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San Diego State Officer must show personnel records containing possible misconduct

Filed 7/26/07 Bailey v. Sup. Ct. CA4/1

COURT OF APPEAL – FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ANDREW BAILEY,

Petitioner,

v.

THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;
D050344

(San Diego County
Super. Ct. No. GIC879531)

BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY ON BEHALF OF SAN DIEGO STATE UNIVERSITY’S POLICE DEPARTMENT,

Real Party in Interest.

Proceedings in mandate after the Superior Court of San Diego County denied a motion for discovery of peace officer personnel information. Roger M. Krauel, Judge. Petition granted.
After being charged with a misdemeanor count of willfully and unlawfully resisting, delaying and obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)), Andrew Bailey filed a Pitchess motion seeking discovery of information in a police officer’s personnel file. Bailey claimed that statements in the police report regarding his detention near San Diego State University (SDSU) for Vehicle Code violations by SDSU police officer M. Duncan were false, and accordingly sought information from Duncan’s files and records with the SDSU police department about prior complaints of falsifying police reports and other related acts reflecting on Duncan’s dishonesty. The trial court denied the motion, finding that Bailey’s moving papers failed to present a sufficient “factual scenario” showing good cause to warrant in camera review of Duncan’s personnel records.
Bailey filed this petition for writ of mandate challenging the court’s ruling after the Appellate Division of the San Diego Superior Court (Appellate Division) summarily denied his petition for writ of mandate in that court. Bailey contends that the general allegations in his counsel’s declaration were sufficient to meet the low threshold for establishing good cause for discovery and that the court’s denial of in camera review of those records was thus an abuse of discretion. We requested a response from the real party in interest, the Board of Trustees of California State University (CSU), and subsequently issued an order to show cause (OSC).
We conclude the court abused its discretion in denying Bailey’s request for in camera review. Accordingly, we grant the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
According to Officer Duncan’s report, on June 26, 2006, at about 5:15 p.m., Duncan stopped an adult male, later identified as Bailey, after observing him jaywalk without yielding to oncoming traffic as he crossed a street near SDSU without using the crosswalk. Bailey immediately started flailing his arms in the air and said, “I don’t like cops, [and y]ou have no right to stop me. . . .” Bailey then dropped the three bags he was carrying and started walking in circles in front of Duncan. Duncan told Bailey to “stop and relax,” but Bailey refused, saying “I’m late for my class, I need to go.”
When Duncan told Bailey he was not free to leave until he issued him a citation for the Vehicle Code violations he had just observed, Bailey picked up his three bags, said he was going to speak to Duncan’s police chief, and started to walk away. Duncan again told Bailey to stop, but Bailey kept walking away, shouting, “Fuck you pigs.” “Based on Bailey’s behavior, his direct and conscious decision to ignore and disobey [his] commands and his refusal to remain on [the] scene,” Duncan arrested Bailey for resisting, obstructing and delaying a peace officer.
Bailey brought a Pitchess motion, seeking discovery from police files and records in possession of the SDSU police department in support of his defense that the charge against him was fabricated. He specifically sought “[a]ny evidence of, or complaints of: (1) false or inaccurate police reports based on intentional omission of the names of the officers who were present at the scene, (2) false claims of probable cause, (3) false arrests, (4) false statements in police reports, (5) false testimony, and (6) any other evidence of or complaints of dishonesty by Officer M. Duncan (I.D. #2525).”
In Bailey’s counsel’s declaration filed in support of the motion, counsel stated that at the time Duncan stopped Bailey for the Vehicle Code violations, he called for assistance and two other SDSU police officers arrived on the scene, but Duncan made no mention of their presence in his written police report. For the next 10 to 15 minutes, Duncan detained Bailey, but at no time did he cite him for the alleged Vehicle Code violations. Bailey denied he resisted, obstructed or delayed any police officer and claimed he “was cooperative and respectful at all times during the detention.” Toward the end of the detention, Duncan asked Bailey if he could search his bags. When Bailey refused to consent to a search of the bags, saying he had to leave for his class, Duncan became upset and ordered Bailey to stand up against his patrol car. Duncan then arrested Bailey for violating Penal Code section 148, subdivision (a). Bailey denied he walked away from Duncan at any time during the detention.
In opposition to the Pitchess motion, CSU noted it did not contest whether Bailey had established good cause for an in camera review of Duncan’s file and records, but only contested Bailey’s “request for information relating to Off[icer] Duncan that is more than five years old, in violation of Evidence Code section 1045.”
At oral argument, the court announced its tentative ruling to deny the motion because defense counsel’s supporting declaration was too conclusory and did not contain enough factual details to directly counter each allegation in the police report, including the facts that Bailey failed to yield to traffic and jaywalked, and that Bailey flailed his arms around and walked away from Duncan. The court explained that Bailey’s “flat denial” of not walking away did not provide an adequate factual scenario to describe what Bailey was doing during the detention. The court expressed its belief that Bailey was required to specifically deny flailing his arms and walking in circles and needed to say he “didn’t start to walk away” and “was standing still.” As the trial judge noted, “the problem with the declaration [is i]t doesn’t fill in what I think could be filled in.”
After hearing argument from both counsel, in which CSU changed its position to agree with the court that Bailey had not shown good cause for an in camera review, the court denied the motion with prejudice, finding “that the moving papers failed to present sufficient material to satisfy the requirement that the factual scenario will be presented that when read in light of the pertinent documents makes it reasonable to believe that the alleged police misconduct could or may have occurred.”
This petition for writ of mandate followed the summary denial of Bailey’s unopposed writ of mandate submitted initially to the Appellate Division.
DISCUSSION
Bailey contends that the trial court abused its discretion in denying his Pitchess motion because the general allegations in his counsel’s declaration in support of the motion were sufficient to show a “specific factual scenario” supporting his defense of officer dishonesty to meet the low threshold for establishing good cause for discovery. We agree and conclude the trial court should have held an in camera review to determine whether CSU was in possession of any information proper for production that was relevant to Bailey’s defense.
1. Pertinent Law
With regard to discovery of peace officer records in general, our Supreme Court in 1974 first established the guidelines and motion procedure for such discovery in Pitchess, supra, 11 Cal.3d 531. (See Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019 (Warrick).) Then, “[i]n 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ [citation] through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code

