Cal. Dept. of
Corrections etc. v. Super. Ct.
Filed 1/30/14 Cal. Dept. of
Corrections etc. v. Super. Ct. CA2/4
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
CALIFORNIA DEPARTMENT OF CORRECTIONS AND
REHABILITATION,
Petitioner,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
WILLIAM AUSTIN et al.,
Real
Parties in Interest.
B251464
(
Super. Ct. No. BA361090)
ORIGINAL PROCEEDINGS in Mandate. Lisa M. Chung, Judge. Writ granted.
Reily & Jeffery, Inc., Oren
Rosenthal and Janine K. Jeffery for Petitioner.
No appearance for Respondent.
Ronald L. Brown, Public Defender,
Albert J. Menaster, Mitchell Bruckner, Monnica Thelen and Robin Bernstein-Lev,
Deputy Public Defenders, for Real Parties in Interest.
Petitioner California Department of
Corrections and Rehabilitation (the Department) petitions for a
to vacate orders compelling the Department to produce 16 documents from the
confidential prison files of certain inmates subpoenaed by Real Party in
Interest William Nathan Austin (Austin).
As explained below, we grant the petition and issue the writ.
Killing of Richard Ponton
By indictment prosecuted by the
Office, Austin is charged with the murder of
Richard Ponton (Pen. Code, § 187, subd. (a)), with the special
circumstance allegation that he was previously convicted of murder (Pen. Code,
§ 190.2, subd. (a)(2)). The
prosecution is seeking the death penalty.
The killing occurred on January 24, 2006, when Austin (already serving a
sentence of life without the possibility of parole for murder) was an inmate
with Ponton (himself serving life without parole) at the Department’s prison in
Lancaster.
Ponton was killed inside his cell by strangulation and an incised wound
to the neck. At the time of the killing, inmate
Christopher Bass was Ponton’s cellmate. Austin was housed in the adjacent
cell with inmate Raul Hernandez. Bass
told Los Angeles County Sheriff’s Detectives that on the morning of the
killing, he left the cell he shared with Ponton around 6:15
a.m., and returned around 11:15 a.m., when he discovered
Ponton’s body. Hernandez told Sheriff’s
Detectives that he went to breakfast with Austin, after which Austin went to “pill call†and
Hernandez returned to their cell alone.
He did not see Austin again until the cell door
opened at 9:30 a.m., and Hernandez saw Austin leaving Ponton’s
cell. Austin said that he had entered
Ponton’s cell and “fucked him up.â€
Inmate Randy Hanson told officers
assigned to the Department’s Institutional Gang Office that Hernandez and
inmate Francisco Cornejo planned Ponton’s murder and used Austin as the killer. According to Hanson, their motive was that
Cornejo took $900 from inmate “Tone†Loreto ostensibly to provide him
drugs. But Cornejo’s real intent was to
have Loreto assaulted and then refuse to pay the debt. However, Ponton, who was Program Clerk,
arranged for Loreto to move to a different housing unit to protect him. Cornejo viewed this as an act of disrespect,
and said that he wanted Ponton killed.
Hernandez suggested he use Austin as the killer. Hanson told officers that Austin evidenced
Cornejo and Hernandez took advantage of his condition.
Hanson also told officers that on the
morning of the murder, he had breakfast with Freddie Gonzalez (Cornejo’s cell
mate), Hernandez, and Austin. Later, he
saw Hernandez hand an object to Austin outside Ponton’s cell and
heard Cornejo tell Hernandez to “make sure he kills him.†Hanson saw Austin enter Ponton’s cell when
the door was opened, heard sounds consistent with someone being thrown on the
floor and strangled, and a few minutes later saw Austin standing over Ponton’s
body.
Another inmate, John Jose Guillen who
worked with Ponton as a Program Clerk, told Sheriff’s Detectives that Ponton
made money arranging bed moves for inmates.
