Abatti v. Superior Court, D042054.

• Decision Date: 18 September 2003
• Docket Number: No. D042054.,D042054.
• Citation: 4 Cal.Rptr.3d 767,112 Cal.App.4th 39
• Court: California Court of Appeals Court of Appeals
• Parties: David Randy ABATTI, Petitioner, v. The SUPERIOR COURT of Imperial County, Respondent; The People, et al., Real Parties in Interest.

4 Cal.Rptr.3d 767

112 Cal.App.4th 39

David Randy ABATTI, Petitioner, v. The SUPERIOR COURT of Imperial County, Respondent The People, et al., Real Parties in Interest.

No. D042054.

Court of Appeal, Fourth District, Division 1.

September 18, 2003.

Rehearing Denied September 29, 2003.

Review Denied November 12, 2003.

Plourd & Breeze and John W. Breeze, El Centro, for Petitioner.

Carmela F. Simoncini, San Diego, for Appellate Defenders, Inc. Amicus Curiae on behalf of Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General and Charles C. Ragland, Deputy Attorney General, for Real Party in Interest the People of the State of California.

Liebert Cassidy Whitmore, J. Scott Tiedemann and Lucy Siraco for Real Party in Interest the City of Calexico.

HUFFMAN, Acting P. J.

In this criminal action, defendant David Randy Abatti petitions for a writ of mandate/prohibition directing respondent Superior Court of Imperial County (the court) to vacate its April 18, 2003 order denying his hybrid Brady/Pitchess¹ motion for review of a former police officer's records without conducting an in camera inspection, to restrain from proceeding with his case, and to enter an order directing the court to conduct an in camera review of the officer's personnel records to determine whether they contain any exculpatory information or material that may be used to impeach the former officer who is listed as a prosecution witness in this case.

Abatti specifically contends the court abused its discretion in refusing to review the "counseling memos" contained in the personnel records of the former police officer or, to at least make a record of the documents it considered in refusing his Brady/Pitchess motion. He also contends the five-year limitation on disclosure of information in such files (Evid.Code, § 1045, subd. (b)(1)) is not an absolute bar to disclosure of Brady information in those files, and that his counsel's declaration on "information and belief" was sufficient to show the materiality of those records.

Abatti argues it was an error at law to deny his motion without first reviewing the former officer's personnel records.

The People, represented by the Attorney General's Office, counter that an in camera hearing was not warranted because Abatti failed to show materiality under either Brady or Pitchess, the 12-year-old counseling memos were not discoverable under Pitchess, and the trial court did not have an obligation to conduct an in camera review to seek out potential Brady material.²

The City of Calexico (City), representing the Calexico Police Department (PD) and City, essentially contends Abatti has failed to show the court committed "a clear case of abuse" or "a miscarriage of justice" in the court's ruling on Abatti's hybrid motion.

Appellate Defenders, Inc. (ADI), appearing as amicus curiae on behalf of Abatti, contends the court abused its discretion in denying Abatti's pretrial discovery motion because good cause and a plausible factual foundation for information in the former officer's records were shown, and the former officer was not required to be represented at the Pitchess/Brady proceeding where City appeared to assert the governmental privilege on his behalf.

We shall conclude the trial court abused its discretion in failing to find materiality and good cause for the information sought under the hybrid Brady/Pitchess motion in this case. Accordingly, we grant the petition, ordering the court to set aside its April 18, 2003 order, and to conduct an in camera review of the counseling memos of the former police officer in accordance with this opinion to ascertain whether they contain information required to be disclosed to Abatti under Brady.

PROCEDURAL AND FACTUAL BACKGROUND

On December 16, 2002, the People filed an information charging Abatti with the October 6, 2002 assault upon Danny Saiz with a deadly weapon, to wit: a vehicle, and by force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)(1)), with leaving the scene of an accident (Veh.Code § 20002, subd. (a)), and with drawing or exhibiting a firearm (Pen.Code, § 417, subd. (a)(2)). The information also alleged that Abatti personally inflicted great bodily injury on Saiz during the commission of the assault within the meaning of Penal Code section 12022.7, subdivision (a).