sections 1043 through 1045.” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (City of Santa Cruz), fns. omitted.) These Penal Code sections define “[p]eace officer personnel records” and provide they are “confidential,” but subject to discovery pursuant to certain procedures set out in the Evidence Code. (Id. at pp. 81-82, fn. 3.) Together, Evidence Code sections 1043 and 1045 “establish a two step procedure for discovery of peace officer personnel records by a criminal defendant. First, section 1043 requires the defendant to file a written motion for discovery of peace officer personnel records. The motion must include ‘[a] description of the type of records or information sought,’ supported by ‘[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 such governmental agency identified has the records or information from the records.’ [Citations.] [¶] The second step[, which is an in camera examination of the records to determine whether they have any relevance to the issues presented in the current case,] is reached after [a] defendant makes a showing of good cause for the discovery. [Citation.]” (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019-1020 (CHP); City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1143, fn. omitted.)
Under the first step, the declaration generally must establish a “specific factual scenario” establishing a “plausible factual foundation” for the allegations of police misconduct. (City of Santa Cruz, supra, 49 Cal.3d 74, 85-86.) This initial burden of good cause and materiality to justify an in camera review of records is a “relatively relaxed” standard. (Id. at pp. 83-84.) “In contrast to the detailed showing required by some civil discovery statutes [citation], the requisite showing in a criminal matter ‘may be satisfied by general allegations which establish some cause for discovery’ other than a mere desire for all information in the possession of the prosecution. [Citation.] The information sought must, however, be ‘requested with adequate specificity to preclude the possibility that defendant is engaging in a “fishing expedition.” ‘ ” (Id. at pp. 84-85.) 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 [Evidence Code section 1043].” (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 51.)
In Warrick, supra, 35 Cal.4th 1011, our Supreme Court examined and clarified the minimal showing a defendant must make in order to meet the first step in the process of obtaining police records on a Pitchess motion. (Id. at pp. 1021-1026.) The high court noted that with regard to this step, some courts have adhered to a strict good cause inquiry requiring a “specific factual scenario” that establishes a “plausible factual foundation” based on the decision in City of Santa Cruz, supra, 49 Cal.3d 74, while other courts have decided the good cause inquiry “around the statutory formulation of materiality to the subject matter of the pending litigation [citation] or some equivalent terminology. [Citations.]” (Warrick, supra, 35 Cal.4th at p. 1021.) The court explained that “[r]egardless of how the materiality inquiry is described, . . . a showing of good cause requires the defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.” (Ibid.) This relevancy showing requires “some specificity” to ensure that the discovery is warranted. (Ibid.)
The court in Warrick reaffirmed that good cause for discovery is a “relatively low threshold” measured by “relatively relaxed standards.” (Warrick, supra, 35 Cal.4th at pp. 1016, 1019.) It rejected as too stringent a standard requiring that the factual foundation for showing good cause be “reasonably probable or apparently credible.” (Id. at pp. 1025-1026.) Instead, the court concluded that the defendant’s factual scenario of officer misconduct need only be “one that might or could have occurred” even if it were unlikely. (Id. at p. 1026.) Nor need the scenario be corroborated or set forth a motive. (Id. at pp. 1023, 1025.) The scenario is plausible if it “presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Id. at p. 1026.)
The court in Warrick noted that in come cases, a mere denial of the facts asserted in the police report may suffice to show a specific, plausible factual scenario. (Warrick, supra, 35 Cal.4th at pp. 1024-1025; see also (People v. Hustead (1999) 74 Cal.App.4th 410, 416-418 (Hustead).) In other cases, the trial court may be required to further evaluate the factual scenario set forth in the defense affidavit, in light of an evaluation of all the documents presented by the parties, to determine whether there is a plausible factual foundation for the alleged misconduct. (Warrick, supra, at p. 1025; see also City of Santa Cruz, supra, 49 Cal.3d at pp. 85-86.)
The court in Warrick then articulated an analytical framework for the trial courts to use when reviewing the declarations and papers before it on a Pitchess motion. (Warrick, supra, 35 Cal.4th at pp. 1026-1027.) According to Warrick,
“To determine whether the defendant has established good cause for in-chambers review of an officer’s personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense . . . ? Under what theory would the requested information be admissible at trial? If defense counsel’s affidavit in support of the Pitchess motion adequately responds to these questions, and states ‘upon reasonable belief that the governmental agency identified has the records or information from the records’ [citation], then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant.” (Warrick, supra, 35 Cal.4th at pp. 1026-1027.)

