City of Alhambra v. Superior Court

• Decision Date: 10 November 1988
• Docket Number: B032779,Nos. B031755,s. B031755
• Court: California Court of Appeals Court of Appeals
• Parties: , 205 Cal.App.3d 1556D CITY OF ALHAMBRA, Petitioners, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, Robert Lee RODRIGUEZ, Real Party in Interest. The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, Robert Lee RODRIGUEZ, Real Party in Interest.

Page 789

252 Cal.Rptr. 789

205 Cal.App.3d 1118, 205 Cal.App.3d 1556D

CITY OF ALHAMBRA, Petitioners, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, Robert Lee RODRIGUEZ, Real Party in Interest.

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent, Robert Lee RODRIGUEZ, Real Party in Interest.

Nos. B031755, B032779.

Court of Appeal, Second District, Division 3, California.

Nov. 10, 1988.

As Modified Dec. 1, 1988.

Review Denied Feb. 23, 1989.

Leland C. Dolley, City Atty., Burke, Williams & Sorensen and Slade J. Neighbors, Los Angeles, for City of Alhambra.

Ira Reiner, Dist. Atty., Harry B. Sondheim, Head Deputy Dist. Atty., Donald J. Kaplan and Robert W. Carney, Deputy Dist. Attys., for the People.

No appearance for respondent.

Brodey & Price, Jeffrey Brodey, Beverly Hills, Paul L. Gabbert, Santa Monica, and Jill Jakes, for real party in interest in both cases.

CROSKEY, Associate Justice.

INTRODUCTION

In these proceedings ¹ the City of Alhambra ("City"), as an interested third party, and the People, appearing through the district attorney's office, seek writ relief from certain pretrial discovery orders issued at the request of the real party in interest, Robert Lee Rodriguez (hereinafter "defendant") who is a defendant in a multiple murder case. ² The City's petition (Case No. B031755) argues that the orders were improper because (1) they were issued by a judge who was assigned simply to hear applications under Penal Code section 987.9 for defense investigation funds, (2) compliance with the orders would violate protected governmental interests and (3) there was not a sufficient showing of plausible justification.

The People's petition (Case No. B032779) contends that the order requiring disclosure of records by the district attorney should be vacated because (1) the in camera procedures utilized by the trial court deprived the People of a fair hearing, (2) there was a lack of specificity and timeliness in the defendant's requests and (3) the order imposed an unreasonable burden on law enforcement.

As we conclude that it is improper for a section 987.9 judge, in the absence of an express delegation by the trial judge, to issue pretrial discovery orders, we grant the relief requested by the City. With respect to the People's petition, we conclude that the defendant has made a sufficient showing of plausible justification to receive the requested records which were adequately described and which can be produced without imposing an unreasonable burden on any governmental entity or violating any protected governmental interest. We therefore deny the People's petition. ³

FACTUAL AND PROCEDURAL BACKGROUND

1. City of Alhambra's Reports

On December 1, 1987, the defendant applied for a confidential ex parte order before Judge Gilbert C. Alston, who had previously been assigned by the trial judge (Judge Jack B. Tso), to hear applications for funds under Penal Code section 987.9. Defendant's attorney submitted to the court a separate declaration under seal in order to preserve the confidentiality of the defense strategy. Judge Alston granted this ex parte application and issued an order authorizing the issuance of a judicial subpoena duces tecum requiring the production of copies of all reports in the possession of the Alhambra Police Department ⁴ of all homicide investigations (1) involving female victims, (2) during the time period July 1, 1983 to July 31, 1985, (3) where death was caused by other than a firearm or automobile and (4) where the suspects, if any, are adult males. The subpoena duces tecum was returnable for an in camera examination and review by the court before being released to defense counsel. ⁵

Thereafter the following events occurred:

(1) On December 2, 1987, the City was served with the subpoena compelling it to produce the above-mentioned homicide reports for in camera inspection by the court on December 10, 1987;

(2) On December 10, 1987, the City filed an ex parte motion to quash the subpoena along with an ex parte petition to reconsider and vacate the original order of December 1, 1987. These matters were heard by Judge Alston and denied, the court ordering production of the reports for in camera inspection by December 23, 1987;

(3) On December 22, 1987, the City filed a Request for Stay and a Petition for Writ of Mandate with this court to relieve it from the obligation of producing the homicide reports and records requested. That same day, this court issued a temporary stay order and alternative writ of mandate;

