RONALD JAY SISSON, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; BONNIE M. DUMANIS, as District Attorney, etc., et al., Real Parties in Interest.
No. D063022
Fourth Dist., Div. One.
May 6, 2013
216 Cal. App. 4th 24
Mark W. Fredrick for Petitioner.
No appearance for Respondent.
Bonnie M. Dumanis, District Attorney, Laura Tanney, Gary Schons and Laurie Hauf, Deputy District Attorneys, for Real Party in Interest Bonnie M. Dumanis.
Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney General, Chris A. Knudsen and Evan R. Sorem, Deputy Attorneys General, for Real Party in Interest Department of Corrections and Rehabilitation.
Jones & Mayer and Gregory P. Palmer for Real Party in Interest Costa Mesa Police Department.
OPINION
MCCONNELL, P. J.—
INTRODUCTION
In this petition, we must decide whether a criminal defendant charged with provocative act murder showed good cause for discovery of complaints of dishonesty, false reporting, and excessive force in peace officers’ personnel records. We must also decide whether a trial court, when conducting an in camera review of such records, must examine the records itself or whether it may rely in whole or in part on the custodian‘s sworn testimony about the records’ contents and the custodian‘s opinion about whether any information in the records is discoverable.
We conclude defendant showed good cause for discovery of complaints of dishonesty or false reporting as to some officers, but did not show good cause for discovery of complaints of excessive force as to any officers. We further conclude a trial court conducting an in camera review of peace officer
BACKGROUND
Ronald Jay Sisson, also known as Brian Lee Olsen, is charged with one count of murder (
Officers’ Version of Events
According to a report of the incident prepared by the Carlsbad Police Department, Costa Mesa Police Sergeant Scott May; Costa Mesa Police Detectives Eric Wisener, Larry Fettis, Aaron Parsons, Kevin Westman, Bang Le, and George Escanuelos; and state parole agents Eric Kraus and Shad Colbert traveled to Carlsbad on November 1, 2007, in three unmarked vehicles. May, Parsons and Westman were in a Nissan Armada; Escanuelos and Fettis were in a Chevrolet Impala; and Wisener, Le, Colbert, and Kraus were in a Chevrolet Uplander.
The purpose of the officers’ trip was to apprehend Sisson, who had absconded from parole. At the time, the officers believed Sisson was an associate of a criminal street gang. They also believed he was wanted by another law enforcement agency on identity theft charges and for possibly kidnapping his infant child from foster care. They considered him to be armed and dangerous.
All of the officers wore badges. Four of the officers wore clothing identifying them as peace officers. Parsons wore the Costa Mesa Police Department‘s gang unit uniform, including “a black polo style shirt with a soft police badge patch sewn on the upper left chest. On the back of the shirt, POLICE GANG UNIT was written in large white lettering.” Kraus1 and Colbert both wore black T-shirts with “POLICE” written in large white letters on the front, back and both sleeves. They also wore soft body armor with “POLICE” written on both the front and back. Le wore a blue, long-sleeve nylon raid jacket with “POLICE” written on the back and both sleeves.
The officers blocked Sisson‘s vehicle by parking the Uplander and the Armada behind it. Parsons, who had had previous contacts with Sisson, and Westman got out of the Armada and approached the driver‘s side of Sisson‘s vehicle. Parsons had his gun drawn and his flashlight out. Wisener, who also had had previous contacts with Sisson, and Colbert got out of the Uplander and positioned themselves at the rear passenger side of Sisson‘s vehicle.
Parsons stood next to the driver‘s side door of Sisson‘s vehicle and identified himself as a police officer. Parsons commanded Sisson to stop and to put his hands up. Sisson made eye contact with Parsons and initially raised his hands, as if complying with Parsons‘s commands. However, Sisson then put his hands back on the steering wheel of his vehicle and reversed it. He swerved it toward Parsons and ran over Parsons‘s foot and lower leg. Parsons yelled several times that he had been hit.
Meanwhile, Sisson repeatedly rammed his vehicle into the Uplander and Armada until he forced his way between them. At the time, Kraus and Le, both of whom had previous contacts with Sisson, were inside the Uplander and May was inside the Armada.
Sisson continued reversing his vehicle in a circular pattern through a neighbor‘s yard. Fettis was standing next to the driver‘s door of the Impala, which he had parallel parked west of Sisson‘s driveway. Sisson looked over his shoulder at Fettis and then drove his vehicle directly toward Fettis. Fettis ran to a safe location just before Sisson rammed the Impala.
