JOSEPH WILFORT LEMELLE, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Civ. No. 19109
Fourth Dist., Div. Two
Jan. 26, 1978
148 Cal. App. 3d 148
Henry William Sands for Petitioner.
Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, Oretta D. Sears and Thomas H. Wolfsen, Deputy District Attorneys, for Respondent and Real Party in Interest.
KAUFMAN, J.—Petitioner seeks a writ of mandate to compel discovery in a criminal action.
Facts
Petitioner is the defendant in criminal action No. C-37279 pending in the Orange County Superior Court. He is charged by information with unlawful possession of cocaine (
Defendant moved for pretrial discovery seeking an order that the district attorney make available to defendant‘s attorney for examination and copying some 23 items or groups of items in the possession of the district attorney, his deputies, employees or agents. Among those things sought were the following:
“20. All records involving all persons who have, at any time filed complaints against Seal Beach Police Officers W. Ungerman (Badge #96) and P. D. Palmer (Badge #131), both of whom were involved in the altercation with defendant which forms the basis of counts III and IV of the information filed herein, for unnecessary acts of aggressive behavior, violence, excessive force or for acts demonstrating racial and/or ethnic prejudice.
“21. All crime reports or arrest reports filed by either of the officers mentioned in paragraph 20 above, in which the principal complaint against the suspect was a violation of section 148 or 242-243 of the penal code, or some other act of aggression against or resistance to said officers, within the last 10 years.
“22. All medical records of any psychiatric or psychological treatment of either police officer in the State of California in which an opinion is rendered by the treating or examining person as to said officer‘s character trait for acts of aggression, violence, excessive force or for acts demonstrating racial or ethnic bias or prejudice.
“23. Any psychological or psychiatric test record of a test given either officer mentioned in paragraph 20 above, in connection with his training, employment or occupation as a police officer including any police academy matriculation.”
In support of his motion defendant filed a declaration, the pertinent averments of which will be set forth hereinafter in connection with our discussion of the issues.
Although we have not been furnished a copy of the court‘s order, we are told the trial court granted discovery as to all items requested, including item 20, except items 21, 22 and 23 set forth above. As to those items, we are told, the trial court denied the motion for discovery. Defendant petitioned this court for a writ of mandate to compel discovery of items 21, 22 and 23. We denied the petition without opinion. The California Supreme Court granted hearing and retransferred the matter to this court with directions to issue an alternative writ of mandate. We issued the alternative writ as directed.
Contentions, Discussion and Disposition
Defendant concedes that no reported California decision has directed discovery of the type of matter he seeks in items 21, 22 and 23, but he contends that such discovery is authorized under the general principles laid down in the leading decisions on pretrial discovery in criminal cases.
The district attorney contends the trial court did not abuse its discretion in denying discovery as to items 21, 22 and 23 because (1) this part of the discovery motion constitutes no more than a “fishing expedition“; the records sought have not been sufficiently identified and good cause for their production has not been demonstrated by defendant; (2) defendant‘s request for items 22 and 23 constitutes, in effect, a Ballard motion (Ballard v. Superior Court, 64 Cal.2d 159 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416]) which is authorized only in sex cases; (3) the production of the records sought as items 22 and 23 would violate the peace officers’ psychotherapist-patient privilege established by
Inadequate Record
A motion for pretrial discovery by an accused is addressed to the sound discretion of the trial court and a writ of mandate will not issue unless it is demonstrated that the trial court abused its discretion. (Hill v. Superior Court, 10 Cal.3d 812, 816, 822 [112 Cal.Rptr. 257, 518 P.2d 1353]; People v. Lopez, 60 Cal.2d 223, 247 [32 Cal.Rptr. 424, 384 P.2d 16]; People v. Terry, 57 Cal.2d 538, 561 [21 Cal.Rptr. 185, 370 P.2d 985]; Vetter v. Superior Court, 189 Cal.App.2d 132, 134, 136 [10 Cal.Rptr. 890]; see Powell v. Superior Court, 48 Cal.2d 704, 708 [312 P.2d 698].) ““A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.“” (Original italics.) (Denham v. Superior Court, 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193] [quoting language in Witkin, Cal. Procedure, now found at 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 235, p. 4225]; accord: Walling v. Kimball, 17 Cal.2d 364, 373 [110 P.2d 58].)
