Jalilie v. Superior Court

• Decision Date: 09 October 1987
• Docket Number: No. A038802,A038802
• Citation: 240 Cal.Rptr. 662,195 Cal.App.3d 487
• Court: California Court of Appeals Court of Appeals
• Parties: Fuad JALILIE, Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Page 662

240 Cal.Rptr. 662

195 Cal.App.3d 487

Fuad JALILIE, Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent The PEOPLE of the State of California, Real Party in Interest.

No. A038802.

Court of Appeal, First District, Division 5, California.

Oct. 9, 1987.

Review Denied Jan. 21, 1988.

Steve Emery Teich, San Francisco, for petitioner.

No appearance for respondent.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Blair W. Hoffman, Supervising Deputy Atty. Gen., Aileen Bunney, Deputy Atty. Gen., San Francisco, for real party in interest.

KING, Associate Justice.

In this case we hold that a declaration of defendant's counsel submitted on information and belief, if it demonstrates that information from a police officer's personnel records will facilitate the ascertainment of facts and a fair trial, is sufficient to support a discovery motion under Evidence Code section 1043.

Petitioner Fuad Jalilie is currently charged with two felony offenses in respondent superior court. Under Evidence Code section 1043 and Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, Jalilie filed a motion to discover the disciplinary records and personnel files of the officers involved in his arrest. The trial court denied the motion on the ground that the supporting declaration of counsel was made on information and belief rather than personal knowledge. Jalilie argues the procedural denial was erroneous and seeks a writ of mandate to compel the superior court to hear the motion on its merits. Having stayed the trial court proceedings and obtained opposition from the Attorney General, we conclude Jalilie's position is sound and issue the requested writ.

Evidence Code section 1043 permits a criminal defendant to discover the personnel records of police officers, on motion accompanied by affidavits "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation...." (Evid.Code, § 1043, subd. (b)(3).) The discovery is designed to "facilitate the ascertainment of the facts and a fair trial." (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 536, 113 Cal.Rptr. 897, 522 P.2d 305.) "The requisite showing may be satisfied by general allegations which establish some cause for discovery other than 'a mere desire for the benefit of all information which has been obtained by the People....' " (Id. at pp. 536-537, 113 Cal.Rptr. 897, 522 P.2d 305, quoting People v. Cooper (1960) 53 Cal.2d 755, 770, 3 Cal.Rptr. 148, 349 P.2d 964.)

Jalilie's Pitchess motion was supported by a lengthy declaration of counsel, executed on information and belief, reciting the arresting officers have a history of falsifying reports and evidence in post hoc attempts to justify unwarranted arrests, searches and seizures. The affidavit referred in detail to events in specific cases and alleged the arresting officers had a "habit[,] custom[,] plan, method and practice of searching people they suspect and later justifying such actions without regard to the truth of the matter."

The superior court ruled that the declaration was defective because the "requisite elements" of the "factual undertakings" of the motion were alleged only on information and belief. The court evidently based its ruling on City of Santa Cruz v. Superior Court (1987) 190 Cal.App.3d 1669, 236 Cal.Rptr. 155, in which the Court of Appeal held that a declaration by counsel in support of a Pitchess motion could not be based on information and belief.

The Santa Cruz case is inconsistent with the weight of prevailing authority. Every other court which has considered the issue has concluded that an attorney's Pitchess declaration may be set forth on information and belief. (Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 30-31, 239 Cal.Rptr. 264, petn. for review pending; Pierre C. v. Superior Court (1984) 159 Cal.App.3d 1120, 1123, 206 Cal.Rptr. 82; Arcelona v. Municipal Court (1980) 113 Cal.App.3d 523, 527-530, 169 Cal.Rptr. 877.) Against this line of authority the Santa Cruz decision is "curiously out of step." (Larry E. v. Superior Court, supra, 194 Cal.App.3d at p. 31, 239 Cal.Rptr. 264.) Santa Cruz reasoned that a declaration based on information and belief was "fatally defective" because facts so alleged are merely hearsay and not sufficient proof of good cause for Pitchess discovery. (City of Santa Cruz v. Superior Court, supra, 190 Cal.App.3d at p. 1674, 236 Cal.Rptr. 155.)

The Santa Cruz discussion cites only civil cases, including Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 151 Cal.Rptr. 721, which states the correct general law that facts alleged on information and belief are...