LERCY WILLIAMS v. THE SUPERIOR COURT OF ORANGE COUNTY

Filed 5/31/06: pub. & mod. order 6/30/06 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Richard M. King, Judge. Petition granted.

Deborah A. Kwast, Public Defender, Thomas Havlena, Chief Deputy Public Defender, Kevin Phillips, Assistant Public Defender and Donald E. Landis, Jr., Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Jack L. White, City Attorney, and Moses W. Johnson, IV, Deputy City Attorney for Real Party in Interest.

Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Assistant City Attorney, and Kim Rodgers Westhoff, Deputy City Attorney as Amicus Curiae for The League of California Cities, on behalf of Real Party in Interest City of Anaheim.

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We find ourselves confronted once again by problems of procedure in discovery motions pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. Specifically, we are faced with the issue of whether a defendant may file a sealed affidavit in support of his motion for discovery to avoid revealing privileged material to the prosecution and police, and who should see such a declaration. It is a complex and difficult issue and our previous resolution of it (People v. Garcia (2004) 120 Cal.App.4th 1252) is presently before the California Supreme Court (review granted Sept. 22, 2004).

We have struggled anew with this problem. Only one member of this panel was on the Garcia panel, so fresh minds have tried to arrive at a resolution somehow different or better than Garcia. We have failed. Despite new briefing, new argument, and a different panel, we find ourselves in exactly the same place the Garcia court was: greatly concerned about the privacy rights of police officers, implacably committed to the criminal defendant's right to a fair trial, and thoroughly convinced the preservation of one should not require compromise of the other. We remain convinced counsel for the defendant should be allowed to file privileged or confidential information under seal with the court determining the Pitchess motion; we have found no reason to doubt the ability of the trial courts to sort through such information and determine what is actually privileged, what should remain confidential and what should not; and we have found nothing in the history of Pitchess, discovery law in general, or our own experience to persuade us the intervention of a third party such as a city attorney is necessary to protect the privacy rights of the police officers. As near as we can determine, the trial courts have done an admirable job of that, and we can find nothing suggesting they need help.

We admire the zeal and commitment of the agencies offering that help. The critics of public service employees who are so ready to question their dedication and work ethic should be heartened by the tenacity with which city attorneys and county counsels in this state have fought to take up the extra burden of fighting to defend the privacy rights of their employees.

But, for the reasons set forth in Garcia, their ardor to insure those privacy rights seems to us admirable but misdirected. It seems to us that just as it would be bad business to spend $10,000 every year to insure against an unlikely $1,000 loss, it is bad government to compromise the fair trial rights of the citizenry to protect against a heretofore undemonstrated and largely inchoate concern that trial courts might not appreciate the significance of police officer privacy, and might not adequately guard it without assistance.

For these reasons, we largely repeat here what we said in Garcia – not because we are unwilling to disagree with our colleagues, not because we are displeased that the wisdom of their earlier words has not been seen and embraced, but because we are persuaded, after much additional consideration, that the Garcia court arrived at the right result. Being so convinced, we cannot arrive at a different result and are hard-pressed to state it more clearly, so – in large measure – we merely re-state it.

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Lercy Williams was charged by information with a collection of felony charges including aggravated assault on a peace officer, reckless driving in evasion of a peace officer, hit and run with property damage, resisting arrest, and possession of a controlled substance (methamphetamine). He filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531, seeking to discover the personnel files of a dozen officers involved in his case pursuant to Evidence Code Section 1043.

In support of his discovery request, Williams filed a â€