Filed 6/3/14 Green v. Superior Court CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



CELINA GREEN                                                     D065248

         Petitioner,                                             (San Diego County
                                                                 Super. Ct. No. SCD248478)
         v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;

SAN DIEGO POLICE DEPARTMENT

        Real Party in Interest.



         PROCEEDINGS in mandate after the superior court denied petitioner's Pitchess

motion seeking records of arresting officers. Frederic L. Link, Judge. Petition granted.

         Henry C. Coker, Public Defender, Randy Mize, Chief Deputy Public Defender,

Matthew Braner and Courtney K. Cutter, Deputy Public Defenders, for Petitioner.

         No appearance for Respondent.
       Jan I. Goldsmith, City Attorney, Mary Jo Lanzafame, Assistant City Attorney, and

Noah J. Brazier, Deputy City Attorney, for Real Party in Interest.

       Petitioner Celina Green1 was charged with (1) possession of marijuana for sale

(Health & Saf. Code, § 11359; count 1); and (2) resisting, delaying or obstructing an

officer (Pen. Code, § 148, subd. (a)(1)). In response Green filed a Pitchess2 motion,

seeking the records of the arresting officers to support a claim that they lied in their

police reports and used excessive force. The court denied the motion without prejudice,

finding Green's declaration did not meet the good cause standard for granting a Pitchess

motion. Green thereafter filed a second Pitchess motion seeking the same type of

discovery from the officers, attaching a new declaration. The second motion was also

denied for failing to establish good cause.

       Green thereafter filed this petition for writ of mandate, asserting she satisfied the

low threshold for in camera review. We conclude the court erred in denying Green's

Pitchess motion and therefore grant the petition.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. The Arrest

       On June 2, 2013, at approximately 8:00 p.m., San Diego Police Officers

Christopher Luth and Jorge Carranza were on patrol in the mid-city area of San Diego.

1     Although the caption of this petition refers to the petitioner as Celina Ramirez
Salgado and at places in the record she is also sometimes referred to as Celina Ramirez
Salgado, a review of the record shows that her true name is Celina Green.

2      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

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They were requested by radio to assist Officers Matt Ruggiero and S. Holden at Teralta

Park, which is located at 4000 Orange Avenue. Teralta Park is known to police for gang

and drug activity.

       Officer Ruggiero radioed Officers Luth and Carranza to contact Green. When

they arrived, they saw Green as she was walking across the park. She was carrying a

large purse that appeared to be full.

       The officers drove over a handicap access ramp into the park and then drove

across the grass, stopped behind Green, and got out of the patrol car. Green was still

walking across the park. Officer Luth called out to her and asked her if he could talk to

her. Green said "sure" and turned around. While talking to Green, the officers noticed

she was carrying something under her arm. They asked what it was, and Green showed

them a small flat box labeled "digital pocket scale." Officer Luth recognized that digital

pocket scales are commonly carried by people who sell narcotics.

       The officers determined that one of the males in the group, Jason Powers, was on

probation. Upon discovering this, Officer Luth asked Green if he could take her purse

and if she would sit in his patrol car so she could await a female officer to arrive to

conduct a weapons search. Green refused to give Officer Luth the purse and yelled she

was not a "fourth waiver."

       Officer Luth grabbed her left wrist to prevent her from reaching into her purse.

According to officers, Green tensed her muscles and began resisting the officers' force.

Officer Carranza then grabbed her right wrist. The officers attempted to bring Green to

the ground, but she bent her knees in order to remain on her feet. Officer Tobia

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Terranova joined in and applied a carotid restraint. The officers forced Green to the

ground, handcuffed her, and arrested her for resisting an officer.

        Officer Luth searched Green's purse incident to the arrest. He found a digital scale

with marijuana residue on it that matched the empty box she had been concealing under

her left shoulder. Green's purse also had a small metal pipe with burnt marijuana residue

and a purple bottle containing a small amount of marijuana. Officer Barajas searched

Green's person. In the right front pocket of her sweater the officer found five small

baggies of marijuana. Officers also found a sixth bag of marijuana in the area where

Green had initially been seen by officers. A search of Green's phone showed that she had

been texting Powers prior to the police contact.

        B. Declarations Filed in Support of Pitchess Motion

        In support of her first Pitchess motion Green filed a declaration pointing out 28

discrepancies between the officers' police reports and testimony at the preliminary

hearing, alleging therefore that the officers lied in their police reports. However, that

declaration did not allege that the officers used excessive force and did not adequately set

forth the defense's version of events. Because of these defects, the court denied the

motion, without prejudice. In doing so, the court stated that "the defense must set forth a

factual scenario that establishes a plausible factual foundation for the allegations of

officer misconduct–[¶] . . . [¶]– . . . and that the misconduct would be material to the

defense . . . ."