After Sisson rammed the Impala, he continued driving his vehicle in reverse at an accelerated speed toward a nearby intersection. When Sisson reached the intersection, he turned his vehicle around and lurched forward as he transitioned from reverse to drive. By then, several of the officers had moved to the middle of the street and Wisener, Fettis, and Kraus fired their weapons at Sisson‘s vehicle. Wisener fired one shot, Fettis fired 13 shots, and Kraus fired 12 shots.
Sisson drove away, eventually crashing his vehicle into a telephone pole and fleeing on foot. Police officers apprehended him approximately an hour after the crash. He had only minor injuries; however, his front seat passenger
Parsons also received treatment at a hospital. He had a sprained ankle and there were tire marks on his right leg below the knee.2
Sisson‘s Motions and Version of Events
Sisson filed two motions under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess),
Sisson supported his motions with declarations from his attorney disputing the officers’ version of events in several key respects. As to all of the officers, the declarations stated Sisson had no history of violence and had never been accused of possessing a deadly or dangerous weapon. The officers knew from a radio transmission by Fettis there was a passenger in Sisson‘s vehicle. Sisson was already backing out of the driveway when the officers drove up in their vehicles and their vehicles collided with his. Although it was nighttime, the officers did not have their vehicles’ headlights turned on. In addition, the officers wore civilian clothing and did not identify themselves as police officers. Sisson believed he was under attack and attempted to escape. The officers fired 27 rounds at his vehicle. All of the rounds hit the passenger side of the vehicle.
As to specific officers, the declarations stated that during the police investigation and, in some instances, during the preliminary hearing:3
(1.) Parsons and Wisener lied about identifying themselves as police officers when they approached Sisson‘s vehicle as Sisson and unspecified witnesses stated the officers did not identify themselves.
(2.) Parsons lied about not knowing whether there was a passenger in Sisson‘s vehicle and Wisener similarly lied about not seeing a passenger in Sisson‘s vehicle.
(3.) Parsons changed his story about how he was holding his flashlight as he approached Sisson‘s vehicle because he wanted to cover up his knowledge there was a passenger in Sisson‘s vehicle and bolster his claim Sisson knew he was a police officer.
(4.) Parsons lied about being run over by Sisson‘s vehicle because he did not sustain any injury during the incident.
(5.) Wisener lied about Sisson driving his vehicle toward other officers, repeatedly smashing his vehicle into an unmarked police car, and crashing into a neighbor‘s garage. Sisson never drove his vehicle toward officers and instead simply tried to exit the area. The physical evidence supports Sisson‘s position, including the fact that all of the bullet holes are in the side of Sisson‘s vehicle. None of them are in the front of it. In addition, the shooting officers admitted they spoke with one another after the incident and before their interviews with Carlsbad investigators, giving them ample opportunity to create a collusive story.
(6.) Fettis lied about not telling other officers there was a passenger in Sisson‘s vehicle. Kraus stated in his report of the incident he heard Fettis announce this information over the radio.
(7.) Fettis lied about Sisson driving his vehicle directly toward him. Sisson never drove toward Fettis. Unspecified physical evidence and unspecified witness accounts show Fettis‘s claim was fabricated. In addition, the shooting officers admitted they spoke with one another after the incident and before their interviews with Carlsbad investigators, giving them ample opportunity to create a collusive story.
(8.) Le was evasive in his account of events and lied about seeing little to none of the incident likely because he did not want to contradict his fellow officers.
(9.) Escanuelos, Westman, May, and Colbert lied about hearing officers identify themselves as police officers to Sisson. Sisson and unspecified witnesses stated the officers did not identify themselves.
(11.) May failed to tell investigators he had admonished officers for firing their weapons without having a clear shot.
(12.) Kraus lied about shooting at Sisson as Sisson was driving toward him. Sisson‘s account, unspecified witnesses’ accounts, and unspecified physical evidence show this claim was fabricated. Carlsbad investigators also informed Kraus the placement of the shell casings at the scene did not match his version of events. In addition, the shooting officers admitted they spoke with one another after the incident and before their interviews with Carlsbad investigators, giving them ample opportunity to create a collusive story.
The trial court granted Sisson‘s Pitchess motions in part. The trial court found Sisson had shown good cause for an in camera review of the personnel files of Kraus, Wisener, Fettis, and Parsons for complaints related to dishonesty and false reporting. The trial court correspondingly found Sisson had not shown good cause for an in camera review of the other officers’ personnel files for such complaints. It also found Sisson had not shown good cause for an in camera review of any of the officers’ personnel files for excessive force.
