify the intrusion on the officers’ privacy interests.
At the hearing on the motion, the trial court found petitioner had established a specific factual scenario, but had not established that the scenario was plausible as required under Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021 (Warrick). The court denied the motion for in camera review of documents responsive to petitioner’s discovery request. He challenged that order by petition for writ of mandate. We issued an alternative writ, invited further briefing on the issue, and set the cause for oral argument. Having considered the matter, including the pleadings and transcripts filed under seal, we now grant the requested relief.
DISCUSSION
The Pitchess decision established that a criminal defendant could compel discovery of certain relevant information in police personnel files by making “general allegations which establish some cause for discovery” of that information, and by showing how that information would support a defense to the charges. (Pitchess, supra, 11 Cal.3d 531, 536-537.) This holding was codified in Penal Code sections 832.7 and 832.8, and Evidence Code sections 1043-1045. “If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance.” (Warrick, supra, 35 Cal.4th at p. 1019.)
“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).)” (Warrick, supra, 35 Cal.4th at p. 1019.) This two-part showing of good cause is a “relatively low threshold for discovery.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.)
Counsel’s affidavit “must propose a defense or defenses to the pending charges.” (Warrick, supra, 35 Cal.4th at p. 1024.) “To show the requested information is material, a defendant is required 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.’ (Id. at p. 1021.)” (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71 (Garcia).)
“Counsel’s affidavit must also describe a factual scenario that would support a defense claim of officer misconduct. (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) ‘That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.’ (Ibid.) ‘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.’ (Id. at p. 1025.)” (Garcia, supra, 42 Cal.4th at p. 71.)
In our case, the trial court found petitioner had established a specific factual scenario. But the court did not find the scenario to be plausible. We disagree.
“To require a criminal defendant to present a credible or believable factual 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. . . . 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.” (Warrick, supra, 35 Cal.4th at p. 1026.) “[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.” (Id. at p. 1026.)
We have reviewed the discovery motion and opposition, including the pleadings, transcript and exhibits filed under seal. From this record, we conclude that petitioner presented a specific and plausible scenario of officer misconduct which would constitute good cause to grant petitioner’s request for in camera review of the requested personnel files. The trial court erred in denying his discovery motion.
We express no opinion on whether the files do contain information discoverable by petitioner.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its order denying petitioner’s discovery motion and directing the court to conduct the requested in camera review limited to prior complaints against the subject police officers involving allegations of false arrest, illegal seizure, fabrication of charges, preparation of false police reports, dishonesty, or planting of evidence.
We concur: WILLHITE, J., SUZUKAWA, J.