On February 27, 2003, Abatti filed a Pitchess motion under Evidence Code section 1043 seeking the inspection and disclosure of certain peace officer personnel records of former Calexico City Police Officer Jesse Torres, who had been identified by the People as a person who would be called as a witness against Abatti at trial. By such motion, Abatti specifically sought "[a]ny and all records, documents, tape recordings, photographs, reports, internal affairs investigation memoranda, hearing transcripts, or other information or evidence relating to complaints by civilians, private citizens, law enforcement officers or other public officials against [Torres] ... relating to any history of misstating or fabricating facts, making material misstatements in reports concerning charged incidences or providing false information regarding any arrest or incidence in which the officer filed any report," in addition to the names, addresses and telephone number of those making any complaints, and all psychological records relating to Torres regarding his hiring or at any other time with the Calexico PD. The motion was made on grounds the personnel records of Torres contained evidence that was relevant to the issue of whether Torres "misstated or fabricated facts or made material misstatements in his report of the alleged contact with [Abatti] at the Imperial Valley Cycle Center [(the cycle center)]in December 2002[, and would] give rise to the discovery of admissible evidence in the form of other possible witnesses to [Torres's] propensities to engage in the conduct of misstating or fabricating facts."

In support of the motion, Abatti filed points and authorities and the declaration of his counsel. Counsel's declaration noted that the October 2002 assault on Saiz occurred in an unincorporated area outside the city limits of El Centro where Abatti allegedly ran Saiz off a dirt road and into a drainage ditch by striking Saiz's "four wheeled quad vehicle from behind," causing Saiz to suffer injuries, including a broken leg. According to discovery provided to Abatti, a person named Torres who currently works for the cycle center had told the police that Abatti had come into the center and had described the event that eventually led to his arrest. "In this interview, [Torres] claims that [Abatti] admitted being present at the scene where [Saiz's] four wheel vehicle was run into a drainage ditch. According to [Saiz, Abatti] was present at the scene and may have spoken to [Saiz] at the scene of the accident." Counsel states that when Torres was interviewed by a defense investigator he indicated he was a former police officer with the Imperial Police Department and with the Calexico PD, that he had left the Calexico PD "under some type of disability," and has worked at Western Auto and the cycle center since he left his law enforcement career.

On information and belief, counsel alleged Torres was considered to be a problem officer with the Calexico PD, that he had "deliberately embellished and/or fabricated facts and circumstances surrounding his arrests with the Calexico [PD, and] that none of the other police officers with the Calexico [PD] wanted anything to do with him and that he brought on many problems with [City] as a result of his actions." It was counsel's understanding that Torres was asked to leave the Calexico PD and "given an ultimatum that unless he left he would be either charged with misconduct or would have been fired." It was also counsel's belief that there were grievances and other complaints that had been filed either by fellow police officers or citizens regarding Torres, some of which had been investigated, the results of which were unknown to counsel who did not have access to such information. Based upon his interview with Abatti and his investigator's interview with Torres, counsel further believed that Torres "has embellished and misstated [facts] in his statements to the Attorney General's office regarding [Abatti's conduct and] statements to [him] at the [cycle center]." Counsel, therefore, sought an in camera inspection to determine whether there was any information in Torres's police officer personnel files that showed reports of misconduct or psychological records which would show he may have misstated or fabricated facts on previous occasions. The motion was served on the Attorney General, the Calexico PD, and City's attorney.

City responded for the Calexico PD in opposition to the Pitchess motion, noting Torres had worked as a police officer between October 1, 1983, and January 1, 1991, making his last date of employment with Calexico PD over 12 years ago. City thus claimed none of Torres's records were discoverable as they were not within the five-year limitation of Evidence Code section 1045, subdivision (b). He further asserted that Abatti's attorney had not alleged sufficient factual allegations to satisfy the good cause and materiality requirements of Evidence Code section 1043, and that no compelling need had been shown for any psychological records.

In supplemental points and authorities, the defense argued "[t]he fact ... Torres is no longer a police officer with the Calexico [PD] does not bar discovery of his police officer personnel records and complaints that were made against him while he was a police officer [as] this information is discoverable under both Evidence Code Section 1045 and [Brady] pursuant to [City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 124 Cal.Rptr.2d 202, 52 P.3d 129 (City of Los Angeles)]." The defense claimed...