Zavala v. Sup. Ct.

Filed 6/27/07 Zavala v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

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

Deborah A. Kwast, Public Defender, Thomas Havlena, Chief Deputy Public Defender, Kevin Phillips, Assistant Public Defender, and Joe Flohr, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Richards, Watson & Gershon, Steven L. Dorsey, Patrick K. Bobko, and Ginetta G. Giovinco, for Real Party in Interest.

Petitioner, Jose Francisco Zavala, filed a Pitchess^[1]motion to discover incidents of dishonesty and complaints of force and violence against five Buena Park police officers. Zavala contends the trial court abused its discretion when it denied his motion on the basis that he failed to satisfy the good cause requirement pursuant to Evidence Code section 1043^[2]. We agree and the petition is granted.

Facts

According to real party in interest, the city of Buena Park, (hereinafter the city) Buena Park police officer Burciaga prepared a police report and testified at the preliminary hearing that while on patrol just after 7 a.m., he noticed a red truck that stopped approximately five feet over the limit line at a stop sign. The officer also noticed the truck did not have mud flaps, a Vehicle Code equipment violation if the vehicle is raised off the ground. According to Burciaga, before conducting the vehicle stop, he called for backup. After he stopped the truck, Burciaga made contact with the driver, Jose Francisco Zavala, and asked him for his drivers license. According to Burciaga, when he couldnt see Zavalas hands in the area in which he was reaching, he asked Zavala to exit the truck. Once outside the truck, Burciaga conducted a pat-down search for weapons and then directed Zavala to sit on the curb. The codefendant, who was later identified as Laura Mireya Zendejas, Zavalas wife, was seated in the rear passenger compartment of the truck with her infant daughter.

Although Officer Hersts report states that when he arrived Zavala and Zendejas were already seated on the curb, Herst testified at the preliminary hearing that Burciaga asked him to have Zendejas and the child exit the truck and they did so. According to Burciaga, after Herst arrived, he asked for and received consent from Zavala to search the truck. However, before Burciaga could begin the search, Zavala took off running. After a brief pursuit and struggle, Zavala was detained, his truck searched, and the officers discovered a box containing methamphetamine and a bag with over $100,000 inside.

According to Sergeant Banks police report, documents inside the truck identified Zendejass address on Tulare Street. According to Banks, when he asked Zendejas if her key chain, which was lying on the ground, had a key to the house on Tulare Street, she reluctantly replied yes. When Banks asked Zendejas if they could search the house, she replied okay, and when Banks asked her a second time, she said Go ahead. According to Banks, he went to the house with Detective Nyhus and they used the key they obtained from Zendejas to open the front door. Once inside the house, they observed large amounts of narcotics and currency. After making their discovery, the residence was secured while Detective Geyer obtained a search warrant.

At the conclusion of the preliminary hearing, Zavala and Zendejas were held to answer and an information was filed charging Zavala with two counts of possession of methamphetamine for sale, one count each of possession of cocaine and heroin, unlawful sale or transportation of methamphetamine, possession of a firearm by a felon, unlawful possession of ammunition by a prohibited person, possession of a silencer, possession of an assault weapon, child abuse, possession of money or instruments over $100,000, personally armed and weight enhancements, and a prior armed bank robbery conviction. In support of his defense, Zavala filed a Pitchess motion seeking the personnel records of officers Burciaga, Herst, Banks, Nyhus and Geyer for incidents involving lack of credibility, wrongful acts involving moral turpitude, dishonesty, untruthfulness, veracity, false arrest, and conduct unbecoming an officer. Zavala also sought records of complaints against the officers for disciplinary actions taken as a result of any complaints or investigations, and the names, phone numbers and addresses of individuals who have either filed complaints, civil claims or lawsuits, or have been interviewed in connection with an investigation of complaints of force, aggressive conduct, or violence. In addition to the aforementioned, Zavala also asked for any statements of psychiatrists psychologists, therapists or consultants in the officers files.

In support of the motion, Zavalas counsel attached copies of the police reports, the preliminary hearing transcript, and a declaration accusing the five officers of falsifying their police reports and testifying falsely at the preliminary hearing. In a nutshell, Zavala accuses Burciaga of detaining him without probable cause. According to counsel, the traffic stop was based on the fact that Buena Park police believed Zavala was involved in narcotics trafficking but lacked evidence. In addition to claiming the stop was a pretext in order to search the truck, the declaration also states Burciaga never obtained consent to search the truck, Zendejas never gave Banks a key to enter the house on Tulare Street, the officers never used a key to enter the house, and the officers never obtained consent to search the house.