Ponton had drug debts, was a former cell mate of Cornejo, and owed
Cornejo money. Guillen described Cornejo
as a “button pusher†who would have reason to want Ponton killed if Ponton had
made promises he could not keep. Guillen
also said that Cornejo was an instigator, and was the type to pump up Austin to
kill Ponton.
Inmate Johnnie Lee Ray told Sheriff’s
Detectives that Ponton owed Austin $200.
He described Austin as an Aryan Brotherhood drop out known as a “heavy.†Ray said that on the morning of the killing
he saw Austin enter Ponton’s cell when the door was opened and later saw him
leave and return to his own cell.
2009 Subpoenas
In September 2009, before deciding to
seek the death penalty against Austin, the prosecution subpoenaed from the
Department the prison records of Austin and Christopher Bass (Ponton’s
cellmate). In November 2009, Austin
subpoenaed from the Department his own prison records and those of Bass,
Ponton, and Raul Hernandez (Austin’s cellmate who was implicated in the murder
by Randy Hanson). The Department moved
to quash the subpoenas, contending, inter alia, that the confidential inmate
files contained information protected
from disclosure by the privileges for official
informer provided by Evidence Code sections 1040 and 1041, respectively.
of the confidential portions of the files for Austin, Ponton, Bass, and
Hernandez, the court ordered that certain documents in the files be disclosed
subject to a protective order which provided that the documents were for the “attorney’s
eyes only,†that no copies be made, and that the names of witnesses not be
disclosed to Austin. In May 2010, the
Department produced the documents.
2012 Subpoenas and Order of
Production
In June 2012, the prosecution elected
to seek the death penalty for Austin.
Following that decision, Austin served subpoenas on the Department
seeking the unredacted files of Randy Hanson (who was a percipient witness to
the killing and implicated Francisco Cornejo and Raul Hernandez in the
planning), Cornejo, Freddie Gonzalez (Cornejo’s cellmate), John Guillen (who worked
with Ponton as a Program Clerk and told Sheriff’s Detectives that Ponton
arranged bed moves for inmates and owed Cornejo money), Johnnie Lee Ray (who
saw Austin enter and leave Ponton’s cell), and “Tone†Loreto (who, according to
Hanson, was the inmate whose bed move Ponton arranged, thereby angering
Cornejo). Austin also moved for
production of the entire, unredacted files of the inmates involved in the 2009
subpoenas, which included Christopher Bass and Raul Hernandez.
The Department moved to quash the
subpoenas and opposed the release of unredacted files, again contending that
the confidential portions were protected from disclosure under sections 1040
and 1041.
In December 2012, the court denied the
motion to quash, declined to conduct an in camera hearing to review the files, and
ordered that all the requested files be produced without redaction to the
defense and prosecution, subject to protective orders.
First
Petition for Writ of Mandate
The Department petitioned this court
for a writ of mandate. In February 2013,
we issued an alternative writ directing the trial court either to vacate its
orders of production and conduct an in camera review of the files using the balancing
analysis required by sections 1040 and 1041, or show cause why a peremptory
writ should not issue.
The trial court complied with the
alternative writ and conducted in camera hearings attended by counsel for the
Department and Everett Fischer, a Parole Agent III and Litigation Coordinator
for the Office of Correctional Safety.
The court issued orders of production in July and August of 2013
requiring the production of approximately 125 confidential documents, some of
which were redacted. The production is
subject to a protective order that limits disclosure to Austin’s attorney,
investigator, paralegal, and expert witness.
It bars disclosure of names mentioned in the documents to anyone, and
requires Austin’s counsel to give the Department 14-days notice before
interviewing any inmate mentioned in the documents. We ultimately dismissed the Department’s
first petition for writ of mandate as moot.
Current Petition
The Department produced 109 of the
ordered documents, but filed a second petition for writ of mandate in this
court, seeking to overturn the trial court’s July and August 2013 orders of production
as to 16 confidential documents. On
October 24, 2013, we issued an alternative writ directing the trial court to
vacate its order of production regarding the disputed documents or show cause
why a peremptory writ should not issue. The
trial court declined to vacate its order.
