Filed 12/1/14 Nauman v. Appellate Div. of Superior Court CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


NANCY JANE NAUMAN,

     Petitioner,

         v.                                                            G050786

APPELLATE DIVISION OF THE                                              (Super. Ct. Nos. 13WM02844,
ORANGE COUNTY SUPERIOR COURT,                                           30-2014-00745573)

     Respondent;                                                       OPINION

CITY OF HUNTINGTON BEACH,

     Real Party in Interest.



                   Original proceedings; petition for a writ of mandate to challenge an order of
the Appellate Division of the Orange County Superior Court, Deborah C. Servino, Glenn
R. Salter, and Richard Y. Lee, Judges. Petition granted.
                   Frank Ospino, Public Defender, Mark S. Brown and Scott Van Camp,
Deputy Public Defenders for Petitioner.
              No appearance for respondent.
              Jennifer McGrath, City Attorney and Daniel K. Ohl, Deputy City Attorney,
for Real Party in Interest.


THE COURT:


              Respondent trial court denied petitioner, Nancy Jane Nauman’s discovery
motion and she sought review in the Superior Court Appellate Division. The Appellate
Division denied relief on the basis that Nauman has an adequate remedy at law. We
disagree and grant the petition.


                                         FACTS


              Petitioner, Nancy Jane Nauman, was arrested for two misdemeanor counts
of driving under the influence. According to the police report, dispatch advised
Huntington Beach police officers that a possible drunk driver left a bar on Beach
Boulevard traveling in an unknown direction. The caller identified the driver as a female
and provided a description of the license plate number and the car, an older yellow Dodge
Dart. According to the police report, while traveling on Main Street, officers observed a
yellow Dodge Dart with the same license plate number that had been broadcast by the
dispatcher. According to the officer who prepared the police report, as they were
traveling behind the car traveling southbound on Main Street, they observed the car “as it
began to drift into the single lane of northbound Main Street approximately three times
for several seconds, violation of CVC 21658(a).” According to the police report, the
officers conducted a traffic stop and spoke to Nauman, who was identified as the sole


      Before O’Leary, P. J., Ikola, J., and Thompson, J.

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occupant of the car. According to the police report, Nauman displayed signs of being
under the influence and she “advised me she was coming from [the] bar and was driving
home.”
              After administering field sobriety tests, Nauman was arrested for suspicion
of driving under the influence. The car, which the police report states was illegally
parked along a red curb, was towed.
              Nauman filed a discovery motion pursuant to Evidence Code sections 1043
through 1047, and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
According to counsel’s declaration filed in support of the motion, Nauman was not
driving when she was arrested by the officers in this case. According to counsel’s
declaration, at the time Nauman was contacted by the officers, (1) her car was already
parked on Main Street, (2) she was asleep inside the car, (3) the officers never observed
her driving on Main Street as claimed in the police report, (4) the officers never observed
her car drift into the northbound lane as claimed in the police report, and (5) she never
told the officers she was driving home from a bar as the officer also claimed in the police
report. According to counsel’s declaration, the officer who prepared the arrest report
committed acts of misconduct in the form of dishonesty when he prepared a police report
claiming he witnessed Nauman driving and drifting into the northbound lane. He was
also intentionally false when he attributed the statement to her that she said she was
driving home from a bar.
              Counsel’s declaration states that based on “the information alleged in the
police report, we are informed and believe that [the officer] fabricated his description of
events in this case and he did not see [ ] Nauman driving.” According to counsel, the
digital audio or video recording system are unavailable and “[i]n the absence of an
alternative verification tool, the credibility of the testimony given from the officer who
reported the alleged events . . . is a material issue to the defense’s case.” According to
counsel’s declaration, the discovery motion is being used to “locate and investigate other

