Opinion
Arе statements of witnesses to the crime with which the defendant is charged immune from discovery because the statements were obtained as the result of an internal affairs investigation and placed in an officer’s personnel file? No. A defendant may obtain the statements on a showing of good cause made in a motion brought pursuant to and not precludеd under Evidence Code sections 1043 and 1045. We direct the trial court to review the internal affairs report concerning defendant’s complaint in camera and to disclose to defendant the relevant nonprecluded statements of percipient witnesses to the charged incident.
I
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Edward Rezek is charged in Orange County Superior Court case No. 10CM00225 with one misdemeanor count each of delaying or obstructing a police officer in the performance of his duty (Pen. Code, § 148, subd. (a)(1)) and vandalism (Pen. Code, § 594, subd. (a)). It appears the prosecution theory is defendant punched a motor vehicle driven by a private security guard in a crosswalk at a shopping center in Tustin, causing damage to the vehicle. The security guard, Jose Reyes, then made a citizen’s arrest of
Defendant’s version of the incident is quite different. He contends he slapped the hood of the motor vehicle being driven inattentively by Reyes when the vehicle almost struck him in the crosswalk. Defendant claims shortly thereafter, he was talking on his cell phone while waiting to enter the Auld Dubliner restaurant and was accosted by two men who did not identify themselves as police officers and who dragged him away. He alleges the officers inflicted significant injuries on him, including breaking one of his arms. Accоrding to defendant, the person he had been talking with on his cell phone heard the incident until the phone was cut off. He also alleges the manager of the restaurant heard the tussle, and attempted to aid him until one of the two men finally identified them as police officers. Paramedics examined defendant and opined his arm was probably broken. Hе was taken to the hospital where the diagnosis was confirmed.
As a result of defendant’s initial Pitchess motion (Pitchess v. Superior Court (1974)
The present issue arises out of defendant’s supplemental discovery motion for the verbatim statements of the percipient witnesses to the charged incident obtained by internal affairs. Defendant filed a complaint with the Tustin Police Department against the arresting officers, alleging abuse. The matter was investigated by Sergeant Del Pickney. According to the return in this matter, statements were obtained from three percipient witnesses.
The superior court denied the supplemental discovery motion. The appellate division of the superior court denied defendant’s petition for a writ of mandate. Defendant thereafter filed a petition for a writ of mandate in this court, which we summarily denied. Defendant then filed a petition for review in the Supreme Court. The Supreme Court granted defendant’s petition and transferred the matter to this court. We issued an alternative writ of mandate pursuant to the high court’s directions.
II
DISCUSSION
In Pitchess v. Superior Court, supra,
Penal Code section 832.5 requires law enforcement departments to investigate complaints against their personnel. (Pen. Code, § 832.5, subd. (a)(1).) The complaints and the reports of the resulting investigations must be maintained in either the officer’s personnel file or such other files as designated by the officer’s agency. (Pen. Code, § 832.5, subd. (b).) Records maintained pursuant to Penal Code section 832.5 “are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” (Pen. Code, § 832.7, subd. (a), italics added.)
The Evidence Code provides a limited right to discovery of an officer’s personnel file maintained pursuant to Penal Code section 832.5. The accused is entitled to discover relevant information or documents in the officer’s personnel file on a showing of good cause. (People v. Gaines (2009)
“A showing of ‘good cause’ exists if the defendant demonstrates both (1) a ‘specific factual scenario’ that establishes a ‘plausible factual foundatiоn’ for the allegations of officer misconduct [citations], and (2) that the misconduct would (if credited) be material to the defense [citation]. . . . Accordingly, defense counsel’s supporting declaration must propose a defense and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense, or how the
The required good cause showing “is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ [Citation.]” (People v. Gaines, supra,
Traditionally, Pitchess motions seek information about past complaints by third parties of excessive force, violence, dishonesty, or the filing of false police reports contained in the officer’s personnel file. (See, e.g., People v. Fuiava (2012)
Unlike the typical Pitchess motion, defendant’s motion under review did not seek discovery of third party complaints of past incidents of alleged misconduct. The court granted defendant’s prior Pitchess motion for that information. The current motion was brought, as all Pitchess motions are, pursuant to Evidence Code section 1043. The motion sought discovery of witnesses’ statements pertaining to the very incident that serves as the basis for the pending charges. The trial court initially denied defendant’s motion without prejudice, based upon its belief that as the internal affairs investigation contained the statements of witnessеs to the charged offenses, defendant was obligated to obtain the statements from the district attorney pursuant to Penal Code section 1054.1. That section requires the prosecutor to disclose to the defense “[rjelevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial . . . .” (Pen. Code, § 1054.1, subd. (f).) The prosecutor took the position that statements contained in an officer’s personnel file are not subject to Penal Code section 1054.1.