After conducting the in camera review, the trial court found discoverable information as to two of the officers. The trial court provided the information to defense counsel subject to a protective order. Sisson then filed this petition seeking review of the trial court‘s decision.
DISCUSSION
I
Applicable Legal Principles
The legal principles guiding our review of Pitchess motions are well established. “A defendant has a limited right to discovery of a peace officer‘s confidential personnel records if those files contain information that is potentially relevant to the defense. [Citations.] . . . [][] To initiate discovery, a defendant must file a motion seeking such records, containing affidavits ‘showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation. . . .’ [Citation.] Good cause requires the defendant to establish a logical link between a proposed defense and the pending charge and to articulate how the
“The threshold for establishing good cause is ’ “relatively low.” ’ [Citations.] The proposed defense must have a ‘plausible factual foundation’ supported by the defendant‘s counsel‘s declaration and other documents supporting the motion. [Citation.] A plausible scenario ‘is one that might or could have occurred.’ [Citation.] The ‘defendant must also show how the information sought could lead to or be evidence potentially admissible at trial . . . . Once that burden is met, the defendant has shown materiality under [
” ‘If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], “the trial court should then disclose to the defendant ‘such information [that] is relevant to the subject matter involved in the pending litigation.’ ” [Citations.]’ [Citation.]
“We review the denial of a Pitchess motion for abuse of discretion.” (People v. Moreno (2011) 192 Cal.App.4th 692, 700–702.) “A trial court abuses its discretion when its ruling ‘fall[s] “outside the bounds of reason.” ’ [Citation.]” (People v. Waidla (2000) 22 Cal.4th 690, 714; accord, People v. Galan (2009) 178 Cal.App.4th 6, 12.)
II
A
Discovery of Dishonesty/False Reporting Complaints as to May, Escanuelos, Westman, Colbert and Le
Sisson contends the trial court abused its discretion by denying his motions for information related to complaints of dishonesty or false reporting as to May, Escanuelos, Westman, Colbert, and Le. We agree Sisson showed good cause for discovery of such information as to May, Escanuelos, Westman and Colbert, but not as to Le.
As summarized above, the declarations supporting Sisson‘s motions stated May, Escanuelos, Westman, and Colbert lied about hearing officers identify themselves as police officers to Sisson. According to Sisson and unspecified witnesses, the officers did not identify themselves. Sisson, therefore, believed he was under attack and attempted to escape.
Conversely, as to Officer Le, we conclude Sisson has not met the good cause requirement. One of Sisson‘s supporting declarations states Le was evasive in his account of events, but the declaration does not elaborate on this point. Likewise, the declaration states Le lied about seeing little to none of the incident, but the declaration does not provide a specific factual scenario with a plausible factual foundation to support this statement. Accordingly, we conclude the trial court did not abuse its discretion by denying Sisson‘s motion for discovery of past complaints of dishonesty and false reporting against Le.
B
Discovery of Excessive Force Complaints as to Fettis, Kraus, and Wisener
Sisson contends the trial court erred by denying his motion for discovery of information in the personnel files of Fettis, Kraus, and Wisener related to excessive force complaints. As previously discussed, to establish good cause for discovery of this information, Sisson must demonstrate a logical link between the information and a proposed defense to a pending charge.
1
Murder Charge
At the hearing on the Pitchess motions, Sisson argued past complaints of excessive force were material because the officers’ use of excessive force in firing at his vehicle was an absolute defense to the murder charge. Sisson is mistaken.
The prosecution is seeking to hold Sisson liable for his passenger‘s death under the provocative act murder doctrine. “The provocative act murder doctrine has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, responds with privileged lethal force by shooting back and killing the perpetrator‘s accomplice or an innocent bystander.” (People v. Cervantes (2001) 26 Cal.4th 860, 867.)
“[A] provocative act murder has both a physical and a mental element that the prosecution must establish. [Citation.] To constitute the actus reus of provocative act murder, the defendant must commit an act that provokes a third party to fire a fatal shot. The mens rea element is satisfied if the defendant knows that his or her provocative act has a high probability—not merely a foreseeable possibility—of eliciting a life-threatening response from the person who actually fires the fatal bullet. [Citations.] Cases often discuss these two elements in terms of whether the defendant committed a provocative act which proximately caused the killing.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 582–583; see CALCRIM No. 560.)
