Filed 12/15/15 Gonzalez v. Superior Court CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MARTHA GONZALEZ,

         Petitioner,                                                     E063482

v.                                                                       (Super.Ct.Nos. INM1403572 &
                                                                         APP1500084)
THE SUPERIOR COURT OF
RIVERSIDE COUNTY,                                                        OPINION

         Respondent;

THE PEOPLE, et al.,

         Real Parties in Interest.



         ORIGINAL PROCEEDINGS; petition for writ of mandate. John G. Evans, Judge.

Petition granted.

         Steven L. Harmon, Public Defender, Laura Arnold, Deputy Public Defender, for

Petitioner.

         No appearance for Respondent.




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       Steven B. Quintanilla, City Attorney, Joseph A. Meeks, Deputy City Attorney for

Real Party in Interest, City of Desert Hot Springs.

       In this matter we have reviewed the petition, the informal response by real party in

interest, and petitioner’s informal reply. Having determined that petitioner may have

established a right to relief, we set an order to show cause and requested a return and

traverse, which we have received and reviewed. For the reasons we set forth post, we

conclude a writ must issue to require the trial court to review police officer records in

camera in response to petitioner’s Pitchess1 motion and disclose those that are

discoverable.

                    FACTUAL AND PROCEDURAL BACKGROUND

       On the day of the incident leading to petitioner’s arrest, Officer D. Chang, who is

employed by real party in interest’s police department, responded to the scene of a traffic

collision. The police report Officer Chang authored sets forth the following factual

allegations:

       After speaking to the person who reported the accident and walking in the

direction given by “[n]umerous subjects standing in the street,” Officer Chang located

petitioner and an adult man walking away from the scene. Petitioner’s nose was bloody,

and she said her face had hit the dashboard in the traffic collision. Petitioner said she was

walking home because she “got scared and left her car.”

       Officer Chang detected the odor of alcohol on petitioner’s breath, and her face was

flushed. Petitioner told Officer Chang that he had no authority over her; that she did not

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

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respect him; and she answered, “no,” and started yelling profanities when he asked her if

she had consumed alcohol. Petitioner was swaying from side to side, and Officer Chang

told her to sit down on the curb. When paramedics arrived, petitioner “was belligerent

and uncooperative” with them. She stood up and started walking away when a juvenile,

later identified as petitioner’s daughter, ran up to petitioner. Petitioner hugged her

daughter, and the two started leaving the scene on foot. When Officer Chang told

petitioner she was not free to go, she repeated that he had no authority and yelled

profanities at him and the paramedics. Petitioner again declined medical attention. She

also refused to perform field sobriety tests upon request by Officer Chang and instead

“continued to curse at” him.

       Another officer told Officer Chang the man who had been walking away from the

scene with petitioner said that petitioner had consumed 23 milliliters of vodka before

driving. Petitioner was placed under arrest for driving under the influence. As Officer

Chang walked her to a police vehicle, petitioner “continued to yell profanities and racial

slurs” at him and told him “not to drag her.” Officer Chang “escorted” petitioner by her

left arm, said he was not dragging her, and told her she had to walk to the car. Petitioner

instead kicked Officer Chang in the right thigh. Officer Chang grabbed petitioner’s left

bicep, pinned her against the fender of a police vehicle, and told her not to kick him.

However, petitioner tried to kick Officer Chang again. He told her to calm down, but she

kept yelling profanities. Another officer helped place petitioner in a police vehicle and

transported her to the station for processing.




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       Officer Chang read petitioner her Miranda2 advisements. She said she understood

them but continued to yell profanities and racial slurs at Officer Chang. Petitioner

accused Officer Chang of slamming her into a car even though she is female, but she also

admitted it was not “okay for her to kick” him. When Officer Chang told petitioner he

had only used the force necessary to prevent a further assault, she yelled more profanities

and racial slurs at him. Petitioner also yelled profanities at Officer Chang while

unsuccessfully attempting to provide a breath sample. She provided a blood sample and

was booked into custody.

       Petitioner was charged with three misdemeanors: battery on a police officer (Pen.

Code, § 243, subd. (b)); driving under the influence (Veh. Code, § 23152, subd. (a)); and

driving under the influence with a blood-alcohol content above 0.08 percent (Veh. Code.

§ 23152, subd. (b)). She filed a Pitchess motion asking the trial court to review Officer

Chang’s police personnel records for evidence of and complaints of: (1) excessive force;

(2) false statements in reports; (3) unlawful arrests; (4) false testimony; and (5) any other

evidence of or complaints of dishonesty by Officer Chang. Attached to the motion was a

declaration from petitioner’s counsel, who set forth the following, very different version

of events:

       After the accident, three police officers approached petitioner. Her nose was

“broken and bleeding,” and the officers told her to walk toward her home. Petitioner

complied. All three officers left after reaching the front of petitioner’s home, so

petitioner went toward the paramedics to sign medical papers.