Just as an appellant must furnish an adequate record on appeal (see 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 373, p. 4345 and cases there cited), a petitioner for an extraordinary writ to the trial court must furnish a record sufficient to enable the reviewing court to evaluate the lower court‘s exercise of discretion. (Rose v. Superior Court, 44 Cal.App.2d 599, 600-601 [112 P.2d 713]; In re Rapken, 111 Cal.App. 107, 108 [295 P. 344]; Charles L. Donohoe Co. v. Superior Court, 79 Cal.App. 41, 45 [248 P. 1007]; Favorite v. Superior Court, 52 Cal.App. 316, 318-319 [198 P. 1004]; cf. Thompson v. Superior Court, 262 Cal.App.2d 98, 103-104 [68 Cal.Rptr. 530]; see 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, §§ 139, 140, pp. 3913-3914; Cal. Civil Writs (Cont.Ed.Bar 1970) § 10.38, p. 222.) The starting point of such a record is a copy of the order to be reviewed. A proper record should include a copy of all declarations filed in the lower court. It should in most instances also include a transcript of any hearing. In the absence of a transcript the reviewing court will have no way of knowing in many cases what grounds were advanced, what arguments were made and what facts may have been admitted, mutually assumed or judicially noticed at the hearing. In such a case, no abuse of discretion can be
The record supplied by defendant consists entirely of a copy of his notice of motion, declaration and points and authorities. Apparently the prosecution filed no declarations or points and authorities; at least none have been furnished us. We are not furnished a transcript of the hearing on the motion, and, except as indicated in defendant‘s points and authorities, we have no idea what grounds were advanced or what arguments were made in the trial court in support of or in opposition to the motion. Defendant‘s declaration does not set forth the facts pertaining to the incident giving rise to the charges nor the circumstances surrounding his arrest. Although from the description of the records sought as item 22 it would appear to be a significant fact, the declaration does not state and the record does not otherwise establish whether or not defendant is a member of a racial or ethnic minority group. Obviously, at the hearing on the motion some of these facts and circumstances must have been mutually assumed or conceded, but there is nothing from which we can determine what those conceded or assumed facts were. We are not even furnished a copy of the order we are asked to review. Under these circumstances we cannot properly review the trial court‘s exercise of discretion.
No Abuse of Discretion
Even if we review the trial court‘s exercise of discretion on the basis of the record we do have, no abuse of discretion is demonstrated.
As item 22 defendant seeks all medical records of any psychiatric or psychological treatment of either officer in which an opinion is rendered by the treating or examining person as to the officer‘s character trait for acts of aggression, violence, excessive force or for acts demonstrating racial or ethnic bias or prejudice.1 As to the police officers these records are
Noting that under
Neither the points and authorities in support of the discovery motion nor anything else in the record indicate the applicability of
Moreover, on the record before us,
To the extent defendant‘s citation of Lifschutz and Tarasoff may be understood as urging creation of a nonstatutory exception to the psychotherapist-patient privilege, defendant misconceives the judicial function and misinterprets Lifschutz and Tarasoff. As these cases recognize, the public interests in safeguarding the confidential character of psychotherapeutic communication and thereby supporting effective treatment of mental illness and protecting the rights of patients to privacy are highly important (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 440) and, indeed, have constitutional underpinnings (In re Lifschutz, supra, 2 Cal.3d at pp. 431-432). As the court in Tarasoff observed (17 Cal.3d at pp. 440-441), the Legislature has undertaken the difficult task of balancing those important public interests against others and has resolved the problems by enactment of the
There is nothing to the contrary in either Lifschutz or Tarasoff. True, in Lifschutz the court observed: “In the past this state interest [the ascertainment of truth in legal proceedings] has been viewed as substantial enough to compel the disclosure of a great variety of confidential material. [Citations.]” (2 Cal.3d at pp. 432-433.) This statement was made, however, in support of the constitutionality of the statutorily provided patient-litigant exception to the psychotherapist-patient privilege (
In Tarasoff the court was confronted with the question whether a psychotherapist who is aware that his patient poses a serious danger of death or serious bodily harm to a third person is under a civil duty to warn the third person of the danger or otherwise exercise reasonable care for the protection of that third person. In holding he does, the court said: “We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others.” (17 Cal.3d at p. 442.) The court, however, was not faced with overriding the legislatively prescribed psychotherapist-patient privilege. It specifically noted that the Legislature had undertaken the difficult task of balancing the countervailing concerns and resolved the matter by enacting
We turn to items 21 and 23.