The focus of the provocative act murder doctrine is on the defendant‘s conduct and not on the state of mind of the party firing the fatal shot. (See In re Joe R. (1980) 27 Cal.3d 496, 506, fn. 6; Pizano v. Superior Court (1978) 21 Cal.3d 128, 137–139)
2
Assault Charges
In his response to our request for supplemental briefing (see fn. 4, ante), Sisson argues for the first time that the reasonableness of the officers’ use of force is material to his defense of the assault charges. More particularly, he argues the reasonableness of the officers’ use of force is material to whether the officers were lawfully performing their duties at the time of the alleged assaults. He bases his argument on his view of the conduct of the officers who stopped and approached his vehicle. However, he has not supplied any supporting authority indicating the officers’ actions were, or could reasonably be found to be, unlawful or excessive under the circumstances (e.g., involving the apprehension of a known gang member who had absconded from parole and was believed to be armed and dangerous). Similarly, to the extent Sisson bases his argument on the conduct of the officers who fired gunshots at his vehicle, he has not supplied any supporting authority indicating actions taken after his alleged assaults can provide a defense to them. Accordingly, Sisson has failed to establish a logical link between past complaints of excessive force and any defense in this case.
III
Procedures for In Camera Review
After partially granting Sisson‘s Pitchess motions, the trial court conducted two in camera hearings: one to review Kraus‘s personnel records and one to review the personnel records of Wisener, Fettis, and Parsons. At each hearing, the trial court placed the custodian under oath and asked the custodian general questions about the contents of the records the custodian produced. The trial court did not, however, examine any produced record unless the custodian indicated the record included discoverable information. For instance, although one of the custodians produced records of an internal affairs
Because we questioned whether the trial court‘s in camera review complied with applicable law, we requested and received supplemental briefing from the parties. After considering the supplemental briefing, we conclude the trial court‘s in camera review did not comply with applicable law.
The California Supreme Court discussed the procedures for Pitchess motions at length in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc). Of pertinence here, the court explained that when a trial court finds a defendant has shown good cause for discovery of peace officer personnel information, the custodian of records “is obligated to bring to the trial court all ‘potentially relevant’ documents to permit the trial court to examine them for itself.” (Id. at pp. 1228–1229, italics added.) A custodian need not produce any documents clearly irrelevant to the defendant‘s Pitchess request; however, if a custodian is uncertain whether a document is relevant, the custodian “should present it to the trial court. Such practice is consistent with the premise of
Before ruling on the Pitchess motion, the trial court must make a record of what documents it examined to permit future appellate review. To make the record, the trial court may photocopy the records the custodian produced and place them in a confidential file. Alternatively, the trial court can make a list of or state for the record the documents it examined. (Mooc, supra, 26 Cal.4th at p. 1229.) After examining the documents and questioning the custodian, the trial court should seal the record of the in camera hearing. (Id. at pp. 1229–1230.)
In this case, the transcripts of the in camera hearings show the trial court failed to comply with the Supreme Court‘s guidance in Mooc in key respects. Of chief concern, the trial court did not examine all of the potentially responsive documents the custodians produced. Rather, the trial court only examined a document if a custodian affirmatively indicated the document contained discoverable information. The trial court utilized this approach even for documents directly related to the case, such as an internal affairs review of the subject shooting.
Moreover, because the trial court did not examine all of the produced documents, the trial court did not make an adequate record of the produced documents should we need to review the matter on appeal. (Mooc, supra, 26 Cal.4th at p. 1229.) Further, while the trial court made an effort to inquire into what types of documents the custodians opted not to produce, the effort fell short of requiring the custodians to establish on the record what documents or category of documents were included in the officers’ complete personnel files and, where applicable, to explain their decisions to withhold certain documents. “Absent this information, the court cannot adequately assess the completeness of the custodian‘s review of the personnel files, nor can it establish the legitimacy of the custodian‘s decision to withhold documents contained therein. Such a procedure is necessary to satisfy the Supreme Court‘s pronouncement that ‘the locus of decisionmaking’ at a Pitchess hearing ‘is to be the trial court, not the prosecution or the custodian of records.’ [Citation.]” (People v. Guevara (2007) 148 Cal.App.4th 62, 69, citing Mooc, supra, at p. 1229.) Accordingly, we conclude the trial court must conduct a new in camera review of the personnel records of Kraus, Wisener, Fettis, and Parsons.
DISPOSITION
Let a writ of mandate issue directing the superior court to review in camera the personnel records of May, Wisener, Fettis, Parsons, Westman, Escanuelos, Kraus, and Colbert for past relevant complaints of dishonesty and false
McDonald, J., and Aaron, J., concurred.