The court concluded defendant’s discovery motion was in essence a request for the court to go in camera to determine whether the district attorney or police department complied with their discovery obligations under Penal Code section 1054.1 to disclose the statements of witnesses. The court denied defendant’s discovery motion because it concluded it did not have jurisdiction to “make sure” the prosecution complied with its discovery obligation.
Although a Pitchess motion is submitted to the wide discretion of the court and we defer to the trial court absent a demonstrable abuse of discretion (People v. Samayoa (1997)
A defendant is entitled to discover from the prosecution the relevant statements of witnesses. (Pen. Code, § 1054.1.) The discovery provided in Penal Code section 1054.1, hоwever, is not exclusive. The reciprocal discovery chapter places no restriction on discovery provided by “other express statutory provisions, or as mandated by the Constitution of the United States.” (Pen. Code, § 1054, subd. (e).) Evidence Code section 1043 is one such express statutory provision. Just as the discovery procedure set forth in Evidence Cоde section 1043 et seq. operates “in tandem” with the prosecution’s duty to disclose favorable information pursuant to Brady v. Maryland (1963)
Except with regard to an exception not applicable here (see Pen. Code, § 832.7, subd. (a)) “the prosecutor, as well as the defendant, must comply with the statutory Pitchess requirements for disclosure of information contained in confidential peace officer records. [Citation.]” (Abatti v. Superior Court (2003)
We recognize that the information in an officer’s personnel file is conditionally privileged by statute (Pen. Code, § 832.7), but that privilege must be weighed against the defendant’s legitimate interests in obtaining the requested information. (Vela v. Superior Court (1989)
When the officers’ privacy interest is weighed against defendant’s interest in this matter, defendant’s interest prevails. “Because of the direct relevance of the informаtion, the courts have generally recognized that the law enforcement records of the investigation at issue may be discoverable and have never imposed any special limitations on this disclosure if the requested discovery otherwise meets the statutory criteria. (See Robinson v. Superior Court [(1978)] 76 Cal.App.3d [968,] 978 [
Were it not for the fact the witnesses’ statements are located in personnel files of police officers, there wоuld be no question but that
In conclusion, we hold defendant made a sufficient showing to require an in camera review of the relevant documents and information. If disclosure of the documentation or information is nоt precluded by subdivision (b) or (c) of Evidence Code section 1045, “then disclosure is called for.” (Galindo v. Superior Court, supra,
III
DISPOSITION
Let a writ of mandate issue directing the trial court to vacate its January 21, 2011 order denying defendant’s discovery motion for the statement of witnesses obtained during the internal affairs investigation of defendant’s complaint. The superior court is directed to (1) conduct an in сamera inspection of the relevant documents as provided by Evidence Code section 1045, subdivision (b) and (2) disclose to defendant any relevant statements of witnesses contained in the reviewed documents and any relevant physical evidence not precluded from disclosure by Evidence Code section 1045, subdivisions (b) and (c). The previously issued stay will be vacated when the opinion is final as to this court.
O’Leary, P. J., and Rylaarsdam, J., concurred.
The petition of real party in interest City of Tustin for review by the Supreme Court was denied September 12, 2012, S203820. Baxter, J., was of the opinion that the petiton should be granted.
Notes
The City of Tustin (Tustin) contends defendant’s motion was deficient because he did not attach the police report to the present motion or dеmonstrate his version of the facts differs from the version contained in the police report. As defendant already prevailed on his earlier Pitchess motions for third party complaints contained in one of the officer’s personnel files after alleging the officers used excessive force and wrote false police reports in this matter, Tustin and the court were well aware of Rezek’s theory and version of events.