Larry E. v. Superior Court

• Decision Date: 14 August 1987
• Citation: 194 Cal.App.3d 25,239 Cal.Rptr. 264
• Court: California Court of Appeals Court of Appeals
• Parties: LARRY E., a Minor, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, The PEOPLE, Real Party in Interest. B025947.

Page 264

239 Cal.Rptr. 264

194 Cal.App.3d 25

LARRY E., a Minor, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent The PEOPLE, Real Party in Interest.

B025947.

Court of Appeal, Second District, Division 4, California.

Aug. 14, 1987.

Review Denied Nov. 12, 1987.

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Theodore Fasteau, Alan H. Simon, Lee Ellis Rosen, Susan L. Burrell and Albert J. Menaster, Deputy Public Defenders, for petitioner.

No appearance for respondent.

John R. Calhoun, City Atty., and Bradford L. Andrews, Deputy City Atty., for real party in interest.

WOODS, Presiding Justice.

This is a proceeding in mandamus to compel "Pitchess" discovery ¹ in a pending juvenile court matter (Welf. & Inst.Code, § 602) in which petitioner (minor) is charged, inter alia, with interfering with police officers in the discharge of their duties and battery upon a police officer.

On November 15, 1986, at about 10:30 p.m., Long Beach Officers Loomis and Harris were on patrol in the Carmelita Housing Project. The officers saw minor standing in a parking lot, next to the passenger side of a car occupied by two people. Believing a narcotics transaction was taking place, the officers pulled into the parking lot at a high rate of speed. Minor allegedly ran and continued running even after the officers yelled at him to stop. Ultimately, he ran to a second parking lot where he crouched down between two cars. Officer Loomis drove toward minor in the car, while Officer Harris pursued him on foot. While in pursuit, Harris allegedly saw minor remove a clear plastic bag containing a white substance from his pocket and toss it into a trash bin. Harris caught up with minor about 10 feet from the bin.

By the time Loomis arrived minor was on his back on the ground. Loomis saw minor kick Officer Harris in the knees at which point the two officers "converged upon" minor. Believing that minor was about to kick Harris in the groin, Loomis kicked minor in the chest. Eventually, minor was handcuffed. The officers recovered the plastic bag from the trash bin as well as currency which minor allegedly threw beneath a parked car during the scuffle. Minor was taken to the police station. A laboratory analysis established that the substance in the plastic bag was 2.24 grams of cocaine.

On December 15, 1986, a juvenile court petition was filed in which it was alleged that minor came within the provisions of Welfare and Institutions Code section 602. Count I alleged a violation of section 11351 of the Health and Safety Code (possession for sale of cocaine); count II alleged a violation of section 148 of the Penal Code (interfering with peace officers in the discharge of their duties); and count III alleged a violation of sections 242, 243, subdivision (d) of the Penal Code (battery upon a peace officer, Officer Harris). At arraignment, minor denied the petition and the matter was set for discovery.

On December 22, 1986, defense counsel filed a "Pitchess" motion seeking discovery of the identity of citizens who had filed complaints against both Officers Loomis and Harris for acts of aggressive behavior, violence or excessive force, improper police tactics, dishonesty and racial or class prejudice. The defense also sought to discover copies of statements made in connection with the complaints; copies of investigative reports generated in the police department's investigation of such complaints; records of statements, reputations or opinions, including findings, letters, formal reports and oral conversations made by psychiatrists, superior officers and fellow officers pertaining to excessive force, dishonesty, improper tactics and racial and class prejudice; and any papers documenting disciplinary actions taken against the officers.

In the attached affidavit defense counsel explained that the materials were unavailable to minor except by order of the court and were necessary for preparation of the defense. The affidavit stated that minor would deny using force against the officers at the time of his arrest but, rather, would establish that the officers had used unnecessary force against him.

Additionally, the affidavit set forth minor's contention that the officers lied about having seen him toss the plastic bag containing cocaine and the minor's claim that the drug had been planted on him. The affidavit also stated that the material sought would assist minor in establishing that, a week prior to his arrest, minor had been beaten by both officers and that Officer Loomis had held a gun to his head. Accordingly, the discovery request was justified as being relevant to the officers' propensity to engage in improper acts and excessive violence.