       2   Miranda v. Arizona (1966) 384 U.S. 436.

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       Officer Chang then spoke to petitioner. She answered all of his questions and did

not yell obscenities. She cannot have yelled racial slurs at him because she did not know

his race. Rather, “Her condition at the time was that of dazed and confused about what

was happening.” Petitioner complied with Officer Chang’s request to stay with him

while another officer interviewed the man petitioner had been with. When petitioner’s

daughter ran out of petitioner’s home, petitioner hugged the minor and told her to go back

inside. Officer Chang told petitioner to sit down on the curb, and she tried to comply but

tripped and fell on the ground.

       At that point, Officer Chang grabbed petitioner’s left hand and twisted her left arm

behind her back. He lifted her up by one arm and pushed her into a police vehicle.

Petitioner did not kick Officer Chang; in fact, she could not have done so even had she

tried because she was unable to regain her balance and walk on her own. Officer Chang

then slammed petitioner against the hood of the police vehicle so hard that the impact

caused her “to ‘see lights’ and become even more dizzy.” Her face hit the hood of the

vehicle, and she injured her chin. Petitioner did not kick Officer Chang again and could

not have done so because he had her body pinned against the police vehicle. Officer

Chang did not need help getting petitioner into the police vehicle and “was able to

impose his will upon [her] the entire time.”

       The Pitchess motion argued petitioner was entitled to discovery from Officer

Chang’s personnel file because her version of events constituted a defense to the count

for battery on a police officer. The trial court acknowledged that petitioner’s burden on a

Pitchess motion was minimal, but still denied the motion. Its rationale was that there


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were other eyewitnesses who could confirm petitioner’s side of the story, so there were

“no special circumstances which would support the Pitchess motion.” Petitioner filed a

writ of mandate in the appellate division of the superior court, but it was summarily

denied.

                                        DISCUSSION

       At the outset, we address real party in interest’s argument that mandate is never

available to control the discretion of the trial court. We agree that whether to review

Pitchess records in camera or whether to deny a motion entirely rests within the trial

court’s sound discretion (see, e.g., People v. Galan (2009) 178 Cal.App.4th 6, 12), and

that we should not interfere with a trial court order that is within that court’s discretion.

However, we note, “It is undisputed that mandate is the appropriate remedy to enforce an

asserted right to pretrial discovery.” (Hill v. Superior Court (1974) 10 Cal.3d 812, 816,

fn. 2.) Since petitioner is trying to enforce a right to pretrial discovery, and since we

agree with her that the trial court’s ruling was erroneous for reasons to which we now

turn, we proceed to the merits of the petition.

       “On a showing of good cause a criminal defendant is entitled to discovery of

relevant documents or information in the personnel records of a police officer accused of

misconduct against the defendant. (Evid. Code, § 1043, subd. (b).) Good cause for

discovery exists when the defendant shows both ‘ “materiality” to the subject matter of

the pending litigation and a “reasonable belief” that the agency has the type of

information sought.’ (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 (Santa

Cruz).) A showing of good cause is measured by ‘relatively relaxed standards’ that serve


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to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ ”

(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).) If a defendant

establishes good cause for discovery, the trial court is to conduct an in camera review of

police personnel records and to “disclose[] only that information falling within the

statutorily defined standards of relevance.” (Id. at p. 1019.)

       A Pitchess motion must be supported by “[a]ffidavits showing good cause for the

discovery or disclosure sought” (Evid. Code, § 1043, subd. (b)(3)), but a declaration from

defense counsel on information and belief will suffice (People v. Mooc (2001) 26 Cal.4th

1216, 1226). “[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.” (Warrick, supra, 35

Cal.4th at p. 1021.) Many courts have described this standard as requiring a defendant to

show “a ‘ “specific factual scenario” ’ that establishes ‘a “plausible factual

foundation.” ’ ” (Ibid.) The California Supreme Court had held that “a plausible

scenario of officer misconduct is one that might or could have occurred.” (Id. at p. 1026.)

Depending on the facts of the case, a denial of facts recited in a police report may suffice

to show good cause for inspection of Pitchess records. (Id. at pp. 1025-1026.)

       “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


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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, or is it

likely to lead to information that would 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’ (§ 1043, subd. (b) (3)), then the defendant has shown good

cause for discovery.” (Warrick, supra, 35 Cal.4th at pp. 1026-1027.)

       To prevent defendants seeking peace officer personnel records from fishing too

broadly, a Pitchess motion must be specific enough that it is limited to the kinds of

officer misconduct the defendant asserts occurred in his or her case. (Warrick, supra, 35

Cal.4th at p. 1021.) As a further means of assuring police officer privacy, the trial court,

after conducting an in camera review, may not disclose complaints that are more than

five years old, the conclusions of an officer who investigates a complaint of police

misconduct by a citizen, or facts that are too remote in time to be probative. (Id. at

p. 1019.) “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.” (Ibid.)