        Thereafter, Green renewed her motion with a new declaration that again pointed

out the discrepancies between the police reports and the officers' preliminary hearing

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testimony. Of relevance to this petition,3 Green stated (1) Officer Luth testified that she

began resisting as soon as he took her arm, but Officer Carranza testified that she did not

begin resisting until Officer Luth tried to take her purse; (2) in his report and direct

testimony Officer Luth omitted any mention of a carotid restraint being used, but upon

cross-examination he admitted a carotid restraint was used; (3) Officer Luth initially

denied that a carotid restraint is intended to make a suspect lose consciousness, but then

admitted that it was intended to allow an officer to gain control of a suspect by making

them lose consciousness; (4) Officer Luth failed to mention in his police report that

Green was injured as a result of the struggle, only Officer Carranza mentioned visible red

marks on her neck; (5) Officer Luth stated in his police report that Green pulled away

from him when he grabbed her arms, but testified at the preliminary hearing that she

never actually "broke free" from his grasp; (6) Officer Luth stated in his police report that

he told Green that he was going to detain her, but testified at the preliminary hearing that

he never told Green that he was detaining her; (7) in his police report Officer Luth did not

write that he never told Green to calm down, but testified at the preliminary hearing that

he told her to relax and calm down after the struggle began; and (8) Officer Luth stated

that he contacted Green after 8:00 p.m., but testified that it was still daylight when he

interacted with her.

       Moreover, this declaration expressly alleged that Officer Luth used excessive

force when he grabbed Green's arm without warning. It alleged Officer Carranza used


3      We have omitted a discussion of alleged discrepancies between the police reports
and preliminary hearing testimony that are irrelevant to Green's claim of excessive force.
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excessive force when he grabbed her arm and attempted to apply a pressure point

restraint. Green also alleged that Officer Terranova used excessive force in applying a

carotid restraint on her.

       The court denied the renewed motion. In doing so, the court indicated there was

no new information in the second declaration. The court stated that it felt like it was

"being asked to give [Green] a second bite at the apple with no new information."

However, the court also stated, "I think there was a lot of force used. My major concern

was that there was a carotid restraint used on a woman. My other concern was that police

in a park, drive a car across the grass to approach a woman because she leaves a known

drug area possibly, but they drove across a park, in a police car, to stop a woman, who

chose to walk away. . . . I think they went overboard with the . . . force." However, the

court also found, "There were no lies in report[s] that I can find."

                                       DISCUSSION

       A. Standards Governing Pitchess Motions

       In Pitchess, the California Supreme Court held that "a criminal defendant has a

limited right to discovery of peace officer personnel records in order to ensure 'a fair trial

and an intelligent defense in light of all relevant and reasonably accessible information.' "

(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038, fn. 3, quoting Pitchess, supra, 11

Cal.3d. at p. 535.)

       In 1978 the California Legislature codified the holding of Pitchess by enacting

Penal Code sections 832.7 and 832.8, as well as Evidence Code sections 1043 through

1045. (Added by Stats.1978, ch. 630, §§ 1–3 & 5–6, pp. 2082–2083; see City of Los

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Angeles v. Superior Court (2002) 29 Cal.4th 1, 9.) To initiate discovery, the defendant

must file a motion supported by affidavits showing "good cause for the discovery"—first

by demonstrating the materiality of the information to the pending litigation and second

by "stating upon reasonable belief" that the police agency has the records or information

at issue. (Evid. Code, § 1043, subd. (b)(3).) This two-part showing of good cause is a

"relatively low threshold for discovery." (City of Santa Cruz v. Municipal Court (1989)

49 Cal.3d 74, 83.)

       If the trial court finds good cause for the discovery, it reviews the pertinent

documents in chambers and discloses only that information falling within the statutorily

defined standards of relevance. (People v. Mooc (2001) 26 Cal.4th 1216, 1226–1227; see

City of Los Angeles v. Superior Court, supra, 29 Cal.4th at pp. 9–10.) The trial court

may not disclose complaints more than five years old, the "conclusions of any officer"

who investigates a citizen complaint of police misconduct, or facts "so remote as to make

[their] disclosure of little or no practical benefit." (Evid. Code, § 1045, subd. (b); City of

Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 9.) Typically, the trial court

discloses only the names, addresses, and telephone numbers of individuals who have

witnessed, or have previously filed complaints about, similar misconduct by the officer.

(See Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1089–1090.) That

practice "imposes a further safeguard to protect officer privacy where the relevance of the

information sought is minimal and the officer's privacy concerns are substantial." (Id. at

p. 1090.)



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       A good cause showing "exists if the defendant demonstrates both (1) a 'specific

factual scenario' that establishes a 'plausible factual foundation' for the allegations of

officer misconduct [citations], and (2) that the misconduct would (if credited) be material

to the defense . . . . [T]he materiality element requires the defendant to establish a logical

link between the pending charge and the proposed defense, and to articulate how the

requested discovery will support the proffered defense. [Citation.] Accordingly, defense

counsel's supporting declaration must propose a defense and articulate how the requested

discovery may be admissible as direct or impeachment evidence in support of the

proposed defense, or how the requested discovery may lead to such evidence. [Citation.]

