THE PEOPLE, Plaintiff and Appellant, v. THE MUNICIPAL COURT FOR THE SAN BERNARDINO COUNTY JUDICIAL DISTRICT, WEST VALLEY DIVISION, OF SAN BERNARDINO COUNTY, Defendant and Respondent; SUSAN MICHELLE BONNER, Real Party in Interest and Respondent.
Civ. No. 21285
Fourth Dist., Div. Two.
Apr. 15, 1980.
104 Cal. App. 3d 685
No appearance for Defendant and Respondent.
OPINION
KAUFMAN, J.--The People appeal from a judgment denying their petition for writs of prohibition and mandate. The appeal is meritorious, and the judgment will be reversed with directions to the trial court to issue a peremptory writ of mandate.
Facts
Susan Michelle Bonner (real party in interest) was charged in the San Bernardino County Municipal Court District, West Valley Division, with unlawfully using force and violence upon the person of Ontario Police Officer Richard Condon, knowing that he was a police officer engaged in the performance of his duty. (
After argument, the court granted real party‘s motion for discovery as to the two items just specified.2 Although that part of the court‘s order does not appear in its minutes, statements by the court in subsequent proceedings disclose that with respect to the order for discovery of any police reports prepared by Officer Condon in the preceding three years relating to violations of
Thereafter the People complied with that portion of the order requiring it to furnish any and all complaints filed against Officer Condon relating to excessive force in the performance of his duties, but the People declined to comply with the order insofar as it authorized discovery of all reports prepared by Officer Condon relating to violations of
The People then filed in San Bernardino Superior Court a petition for writs of mandate and prohibition to require the municipal court to vacate the discovery order and the order for sanctions. In the petition the facts recited above were alleged and in addition it was alleged that the People had opposed the discovery motion “on the grounds that it sought information which was irrelevant to the matter and that the showing offered in support of the motion was inadequate.” The superior court issued alternative writs of prohibition and mandate together with a stay order. Real party filed her answer and concurrently a demurrer. The matter came on for hearing, and the court denied the petition for peremptory writs, concluding that the municipal court had not abused its discretion in making the discovery order and imposing the sanctions it did.
Contentions and Discussion
On appeal the People contend that on the showing made by real party in the municipal court, the court was bound to deny the discovery motion, at least with respect to the unrelated police reports prepared by Officer Condon in the preceding three years relating to violations of
The Merits
If the People have a remedy by way of writ, there can be no question as to the outcome of the case on the merits. A motion by an accused in a criminal case for discovery must be supported by a showing of plausible justification for production of the items requested. (Hill v. Superior Court (1974) 10 Cal.3d 812, 817 [112 Cal.Rptr. 257, 518 P.2d 1353, 95 A.L.R.3d 820]; Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 804 [91 Cal.Rptr. 594, 478 P.2d 26]; Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 162, 164 [143 Cal.Rptr. 450]; see also Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-538 [113 Cal.Rptr. 897, 522 P.2d 305]; Craig v. Municipal Court (Gregory) (1979) 100 Cal.App.3d 69, 72-73 [161 Cal.Rptr. 19].) The accused must demonstrate that 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; Lemelle v. Superior Court, supra, 77 Cal.App.3d at p. 162; Bortin v. Superior Court (1976) 64 Cal.App.3d 873, 878 [135 Cal.Rptr. 30].)
The showing made by real party in support of her motion is nonexistent. The only declaration filed in support of the motion for discovery was one executed by real party‘s attorney in which he declared that he was real party‘s attorney in the matter; that he was informed and believed that defendant was charged with battery upon a police officer under
No attempt was made in the declaration to indicate what real party would hope to find or be looking for in the unrelated police reports pre-
This court recently had occasion to discuss the request of an accused for the production of such unrelated reports prepared by the officer in Lemelle v. Superior Court, supra, 77 Cal.App.3d 148. There, the accused had submitted a declaration in which it was stated that the declarant was informed and believed ““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 [an] 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.“” (77 Cal.App.3d at p. 163.) Even on that showing we characterized the usefulness to the accused of the reports sought as “speculative and remote at best.” We stated: “It is conceivable, however, that from such reports defendant would gain knowledge of incidents similar to the one in which he was involved and the names of persons similarly charged by the officers which, in turn, might lead to admissible evidence tending to show the use of excessive force by the officers on prior occasions. It appears, therefore, that defendant has shown ‘some cause for discovery other than “a mere desire for the benefit of all information...“” .and has satisfied the requirement of plausible justification as to this item.” (77 Cal.App.3d at p. 164.)
In the case at bench, there is no averment or allegation that Officer Condon habitually used excessive force or, more to the point, no averment that he was in the habit of making false reports accusing persons of resisting arrest or battery upon a police officer. Thus, the usefulness shown in Lemelle which we characterized as “speculative and remote at best,” is here entirely nonexistent.