During argument on the motion, counsel explained each officers involvement in the case and identified the testimony or passages in the police reports that he considered false. Counsel summarized, For example, there was the initial stop, which only Officer Burciaga was a part of. . . . Im asserting that he was false and lied about that. [] At the preliminary hearing, Officer Herst changed his testimony to, as he testified, he didnt want to step on Officer Burciagas narrative. So he attempts to be covering up. [] But there are additional officers who are alleging that they received consent to search the house. Were saying thats not true; that they lied about receiving consent. [] Theres another officer who said he received a key to the residence. Were saying he lied about getting that key to the residence. Theyre saying that they went to the residence and entered using a key. Were saying thats not true. That they couldnt have, because were saying that they never got a key to go to the residence. [] And so were alleging those very specific things that would go to the motion to suppress, because we think theyre lying about those things. Through the investigation Ive done, Ive come to believe that that is the case. And to the extent that those individual officers participated in the not just the search, but the questioning of the co-defendant and the search of the co-defendant and how they reported that, we think that theyre not telling the truth about that she gave consent to enter the home and that she provided a key to enter the home.

The court responded, But you havent really given me what your investigation has shown as an alternative of what actually took place. Im sort of here just hearing, theyre all lying. Thats it. Period. The court continued, They just plucked this defendant out of the sky, or, more appropriately, off the street and decided that they were going to make up a story about him? The court noted, You didnt offer any facts that would support a break-in. Anybody knock down a door, break a window?

The court continued with its explanation before it denied the motion stating, Here is the difficulty that I have, [counsel], is that it appears to me that youre just saying, whatever they said in their police reports, all five of them, they were lying. And, yet, no alternative explanation as to what actually occurred that precipitated the lies, that caused the lie that would support your theory that theyre lying has been presented to the court.

Counsel responded that he was being as clear as possible and that instead of making a blanket statement that the officers are lying, he had identified the specific testimony and statements in the police reports that are false. Counsel explained, The traffic stop happened. After that there are officers who claim to have gotten consent. That, were saying, didnt happen. I cant be more specific than that. I cant give you a better alternative description than that, other than the police officers went to that house, and they entered that house without the consent of either Mr. Zavala or Mr. (sic) Zendejas. They entered that house without a key provided by anybody. . . . [] Ive alleged very specifically as to which part each officer either falsified their report or falsified their testimony or falsified the affidavit in support of the search warrant. I was very specific as to portions of each of them and specific as to each of them and how that was set out. The cases dont require that I do anything more than that. And I think that Ive met my burden. The court apparently disagreed and denied the motion.

Discussion

A trial courts ruling on a motion for discovery of police officer personnel records is addressed to the sound discretion of the trial court and reviewed for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Pitchess v. Superior Court, supra, 11 Cal.3d at p. 535.)

Evidence Code section 1043 provides that upon a showing of good cause, a trial court is required to conduct an in camera hearing into a peace officers personnel records. Subdivision (b) states the motion shall include, [ ] A description of the type of records or information sought [ ] [and] [ ] [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. With respect to the requirement that the affidavit must establish a showing of good cause, the Supreme Court has explained, [s]ection 1043 clearly requires a showing of good cause for discovery in two general categories: (1) the materiality of the information or records sought to the subject matter involved in the pending litigation, and (2) a reasonable belief that the governmental agency has the type of information or records sought to be disclosed. [Citation.] (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83.)

According to the city, the trial court properly denied the Pitchess motion because under the materiality prong of section 1043, counsels declaration contained no factually supported allegations of misconduct against any of the officers involved and Zavala merely hypothesized and inferred misconduct possibly occurred, with no information or facts to support those contentions. In support of its position that Zavalas claims are naked allegation[s] the city relies on California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010 (Highway Patrol). In Highway Patrol, the court held the defendant established good cause regarding issues of excessive force, but a generic challenge to an officers credibility on the basis that it is common knowledge that officers are known to lie and therefore, an officers credibility is always at issue, fails to satisfy the good cause threshold to conduct an in camera review of an officers personnel records. (Id. at pp. 1022-1024.)

However, unlike the general allegations made in Highway Patrol, counsels declaration in this case identified twenty false statements challenging the officers credibility and begins by claiming that Burciagas credibility is at issue because (#1) he falsified his report by writing that Zavala failed to stop behind the limit line at the stop sign, (#2) he wrote that Zavala could not locate his drivers license, (#3) he claimed that he asked for permission to search Zavala, and (#4) Burciaga wrote that Zavala gave him permission to search the truck.