(4) On January 5, 1988, the Alhambra Police Department was served with a subpoena issued by the district attorney's office compelling Alhambra police officer Jim Varga to appear in superior court to testify regarding various homicide records and reports of the City;

(5) On January 6, 1988, the City's motion to quash the subpoena heard by Judge Alston was summarily denied and Officer Varga ordered to appear on January 6, 1988 for pretrial testimony in regard to various reports and records. Judge Alston additionally determined that the aforesaid temporary stay order and alternative writ issued by this court on December 22, 1987, did not apply to testimony by Officer Varga;

(6) On January 6, 1988, the City requested from this court a stay order extending the dates for the appearance of Officer Varga to a date 15 days after issuance of a final ruling on its petition for writ of mandate; and

(7) On January 8, 1988, this court ordered the requested temporary stay and issued a second alternative writ of mandate.

2. District Attorney's Reports

On February 6, 1988, defendant filed a motion with the trial court for discovery requesting twelve specific homicide investigation/police reports ⁶ from the district attorney's office. To preserve the confidentiality of the defense, defendant's attorney submitted a separate declaration under seal for in camera inspection and review. On February 11, 1988, the trial judge granted defendant's discovery motion and ordered that "the summary of the investigator" of the twelve crimes be made available to defendant on February 18, 1988.

On that date, the district attorney, on behalf of the People, filed a petition for a writ of mandate annulling and vacating the superior court's order of February 11, 1988, and requesting a new order denying the February 6, 1988 motion for discovery in its entirety. A stay of the discovery order was also requested. This court issued an alternative writ of mandate and granted a temporary stay pending a determination on the merits of the petition.

DISCUSSION

1. City of Alhambra Petitions

a. Subpoenaed Police Reports

In its petition, the City of Alhambra asserts a number of arguments which, reduced to their essence, may be summarized as follows: (1) the discovery orders were improperly issued by a judge assigned by the trial judge to hear applications for investigative funds under PENAL CODE SECTION 987.9, (2)⁷ the defendant's discovery motion should have been denied on the grounds that it violated a legitimate governmental interest under Government Code section 6255 ⁸ and EVIDENCE CODE SECTION 1040 AND (3)⁹ the defendant failed to provide an adequate showing of plausible justification for the material requested.

With respect to the City's first objection, the defendant argues that because of "Judge Alston's familiarity" with the defense and section 987.9's "umbrella confidentiality" his ex parte application to Judge Alston for the issuance of an order authorizing a subpoena duces tecum was proper. ¹⁰

However, since the purpose of section 987.9 is only to provide for payment and funding of investigations, experts, and other pretrial preparation for the presentation of a defense (see Keenan v. Superior Court (1982) 31 Cal.3d 424, 430, 180 Cal.Rptr. 489, 640 P.2d 108), defendant's application should not have been considered by the section 987.9 judge. Contrary to defendant's argument, it does not necessarily follow that the Code section allows a 987.9 judge to hear all ex parte motions (or applications) a defendant may have in order to preserve confidentiality. The trial judge supervises and handles the substantive case and, without his express delegation, another judge should not hear and decide pretrial discovery motions. Therefore, Judge Alston should have neither heard nor decided defendant's confidential ex parte application. The City's motion to quash should have been granted. ¹¹ To hold otherwise would undermine the trial judge's control over the case and would encourage the unacceptable practice of "judge shopping."

b. Officer Varga's Subpoena

After this court issued a temporary stay order and alternative writ of mandate with respect to the subpoenaed police reports, Judge Alston denied the City's motion to quash a subpoena compelling Officer Varga to appear in his court. ¹² The City argues that its motion to quash should have been granted.

During a hearing before Judge Alston, Officer Varga was identified as the City's "lead detective insofar as homicide investigations go." In an attempt to determine if any other homicide investigation reports existed besides the one turned over to the court by the sheriff's department, the district attorney subpoenaed Officer Varga. A temporary stay order and alternative writ of mandate was then issued by this court to stay the order requiring his appearance.

As noted, supra, in the absence of a specific delegation by the trial judge, the section 987.9 judge's court was not the proper forum for any discovery motion. These motions should have been addressed solely to the sound discretion of the trial judge, who has inherent power to order discovery when the interests of justice so demand. The propriety and necessity of Officer Varga's subpoena must be decided by the trial judge or any judge to whom the task is expressly...