The affidavit also claimed that the information sought might establish racial or class bias on the part of the officers or demonstrate that the officers may have had a motive to lie about the circumstances of minor's arrest. The affidavit went on to say that if the officers had suffered previous complaints, they might have an economic incentive to lie, e.g., to avoid a disciplinary action entailing loss of wages. The affidavit also stated that the information sought might buttress minor's credibility.

The motion was heard on January 2, 1987. Prior to the hearing, the prosecutor, without explanation, amended count II of the petition, the interfering allegation, to delete the name of Officer Loomis. The motion was granted. The prosecutor then argued that, because Officer Loomis was no longer named in the petition, complaints against him were irrelevant. The court granted discovery as to Officer Harris because he was named in the petition as a "victim" against whom the minor might raise a defense of self-defense. However, because he was not named in the petition, the court denied discovery as to Officer Loomis, finding that there was no showing of relevance as to him. The court stated: "I disagree with you that you may discover Officer Loomis's jacket because he just happened to be there and even participated in the arrest."

This petition for writ of mandate was filed on February 25, 1987, and, on March 3, 1987, we stayed commencement of the trial pending our further order. On June 10, 1987, we issued an alternative writ.

I

The People argue that no good cause exists for the discovery of the personnel records of a police officer not named as a victim in a criminal complaint. In connection with this argument they also assert under Tyler v. Superior Court (1980) 102 Cal.App.3d 82, 162 Cal.Rptr. 82, that an officer's specific past acts of unnecessary violence are inadmissible for the purposes set forth in the declaration of petitioner's counsel.

Preliminarily, though, we address ourselves to another challenge to that declaration; the People claim that a declaration based on information and belief is insufficient to justify Pitchess discovery. ²

Evidence Code section 1043 authorizes the discovery of the personnel records of police officers upon motion accompanied by "[a]ffidavits 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 People contend that the affidavit filed by defense counsel fails to establish "good cause" because it is based upon information and belief. Although the People are not explicit as to their understanding of what the law requires, they appear to argue that only declarations based on the personal knowledge of the declarant are sufficient under section 1043.

Prior to the enactment of Evidence Code section 1043, the rules governing discovery of personnel records of police officers were judicially created, as was all California law of discovery in criminal cases. In Pitchess v. Superior Court, supra, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, the Supreme Court delineated the showing needed to justify discovery of these personnel records: "[A]n accused in a criminal prosecution may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial. [Citations.] 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 in their investigation of the crime.' [Citations.]" (Emphasis added.) (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.)

The Pitchess court rejected the People's request that defendant be required to adhere to strict civil procedure as it foresaw the likelihood that Fifth Amendment problems would develop. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 536, 113 Cal.Rptr. 897, 522 P.2d 305.) Pitchess did not require declarations based on the personal knowledge of the declarant to satisfy the showing needed to obtain discovery of personnel records.

The Supreme Court has rejected the argument that section 1043, which now governs disclosure of personnel records, requires the defendant's personal declaration to establish good cause. ³ "Evidence Code section 1043, subdivision (b)(3), which governs discovery of peace officer personnel records, contains no requirement of a 'personal' affidavit on the part of the accused." (People v. Memro (1985) 38 Cal.3d 658, 676, 214 Cal.Rptr. 832, 700 P.2d 446.)

Finally, in Pierre C. v. Superior Court (1984) 159 Cal.App.3d 1120, 1123, footnote 2, 206 Cal.Rptr. 82, the Court of Appeal specifically held that "the allegations [to show good cause] may be based on information and belief. [Citations.]" (See also Arcelona v. Municipal Court (1980) 113 Cal.App.3d 523, 527, 169 Cal.Rptr. 877 ["... discovery motion was accompanied by a supporting declaration of counsel (made) on information and belief...."].)

Subdivision (b)(3) of Evidence Code section 1043 refers...