Filed 7/15/14 City of Brawley v. Superior Court CA4/1

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                    COURT OF APPEAL - FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



CITY OF BRAWLEY,                                                 D066145

         Petitioner,                                             (Imperial County
                                                                 Super. Ct. No. JCF32751)
         v.

THE SUPERIOR COURT OF IMPERIAL
COUNTY,

         Respondent;


FRANK RODRIGUEZ,

         Real Party in Interest.


         PROCEEDINGS in mandate after superior court granted motion for pretrial

discovery. Raymundo Ayala Cota, Judge. Petition granted in part and denied in part.

         Dennis H. Morita, City Attorney, for Petitioner.

         No appearance for Respondent.

         Timothy Reilly, Imperial County Public Defender, and Jason Gundel, Deputy

Public Defender, for Real Party in Interest.
       Petitioner City of Brawley (the City) challenges an order granting the motion of

real party in interest Frank Rodriguez for discovery of information in the personnel file of

one of its police officers. We grant the petition in part and deny it in part.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Rodriguez is the defendant in a criminal action pending in respondent Imperial

County Superior Court. The charges arose out of the discovery of knives and a

hypodermic needle in Rodriguez's pockets after police officers of the City stopped and

frisked Rodriquez in response to a 911 call that a man matching his description was

pointing a gun at people in a school zone. Claiming that the legality of the search would

be a substantial issue in the case and that the arresting officers had harassed him on

multiple prior occasions by subjecting him to searches and seizures without either

reasonable suspicion or probable cause, Rodriguez sought discovery of information

concerning similar complaints of harassment that might be contained in the arresting

officers' personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531

(Pitchess). Over the City's opposition and after reviewing the personnel files in

chambers, respondent ordered the City to disclose to both Rodriguez and the People the

names and contact information of two persons who made complaints of misconduct

against one of the arresting officers.

       The City challenged respondent's order by petition for writ of mandate, arguing

Rodriguez did not establish good cause for Pitchess discovery and the People are not

entitled to such discovery. We stayed the portion of respondent's order directing

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disclosure to the People, solicited and obtained an informal response from Rodriguez, and

notified the parties we were considering issuing a peremptory writ of mandate in the first

instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-180.)

In his response, Rodriguez contends respondent correctly ordered disclosure of Pitchess

information to him, but he asserts the order directing disclosure to the People is "not

supported by law" and does not oppose vacatur of that portion of the order.

                                       DISCUSSION

       We agree with the parties that respondent erred by ordering disclosure of Pitchess

materials to the People. Our Supreme Court has held "the prosecution has no automatic

entitlement to defense-initiated Pitchess discovery." (Alford v. Superior Court (2003) 29

Cal.4th 1033, 1046, fn. 6.) Unless the prosecution itself seeks Pitchess discovery and

complies with the statutory motion procedure, "peace officer personnel records retain

their confidentiality vis-à-vis the prosecution." (Id. at p. 1046.) Since the prosecution

did not make a Pitchess motion, it is not entitled to receive the information respondent

ordered disclosed to Rodriguez.

       We further conclude issuance of a peremptory writ in the first instance is

appropriate because the material facts are not in dispute, the law is well-settled, and

Rodriguez has conceded respondent's error. (Code of Civ. Proc., § 1088; Lewis v.

Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Fontaine v. Superior Court (2009)

175 Cal.App.4th 830, 842.)




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                                      DISPOSITION

       Let a writ of mandate issue directing respondent to vacate the portion of its order

of May 20, 2014, that Pitchess discovery materials be disclosed to the People. In all

other respects, the petition is denied. The stay previously issued by this court is

dissolved. The parties shall bear their own costs of this writ proceeding. (Cal. Rules of

Court, rule 8.493(a)(1)(B).)



                                                                             HUFFMAN, J.

WE CONCUR:



                         IRION, J.



             BENKE, Acting P. J.




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