P. v. Melendez

Filed 1/23/09 P. v. Melendez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Anita H. Dymant and Charles F. Palmer, Judges. Reversed.

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Ramar R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Appellant Alfredo Melendez, Jr., was convicted by jury trial of assaulting police officers, exhibiting a firearm, and being a convicted felon in possession of a firearm. On appeal, he contests whether the trial court erred in denying his motion for an in camera review of certain police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531, and its statutory codification in Evidence Code sections 1043 et seq. He raises a related issue claiming that if his motion was properly denied on procedural grounds, then his trial counsel rendered ineffective assistance. The respondent argues that there was no ineffective representation because trial counsel did all he was supposed to do in filing and pursuing the Pitchess motion, and that the motion was properly denied on the merits. We conclude that appellant satisfied the plausible scenario requisite for limited discovery as described by our Supreme Court in Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026 (Warrick). We therefore shall reverse the judgment of conviction with directions and remand the case to the trial court for further proceedings.

FACTUAL AND PROCEDURAL SUMMARY

The prosecutions theory of the case, as developed at the preliminary hearing and later at trial, was that appellant drew a handgun and pointed it at an officer. The evidence showed that three Los Angeles Police Department officers on gang suppression patrol saw a person at an intersection, and drove up next to a pickup truck and stopped. The person they had seen, appellant, was standing outside the passenger window of the vehicle. Officers saw him from his left side; they could not see his right hand, which was down and behind his leg. Officer Thomas DeLuccia asked what was in his right hand, to which appellant did not respond. The officer then asked to see his right hand, upon which appellant stepped back from the car and pointed his right hand at the officer. He was holding a gun in that hand. Officer DeLuccia reached for his gun, which was holstered on his left side, but he was unable to retrieve it. He slouched down for protection. He then heard shots which he thought had been fired by appellant. One of the shots struck his hand. Interviewed several days later by a police detective, Officer DeLuccia said appellant had shot him, because that is what he then believed. It turned out that the shot that struck Officer DeLuccia had been fired by Officer Juan Chavez, who was with him on the patrol and was firing at appellant.

Officer Chavez, speaking to an investigating officer, gave an account of the events preceding the shooting that was similar to the one given by Officer DeLuccia. The third officer, Roberto Morales, also gave a consistent account.

Appellant also had been shot and was wounded. Later that evening, a detective followed a blood trail to a residence, where a gun was found. The resident there had called 911 when she heard gunshots and later leaned outside her window and found the gun, then called 911 a second time. The gun was connected to appellant.

On December 20, 2006, appellants trial counsel filed a notice of motion and motion for discovery of peace officer personnel records. The motion set out in detail the matters it wanted the court to review in an in camera Pitchess proceeding but it did not include a declaration or points and authorities. The motion was continued several times. It came on for hearing on January 10, 2007. The court stated that while it had the notice of motion it did not have the motion itself, the supporting declaration, or any other papers, other than the proof of service. The matter was again put over so that the mix-up could be straightened out. At the next hearing, on January 17, 2007, appellants counsel apologized and explained that the motion had been prepared in two parts but that due to error by his staff, only the first partthe notice of motionhad been sent to the court for filing. By then, the supporting documents had been sent to the court. Counsel for the custodial agency, the Los Angeles Police Department, said that originally he, too, had only received the notice of motion, without supporting papers, although he had since received those papers: the declaration, points and authorities, and copies of police reports. He argued that appellant should not be permitted to amend his motion or file a new one, but should have to stand on the incomplete motion as originally filed. Appellants counsel again explained how the error had occurred and suggested that the complete documentation had been served on the Los Angeles Police Department. By then it was in the hands of the court and all counsel and had been read by them.

The judge presiding at this hearing said that she had read all of the papers and thought the City was correct in arguing that the court should only consider the papers originally filed (i.e., only the unsupported notice of motion), so the issue was one of prejudice and whether or not the court should then entertain any further time continuance to allow the motion to be fully heard. And in reviewing it, one of the things I looked at is what the prejudice would be. The court concluded that there would be none. It found no good cause to review records of Officers Chavez or Morales, and as to Officer DeLuccia, it concluded there was no prejudice because Officer Chavez had shot Officer DeLuccia by mistake, and mistake isnt misconduct.

In ruling, the court said that it is going to deny the motion both on the procedural grounds, which is that motion itself with the good cause was not filed in a timely manner and only submitted to the court a few days after it was supposed to be heard originally. And, secondarily, that even if the court were to hear it on the merits, that the court would be denying it as not showing good cause. The motion was denied.

DISCUSSION

In Warrick, supra, our Supreme Court summarized the showing that must be made to justify an in camera review of police personnel records by the trial court. The showing is necessary 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 officers version of events. (35 Cal.4th at p. 1021.) In order to show the good cause required for the in camera review, defense counsels 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 . . . that would support those proposed defenses. (35 Cal.4th at p. 1024, citations omitted.) It is not necessary that, to be plausible, the factual foundation be reasonably probable or apparently credible, because, in reviewing plausibility, the trial court does not decide whether the defendants showing is persuasive. (35 Cal.4th at p. 1025.) Instead, 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. (35 Cal.4th at p. 1026.) Summarizing, the court held that the defendant in the case before it had established good cause for Pitchess discovery, entitling him to the trial courts in-chambers review of the arresting officers personnel records relating to making false arrests, planting evidence, fabricating police reports or probable cause, and committing perjury. (35 Cal.4th at p. 1027.)

