Lemelle v. Superior Court

• Citation: 143 Cal.Rptr. 450,77 Cal.App.3d 148
• Court: California Court of Appeals
• Decision Date: 26 January 1978
• Parties: Joseph Wilfort LEMELLE, Petitioner, v. SUPERIOR COURT of California FOR the COUNTY OF ORANGE, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 19109.

Page 450

143 Cal.Rptr. 450

77 Cal.App.3d 148

Joseph Wilfort LEMELLE, Petitioner, v. SUPERIOR COURT of California FOR the COUNTY OF ORANGE, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 19109.

Court of Appeal, Fourth District, Division 2, California.

Jan. 26, 1978.

Hearing Denied April 13, 1978.

Henry William Sands, Los Angeles, for petitioner

Cecil Hicks, Jr., Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., Oretta D. Sears and Thomas H. Wolfsen, Deputy Dist. Attys., for respondent and real party in interest.

OPINION

KAUFMAN, Associate Justice.

Petitioner seeks a writ of mandate to compel discovery in a criminal action.

Facts

Petitioner is the defendant in criminal action No. C-37279 pending in the Orange County Superior Court. He is charged by information with unlawful possession of cocaine (Health & Saf.Code, § 11350), possession for sale of lysergic acid (Health & Saf.Code, § 11378), battery on a peace officer (Pen.Code, §§ 242, 243), and resisting arrest (Pen.Code, § 148). For ease of identification petitioner will hereinafter be referred to as defendant.

Defendant moved for pretrial discovery seeking an order that the district attorney make available to defendant's attorney for examination and copy some 23 items or groups of items in the possession of the district attorney, his deputies, employees or agents. Among those things sought were the following:

"20. All records involving all persons who have, at any time filed complaints against Seal Beach Police Officers W. Ungerman (Badge # 96) and P. D. Palmer (Badge # 131), both of whom were involved in the altercation with defendant which forms the basis of counts III and IV of the information filed herein, for unnecessary acts of aggressive behavior, violence, excessive force or for acts demonstrating racial and/or ethnic prejudice.

"21. All crime reports or arrest reports filed by either of the officers mentioned in paragraph 20 above, in which the principal complaint against the suspect was a violation of section 148 or 242-243 of the penal code, or some other act of aggression against or resistance to said officers, within the last 10 years.

"22. All medical records of any psychiatric or psychological treatment of either police officer in the State of California in which an opinion is rendered by the treating or examining person as to said officer's character trait for acts of aggression, violence, excessive force or for acts demonstrating racial or ethnic bias or prejudice.

"23. Any psychological or psychiatric test record of a test given either officer mentioned in paragraph 20 above, in connection with his training, employment or occupation as a police officer including any police academy matriculation."

In support of his motion defendant filed a declaration, the pertinent averments of which will be set forth hereinafter in connection with our discussion of the issues.

Although we have not been furnished a copy of the court's order, we are told the trial court granted discovery as to all items requested, including item 20, except items 21, 22 and 23 set forth above. As to those items, we are told, the trial court denied the motion for discovery. Defendant petitioned this court for a writ of mandate to compel discovery of items 21, 22 and 23. We denied the petition without opinion. The California Supreme Court granted hearing and retransferred the matter to this court with directions to issue an alternative writ of mandate. We issued the alternative writ as directed.

Contentions, Discussion and Disposition

Defendant concedes that no reported California decision has directed discovery of the type of matter he seeks in items 21, 22 and 23, but he contends that such discovery is authorized under the general principles laid down in the leading decisions on pretrial discovery in criminal cases.

The district attorney contends the trial court did not abuse its discretion in denying discovery as to items 21, 22 and 23 because (1) this part of the discovery motion constitutes no more than a "fishing expedition"; the records sought have not been sufficiently identified and good cause for their production has not been demonstrated by defendant; (2) defendant's request for items 22 and 23 constitutes, in effect, a Ballard motion (Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838) which is authorized only in sex cases; (3) the production of the records sought as items 22 and 23 would violate the peace officers' psychotherapist-patient privilege established by Evidence Code section 1014; and (4) production of the records sought as items 22 and 23 would violate the peace officers' right to privacy guaranteed by article I, section 1 of the California Constitution and several of the Amendments to the United States Constitution.

We decline to issue a peremptory writ on two separate bases: (1) Defendant has failed to supply us a record adequate to permit intelligent review of the trial court's action; and (2) reviewing the record we do have, no abuse of discretion on the part of the trial court is demonstrated.