Using this analytical approach, the court in Warrick found that the defendant, who was charged with possession of cocaine for sale after three officers had seen him drop numerous rocks of cocaine from a bag he was holding as he fled the officers in a high narcotics activity area, had articulated a sufficiently specific factual scenario of officer misconduct by claiming that he was at the scene merely to purchase cocaine; when the police arrived he fled and ran past the actual seller; and the police were falsely accusing him of being the seller. (Warrick, supra, 35 Cal.4th at pp. 1016-1017, 1022-1023.) The court found this scenario was plausible because it was internally consistent and relevant to prove the defense that he did not possess cocaine for sale (id. at p. 1027), and that the defendant’s “den[ial of] the factual assertions made in the police report–that he possessed and discarded the cocaine . . . established ‘a reasonable inference that the [reporting] officer may not have been truthful.’ [Citation.]” (Id. at p. 1023, second brackets in original.)
2. Analysis
In this case, the trial court denied Bailey’s Pitchess motion because it found defense counsel’s declaration failed to present a sufficient “factual scenario” showing good cause for in camera review of Officer Duncan’s personnel files. Although we recognize that the trial court has wide discretion when ruling on a Pitchess motion (People v. Memro (1995) 11 Cal.4th 786, 832), its exercise of discretion is not unlimited and must be governed by the above controlling legal principles. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) We review the court’s ruling denying Bailey’s motion under the abuse of discretion standard. (CHP, supra, 84 Cal.App.4th at p. 1019.)
Having reviewed the record under such standard in light of the above analytical framework set forth in Warrick, we believe Bailey has met the “relatively relaxed” threshold of showing good cause for an in camera review of potentially relevant documents and that the trial court therefore abused its discretion in denying Bailey’s Pitchess motion. Bailey’s counsel’s declaration addressed each of the points in the Warrick framework. As noted earlier, counsel alleged upon information and belief that Bailey denied walking away from Duncan during the detention; denied resisting, obstructing or delaying Duncan in citing him for certain Vehicle Code violations during that detention; claimed he “was cooperative and respectful at all times during the detention;” and claimed Duncan became angry when he would not consent to a search of his three bags. Based on these facts, counsel alleged that Duncan falsified his police report regarding these matters as well as omitting the fact that two other officers were called to the scene by Duncan. Counsel alleged that Bailey’s defense would be that the charges were fabricated by Duncan because Bailey did not resist being cited on the Vehicle Code violations and did not walk away from Duncan. These facts set forth a “specific factual scenario” establishing a “plausible factual foundation” for the allegations of police misconduct.
Similar to the situation in Warrick, the declaration “articulated a sufficiently specific factual scenario of officer misconduct” by claiming that Bailey was cooperating during the detention and not obstructing Duncan or walking away from him, and claiming that Duncan was falsely accusing him of resisting and obstructing arrest. (Warrick, supra, 35 Cal.4th at pp. 1016-1017, 1022-1023; see also Hustead, supra, 74 Cal.App.4th at pp. 416-418.) This scenario was plausible because it was internally consistent and relevant to prove Bailey’s defense that he did not resist arrest (Warrick, supra, at p. 1027), and that Bailey’s “den[ial of] the factual assertions made in the police report—that he [walked away and obstructed or delayed Duncan in writing Vehicle Code violations] . . . established ‘a reasonable inference that the [reporting] officer may not have been truthful.’ ” (Id. at p. 1023, second brackets in original.) As the court in Warrick 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.) Bailey’s declaration satisfied this standard.
Further, counsel’s declaration and the supporting motion papers showed that the requested discovery is tailored to Bailey’s defense because it is limited to complaints of falsifying police reports and related misconduct of dishonesty in the records in possession of CSU or the SDSU police department. The requested discovery is likely to lead to supportive information because, if there are prior complaints of falsifying police reports or other complaints of dishonesty by Duncan, that information may help Bailey develop admissible impeachment evidence, which is the theory under which such information would be admissible. Therefore, under Warrick, Bailey has shown good cause for an in camera review of Duncan’s personnel files in possession of CSU and the SDSU police department.
In sum, because defense counsel’s declaration meets the low threshold and objective of Warrick’s analytical framework for Pitchess discovery by providing general allegations and simple denials that provide a plausible factual scenario of officer misconduct and ensure the materiality of the requested information to Bailey’s defense, the trial court abused its discretion in denying Bailey’s Pitchess motion.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its December 8, 2006 order denying Bailey’s Pitchess motion and directing the court to conduct an in camera review of Officer Duncan’s personnel records. 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).)

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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