       In this case, petitioner made the necessary showing of good cause. The

declaration supporting her Pitchess motion denies that she cursed at or kicked Officer

Chang. As a plausible alternate scenario, she avers she was dizzy and disoriented from


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the accident, fell over, and could not have kicked Officer Chang after that because he had

her pinned against a car. In addition, petitioner accuses Officer Chang of using excessive

force against her. If she proves these facts, she will have provided a defense to the

charge of battery on a police officer, because Penal Code section 243, subdivision (b),

only criminalizes battery against a peace officer “engaged in the performance of his or

her duties.” “A peace officer is not ‘engaged in the performance of his or her duties’

within the meaning of th[is] statute[] if he arrests a person unlawfully or uses excessive

force in making the arrest.” (People v. Delahoussaye (1989) 213 Cal.App.3d 1, 7.)

Consequently, the trial court abused its discretion when it refused to conduct an in

camera review of Officer Chang’s personnel files.

       To escape this conclusion, real party in interest asserts more than materiality is

required to show good cause requiring in camera review of Pitchess records. It relies on

Evidence Code section 1043, subdivision (b)(3), which requires Pitchess motions to be

supported by, “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.” According to real party in interest, a successful

Pitchess defendant must show three things in his or her affidavits: (1) good cause for the

discovery; (2) materiality; and (3) that the relevant government agency possesses the

personnel files. Even were we to find this interpretation of the statute persuasive, we are

bound by contrary authority from the California Supreme Court. (Auto Equity Sales, Inc.

v. Superior Court (1962) 57 Cal.2d 450, 455 [inferior tribunals obligated to follow


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decisions from superior tribunals].) In Warrick, the California Supreme Court held that

there are two, not three, components to the showing a criminal defendant must make on a

Pitchess motion: “Good cause for discovery exists when the defendant shows both

‘ “materiality” to the subject matter of the pending litigation and a “reasonable belief”

that the agency has the type of information sought.’ ” (Warrick, supra, 35 Cal.4th at

p. 1016.) As discussed, petitioner demonstrated good cause that is material to her

defense and averring a reasonable belief that real party in interest possesses Officer

Chang’s records.

          Real party in interest next argues petitioner failed to meet her burden of showing

good cause for Pitchess discovery because she failed to prove that Officer Chang’s

personnel records would be admissible at trial. As noted above, Warrick requires trial

courts to consider admissibility. (Warrick, supra, 35 Cal.4th at pp. 1026-1027.) It does

not, however, do so to the extent real party in interest urges. A court need only find proof

that the records sought would either themselves be admissible or lead to the discovery of

admissible evidence, as well as some indication of the theory under which the records

would be admissible at trial. (Id. at p. 1027.) Here, the return itself admits that records

showing Officer Chang has a penchant for lying or engaging in excessive force would be

character evidence. Under Warrick, petitioner had no greater burden than to show, as she

did, that evidence of Officer Chang’s alleged penchant for dishonesty and/or excessive

force could support a defense that she did not batter him in the course of his official

duties.




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       Real party in interest argues any character evidence obtained from Officer

Chang’s personnel files would be excluded at trial as insufficiently probative because

eyewitnesses can give testimony as to what actually occurred between petitioner and

Officer Chang.

       Whether other witnesses would corroborate either defendant’s or Officer Chang’s

version of events is irrelevant to the good cause determination. “A showing of good

cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’

for the trial court review of ‘all potentially relevant documents’ [Citation.]” (People v.

Gaines (2009) 46 Cal.4th 172, 179.) “The inquiry does not involve ‘an assessment or

weighing of the persuasive value of the evidence . . . presented [or] which should have

been presented. [Citations.] Indeed, a defendant is entitled to discover relevant

information under Pitchess even in the absence of any judicial determination that the

potential defense is credible or persuasive.’ [Citation.]” (People v. Sanderson (2010)

181 Cal.App.4th 1334, 1340 [Fourth Dist., Div. Two].)

       We note the parties argue at length over whether counsel for real party in interest

conceded the merits of the motion in either the written opposition or in oral comments

made at the hearing. We need not weigh in on this debate. For the reasons stated ante,

petitioner met her burden of showing good cause for in camera review of Officer Chang’s

personnel files, even if no concessions occurred.




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                                       DISPOSITION

       Let a peremptory writ of mandate issue, directing the Superior Court of Riverside

County to vacate the order denying petitioner’s Pitchess motion and conduct an in

camera review of Officer Chang’s personnel file.

       Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 KING
                                                                                 Acting P. J.


We concur:


HOLLENHORST
                           J.


MILLER
                           J.




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