Nicholas M. v. Sup.
Filed
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COURT OF APPEAL - FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF
NICHOLAS M., Petitioner, v. THE Respondent; CITY OF EL CAJON et al., Real Parties in Interest. | D049241 ( Super. |
Proceeding in mandate after court order denying motion seeking production of police officer's personnel records. Ronald L. Johnson, Judge. Petition granted, with directions.
In April 2006 the San Diego County District Attorney's Office filed a petition in juvenile court charging Nicholas M. with willfully and unlawfully resisting, delaying and obstructing a peace officer in violation of Penal Code[1] section 148, subdivision (a)(1). Nicholas was arraigned and denied the charge.
Thereafter, to support Nicholas's defense that the arresting police officer was the aggressor and used excessive force in arresting him, Nicholas brought a Pitchess motion[2] seeking discovery of information concerning complaints that the arresting officer, El Cajon Police Officer D. Larkin,[3] had used " excessive force, aggressive conduct, unnecessary violence [and] unnecessary force" against others. The court denied the motion, finding no evidence to corroborate Nicholas's claim that Officer Larkin used excessive force.
Nicholas filed this petition for writ of mandate to challenge that order, asserting that (1) he met his low burden of proof necessary to require an in camera review of any relevant documents; (2) the court must assume his allegations true for the purpose of the motion; (3) he did not need corroborating evidence to substantiate his allegations; and (4) the declaration filed in support of the motion was internally consistent. We grant the petition, with directions.
FACTUAL AND PROCEDURAL BACKGROUND
A. Arresting Officer's Report
According to Officer Larkin's report, on
Nicholas turned his back on Officer Larkin and started to leave the school grounds. Officer Larkin told him that if he left school without permission to do so he would be placed under arrest. Nicholas turned to face Officer Larkin and started yelling at him that he was a " fucking pig" and to " leave me the fuck alone." As Officer Larkin approached Meyers, he noticed that " both of his hands were tightly cl[e]nched" and his upper torso appeared " rigid." When Nicholas ignored the commands, Officer Larkin ordered Nicholas to place his hands behind his back. Nicholas reluctantly complied. While Officer Larkin began a patdown search, Nicholas began to twist and contort his upper body.
Fearing that Nicholas might have a weapon, Officer Larkin handcuffed Nicholas's right arm. While attempting to cuff his left arm, Nicholas began yelling obscenities and broke from his hold. Officer Larkin grabbed Nicholas by the shoulders and placed him on the ground. Officer Larkin then handcuffed Nicholas and escorted him back to the office.
Once they were inside the office, Nicholas continued yelling obscenities and began banging his head against a wall. Officer Larkin had to restrain him. Once Officer Larkin completed his arrest process, he released Nicholas to his parents. According to Officer Larkin, Nicholas sustained minor abrasions to his right and left wrist areas as a result of his being uncooperative during his arrest.
Statements were taken from three school personnel witnesses, who largely confirmed Officer Larkin's statement. One witness related that when Nicholas was " thrashing around" while handcuffed in the office, Officer Larkin " pushed him against the copy machine to stop him and to do a search."
Nicholas was charged in juvenile court with a misdemeanor count of resisting arrest under section 148, subdivision (a)(1).
B. Pitchess Motion
Nicholas brought a Pitchess motion, seeking " any evidence of or complaints of excessive force, aggressive conduct, unnecessary violence, [or] unnecessary force" by Officer Larkin. In support of the motion, Nicholas's counsel submitted a declaration under " information and belief." In that declaration counsel stated that on the date of the incident, " Nicholas voluntarily went to
According to Nicholas's attorney, " When Nicholas was halfway to his car Officer [Larkin] aggressively ran and threw Nicholas to the ground. Officer Larkin then dragged Nicholas back to the office area where he violently slammed him on the copy machine. Due to the unnecessary and violent actions of Officer Larkin, Nicholas sustained abrasions to his left and right wrist."
The City of El Cajon and the El Cajon Police Department (together, the City) opposed the Pitchess motion, arguing that, given Officer Larkin's description of the events, and those of witnesses, the declaration by Nicholas's counsel failed to demonstrate good cause for discovery of his personnel files. The City also argued that the request was overbroad, sought information that was not discoverable, sought confidential information, and should be limited to documents no more than five years old.
The court denied the motion, finding that Nicholas had not shown good cause because there was " no corroborating evidence to support the allegations of the minor that excessive force was used against him, [either] by witnesses or by physical evidence, that would justify the court in granting the Pitchess motion."
This petition for writ of mandate followed.
DISCUSSION
I. Standard of Review
The grant or denial of a discovery motion in criminal cases is reviewed for an abuse of discretion. (Pitchess, supra, 11 Cal.3d at p. 535; Hill v. Superior Court (1974) 10 Cal.3d 812, 816.) Under this standard, we will reverse the court's ruling only upon a showing of a clear case of abuse and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)
II. Analysis
Nicholas asserts that the court erred in denying his Pitchess motion because it was supported by a declaration showing a " specific factual scenario" supporting his defense of this matter that he was the victim of excessive force and in requiring that he show evidence corroborating his allegations. We conclude that the court erred in denying Nicholas's motion on the basis he had not produced corroborating evidence and should have held an in camera review to determine whether the City was in possession of any information proper for production that was relevant to his defense. We further direct that upon remand the court shall address the City's claim that Nicholas's request for personnel records is overly broad and seeks documents that are not discoverable.