The record indicates that the district attorney opposed the discovery motion on grounds that the material sought was irrelevant and that no
Propriety of the People‘s Seeking a Writ
Before proceeding to a discussion of real party‘s contention that pretrial review of a discovery order is not available to the People by writ, we place that contention in context. The matter before us is an appeal from a judgment of the superior court denying issuance of a peremptory writ of mandate after issuance of an alternative writ in the first instance. An appeal from that judgment is, of course, expressly authorized by subdivision (a) of
Real party first argues that a writ of mandate will not issue when there is another adequate remedy available. (See
Next, real party argues that a writ will not issue unless a timely objection was made to the lower court‘s ruling. However, although real party asserts that the People failed to make a timely objection to the sanction that the municipal court chose to impose, it is admitted that the People made timely objection to the order granting discovery of the unrelated police reports prepared by Officer Condon. Apparently, real party does not fully appreciate that the People‘s application for a writ in the superior court was directed not only at the sanction imposed by the municipal court but at the discovery order itself.
The same answer must be made to real party‘s contention that neither a writ of prohibition nor mandate will issue to review a court‘s ruling on the admissibility of evidence or to correct mere judicial error, as opposed to an act in excess of jurisdiction. The sanction imposed by
It is true as stated in People v. Superior Court (Stanley) (1979) 24 Cal.3d 622, 626 [156 Cal.Rptr. 626, 596 P.2d 691], that “[m]andate is not available to the prosecution for review of ‘ordinary judicial error‘...or even ‘egregiously erroneous’ orders...when the order or ruling ‘on its face is a timely exercise of a well-established statutory power of trial courts...from which no appeal is provided in [Penal Code] section 1238.‘...” However, the error of which the People complain in the case at bench is no ordinary judicial error. As indicated in our discussion of the merits, real party made no showing whatever in support of her request for the unrelated reports prepared by Officer Condon. Under existing law, therefore, the municipal court had no authority to order the production of those records, and its doing so constituted an act in excess of jurisdiction. (See Miller v. Superior Court, supra, 69 Cal.2d at p. 16; In re Richard C. (1979) 89 Cal.App.3d 477, 484 [152 Cal.Rptr. 787]; People v. Superior Court (Lozano) (1977) 69 Cal.App.3d 57, 61 [137 Cal.Rptr. 767], overruled on other grounds in People v. Caudillo (1978) 21 Cal.3d 562, 587 [146 Cal.Rptr. 859, 580 P.2d 274].)
Real party is, of course, correct that mandate will not issue to compel an inferior tribunal to exercise its discretion in a particular manner. However, mandate is appropriate when, under the circumstances, the lower tribunal was authorized to exercise its discretion in only one way. (Mannheim v. Superior Court (1970) 3 Cal.3d 678, 685 [91 Cal.Rptr. 585, 478 P.2d 17];
Finally, real party contends that inasmuch as the Legislature has not provided an appeal for the People from discovery orders, its right to review by writ is limited and was not properly available in this case. We do not agree.
The rule relied upon by real party has been most recently restated in People v. Superior Court (Stanley), supra, 24 Cal.3d at pages 625-626: “If the prosecution has not been granted by statute a right to appeal, review of any alleged error may be sought by a petition for writ of mandate only when a trial court has acted in excess of its jurisdiction and the need for such review outweighs the risk of harassment of the
In the case at bench, it could hardly be expected that the Legislature would have provided for an appeal, because the law of criminal discovery in California is a creation of the judiciary, not the Legislature. (See Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 535-536.) Orders denying an accused discovery to which he is entitled are considered in excess of jurisdiction and reviewable by writ (see, e.g., Hill v. Superior Court, supra, 10 Cal.3d 812; Ballard v. Superior Court (1966) 64 Cal.2d 159, 168 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416]; Lemelle v. Superior Court, supra, 77 Cal.App.3d 148, and numerous writ cases there cited and discussed.) We perceive no reason why the People should not be accorded a similar right to pretrial review by writ of a discovery order for which no support can be found in the record.
Motions for discovery generally occur shortly after the inception of criminal accusations, and no retrial or double jeopardy problem is involved in the pretrial review of discovery orders. If such review is not accorded to People, they have no means by which to review a discovery order at all, even if it was made wholly without justification and imposes an outrageous burden on the prosecution and the public fisc.
Disposition
The judgment is reversed with directions to the trial court to issue a peremptory writ of mandate to the municipal court commanding it to vacate its discovery order insofar as it purported to compel production of any and all police reports prepared by Officer Condon in the preceding three years relating to allegations of violation of
Gardner, P. J., concurred.
TAMURA, J.-I respectfully dissent. The majority‘s decision directing vacation of the trial court‘s discovery order runs counter to the basic principle underlying criminal discovery.
