Victor M. v. Superior Court

Filed 2/5/08 Victor M. v. Superior Court CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

ORIGINAL PROCEEDING in mandate. Philip K. Mautino, Judge. Petition granted.

Michael P. Judge, Public Defender, Albert J. Menaster, Shaghayegh Ali and Michael Theberge, Deputy Public Defendants, for Petitioner.

No appearance for Respondent.

No appearance for Real Parties in Interest.

* * * * * * * * * *

Victor M. is the subject of a wardship proceeding (Welf. & Inst. Code,  602) arising out of a drug-related arrest. He seeks a writ of mandate after the juvenile court denied his Pitchess motion for pretrial discovery of evidence regarding certain types of complaints that may be in the arresting officers personnel file. (Evid. Code,  1043, 1045; Pen. Code,  832.7; Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) We have concluded that Victor established good cause for production of the documents sought. Accordingly, we grant his petition.

FACTUAL AND PROCEDURAL BACKGROUND

In early 2007, a wardship petition was filed, charging then 16-year-old Victor M. with one felony count of possession of a controlled substance (Health & Saf. Code,  11377, subd. (a), and one misdemeanor count of possession of a smoking device (Health & Saf. Code,  11364, subd. (a)).

The charges stemmed from an incident that occurred in late 2006. According to the Los Angeles County Sheriffs Department Incident Report, Deputy Hart was traveling in a marked patrol car when he saw Victor and another male on the sidewalk. Deputy Hart made eye contact with Victor. Victor reached into a pants pocket, retrieved what appeared to be a cylindrical glass pipe commonly used to ingest narcotics, and a plastic bag containing a white substance, and placed the two items on top of a dense bush. Deputy Hart detained Victor and retrieved the items from the bush. Deputy Hart opined the white substance resembled methamphetamine and the glass pipe was narcotic paraphernalia. After waiving his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), Victor stated the items were not his and added that he only smoke[d] pot. Deputy Hart arrested Victor. (The second male was released.)

Victor filed a Pitchess motion, seeking to obtain from Deputy Harts personnel file evidence of complaints that Deputy Hart had lied or fabricated evidence.^[1] The motion was supported by a declaration from Victors counsel, stating the defense expected to show that Victor was merely walking with a friend and that he did not have a plastic bag containing a white substance, nor a glass pipe. According to the declaration, the defense account of what occurred differed from that contained in the Sheriffs incident report because the police officer involved in this case was not being completely truthful.

The juvenile court referee denied the motion--albeit with leave to amend--on the ground that the motion was too vague. Victor then filed another Pitchess motion. The motion was supported by a declaration from his counsel which, for our purposes, was substantially similar to the one filed in support of the original motion.^[2]

The Los Angeles County Sheriffs Department and Deputy Hart (collectively, the Sheriffs Department) filed an opposition, claiming the declaration submitted in support of the Pitchess motion did not offer a specific and plausible factual scenario of officer misconduct so as to warrant production of the discovery sought.

During a brief court proceeding, the juvenile court referee denied the motion, noting that it saw nothing different from the original motion.

Victor filed a timely request for rehearing under Welfare and Institutions Code section 252 (which authorizes such requests following an order by a referee). The juvenile court judge denied the request for rehearing.

Victor filed a writ petition challenging the juvenile courts decision. We advised the parties of our intention to issue a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171; Ng v. Superior Court (1992) 4 Cal.4th 29, 35), and invited the Sheriffs Department to file plenary opposition to the petition. We received no opposition.

DISCUSSION

1. The Pitchess Procedure.

For approximately a quarter-century our trial courts have entertained what have become known as Pitchess motions, screening law enforcement personnel files in camera for evidence that may be relevant to a criminal defendants defense. (People v. Mooc (2001) 26 Cal.4th 1216, 1225, fn. omitted (Mooc).) In order to balance the defendants right to discovery of records pertinent to the defense with the peace officers reasonable expectation that the officers personnel records will remain confidential, the Legislature has adopted a statutory scheme requiring a defendant to meet certain prerequisites before a Pitchess request may be considered.(See Pen. Code,  832.5, 832.7, 832.8; Evid. Code,  1043-1047 These procedures apply in juvenile wardship cases. (See City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53-54.)