Austin filed a return to the alternative writ, and the Department filed
a reply. We have reviewed all the
documents, filed with the petition, the return, and the reply, including the
following documents under seal: (1) the
16 disputed documents; (2) reporter’s transcripts of the in camera hearings
resulting in the order of production; and (3) a confidential declaration by one
of Austin’s attorneys filed in support of Austin’s opposition to the Department’s
motions to quash Austin’s subpoenas .
Section 1040, subdivision (b)(2)
provides a conditional privilege for “official information,†which is defined
as “information acquired in confidence by a public employee in the course of
his or her duty and not open, or officially disclosed, to the public prior to
the time the claim of privilege is made.†(§ 1040, subd. (a).)
(b)(2) states that “[a] public entity has a privilege to refuse to disclose
official information, and to prevent another from disclosing official
information, if the privilege is claimed by a person authorized by the public
entity to do so and . . . [¶] [d]isclosure of the information is against the
public interest because there is a necessity for preserving the confidentiality
of the information that outweighs the necessity for disclosure in the interest
of justice.†Thus, the privilege
requires a balancing of the interest in confidentiality against the interest of
disclosure. (See Marylander v. Superior Court (2000) 81 Cal.App.4th 1119, 1126 [once
public entity shows the information was obtained in confidence, the court must apply
the balancing test].)
Similarly, section 1041, subdivision
(a)(2) provides a conditional privilege against disclosure of the identity of
an informer. It provides in relevant
part that “a public entity has a privilege to refuse to disclose the identity
of a person who has furnished information as provided in subdivision (b)
purporting to disclose a violation of a law of the United States or of this
state or of a public entity in this state, and to prevent another from
disclosing the person’s identity, if the privilege is claimed by a person
authorized by the public entity to do so and either of the following apply: [¶] .
. . [¶]
(2) Disclosure of the identity of
the informer is against the public interest because the necessity for
preserving the confidentiality of his or her identity outweighs the necessity
for disclosure in the interest of justice.â€
Subdivision (b) states in relevant part that the privilege applies to “information
. . . furnished in confidence by the informer to . . . [a] law enforcement
officer.â€
In non-confidential filings in the
trial court in connection with its motions to quash the various subpoenas, the
Department produced the declarations of Everett Fischer and Brian Snider, a
Litigation Coordinator at the California Correctional Institution. As explained in these declarations, the
inmate confidential files from which the 16 documents in question come are kept
by the Department in strictest confidence and available for review by
Department personnel only under “need to know†circumstances defined by
regulation. They contain four categories
of information: (1) confidential enemies
lists containing the names of persons about whom the inmate has informed to
prison officials and persons who have informed on the inmate; (2) confidential
interviews with informants, meaning information given in confidence by
informants about the inmate or by the inmate about other prisoners; (3)
debriefing reports, which are extensive interviews of an inmate who is dropping
out of a gang, and which are placed in the file of the debriefed inmate and the
file of any inmate mentioned in the debriefing; and (4) victim notification
information, which is personal information about the inmate’s crime victims. According to each declarant, the disclosure
of the confidential files would subject the persons identified and their
friends and families to attack, whether in or out of prison, in retaliation.