As the district attorney correctly points out, a defendant‘s motion for discovery must describe the requested information with reasonable specificity and must be sustained by plausible justification for production of the items requested. (Hill v. Superior Court, supra, 10 Cal.3d at p. 817; Joe Z. v. Superior Court, supra, 3 Cal.3d at p. 804; Ballard v. Superior Court, supra, 64 Cal.2d at p. 167; Hinojosa v. Superior Court, 55 Cal.App.3d 692, 696 [127 Cal.Rptr. 664]; In re Valerie E., supra, 50 Cal.App.3d at p. 218.) When the requisite specificity is lacking or no showing of good cause is made there is no abuse of discretion in denying discovery. (Hill v. Superior Court, supra; Joe Z. v. Superior Court, supra; Hinojosa v. Superior Court, supra, 55 Cal.App.3d at p. 697; Engstrom v. Superior Court, supra, 20 Cal.App.3d at p. 245.)
“A showing . . . that the defendant cannot readily obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense. . . .” (Traynor, Ground Lost and Found in Criminal Discovery (1964) 39 N.Y.U.L.Rev. 228, 244; Hill v. Superior Court, supra, 10 Cal.3d at p. 817; Ballard v. Superior Court, supra, 64 Cal.2d at p. 167.) “Although the defendant does not have to show, and indeed may be unable to show, that the evidence which he seeks to have produced would be admissible at the trial [citations], he does have to show some better cause for inspection than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.” (People v. Cooper, 53 Cal.2d 755, 770 [3 Cal.Rptr. 148, 349 P.2d 964]; Ballard v. Superior Court, supra; accord: Pitchess v. Superior Court, supra, 11 Cal.3d at p. 537; Joe Z. v. Superior Court, supra, 3 Cal.3d at p. 804.) He must demonstrate the requested information will facilitate the ascertainment of the facts and a fair trial. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 536; Bortin v. Superior Court, 64 Cal.App.3d 873, 878 [135 Cal.Rptr. 30].)
The records sought by defendant as items 21 and 23 are sufficiently identified. Item 21 is all crime and arrest reports filed by either of two specified officers in the last 10 years in which the principal
The attempt to establish plausible justification is found in the declaration made by defendant‘s attorney. It declares that, in defense of the charges of battery on a peace officer and resisting arrest, defendant will attempt to show that any force used by him against the police officers “was in defense of his person against acts of aggression and excessive and illegal force being then and there used by said officers against defendant.”
As specific justification for the production of item 21 (crime and arrest reports as to third persons) the declaration states: “That your declarant is informed and believes that each of said officers have individually and in furtherance of a conspiracy filed baseless charges against persons accusing the latter of committing acts against the former violative of sections 148 PC, 242-P.C. and 243 P.C. and in support of which charges have made certain crime and arrest reports against said persons all in effort to conceal and obfuscate the true state of facts, namely that said officers or either of them were the aggressors and committed unnecessary acts of aggressive behavior, violence, excessive force or acts demonstrating racial and/or ethnic prejudice.”
Evidence of an officer‘s tendency to violence, whether in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct, is admissible in a prosecution in which the defendant is charged with battery on a peace officer and resisting arrest. (
Not so, however, with respect to item 23.
In specific justification of item 23 (psychological and psychiatric test records) the declaration states: “That your Declarant is informed and believes that psychiatric and/or psychological . . . testing, has occurred with each of the subject officers and that the administrators of such . . . testing have formed an opinion that each of said officers [sic] character or trait of character is such as to demonstrate propensity in said officers toward unnecessary acts of agressive [sic] behavior, violence, excessive force or for acts demonstrating racial and/or ethnic prejudice.”
The records sought as item 23, however, are not limited to psychological or psychiatric test records disclosing a propensity to aggression, violence, use of excessive force or racial or ethnic prejudice. What is sought is any and all records of psychological or psychiatric tests given either officer at any time in connection with his training, employment or occupation as a police officer. The records sought are not connected to the character traits in issue, and the court did not abuse its discretion in denying defendant‘s blanket request. (Hinojosa v. Superior Court, supra, 55 Cal.App.3d at p. 697; cf. Ballard v. Superior Court, supra, 64 Cal.2d at pp. 166-167; People v. Gaulden, supra, 36 Cal.App.3d at p. 961.)