Section 832.7, subdivision (a) provides in part: " Peace officer . . . personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code." Evidence Code sections 1043 and 1045 prescribe the procedures for discovery and require the moving party file a written motion that includes an affidavit showing " good cause" for the disclosure sought and the " materiality [of the records] to the subject matter involved in the pending litigation." (Evid. Code, § 1043, subd. (b)(3).) These code sections were enacted to codify the California Supreme Court's decision in Pitchess, supra, 11 Cal.3d 531, which permitted discovery of police officer files on a proper showing of materiality, relevance and necessity, and to curtail record shredding and discovery abuses that allegedly occurred in the wake of the Pitchess decision. (See City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 883, 889.)
The Pitchess statutory scheme recognizes that evidence contained in a law enforcement officer's personnel file may be relevant in a lawsuit, but that the officer " has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily." (People v. Mooc (2001) 26 Cal.4th 1216, 1227 (Mooc).) To balance these competing interests, the Legislature " require[d] the intervention of a neutral trial judge, who examines the personnel records in camera . . . and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations. In this manner, the Legislature has attempted to protect [a party's] right to a fair trial and the officer's interest in privacy to the fullest extent possible." (Ibid.; see City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53.)
Under the statutory scheme, a party seeking discovery of a peace officer's personnel records must follow a two-step process. (Mooc, supra, 26 Cal.4th at p. 1226.) First, the party must file a written motion describing the type of records sought, supported by " [a]ffidavits showing good cause for the discovery . . . , 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).) In this regard, the declaration must establish a " specific factual scenario" establishing a " plausible factual foundation" for the allegations of police misconduct. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86 (City of Santa Cruz).)
This initial burden is a " relatively relaxed" standard. (City of Santa Cruz, supra, 49 Cal.3d at p. 84.) Information is material if it " 'will facilitate the ascertainment of the facts and a fair trial.' [Citation.]" (Ibid.; Brant v. Superior Court (2003) 108 Cal.App.4th 100, 105.) " [A] declaration by counsel on information and belief is sufficient to state facts to satisfy the 'materiality' component of that section." (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 51.)
Recently, the California Supreme Court clarified the minimal showing a defendant must make in order to meet this first step of the process of obtaining police records on a Pitchess motion, rejecting the People's contention in that case that the allegations of police misconduct must be " credible" or " believable" : " 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." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026 (Warrick).) As the Supreme Court in Warrick specifically held, " Although a Pitchess motion is obviously strengthened by a witness account corroborating the occurrence of officer misconduct, such corroboration is not required." (Warrick, supra, 35 Cal.4th at p. 1025.)
The high court also concluded in Warrick that " 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." (Warrick, supra, 35 Cal.4th at p. 1026.)
Next, if " the trial court concludes the defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion. [Citation.] The trial court 'shall examine the information in chambers' (Evid. Code, § 1045, subd. (b)), 'out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present' [citation]. Subject to statutory exceptions and limitations . . . the trial court should 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; § 1045, subd. (a).)
The City argues that Nicholas's counsel's declaration only made conclusory statements asserting officer misconduct, and therefore Bryant failed to assert a specific factual scenario establishing a plausible factual foundation for the allegations of police misconduct. This contention is unavailing.
In People v. Hustead (1999) 74 Cal.App.4th 410, the defendant's attorney filed an affidavit in support of discovery of officer personnel records that stated that the defendant did not drive in the manner described in the police report; that his driving route was different from that stated in the report; and that the habits, customs and credibility of the reporting officer would be a material issue at trial. (Id. at p. 417.) The Court of Appeal concluded that the affidavit created a discrepancy between the police report and the defendant's version of the events that was specific enough to constitute a " specific factual scenario." (Id. at pp. 416-417.)
In City of Santa Cruz, supra, 49 Cal.3d at pages 85-86, the California Supreme Court found that a plausible factual foundation had been established by a reading of the police reports in conjunction with counsel's declaration, which alleged the specific factual scenario that the officers there used excessive force during the defendant's arrest; described instances of unreasonable force used during the arrest; claimed the officers' character, habits, customs and credibility would be material issues at trial; and opined other excessive force complaints may have been filed and investigated against those officers which would show or lead to evidence showing they tended to use excessive force in making arrests.
On this record, Nicholas has met the " relatively relaxed" threshold showing of good cause for an in camera review of potentially relevant documents. Counsel for Nicholas has alleged upon information and belief in his declaration in support of the Pitchess motion that Nicholas was attacked by Officer Larkin while he was peacefully leaving campus, that he was dragged back to the school office, and that Officer Larkin then slammed him into a copy machine. He also denies that Nicholas engaged in any belligerent or assaultive conduct. Counsel alleges that Nicholas suffered injuries as a result of Officer Larkin's alleged use of excessive force. These facts set forth a " specific factual scenario" establishing a " plausible factual foundation" for the allegations of police misconduct.
Moreover, it does not matter that counsel's declaration contradicted Officer's Larkin's account, or that of witnesses. As the Warrick court recently explained, a defendant is not required to present a credible or believable account of officer misconduct. Rather, the defendant must only present evidence showing that it might or could have occurred. " 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." (Warrick, supra, 35 Cal.4th at p. 1026.) Bryant's declaration satisfied this standard.
The court also erred in finding that Nicholas did not show good cause because he failed to produce corroborating evidence. As the Warrick court also held, corroborating evidence is not required. (Warrick, supra, 35 Cal.4th at p. 1025.)
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to (1) vacate its July 28, 2006 order denying the Pitchess motion; (2) conduct a further hearing to determine what records should be produced; and (3) conduct an in camera review of records thereafter produced. This decision will become final as to this court 10 days after the date of filing. (Cal. Rules of Court, rule 8.264(b)(3).)
NARES, Acting P. J.
WE CONCUR:
McDONALD, J.
IRION, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). This type of discovery motion is colloquially referred to as a Pitchess motion after the case in which the
[3] Officer Larkin's full name does not appear in the record.