As noted, we have reviewed the 16
documents in question filed under seal and the sealed transcripts of the court’s
in camera review. Each of the documents contains
the type of information described in these declarations -- information that
qualifies as official information as defined in section 1040, subdivision (a),
and/or as the identity of informers who have furnished information to prison
officers regarding violations of law that qualify under section 1041,
subdivision (b). They were thus properly
subject to in camera review, attended by counsel for the Department and Everett
Fischer. As stated in
Cal.App.4th 1274, 1283, regarding in camera review of prison records – in that
case, confidential information relied on by Governor to reverse a parole
grant: “‘“[Q]uestions of confidentiality
are complex and can only be made by trained, experienced correctional
authorities knowledgeable about the inmate in question, the entire content of
his file (not just the contested documents the court reviews), prison life in
general, morality and ethics of the prison setting, prison relationships, and
the rehabilitative process. In many
cases the reasons for confidentiality may not spring from the face of the
document but may be based on other factors in the inmate’s file or other
conditions in the institution, or a psychological factor that would require
expert analysis to appreciate.†. . . “Such a hearing would allow the custodian of
records . . . to explain the significance of the documents and the reasons for
their being withheld. Anything less
would have the court acting in a vacuum, unable to obtain or use the factual
tools which are essential to an informed judgment.â€â€™â€
Austin notes that the privileges of
sections 1040 and 1041 must yield when nondisclosure would deprive the
defendant of a fair trial. (See
documents in issue will compromise his right to a fair trial, to due process,
to confront and cross-examine witnesses, and to the effective assistance of
counsel. He posits several theories
supporting discovery: guilt phase issues
such as a potential defense that Austin’s mental health deteriorated to such a
degree that he did not premeditate and deliberate, whether other inmates are
also responsible for Ponton’s killing, and whether other information shows that
Ponton was killed under the circumstances described by Randy Hanson; penalty
phase issues regarding aggravating and mitigating factors.
We review the trial court’s orders of
production arising from the in camera hearings for abuse of discretion (
Cal.App.4th 695, 700), and have considered Austin’s constitutional rights
and the need for disclosure to effectively protect those rights. We have also considered the Department’s
interest in confidentiality, and the articulated reasoning of the trial
court. Based on our review of the sealed
material, we conclude that the trial court erred in ordering disclosure of the
16 disputed documents. We do not do so
lightly, and commend the trial court for its diligence in undertaking the
difficult task of reviewing the voluminous records presented and fashioning
protective orders designed to protect the information from further disclosure
that might endanger those persons mentioned in the confidential documents. However, with respect to the 16 confidential documents
at issue in this writ proceeding, it is clear that the interest in preserving
the confidentiality of the information and identity of persons mentioned
outweighs Austin’s interest in a fair trial. These documents are of such tangential materiality
to the issues presented by Austin in support of disclosure,
and the danger to the persons mentioned in the documents is so substantial,
that the privileged nature of the documents must be upheld, even if subject to
the trial court’s protective order.
Austin contends that if we determine
that the documents in issue should not be produced, we should remand the matter
to the trial court to give him an opportunity to participate in an adversarial
inquiry consistent with the suggestion in dicta of People v. Superior Court (Biggs)
following an in camera hearing “[t]he court should continue its inquiry in an
adversary setting, probing the information’s relevance to the defense,
exploring with counsel the availability of other alternatives and, if
necessary, hearing testimony voir dire. Only
at the conclusion of an adversary inquiry is the court in a position to assess
the counter-balancing weight of the defendant’s need, to appraise the
possibility of reasonable alternatives and to determine what cost shall be
exacted of the prosecution. Only at the
conclusion of an adversary inquiry is the court qualified to rule for or
against the government’s claim of privilege.â€
For several reasons, we disagree. The trial court made redactions and withheld
information on many documents that are not the subject of this proceeding. However, although Austin’s attorney objected to
any redactions or the withholding of any documents, he did not suggest that an
adversary hearing and testimony seeking to probe alternatives should be
held. Moreover, the court sought to
implement an alternative by ordering certain disclosures subject to protective orders. Finally, in his return, Austin fails to suggest how
further adversary proceedings investigating alternatives would be
productive. No remand is necessary.
DISPOSITION
We
issue a peremptory writ of mandate to the trial court directing it to vacate
the portion of the orders of July 9, 2013 and August 27, 2013, which denied the
Department’s motions to quash and directed production of confidential inmate
prison files reflected in Exhibits 1-16 of the instant petition, and make a new
and different order granting the motions to quash as to those records.
WILLHITE, J.
We
concur:
EPSTEIN,
P. J.
MANELLA, J.
undesignated section references are to the Evidence Code.
(b)(1) provides an absolute privilege for official information if “[d]isclosure
is forbidden by an act of the Congress of the United States or a statute of this state.†The absolute privilege is not involved here.
