Mushonga v. Sup.

Filed 5/24/06  Mushonga v. Sup. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

        CONSOLIDATED PROCEEDINGS in mandate after the superior court denied motions for discovery of peace officer personnel information.^[1]  Superior Court of Imperial County, Juan Ulloa, Judge.  Petitions granted.

FACTUAL  AND PROCEDURAL BACKGROUND

            I.            Charges Against Petitioner Mushonga

            Petitioner Zacharias Mushonga, an inmate at Calipatria State Prison, is charged with custodial possession of a weapon.  (Pen. Code, §  4502, subd. (a).)  He is further alleged to have suffered two strike priors.  (Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i).)  According to the crime/incident report, a corrections officer conducted a random clothed body search of Mushonga and discovered an inmate manufactured weapon in Mushonga's buttock area.

            II.            Charges Against Petitioner Vargas

            Petitioner Humberto Vargas, an inmate at Calipatria State Prison, is charged with possession of illegal substances in a jail facility.  (Pen. Code, § 4573.6.)  He is further alleged to have committed this offense while in a state prison (Pen. Code, § 1170.1, subd. (c)), and to have suffered two strike priors (Pen. Code, §§ 1170.12, subds. (a)-(d) and

667, subds. (b)-(i)).  According to the crime/incident report, a corrections officer ordered Vargas to submit to an unclothed body search after Vargas could not explain his purpose for being in a housing unit other than his own.  During the search, the officer saw Vargas remove an object from his right sock and hold it in his right hand.  The officer ordered Vargas to turn over the object and later determined that the object was a bindle of heroin.

            III.            Discovery Motions

            To prepare for their defense, each petitioner filed a Pitchess motion seeking information regarding any prior incidents of dishonesty, false reporting, and planting of evidence by the reporting officers.  Vargas also sought information about prior incidents of false arrest and false testimony on the part of the officer involved in his case.

            Both motions included a supporting declaration from defense counsel, alleging on information and belief that: (1) people make complaints against corrections officers; (2) the Department of Corrections and Rehabilitation (Department) investigates the complaints and keeps records of its investigations; (3) disciplinary proceedings may result from the investigations; and (4) the Department keeps records of such disciplinary proceedings.  In addition, the declarations alleged that the facts contained in the crime/incident reports were false and that the officers had planted the contraband or made it appear as if petitioners had possessed it. 

            The Department opposed the motions, asserting, among other things, that petitioners had failed to establish good cause for the discovery requests.  Following oral argument, the trial court denied each motion on the ground that the supporting declarations did not allege that the requested information actually existed.

            Each petitioner filed a petition for writ of mandate challenging the trial court's orders.  This court stayed petitioners' trials and requested opposition and reply briefs.  After reviewing the briefing, we notified the parties that the court was considering issuing a peremptory writ in the first instance.  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.)  We also ordered the petitions consolidated for disposition.  We now conclude that issuing a peremptory writ in the first instance is appropriate because the applicable law is well settled and it is clear that petitioners are entitled to relief.  (Code Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng. v. Superior Court (1992) 4 Cal.4th 29, 35.)

DISCUSSION

            To initiate discovery of peace officer personnel information, a defendant must file a motion that is supported by a declaration showing good cause for the discovery.  (Evid. Code, § 1043.)  " Good cause" in this context is " measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' "   (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick), quoting City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.)  The good cause requirement has two parts.  First, the declaration must demonstrate how the requested information is material to the pending litigation.  Second, the declaration must state upon reasonable belief that the law enforcement agency has the requested records or information.  (Evid. Code, § 1043, subd. (b)(3); Warrick, supra, at p. 1019.)  Both elements are at issue in these petitions.

            I.            Failure to Allege that the Requested Information Exists

            The trial court denied petitioners' motions on the ground that they failed to meet the second element.  The trial court interpreted our decision in Abatti v. Superior Court (2003) 112 Cal.App.4th 39, to require that the supporting declarations allege that the requested information actually exists.  Abatti contains no such requirement.

            In Abatti, the trial court denied a hybrid Pitchess/Brady^[2] motion that sought information contained in 12-year-old counseling memos pertaining to a former police officer who was a percipient witness in a criminal case.  The question before this court was whether the trial court had abused its discretion by denying the motion without conducting an in camera review of the counseling memos.  (Abatti, supra, 112 Cal.App.4th at pp. 42-43.)  We concluded that the trial court had abused its discretion because the allegations in defense counsel's supporting declaration established that the counseling memos were material under both Pitchess and Brady.  (Id. at p. 59.)

            Although the defense counsel in Abatti did allege that the counseling memos actually contained negative information about the officer, we did not hold that this allegation was necessary in order to establish good cause for an in camera review.  Rather, we concluded that this allegation, together with the others contained in defense counsel's supporting declaration, was sufficient to show good cause.  (Abatti, supra, 112 Cal.App.4th at pp 58-59.)