A defendant seeking Pitchess discovery must file a written motion describing the type of records or information sought. (Evid. Code,  1043, subds. (a), (b)(2).) The motion must include [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. (Evid. Code,  1043, subd. (b)(3).) Assertions in the affidavits may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendants simply casting about for any helpful information. (Garcia v. Superior Court (2007) 42 Cal.4th 63, 70, original brackets; see also City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85 (City of Santa Cruz) [The information sought must . . . be requested with adequate specificity to preclude the possibility that defendant is engaging in a fishing expedition].)

Once the trial court concludes the defendant has satisfied these prerequisites and has made a showing of good cause, the custodian of records is obligated to bring to court all documents potentially relevant to the defendants motion. (Mooc, supra, 26 Cal.4th at p. 1226.) The trial court must then examine the information in chambers, outside the presence of any person except the proper custodian. (Evid. Code,  915, subd. (b), 1045, subd. (b).) Subject to certain statutory exceptions and limitations, the trial court must then disclose to the defendant such information [that] is relevant to the subject matter involved in the pending litigation. [Citation.] (Mooc, supra, 26 Cal.4th at p. 1226, first brackets in original.)

The Supreme Court has emphasized that the threshold showing required to obtain Pitchess discovery is relatively low. (City of Santa Cruz, supra, 49 Cal.3d at pp. 83, 94; accord, Garcia v. Superior Court, supra, 42 Cal.4th at p. 70.) Therefore, although an affidavit submitted in support of a Pitchess motion must describe a factual scenario supporting the claimed officer misconduct (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024 (Warrick)), to obtain in-chambers review a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred (id. at p. 1016, italics added).

The Supreme Court has specifically rejected the contention that to be plausible a factual foundation must be reasonably probable or apparently credible and not merely possible. (Warrick, supra,35 Cal.4that pp. 1025-1026.) Corroboration of or motivation for alleged officer misconduct is not required. (Garcia v. Superior Court, supra, 42 Cal.4th at p. 71.) Moreover, the denial of a police officers version of events may be sufficient to meet the low threshold requirement for obtaining Pitchess discovery. (See Warrick, supra, 35 Cal.4th at pp. 1024-1025 [That factual scenario [contained in the affidavit supporting the Pitchess motion], depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report].)

2. The Standard of Review.

A trial courts ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)

We now consider whether the juvenile court abused its discretion in this case, keeping in mind the relatively low threshold showing that is required to obtain Pitchess discovery. (City of Santa Cruz, supra, 49 Cal.3d at pp. 83, 94.)

3. The Juvenile Court Abused Its Discretion in Denying Pitchess

Discovery.

In this case, Victors counsel stated in the declaration filed in support of the Pitchess motion that the defense expects to show (1) Victor never possessed the two items that served as the basis for his arrest, (2) Victor never retrieved the items from his pocket and never placed them on a bush, and (3) Deputy Hart was not being completely truthful. In other words, Victor is denying Deputy Harts version of events. Under Warrick, supra, 35 Cal.4th at pages 1024 to 1025, and in the context of the allegations in this case, this was sufficient.

Indeed, the statements contained in the declaration of Victors counsel were not much different from those the Supreme Court found sufficient in Warrick, where it observed: [Defendants] proposed defense to the charge of possessing cocaine base for sale was straightforward: he asserted he did not possess, and therefore could not have discarded, the 42 rocks of cocaine. By denying the factual assertions made in the police report--that he possessed and discarded the cocaine--defendant established a reasonable inference that the [reporting] officer may not have been truthful. (Warrick, supra, 35 Cal.4th 1011 at p. 1023, second brackets in original.)

In light of the above, the juvenile court should have granted Victors Pitchess motion to the extent it sought evidence of complaints alleging Deputy Hart had lied or fabricated evidence.

DISPOSITION

The petition for writ of mandate is granted. The respondent court is directed to vacate its July 23, 2007 order denying that part of petitioners Pitchess motion seeking evidence of complaints alleging Deputy Hart had lied or fabricated evidence, and to thereafter enter a new and different order directing the custodian of records of the Los County Sheriffs Department to produce to the respondent court the personnel file of Deputy Hart for an in camera review to be conducted in accordance with the views expressed in this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

We concur:

COOPER, P. J.

FLIER, J.

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^[1] The motion also sought evidence of complaints alleging other forms of wrongdoing by Deputy Hart, but Victor states in his writ petition that he does not seek production of any item beyond those involving lying or fabrication of evidence.

^[2] The only real difference being that the new declaration specifically stated that at no time did Victor possess a white bag containing a white substance or a glass pipe.