Inadequate Record

3] A motion for pretrial discovery by an accused is addressed to the sound discretion of the trial court and a writ of mandate will not issue unless it is demonstrated that the trial court abused its discretion. (Hill v. Superior Court, 10 Cal.3d 812, 816, 822, 112 Cal.Rptr. 257, 518 P.2d 1353; People v. Lopez, 60 Cal.2d 223, 247, 32 Cal.Rptr. 424, 384 P.2d 16; People v. Terry, 57 Cal.2d 538, 561, 21 Cal.Rptr. 185, 370 P.2d 985; Vetter v. Superior Court, 189 Cal.App.2d 132, 134, 136, 10 Cal.Rptr. 890; see Powell v. Superior Court, 48 Cal.2d 704, 708, 312 P.2d 698.) " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " (Original emphasis.) (Denham v. Superior Court, 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 69, 468 P.2d 193, 197, (quoting language in Witkin, Cal. Procedure, now found at 6 Witkin, Cal. Procedure (2d ed.) Appeal, § 235, p. 4225); accord: Walling v. Kimball, 17 Cal.2d 364, 373, 110 P.2d 58.) Just as an appellant must furnish an adequate record on appeal (see 6 Witkin, Cal. Procedure (2d ed.) Appeal, § 373, p 4345 and cases there cited), a petitioner for an extraordinary writ to the trial court must furnish a record sufficient to enable the reviewing court to evaluate the lower court's exercise of discretion. (Rose v. Superior Court, 44 Cal.App.2d 599, 600-601, 112 P.2d 713; In re Rapken, 111 Cal.App. 107, 108, 295 P. 244; Charles L. Donohoe Co. v. Superior Court, 79 Cal.App. 41, 45, 248 P. 1007; Favorite v. Superior Court, 52 Cal.App. 316, 318-319, 198 P. 1004; cf. Thompson v. Superior Court, 262 Cal.App.2d 98, 103-104, 68 Cal.Rptr. 530; see 5 Witkin, Cal. Procedure (2d ed.) Extraordinary Writs, §§ 139, 140, pp. 3913-3914; Cal. Civil Writs (Cont.Ed.Bar, 1970) § 10.38, p. 222.) The starting point of such a record is a copy of the order to be reviewed. A proper record should include a copy of all declarations filed in the lower court. It should in most instances also include a transcript of any hearing. In the absence of a transcript the reviewing court will have no way of knowing in many cases what grounds were advanced, what arguments were made and what facts may have been admitted, mutually assumed or judicially noticed at the hearing. In such a case, no abuse of discretion can be found except on the basis of speculation. That is the situation in the case at bench.

4] The record supplied by defendant consists entirely of a copy of his notice of motion, declaration and points and authorities. Apparently the prosecution filed no declarations or points and authorities; at least none have been furnished us. We are not furnished a transcript of the hearing on the motion, and, except as indicated in defendant's points and authorities, we have no idea what grounds were advanced or what arguments were made in the trial court in support of or in opposition to the motion. Defendant's declaration does not set forth the facts pertaining to the incident giving rise to the charges nor the circumstances surrounding his arrest. Although from the description of the records sought as item 22 it would appear to be a significant fact, the declaration does not state and the record does not otherwise establish whether or not defendant is a member of a racial or ethnic minority group. Obviously, at the hearing on the motion some of these facts and circumstances must have been mutually assumed or conceded, but there is nothing from which we can determine what those conceded or assumed facts were. We are not even furnished a copy of the order we are asked to review. Under these circumstances we cannot properly review the trial court's exercise of discretion.

No Abuse of Discretion

Even if we review the trial court's exercise of discretion on the basis of the record we do have, no abuse of discretion is demonstrated.

] As item 22 defendant seeks all medical records of any psychiatric or psychological treatment of either officer in which an opinion is rendered by the treating or examining person as to the officer's character trait for acts of aggression, violence, excessive force or acts demonstrating racial or ethnic bias or prejudice. ¹ As to the police officers these records are presumptively privileged under the psychotherapist-patient privilege prescribed by the Evidence Code. ² (Evid.Code, §§ 1014, 1012, 917.) Unlike the physician-patient privilege which by statutory exception is inapplicable in criminal proceedings (Evid.Code, § 998), with exceptions not here pertinent (see Evid.Code, §§ 1023, 1028), the psychotherapist-patient privilege is applicable in criminal proceedings. (See Evid.Code, §§ 300, 910, 1010-1026.) Privileged matter is not discoverable. (See Hill v. Superior Court, supra, 10 Cal.3d at p. 817, 112...