According to counsel, Burciaga also testified falsely at the preliminary hearing (#5) when he described where he first saw Zavala driving, (#6) when he testified he saw Zavala run a stop sign, (#7) when he stated Zavala did not provide his drivers license, registration and proof of insurance, and (#8) when he asked Zendejas to exit the truck.

Counsel contends Herst falsified his police report (#9) when he wrote the occupants of the car were seated on the curb when he arrived. Counsel contends Geyer falsified his report when he wrote that (#10) Zendejas gave him permission to search the house, (#11) Zendejas provided a key to the residence and (#12) he entered the house using the key provided by Zendejas. The declaration also states Geyer falsified the affidavit to the search warrant when he stated (#13) Zavala did not possess a drivers license, (#14) that Burciaga obtained permission to search the truck, (#15) Zendejas said that she lived at the residence, and (#16) Zendejas provided a key to the residence. Counsel also contends Geyer testified falsely at the preliminary hearing (#17) when he stated he was present when Banks received a key to the residence. Zavala contends Banks falsified his report when he wrote (#18) Zendejas gave permission to search the residence, and (#19) that she provided a key to the residence. Counsel contends Nyhus testified falsely at the preliminary hearing (#20) when he stated he entered the house using a key.

Although the city dismisses Zavalas claims as unsupported bare assertions, Warrick v. Superior Court (2005) 35 Cal.4th 1011 holds, [t]hat [a] factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. (Id. at pp. 1024-1025.) In Warrick, officers were in an area known for violent crime and narcotics activities. Officers noticed Warrick looking at a clear plastic baggie in his hand and observed what appeared to be an off-white substance. When the officers exited their patrol unit, Warrick fled, discarding numerous off-white lumps resembling rock cocaine as he fled. After Warrick was arrested, officers discovered he had an empty baggie in his hand and $2.75 in cash. (Id. at p. 1016.) In a declaration in support of the Pitchess motion, counsel explained that Warrick fled because of an outstanding parole warrant. Counsels declaration denied the officers accusation that Warrick discarded the rock cocaine on the ground and explained that Warrick was in the area to buy cocaine from a seller who was present at the time he fled. Counsel alleged the officers did not know who discarded the cocaine and so they falsely claimed they saw Warrick dispose of the rocks scattered on the ground. In an effort to show the officers falsely arrested [Warrick] and fabricated the facts in the arrest report, [counsel] sought to discover previous complaints against the officers for dishonesty. (Id. at p. 1017.)

The city attorney in Warrick argued that counsels claim that officers falsely saw Warrick discard the cocaine was not plausible because [he] failed to explain how he happened to be in precisely the area where rock cocaine was allegedly discarded by another person, or why the officers would accuse him of having possessed the cocaine, or, knowing that he was innocent, why they would have planted it on him. The city attorney concluded counsels declaration failed to describe a specific factual scenario and Warricks explanation was just a reentry of his not guilty plea. (Warrick v. Superior Court, supra, 35 Cal.App.4th at pp. 1017-1018.)

Warrick holds that [t]o show good cause as required by section 1043, defense counsels declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citation] that would support those proposed defenses. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024.) Warrick states the specificity requirement referred to in City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d 74, enables the trial court to identify what types of officer misconduct information, among those requested, will support the defense or defenses proposed to the pending charges. This inquiry establishes the statutorily required materiality prong of the good cause showing that a defendant must make to receive in-chambers review of potentially relevant officer records. (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1021-1022.)

In support of its holding that a factual scenario may consist of a denial of the facts asserted in the police report, Warrick noted that in People v. Hustead (1999) 74 Cal.App.4th 410, the defendant, charged with felony evasion after a high-speed car chase, filed a Pitchess motion to discover whether the pursuing officer had a history of misstating or fabricating facts in police reports. [Citation.] In support of the motion, [counsels] declaration denied that the defendant had driven in the way or along the route described by the officer. Hustead concluded that the defendant had met his burden of making an initial showing that the information he [sought] was material to the case. In other words, defense counsels declaration in Hustead made allegations sufficient to establish a plausible factual foundation for a defense that the defendant did not drive in the fashion described in the police report and that the officers report was untrue. [Citation.] (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1025.)

Although the trial court in this case questioned the plausibility of Zavalas claim by asking, [a]nybody knock down a door, [or] break a window, Warrick holds collateral supportive evidence is not necessary to establish a plausible factual foundation for alleged officer misconduct. (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1023.) Warrick notes, the trial court hearing a Pitchess motion will have before it defense counsels affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendants averments, [v]iewed in conjunction with the police reports and any other documents, suffice to establish a plausible factual foundation for the alleged officer misconduct and to articulate a valid theory as to how the information sought might be admissible at trial. [Citation.] Although a Pitchess motion is obviously strengthened by a witness account corroborating the occurrence of officer misconduct, such corroboration is not required. What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. (Id. at p. 1025.)