Our determination that plausible justification was shown as to item 21 does not compel the conclusion that the trial court abused its discretion in denying discovery as to that item. “Even upon a showing of good cause . . . the right of an accused to obtain discovery is not absolute. In criminal cases, the court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest.” (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 538; accord:
In the exercise of its discretion, the court may compare the defendant‘s demonstration of need for the matter sought with the burden that would be placed on the prosecution in providing it. (See Hill v. Superior Court, supra, 10 Cal.3d at p. 820; People v. Terry, supra, 57 Cal.2d at p. 561; Engstrom v. Superior Court, supra, 20 Cal.App.3d at p. 245; People v. Valdez, 203 Cal.App.2d 559, 565 [21 Cal.Rptr. 764]; ABA Project on Standards for Crim. Justice, Stds. Relating to Discovery and Procedure Before Trial (Approved Draft 1970) [hereinafter cited as ABA, Standards] std. 2.5 and commentary thereto; cf. Powell v. Superior Court, supra, 48 Cal.2d at p. 708; Bortin v. Superior Court, supra, 64 Cal.App.3d at p. 878.) Pertinent considerations include whether the demand for discovery is overly broad (Ballard v. Superior Court, supra, 64 Cal.2d at pp. 166, 167; People v. Terry, supra, 57 Cal.2d at p. 561; People v. Cooper, supra, 53 Cal.2d at p. 770; Hinojosa v. Superior Court, supra, 55 Cal.App.3d at p. 697; People v. Gaulden, supra, 36 Cal.App.3d at p. 961) and, importantly, the nature of discovery that has been granted.4
The burden that would be imposed on the prosecution in locating and furnishing item 21, all crime and arrest reports in the last 10 years filed by either officer against any person in which the principal complaint was aggression against or resistance to the officer, would be very substantial.5 Ten years’ accumulation of police department records
By contrast, as we have already observed, the usefulness to defendant of the records sought as item 21 is highly speculative and remote. Being records made by the officers, it cannot be expected the reports themselves would contain information tending to show any propensity of the officers to use excessive force. At best, they would give defendant the names of persons who, if they can be found and interrogated, might furnish evidence of the use of excessive force by one or both of the officers on a prior occasion. While admissible, such evidence would be only corroborative of the testimonial account by defendant or other percipient witness of the officers’ use of excessive force in the episode in question, which of necessity must constitute the heart of the defense. Of course, the older these records, the less likely it is that defendant would even be able to locate the persons named in them.
Perhaps most importantly, the court granted defendant‘s discovery request as to item 20, all records concerning complaints by any person against either officer for acts of aggressive behavior, violence, excessive force or acts demonstrating racial or ethnic prejudice. Such records are much more likely to lead to the type of evidence defendant seeks than the records described in item 21, and the order for their production renders defendant‘s need for item 21 even more tenuous.
Thus, in the exercise of its discretion the trial court could well have concluded that defendant‘s demand for all such crime and arrest reports filed by either officer in the past 10 years was overbroad and, in view of the order granting discovery as to all records of complaints against either officer (item 20) and the minimal showing of usefulness to defendant of
to the trial court. While this is an original proceeding in this court, its function is to review the trial court‘s exercise of discretion. It is therefore inappropriate that we consider a declaration not presented to the trial court. (See Ballard v. Superior Court, supra, 64 Cal.2d at pp. 167-168.) Accordingly, we have given no consideration to the declaration of Chief Cibbarelli.
The court did not abuse its discretion in denying discovery as to item 21.
The petition for writ of mandate is denied. The alternative writ heretofore issued is discharged.
Gardner, P. J., concurred.
TAMURA, J.—I dissent from the majority‘s view that petitioner failed to provide an adequate record to review the trial court‘s order denying discovery. The Supreme Court order directing this court to issue an alternative writ and order to show cause constituted an implied determination that petitioner made an adequate showing to have a decision on the merits of his petition.
I also respectfully dissent from that portion of the majority opinion relating to discovery of the records sought in item 22, i.e., medical records of any psychiatric or psychological treatment of either officer in which the treating or examining doctor has rendered an opinion as to the officer‘s trait for “acts of aggression, violence, excessive force or for acts demonstrating racial or ethnic bias or prejudice.” The majority holds that by virtue of the psychotherapist-patient privilege, the court was statutorily required to deny discovery of item 22.
To borrow the expression of the Supreme Court in In re Lifschutz, 2 Cal.3d 415, 438 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1]: “[I] do not believe the patient-psychotherapist privilege should be frozen into the rigidity of absolutism.” Nor has the Legislature done so. As our high court observed in Tarasoff v. Regents of University of California, 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334], in attempting to balance the countervailing interests, the Legislature has tempered the broad rule of privilege granted by
In Tarasoff the court applied the
I submit that the peril to which the public is exposed by a police officer who is suffering from a mental or emotional condition which renders him violence prone or causes him to demonstrate racial bias is a danger of sufficient gravity to justify the invocation of the exception provided by
I would issue a peremptory writ of mandate directing the trial court to permit discovery of the records sought in item 22, subject to the conditions set forth above.
Petitioner‘s application for a hearing by the Supreme Court was denied April 13, 1978. Bird, C. J., Tobriner, J., and Mosk, J., were of the opinion that the application should be granted.