Alvarez v. Superior Court

• Decision Date: 20 April 2004
• Docket Number: No. B172785.,B172785.
• Citation: 12 Cal.Rptr.3d 252,117 Cal.App.4th 1107
• Court: California Court of Appeals Court of Appeals
• Parties: Marcos ALVAREZ, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles County Sheriff's Department, et al., Real Parties in Interest.

12 Cal.Rptr.3d 252

117 Cal.App.4th 1107

Marcos ALVAREZ, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Los Angeles County Sheriff's Department, et al., Real Parties in Interest.

No. B172785.

Court of Appeal, Second District, Division 4.

April 20, 2004.

Michael P. Judge, Albert J. Menaster, Michael Fischman, Los Angeles, and Graciela Martinez for Petitioner.

No appearance for Respondent.

Nelson & Fulton, Henry Patrick Nelson, Los Angeles, and Traci A. Kirkbride for Real Parties in Interest.

HASTINGS, J.

INTRODUCTION

This writ proceeding raises an issue of Pitchess¹ discovery in a prosecution for resisting arrest. The defense was provided with the name of a deputy sheriff who had filed a complaint of "workplace violence" against one of the sheriffs who had arrested petitioner. When contacted by the defense investigator, the complaining deputy refused to discuss the incident that had formed the basis of his complaint. The defense then sought discovery of the complainant's statements about the incident. The trial court denied the motion. This petition followed. We grant relief.

FACTUAL AND PROCEDURAL BACKGROUND

Based upon a November 14, 2002 altercation in County Jail with Los Angeles County Deputy Sheriff Michael Do, petitioner Marcos Alvarez was charged with one count of resisting an executive officer (Pen.Code, § 69).

Petitioner filed a Pitchess motion seeking complaints filed against Do as well as three other deputy sheriffs, including Daniel Etter, who were participants in and witnesses to the altercation.

On March 3, 2003, the trial court granted the motion to the extent it sought to discover complaints of excessive force. Following an in camera review of the pertinent records, the court ordered disclosure of one item: the fact that on December 12, 2000, Deputy Sheriff Joseph Summer had lodged a complaint against Deputy Etter alleging "workplace violence."

The Los Angeles County Sheriff's Department (Sheriff's Department) provided petitioner with the information required by the court's discovery order.

Petitioner's investigator eventually located Deputy Summer. Deputy Summer, however, refused to discuss the event that had formed the basis of his complaint against Deputy Etter.

Petitioner then filed a supplemental Pitchess motion seeking the statements taken from Deputy Summer in regard to his complaint against Deputy Etter.

The motion was supported by a declaration from petitioner's counsel, based upon information and belief, that Deputy Summer did not want to discuss the incident. Petitioner urged the deputy's refusal to discuss the incident was the functional equivalent of being unavailable to discuss the incident, thereby entitling him to the deputy's statements.

On June 30, 2003, the trial court denied the supplemental motion. It held the deputy's refusal to cooperate did not make him unavailable so as to permit disclosure of the statements he had made.² Petitioner then sought a writ of mandate from this court. We denied the petition without prejudice. Our order explained: "The May 16, 2003 declaration of counsel, made `on information and belief,' lacks adequate foundation to establish the unavailability of the witness [Deputy Summer] or otherwise demonstrate good cause for the requested supplemental discovery. [Citation.]" (Alvarez v. Superior Court (Oct. 3, 2003) B169561.)

When trial court proceedings resumed, petitioner filed a new supplemental Pitchess motion for Deputy Summer's statements. This time the motion was supported by a declaration from the investigator. He averred that Deputy Summer had refused to speak with him about the complaint he had filed against Deputy Etter. The new motion was heard on December 8, 2003, by Judge Sam Ohta because Judge Dale Fisher who had ruled upon the earlier motion had since been appointed to the federal bench. Judge Ohta reviewed the transcript of the June 30 hearing and concluded Judge Fisher had denied the supplemental motion on the merits. Judge Ohta then denied the new supplemental motion, finding there was no showing of the required "change of circumstances" that would permit him to reconsider Judge Fisher's ruling.

This petition followed. We issued an alternative writ of mandate.