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witnesses to[,] and other victims of this officer’s acts of dishonesty and fabrication of
police reports. It will be used in cross-examination and impeach the officer at trial.”
              Although Nauman never claimed a Fourth Amendment violation when
officers contacted her while she was sleeping in a car illegally parked on a city street,
respondent trial court questioned why a motion to suppress had not been filed and said,
“. . . there may be a fertile ground here for a challenge based on Fourth Amendment
rights of the defendant that this – I think the officer has to have some reason for an
enforcement stop, and if it seems to me that information would come out in a 1538.5, if,
in fact, the information at a suppression motion might reveal a plausible scenario to
review the officer’s personnel records.” (Italics added.)
              When respondent trial court addressed the merits of the motion, it said,
“I’m not convinced at this juncture based upon the dispute over whether or not, I gather,
the vehicle was moving or not is sufficient for this court to grant a Pitchess motion that
would be to the extent where the court would go into chambers, review the officer’s
records for dishonesty; because it seems to me that under a 1538 you might achieve,
essentially, the objective in terms of this case of having all evidence of a detention and a
stop suppressed rather than this court at this juncture based upon these scant facts that,
frankly, don’t suggest to me a plausible scenario that would warrant this court reviewing
the officer’s personnel records in chambers and in camera.”
              When it finally ruled on the motion, respondent court said, “. . . I’m going
to deny the Pitchess motion. I’m not going to go into chambers based upon what I would
deem as a fairly threadbare allegation of what happened in terms of the version, the
plausible scenario presented by the defense counsel as opposed to the scenario presented
by the city attorney. [¶] The bottom line is that’s why we have appeals court. I may be
wrong on that. It may be that the standard is so low at this juncture that any allegation
that there is a difference of opinion in terms of what happened based upon what your
client is telling you what happened based upon what the police officer has alleged in his

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report upon which the district attorney elected to file a charge – perhaps, I am mistaken.”
(Italics added.)
               To clarify matters, the court said, “. . . I want to make clear that my ruling
today in denying this Pitchess motion at this time with prejudice in that I believe there
has to be more to the factual scenario, the plausible scenario, other than the difference as
to whether the vehicle was observed or not observed based upon the facts and
circumstances as presented in this particular case.” (Italics added.)
               Nauman sought review of the trial court’s ruling in the Superior Court
Appellate Division. The Appellate Division denied relief with the statement, “Petitioner
has an adequate remedy at law.”
               Nauman sought relief in this court and we invited real party (the City) to
file an informal response to the petition and issued Palma notice. (Palma v. U.S.
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) In its informal response, the City
takes the position the trial court’s ruling is correct because good cause was lacking as a
result of petitioner failing to “‘explain the facts in the police report,’ [citation] [she] did
not deny conversing with [the officer] or provide an alternate version of the facts
concerning the reason and nature of her conversation with him[,] [citation] [t]he motion
failed to include her path of travel to the location of the stop, her objective symptoms of
alcohol intoxication, her apparent confusion in answering simple questions concerning
her drinking that evening, her inability to pass the field sobriety test, her admissions
regarding her drinking, or that someone was concerned enough to report to the police that
someone in a car matching hers, with the same license plate, left [the bar] with a possibly
drunk driver.”




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                                       DISCUSSION


              Subdivision (b) of Evidence Code section 1043 states a motion seeking
discovery into an officer’s personnel record, “shall include all of the following: [¶] (1)
Identification of the proceeding in which discovery or disclosure is sought, the party
seeking discovery or disclosure, the peace or custodial officer whose records are sought,
the governmental agency which has custody and control of the records, and the time and
place at which the motion for discovery or disclosure shall be heard[;] [¶] (2) A
description of the type of records or information sought[;] [¶] (3) Affidavits 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.”
              To the extent denial of the Pitchess motion and subsequent review was
based on Nauman’s failure to file a suppression motion before filing the Pitchess motion,
Nauman is entitled to relief. There is no requirement in either Evidence Code section
1043 or Pitchess that requires the moving party to make an election between pretrial
motions. Nor is there a designated order or hierarchy as to which motions must be filed
and considered first before the court rules on the merits of a Pitchess motion. Decisions
to file pretrial motions, such as a motion to suppress evidence, are tactical decisions,
within the discretion of counsel to control trial strategy. (People v. Turner (1992) 7
Cal.App.4th 1214, 1220-1222.)
              In this case there a number of reasons why counsel either did not file a
motion to suppress, or filed the Pitchess motion first, not the least of which is counsel’s
explanation at the hearing, “The issue is not a stop,” and the possibility that complaints
may be purged from an officer’s personnel file while the defendant litigates or
investigates pretrial motions. (Pen. Code, § 832.5, subd (b).) “Reviewing courts should