            In our general discussion of the Pitchess procedure, we specifically recognized that defense counsel need allege only a reasonable belief that certain records may contain the requested information.  (Abatti, supra, 112 Cal.App.4th at p. 51.)  The California Supreme Court has long held that there is no requirement that defendants allege that the requested information actually exists because, in most instances, neither the defendant nor defense counsel would be in position to know what, if any, complaints had been filed against a peace officer.  (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 89-93.) 

            In the present cases, because defense counsel's supporting declarations allege a reasonable belief that the Department may have records of relevant complaints against the reporting officers, petitioners have satisfied the second element for showing good cause.  Thus, the trial court abused its discretion in denying petitioners' motions for failing to meet a standard they are not required to meet, and arguably cannot meet. 

            II.            Failure to Establish Materiality

            The Department impliedly concedes the above point by not addressing it in its briefs.  (See, e.g., California School Employees Assn. v. Santee School Dist. (1982) 129 Cal.App.3d 785, 787.)  However, the Department urges us to uphold the trial court's decisions on the ground that the supporting declarations do not meet the first element of establishing good cause.  Specifically, the Department argues that the declarations do not contain a specific, plausible factual scenario of officer misconduct sufficient to demonstrate the materiality of the requested information.  We disagree.

            The materiality element that must be shown in a declaration in support of a motion to discover peace officer personnel information has been the subject of many published opinions.  Relying on language in prior California Supreme Court decisions, some Courts of Appeal, including this court, have held that the supporting declaration must provide a

" 'specific factual scenario' " establishing a " 'plausible factual foundation' " for the alleged officer misconduct.  (Warrick, supra, 35 Cal.4th at p. 1021; Abatti, supra, 112 Cal.App.4th at p. 51.)  In Warrick, the Supreme Court clarified that " to obtain in-chambers review a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred."   (Warrick, supra, at p. 1016, italics added.)

            The defendant in Warrick was charged with possessing cocaine base for sale.  (Warrick, supra, 35 Cal.4th at p. 1017.)  According to the police report, three police officers were in a police car patrolling an area known for violent crime and narcotics activity.  The officers noticed the defendant standing next to a wall looking at a clear plastic baggie that contained off-white solids.  When the officers got out of their car, the defendant fled, discarding numerous off-white lumps that resembled rock cocaine.  Two of the officers pursued and arrested the defendant.  The officers found an empty baggie in the defendant's hand and $2.75 in his pockets.  (Id. at p. 1016.)

            The defendant in Warrick filed a Pitchess motion seeking disclosure of prior complaints against the arresting officers for, among other things, making false arrests, falsifying reports, or planting evidence.  In support of the motion, defense counsel submitted a declaration denying that the defendant possessed or discarded any rock cocaine.  Instead, the declaration alleged that the defendant was in the area to buy cocaine, and that he ran from the officers to avoid being arrested on an outstanding parole warrant.  At the time, there were people scrambling to collect the cocaine.  Because the officers did not know who had discarded the cocaine, they falsely accused the defendant of doing so.  (Warrick, supra, 35 Cal.4th at p. 1018.) 

            The trial court denied the motion, finding that the defendant had not shown good cause for an in camera review of the arresting officers' personnel records.  The Court of Appeal affirmed the trial court's decision, concluding that, while the defendant had articulated a specific factual scenario of police misconduct, he had not established a plausible factual foundation for the scenario because his version of events was not credible.  (Warrick, supra, 35 Cal.4th at p. 1018.)  The Supreme Court reversed the Court of Appeal's decision because the Court of Appeal had applied a stricter standard than that required by law.  (Ibid.)

            The Supreme Court clarified that the materiality element requires the defendant to establish a logical link between the pending charge and the proposed defense and to articulate how the requested discovery will support the defense or impeach the officer's version of events.  (Warrick, supra, 35 Cal.4th at p. 1021.)  Accordingly, defense counsel's supporting declaration must propose a defense to the pending charges.  The declaration must also explain how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense, or how the requested discovery may lead to such evidence.  (Id. at p. 1024.)

            In addition, the declaration must allege a specific factual scenario of officer misconduct.  (Warrick, supra, 35 Cal.4th at pp. 1024-1025.)  Depending on the circumstances of the case, the factual scenario may consist of a denial of the facts contained in the police report.  (Id. at p. 1025.)  The trial court may also consider witness statements or other pertinent documents.  However, the defendant is not required to provide corroborating evidence.  (Ibid.)

