In re Thomas H.

Filed 6/1/06 In re Thomas H. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

Thomas H. seeks a writ of mandate commanding respondent superior court to set aside its order denying examination of the disciplinary record of a law enforcement officer under Evidence Code sections 1043 and 1045 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We shall grant the requested relief.

BACKGROUND

Shortly after noon on July 9, 2005, California Highway Patrol Officer N. Acevedo was told there had been a vehicle collision on Auburn Boulevard near Sacramento. He arrived at the scene about one half hour later. Michael Lieberman was there and he told the officer that while stopped in his Lexus to allow a preceding car to enter a driveway he was struck from the rear by another vehicle traveling too fast to avoid the collision. After a brief pause, the driver of the car that struck him pulled out around Lieberman and fled. Lieberman said he pursued the fugitive and then returned to the scene of the collision.

Lieberman gave Officer Acevedo information about the fugitive which led the officer to the apartment of Thomas H. at about 1:00 p.m. There he found a green Mercury Sable with a small dent to the left side of the crushed front license plate. He knocked on the door of the apartment and asked Thomas H. about the collision report.

Thomas H. said, at first, he had been home all morning with his wife. She appeared and affirmed this account. The couple denied that anyone else had been given permission to use the car. The officer had them come to the car and open the hood. He asked them to account for the fact that the engine felt hot to the touch. Initially they claimed not to know, then Mrs. H. said that Thomas H. had driven to Albertson's to get lunch. The next day Thomas H. gave Officer Acevedo an Albertson's receipt with a time stamp for the day before at 10:45 a.m.

On July 13, 2005, Lieberman selected Thomas H.'s picture from a six picture photo line up as the driver of the fugitive car. Lieberman was unable to identify Mrs. H's picture from a similar line up. Lieberman's passenger was unable to identify either Thomas H. or his wife.

Officer Acevedo's traffic collision report, completed a few days after the incident, states that when they met at the scene Lieberman described the fugitive driver as a white male adult, muscular, 20-25 and bald. Lieberman reportedly also said that the fugitive driver's passenger was a Hispanic female adult, 20-25 years old, long brown hair and slender. He reported the car was a green Mercury Sable and gave the complete license number of the car found at the apartment of Thomas H. and his wife.

Thomas H. was charged with driving without a license (Veh. Code § 12500),^[1] failing to stop and identify himself after being involved in an accident (§ 20002), and speeding (§ 22350). He filed a motion for discovery of Officer Acevedo's public complaint and personnel records for information about complaints of falsification of evidence or testimony or other acts involving moral turpitude.

His counsel's supporting affidavit relates that Thomas H. was not involved in a collision on the day in question, did not drive with a female passenger on the day in question, and does not know Lieberman. Noting that the police report was completed after the officer had interviewed Thomas H. and his wife, the affidavit continues: â€