Thus, a defendant meets the materiality element by showing: (1) a logical connection

between the charges and the proposed defense; (2) the requested discovery is factually

specific and tailored to support the claim of officer misconduct; (3) the requested

discovery supports the proposed defense or is likely to lead to information that will do so;

and (4) the requested discovery is potentially admissible at trial." (Giovanni B. v.

Superior Court (2007) 152 Cal.App.4th 312, 319.)

       Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick) is instructive. In

Warrick the defendant was charged with possession of cocaine base for sale, in violation

of Health and Safety Code section 11351.5. The police report stated that officers

observed the defendant in an area known for drug trafficking. When the officers exited

their marked patrol vehicle, defendant fled, discarding a substance that resembled rock

cocaine. He was arrested after a short pursuit. (Warrick, at pp. 1016–1017.)



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       The defendant sought disclosure of the arresting officers' personnel records

seeking information on past complaints for false arrests, false police reports, or

fabricating evidence. He submitted a declaration stating he admitted being in the area

and fleeing from officers. He asserted, however, that he was in the area to purchase rock

cocaine, not sell it. He fled when he saw the officers because he was concerned he would

be arrested on an outstanding parole violation. He denied possessing or discarding any

rock cocaine. Defense counsel argued the officers, not knowing who had discarded the

rock cocaine, falsely claimed to have seen the defendant do so. The records sought

would be used to establish the officers were not credible. (Warrick, supra, 35 Cal.4th at

p. 1017.)

       The trial court denied the motion, finding that the defendant's theory, while

possible, was not plausible. Accordingly, the trial court concluded he failed to establish

good cause for the disclosure of the personnel records. The Court of Appeal upheld the

trial court decision. (Warrick, supra, 35 Cal.4th at pp. 1017-1018.)

       The Supreme Court reversed. In doing so the high court noted that "a showing of

good cause requires a 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. This court has long required that the information sought must

be described with some specificity to ensure that the defendant's request is not so broad

as to garner '"all information which has been obtained by the People in their investigation

of the crime"' but is limited to instances of officer misconduct related to the misconduct

                                              9
asserted by the defendant. [Citations.] [¶] This specificity requirement excludes requests

for officer information that are irrelevant to the pending charges. [Citation.] And it

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, supra, 35 Cal.4th at pp. 1021–1022.)

       In discussing the Court of Appeal's reasoning, the Supreme Court reiterated that

good cause under Evidence Code section 1043 required defense counsel to provide a

declaration that proposed "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 [citations] that would support those proposed

defenses. These requirements ensure that only information 'potentially relevant' to the

defense need be brought by the custodian of the officer's records to the court for its

examination in chambers. [Citations.] [¶] Counsel's affidavit must also describe a factual

scenario supporting the claimed officer misconduct. That factual scenario, depending on

the circumstances of the case, may consist of a denial of the facts asserted in the police

report." (Warrick, supra, 35 Cal.4th at pp. 1024–1025.)

       The Supreme Court held that to establish a plausible factual scenario of officer

misconduct, the declaration must assert a course of conduct 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

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charges. A defendant must also show how the information sought could lead to or be

evidence potentially admissible at trial. Such a showing 'put[s] the court on notice' that

the specified officer misconduct 'will likely be an issue at trial.' [Citation.] Once that

burden is met, the defendant has shown materiality under [Evidence Code] section 1043."

(Warrick, supra, 35 Cal.4th at p. 1026.) The Supreme Court concluded the factual

scenario described by defense counsel was plausible under this test, thus requiring the

trial court to examine the personnel records in camera. (Id. at p. 1027.)

       Here, Green's declaration satisfied the minimal showing required to permit an in

camera review of officer records. It alleged both that officers used excessive force and

that they were dishonest in their descriptions of the events that led up to her being

charged with resisting arrest. If excessive force was used, that would be a defense to that

charge because the prosecution must prove that the police were acting lawfully when they

detained and arrested her. (See CALCRIM No. 2656.) "A peace officer is not lawfully

performing his or her duties if he or she is . . . using unreasonable or excessive force in

his or her duties." (Ibid.)




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                                      DISPOSITION

       Let a writ of mandate issue directing the superior court to vacate its ruling of

November 8, 2013, and conduct an in camera review of the personnel files of the three

officers accused of using excessive force for evidence of dishonesty and alleged incidents

of prior use of excessive force. The stay issued by this court on January 30, 2014, is

vacated.


                                                                       NARES, Acting P. J.

WE CONCUR:


O'ROURKE, J.


AARON, J.




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