DISCUSSION

The first issue raised by this petition is whether the trial court erred when it refused to reconsider the June 30th ruling made by Judge Fisher.

"It is often said as a general rule one trial judge cannot reconsider and overrule an order of another trial judge. There are important public policy reasons behind this rule. `For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.' The rule also discourages forum shopping, conserves judicial resources, prevents one judge from interfering with a case ongoing before another judge and prevents a second judge from ignoring or arbitrarily rejecting the order of a previous judge[.]" (People v. Riva (2003) 112 Cal.App.4th 981, 991, 5 Cal.Rptr.3d 649, fns. omitted.)

However, one well-recognized exception to the rule is that the rule does not apply when the first judge has become unavailable. (In re Alberto (2002) 102 Cal.App.4th 421, 430, 125 Cal.Rptr.2d 526.) That circumstance is clearly present in this case since Judge Fisher had been appointed to the federal court. Consequently, the policy concerns of discouraging forum shopping and preventing one judge from interfering with another judge's handling of a case are not present. Furthermore, although not required,³ petitioner, in response to our order in the earlier writ proceeding, had now presented significant new evidence to the trial court in support of his new supplemental motion: the declaration from the investigator based upon personal knowledge that Deputy Summer refused to speak about the complaint. We therefore conclude that Judge Ohta erred in declining to rule on the merits of the new supplemental discovery motion.

We could simply issue a writ compelling the trial court to rule on the new supplemental motion. However, in order to conserve judicial resources, we will address the merits of the motion.

In Pitchess, supra, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, the California Supreme Court held that a defendant claiming self-defense to a charge of battery upon several deputy sheriffs could discover complaints of excessive force contained in the deputy's personnel files. The defense was entitled to that information upon showing it would "facilitate the ascertainment of the facts and a fair trial." (Id. at p. 536, 113 Cal.Rptr. 897, 522 P.2d 305.) The court explained that this required no more than "general allegations" establishing "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.'" (Id. at p. 537, 113 Cal.Rptr. 897, 522 P.2d 305.)

The Legislature thereafter codified this right to discovery in Evidence Code sections 1043 through 1045. Evidence Code section 1043, subdivision (b)(3) requires an affidavit "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation[.]" Although not required by the statutory scheme, the "courts have generally refused to disclose verbatim reports or records of any kind from peace officer personnel files, ordering instead ... that the agency reveal only the name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question. [Citations.]" (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84, 260 Cal.Rptr. 520, 776 P.2d 222.)

Nonetheless, the practice of disclosing only the name of the complainant and contact information must yield to the requirement of providing sufficient information to prepare for a fair trial. For example, in Pitchess, supra, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, two individuals who had filed complaints against the deputy sheriffs were unavailable for interview by defense counsel. In addition, two other complainants could not recall the details of the events. (Id. at p. 537, 113 Cal.Rptr. 897, 522 P.2d 305.) Given that showing, the Supreme Court held disclosure of additional information was required. Disclosure of the prior statements given by the unavailable complainants to the sheriff's investigators was "necessary for effective cross-examination." (Ibid.) And disclosure of the sheriff's records was "necessary to refresh [the] recollection" of the individuals who could not remember the operative events. (Ibid.) The Pitchess court reasoned that the defendant "cannot be held responsible for [the complainants'] unavailability or lack of memory, and he has no access to the sheriff's investigative records. Furthermore, the information which defendant seeks may have considerable significance to the preparation of his defense, and the documents have been requested with adequate specificity to preclude the possibility that defendant is engaging in a `fishing expedition.' We therefore conclude that defendant demonstrated sufficient good cause under the appropriate standards of criminal procedure, as developed in case authority, to warrant the trial court in compelling discovery." (Id. at pp. 537-538, 113 Cal.Rptr. 897, 522 P.2d 305; see also City of Azusa v. Superior Court (1987) 191 Cal.App.3d 693, 696-697, 236 Cal.Rptr. 621 [disclosure of information in addition to names and addresses of complainants would be premature absent a showing the complainants were unavailable for interview or could not remember the events]; Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-829, 133 Cal.Rptr. 325 [defendant can move for further discovery if names of complainants and contact data prove to be inadequate information to prepare his...