With these standards in mind, we examine the showing and procedures in this case.

As we have discussed, the trial court denied the motion on two grounds, one procedural and the other on the merits. But the procedural rulingholding appellant to the papers originally filed which inadvertently omitted a declaration and other supporting materialwas based on the courts conclusion that no prejudice would result because the omitted papers failed to make the requisite showing. This reasoning is circular. The real question is whether the motion, as augmented, made the requisite showing. No one disputed defense counsels explanation of how it happened that the original filing was incomplete, nor that counsel for the police department as well as the court had all of the pertinent documents by the time of the hearing, had read them, and were prepared for a decision on the merits. As respondent argues, addressing appellants claim that if there was procedural error it was due to ineffectiveness of trial counsel, the record refutes that claim. Indeed, counsel did exactly what appellant alleges he should have done and the argument should be rejected out of hand. Further, respondent points out, there could be no prejudice because the trial court did reach the merits and made a ruling.

That takes us to the merits. The declaration filed by appellants attorney in support of the Pitchess motion had this to say:

12. That on September 11, 2005, at or about 12:30 a.m., the Defendant was walking in the vicinity of . . . Jeffries Ave., and Locust St. in Los Angeles, and that he was shot in the arm by officers, without provocation and/or assault. Further, Defendant exhibited no firearm as stated and reported, which is the only cause for holding him over for trial on these matters;

13. That the testimony of the three (3) officers involved place a handgun in Defendants hand, aimed at the officers, the basis of the actions taken by the officers. However, the credibility of the officers versus the sheer stupidity of a person who would aim a gun at an occupied police car, is what should be at issue;

14. It will be MELENDEZs defense that he had no gun and did not aim at the police officers prior to being shot. That it was the officers own mistake that this tragic event happened, and that the subsequent idea that the Defendant had a gun and/or was pointing a gun at the officers was fictionalized for the purpose of protecting their investigation and for the protection of the sanctity of the uniformas one of their own shot another;

15. As such, this evidence either directly or indirectly contradictsfor impeachment sakethe officers testimony, as written in their reports and as testified to during the preliminary hearing. Moreover, this evidence demonstrates that the officers are prone to embellish or perhaps even falsify their police reports and testimony to support their passing the blame for their tragic carelessness on to the Defendant;

16. That the only way the defense can effectively impeach the officers credibility is to receive discovery from their personnel files of other similar instances of lack of credibility, veracity, racism, fraud, hostility, moral turpitude, dishonesty, untruthfulness, neglectful duty, unbecoming conduct, and false arrest. If such evidence exists and is provided to the defense, then after careful investigation of the previously complaining witness, the defense will present this evidence during cross-examination of the officers, specifically directed at attacking their truth and veracity for shooting and subsequently blaming the Defendant for their carelessness. Such discovery is not collateral, but is at the heart of the defenses casea direct challenge to the officers potentially bias[ed] perception of events and legality of any subsequent arrest of MELENDEZ for assault and exhibition of a firearm. It is therefore imperative to the defenses case that this court provide the discovery request after careful inspection and reflection of the named officers requested personnel records.

Appellants defense was that he did not aim a pistol at an officer, that no officer saw him do so or make a gesture that might be understood as doing so, and that the assertions that appellant had done so were fabricated in order to explain an officer shooting that wounded a fellow officer. Counsels declaration denied that appellant was armed on the occasion of the encounter. (Evidence developed at trial established that appellant was armed on the occasion, but he denied removing the gun from his waistband during the encounter or pointing it at an officer.)

In its ruling on the merits, the trial court focused on the fact that the shooting of Officer DeLuccia by Officer Chavez was a mistake. No one disputes that. But if the defense could raise a reasonable doubt as to whether appellant ever drew a gun at an officer and that the account that he had was fabricated to cover up what really happened, he would be entitled to an acquittal. The fact that the shooting of Officer DeLuccia was accidental misses the point of appellants Pitchessshowing.

Based on the showing that he made, appellant was entitled to have the court examine Officer DeLuccias personnel record in camera, since that officer had asserted that appellant had drawn a gun and pointed it at him. Incident reports by police investigators reported statements by Officers Chavez and Morales to a police investigator corroborated Officer DeLuccias account. This warrants review of Officers Chavezs and Morales records as well.

We conclude that appellant is entitled to an in camera hearing and a determination of relevance under the procedures of Evidence Code section 1045. We shall conditionally reverse with directions for that reason. (See People v. Johnson (2004) 118 Cal.App.4th 292, 306.)

DISPOSITION

The judgment is reversed with directions. On remand, the trial court is directed to conduct an in camera inspection of the requested personnel records for relevance. If the trial courts inspection on remand reveals no relevant information, the trial court must reinstate the judgment of conviction. If the inspection reveals relevant information, the trial court must order disclosure, allow appellant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different if the information had been disclosed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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