The city in this case also relies on People v. Thompson (2006) 141 Cal.App.4th 1312, a case in which one officer wore a wire when he purchased cocaine from the defendant, six officers observed the transaction, two officers monitored the wire transmission, the arresting officer found the marked money in the defendants possession and another officer identified the bills as the buy money given to the officer who made the purchase from the defendant. [After] the exchange was completed, [the officer that made the purchase from the defendant] walked away and signaled his fellow officers that a drug transaction had been completed. Uniformed officers who were not part of the buy team arrived at the scene, arrested the defendant, and recovered the bills that were identified as the bills given to Thompson in payment for the cocaine. (Id. at pp. 1315-1316.)

Thompsons Pitchess motion claimed the officers did not recover any buy money from [Thompson], nor did [he] offer and sell drugs to the undercover officer. According to Thompson, officers saw [] and arrested him because he was in an area where they were doing arrests. Thompson maintained that once officers realized he had a prior criminal history, they fabricated the alleged events and used narcotics already in their possession to attribute to him. Thompson alleged the charges were a fabrication manufactured by the officers to avoid any type of liability for their mishandling of the situation and to punish [him] for being in the wrong area at the wrong time and for having a prior [record]. (People v. Thompson, supra, 141 Cal.App.4th at p. 1317.)

The Court held that Thompsons attempt to demonstrate good cause was insufficient because it is not internally consistent or complete. (People v. Thompson, supra, 141 Cal.App.4th at p. 1317.) The court stated that it did not reject Thompsons explanation because it lacked credibility, but because it does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense. . . . Counsels declaration simply denied the elements of the offense charged. (Id.)

The city argues that similar to the facts in Thompson, nothing in the record in this case supports Zavalas claims that the officers are lying. The city maintains [t]here is no conflicting evidence of any falsehood in the Police reports, nothing from the Preliminary Hearing, nothing from [Zavalas] statements at the scene. The sole basis for this claim is [Zavalas] ipse dixit pronouncement that he did not exceed the limit line and did not give consent to search his truck. We disagree.

Although the trial court speculated that Zavala expected the court to believe that officers just plucked [him] out of the sky . . . to make up a story about him, the preliminary hearing transcript supports Zavalas theory that his detention was not the result of a random traffic stop. On cross examination, Burciaga acknowledged that he was on patrol at that location for a specific purpose. When asked, Burciaga also admitted that he was looking for a red truck in the area when he stopped Zavala.

Burciagas testimony that he was in the area looking for a red truck and then called for backup because the truck was not equipped with mud flaps and exceeded the limit line at a stop sign, presents a specific and plausible scenario that the officers were not truthful in their testimony and police reports regarding Zavalas detention.

Zavalas claim that police reports were fabricated is also supported by testimony at the preliminary hearing and based on Hersts testimony that he falsified facts in his police report about where Zavala and Zendejas were located because he did not want to step all over Officer Burciagas portion of his narrative. The city attempts to diminish the significance of Hersts testimony by stating the point upon which [Zavala] has seized is at best merely trivial, and at worst completely irrelevant to the charges involved here. However, the city fails to understand that the significance of Hersts testimony is not the discrepancy about where Zavala and Zendejas were located when he arrived, but rather the fact that Herst admits that he included facts in his police report that he knew to be false for the purpose of preparing a police report that is consistent with another officers report. Penal Code section 118.1 makes it a crime for a peace officer to knowingly and intentionally make a false statement regarding a material matter in a report. At this stage, it is unknown whether the false information in the police report is material, but for purposes of demonstrating good cause pursuant to section 1043, Zavala established a specific and plausible factual scenario of dishonesty to enable the trial court to identify the types of misconduct that would support Zavalas defense. Accordingly, the court abused its discretion when it denied the Pitchess motion and imposed a greater burden on Zavala than required by statute.

Disposition

The petition for writ of prohibition/mandate is granted. The superior court is ordered to vacate its order denying the discovery motion on February 16, 2007, and to grant the motion and conduct an in-chambers review, pursuant to section 1045 of the Evidence Code, of the personnel records of Officer Burciaga, Officer Herst, Sergeant Banks, Detective Nyhus, and Detective Geyer for incidents of dishonesty.

Each party is to bear its own costs in this original pleading.

SILLS, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.

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^[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

^[2] All further statutory references are to the Evidence Code unless otherwise noted.