Larranaga v. Sup. Ct.

Filed 5/31/06 Larranaga v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, Randall J. Sherman, 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.

Benjamin P. de Mayo, County Counsel, and Teri Maksoudain, Deputy County Counsel, for Real Party in Interest, Orange County Sheriff Department.

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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 that 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 unnecessary. 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. 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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Petitioner Martin Robert Larranaga was charged by complaint with a depressing catalogue of felony offenses, including possession of methamphetamine for sale, receiving stolen property, various offenses related to the fact he was in possession of a loaded firearm while a felon and while in possession of methamphetamine, and prior convictions reflecting his dismal criminal record. He sought discovery of information in the personnel files of the deputy sheriffs who arrested him, based on a declaration of his attorney. A redacted version of that declaration was filed with the court and the district attorney; an unredacted version – which included information Larranaga's attorney considered privileged and confidential – was filed only with the court.

The trial court reviewed the declaration and concluded the best way to handle it was to allow the Orange County counsel's office to review the unredacted version so they could file an opposition on behalf of the deputy sheriffs. Larranaga's attorney requested the opportunity to meet with the court in camera to explain why the portions of the unredacted version not contained in the redacted version were privileged, and was refused. Instead, the court read from the unredacted statement from the bench, explaining why he felt most of it was not privileged, counsel renewed his request to discuss the matter in camera, was refused again, and withdrew his motion.

Two weeks later, Larranaga's counsel filed a new Pitchess motion. He once again filed a redacted copy on the sheriff's department and the court, and an unredacted copy only with the court. The trial court, relying as before, upon City of Los Angeles v. Superior Court (Davenport) (2002) 96 Cal.App.4th 255, refused to consider counsel's declaration in support of the motion unless an unredacted copy were provided to the Orange County counsel's office under a protective order not to divulge the information to the prosecution. He invited counsel to present any arguments he could without reference to confidential information in open court. Counsel declined, saying, â€