            Lastly, the declaration must provide a plausible factual foundation for the scenario of officer misconduct.  The Supreme Court explained that, in this context, " plausible" means that the scenario " might or could have occurred."   (Warrick, supra, 35 Cal.4th at p. 1026.)  It does not mean that the scenario must be credible or believable, nor does it require that the defendant provide a motive for the officer's misconduct.  (Ibid.)  As the Supreme Court explained:

" 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.  A trial court hearing a Pitchess motion normally has before it only those documents submitted by the parties, plus whatever factual representations counsel may make in arguing the motion.  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.  [Citation.]

" Moreover, a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language and with our previous decisions requiring only that defense counsel's affidavit or declaration supporting a defendant's Pitchess motion be made on information and belief.  [Citations.]"   (Ibid.)

            The Supreme Court explained that the trial court's function is to determine if a defendant has met the materiality element by considering whether:  (1) the defense has shown a logical connection between the charges and the proposed defense; (2) the requested discovery is factually specific and tailored to support the claim of officer misconduct; (3) the requested discovery supports the proposed defense or is likely to lead to information that will do so; and (4) the requested discovery is potentially admissible at trial.  (Warrick, supra, 35 Cal.4th at p. 1027.)

            Warrick's proposed defense to the charge of possessing cocaine for sale was that he did not possess, and thus could not have discarded, the 42 rocks of cocaine.  The Supreme Court noted that " [b]y denying the factual assertions made in the police report--that he possessed and discarded the cocaine--[the] defendant established 'a reasonable inference that the [reporting] officer may not have been truthful.' "   (Warrick, supra, 35 Cal.4th at p. 1023.)  The court concluded that Warrick had sufficiently " outlined a defense raising the issue of the practice of the arresting officers to make false arrests, plant evidence, commit perjury, and falsify police reports or probable cause" and thus had " established the relevance of such information to his pending trial."   (Id. at p. 1027.)

            Here, as in Warrick, the supporting declarations allege that petitioners did not possess the contraband and that the reporting officers either planted the contraband or made it look as if petitioners possessed it and raise the issue whether the reporting officers have a practice of making false reports or false arrests, planting evidence, or giving false testimony.^[3]  Under Warrick, petitioners have established the materiality of the requested information to the pending litigation, and thus have established good cause entitling them to the trial court's in camera review of the reporting officers' personnel records.  (Warrick, supra, 35 Cal.4th at p.1026.)^[4]

            III.            Proceedings Upon Remand

            Our conclusion that petitioners have met both elements necessary to establish good cause for discovery of the police officers' personnel records does not end this matter.  We emphasize that establishing good cause entitles petitioners only to an in camera review of the requested discovery by the trial court.  At the time of the in camera review, the trial court must apply the statutorily defined standards of relevance and may disclose only information that meets those standards.  (Evid. Code, § 1045, subd. (b); Warrick, supra, 35 Cal.4th at p. 1019; People v. Mooc (2001) 26  Cal.4th 1216, 1226-1227.)  If any information is disclosed, the trial court must consider any requests by the Department for protective orders and limit the use of the information disclosed.  (Evid. Code, § 1045, subds. (d)-(e); Warrick, supra, at pp. 1027-1028; People v. Mooc, supra, at p. 1227.)

DISPOSITION

            Let a writ of mandate issue directing the superior court to vacate its orders denying petitioners' discovery motions and to conduct further proceedings consistent with this opinion.  This court's orders staying petitioners' trials are vacated.  This opinion will be final as to this court 10 days from its filing.  (Cal. Rules of Court, rule 24(b)(3).)

AARON, J.

WE CONCUR:

McCONNELL, P. J.

    NARES, J.

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^[1]           This type of discovery motion is colloquially referred to as a Pitchess motion after the case in which the California Supreme Court first recognized a limited right to discovery of peace officer personnel information.  (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-537.)  The process for obtaining such discovery is now codified in Penal Code sections 832.7 and 832.8, as well as Evidence Code sections 1043 through 1045.

^[2]           Brady v. Maryland (1963) 373 U.S. 83.  The Brady decision requires the prosecution to disclose any evidence that is favorable to the accused and material to either guilt or punishment.  (Id. at p. 87.)

^[3]             Petitioners' motions requested information about past instances of " dishonesty."   Because this category is broad enough to encompass information not properly discoverable under the facts presented, we construe this category to apply only to misconduct similar to that alleged by petitioners.  (Warrick, supra, 35 Cal.4th at p. 1027; People v. Jackson (1996) 13 Cal.4th 1164, 1220.)

^[4]           It appears from the record that the trial court impliedly found that Vargas had met the materiality element.  In denying Vargas's motion, the trial court stated, " If you believe that [there are reports of false information contained in the personnel record], then, under Abatti I'd probably have to let you have it or at least force you to go through the records [to] see if it's there."