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avoid second-guessing counsel’s informed choice among tactical alternatives.” (People
v. Pope (1979) 23 Cal.3d 412, 424.)
              The only issue respondent court should have considered is whether Nauman
made the required showing of good cause to be entitled to the in camera review by the
court. As City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 (Santa Cruz),
explained, to show “good cause” a moving party must present a “specific factual
scenario” establishing a “plausible factual foundation” for allegations of officer
misconduct. (Id. at pp. 85-86.)
              Although the trial court described Nauman’s specific factual scenario as a
“very minor divergence,” “[the] factual scenario, depending on the circumstances of the
case, may consist of a denial of the facts asserted in the police report.” (Warrick v.
Superior Court (2005) 35 Cal.4th 1011, 1024-1025 (Warrick).)
              Without the benefit of an audio or digital recording, it’s unclear what
additional facts Nauman should have alleged. The City contends Nauman failed to
discuss her path of travel, her symptoms of intoxication, her inability to pass a field
sobriety test, and her conversation with the officer. But these facts are largely irrelevant
and miss the point. Nauman did not claim that she was not intoxicated or that she did not
speak to the officers.
              Nauman’s specific factual scenario in this case consists of more than a
general denial and alleged that at the time the officers in this case claimed they conducted
a traffic stop, she was asleep in a parked car and therefore any police report that describes
her driving on Main Street, in any manner, is false. Nauman states further that any police
report that claims she told the officer she was driving home from a bar is also false. As a
result of the disparity between Nauman’s version of events and the description of her
arrest in the police report, Nauman states the officer who prepared the arrest report
committed acts of misconduct in the form of dishonesty when he prepared the police
report and claimed to have seen her driving and drifting into the northbound lane, and

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attributed the statement to her that she was driving home from a bar. This “minor
divergence” could not be more colossal.
              With respect to presenting a plausible factual foundation, respondent trial
court concluded the “scant facts . . . don’t suggest . . . a plausible scenario . . . warranting
reviewing the officer’s personnel records in chambers and in camera.” Respondent trial
court’s explanation that Nauman’s version of the facts represent a fairly threadbare
allegation “as opposed to” the scenario presented by the city attorney, suggests
respondent court judged the credibility of the versions provided by the parties, which
“elevate[s] the showing of good cause for Pitchess discovery beyond that required by
law.” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1024.) “To require a criminal
defendant to present a credible or believable factual account of, or a motive for, police
misconduct suggests that the trial court’s task in assessing a Pitchess motion is to weigh
or assess the evidence. It is not. . . . 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.” (Id. at p. 1026.)
              “[A] plausible scenario of officer misconduct is one 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 charges.” (Warrick, at p. 1026.)
              Although we review Pitchess orders under the abuse of discretion standard
(People v. Hughes (2002) 27 Cal.4th 287, 330), our Supreme Court has emphasized the
threshold showing of good cause required to obtain Pitchess discovery is “relatively
low.” (Santa Cruz, supra, 49 Cal.3d at p. 83; Garcia v. Superior Court (2007) 42 Cal.4th
63, 70.) In this case, the trial court was tasked with making a determination of whether
Nauman’s version, that she was asleep in a parked car when approached by the officers,
“might or could have occurred,” not weigh Nauman’s version against the officer’s

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account in the police report. “[W]hen a trial court’s decision rests on an error of law, that
decision is an abuse of discretion.” (People v. Superior Court (Humberto S.) (2008) 43
Cal.4th 737, 746.) It is an abuse of discretion to apply the wrong legal standard. (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)


                                      DISPOSITION


              Let a peremptory writ of mandate issue in the first instance directing the
Appellate Division of the Orange County Superior Court to vacate its order denying the
petition for writ of mandate, and instead consider the merits of the petition.




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