The rationale for criminal discovery was recently summarized in People v. Municipal Court (Street) (1979) 89 Cal.App.3d 739 [153 Cal.Rptr. 69], where the court stated: “Although the California Supreme Court has not yet established a method of ascertaining whether or not discovery of a given item is necessary to accord defendant a fair trial (Louisell & Wally, Modern Cal. Discovery, supra, at p. 885), underlying the rationale of criminal discovery is the principle first stated in People v. Riser (1956) 47 Cal.2d 566, 586 [305 P.2d 1] (app. dism. 358 U.S. 646 [3 L.Ed.2d 568, 79 S.Ct. 537], disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810]): ‘Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case,...’ Justice Traynor wrote: ‘There remains to be articulated how much the right [to pretrial discovery] encompasses. The defendant must show better cause for discovery “than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.” A showing, however, 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
Consistent with the rationale of criminal discovery, our high court has stated that the requisite showing for discovery “may be satisfied by general allegations which establish some cause for discovery other than ‘a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.’ [Citation.]” (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537 [113 Cal.Rptr. 897, 522 P.2d 305]; Griffin v. Municipal Court (1977) 20 Cal.3d 300, 306 [142 Cal.Rptr. 286, 571 P.2d 997].)
In Caldwell v. Municipal Court (1976) 58 Cal.App.3d 377 [129 Cal.Rptr. 834], the court applied the foregoing principles in passing upon the adequacy of a defendant‘s showing for the production of complaints against police officers and police investigative records in the context of misdemeanor charges of battery on a police officer and obstructing an officer in the performance of his duties. The municipal court denied discovery and a petition for writ of mandate to the superior court was denied. On appeal from the superior court judgment, the reviewing court rejected the People‘s contention that the defendant had made an inadequate showing. The court stated: “The Attorney General argues that, in the present case, the showing in support of discovery was insufficient in that ‘there is no allegation based on personal knowledge that the officers actually used excessive force or... that appellant is actually going to rely on a defense of self-defense.’ But to require a personal showing by appellants would potentially involve interference with the Fifth Amendment privilege against self-incrimination. Even though the defense has not been able to point to specific prior acts of violence, the official records desired to be examined were identified with reasonable particularity and the pertinence to the defense of the requested information was demonstrated. The court should have granted discovery subject to the right of the public agency to assert privilege un-
Here, as in Caldwell, the charges are battery on a police officer and interference with the officer‘s performance of his official duties. Defendant moved for discovery of complaints against the police officer for use of excessive force in the performance of his duties and copies of all police reports filed by the officer during the past three years for alleged violations of
The motion first came on for hearing before Judge Cox who questioned whether there had been a sufficient showing that self-defense would be an issue in the case. Judge Cox did not rule on the motion, however, and the matter thereafter came before Judge Hildreth. When informed of Judge Cox’ reservation concerning the adequacy of the showing made, Judge Hildreth stated: “Just as an individual judge, I have a feeling that in light of the type of charge that basically you are entitled to the information unless there is some showing or some indication that by no stretch of the imagination is self-defense going to be an issue. I think almost invariably by the nature of the charge it is something that should be explored by defense counsel.” The judge granted the discovery motion.
The majority holds that Judge Hildreth abused his discretion in granting the motion as it related to the arrest reports because defendant failed to present any plausible justification for their production. I disagree. In light of the nature of the charges, the judge could reasonably infer from counsel‘s declaration that self-defense, provocation and excessive force would be issues in the case. In this type of case “the required ‘plausible justification’ for criminal discovery is readily apparent” (Bortin v. Superior Court (1976) 64 Cal.App.3d 873, 878 [135 Cal.Rptr. 30]) and Judge Hildreth properly so noted in making his order. “A defendant‘s motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand.” (Pitchess v. Superior Court, supra, 11 Cal.3d 531, 535.) Whether a plausible justification has been shown, therefore, is a matter resting in the sound discretion of the trial court and all reasonable inferences should be drawn in support of its determination. The majority, however, invalidates the order by doing precisely the opposite.
The majority relies on Lemelle v. Superior Court (1978) 77 Cal.App.3d 148 [143 Cal.Rptr. 450], a decision of this court from which I also dissented. There, defendant was charged with, among other offenses, battery upon a police officer and resisting arrest. He sought discovery of a number of items, including arrest reports filed by the named officers during the past 10 years for alleged violations of
Thus, in Lemelle, the majority drew inferences to support an order denying discovery. By the same token, where the trial court in the exercise of its discretion has granted discovery, all reasonable inferences should be indulged to support the order. Indeed, an order denying discovery should be subjected to greater scrutiny than one granting discovery.
The municipal court did not exceed the bounds of reason in making its discovery order. I would affirm the judgment denying the petition for writ of mandate.
DECLARATION OF COUNSEL
I, P. TIMOTHY PITTULLO, being first duly sworn do state:
1. I am a duly licensed attorney at law and represent SUSAN M. BONNER, defendant in the above-captioned matter.
2. I am informed and believe and based upon this information and belief allege that the defendant in the above-captioned matter is charged with
3. I am further informed and believe that the victim and police officer in this case is Officer Richard Condon of the Ontario Police Department.
4. I am further informed and believe that the conduct of Officer Richard Condon towards the defendant Susan M. Bonner is material and relevant consideration to the defense of the defendant in that the degree of provocation and the issue of self defense may in fact be an issue at said trial.
It is not possible to obtain said information through the efforts of defense counsel without an order of this court.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on August 28, 1978, at Upland, California.
P. Timothy Pittulo (signed)
P. TIMOTHY PITTULO