Michael P. v. Superior Court

• Decision Date: 11 October 2001
• Docket Number: No. G028277.,G028277.
• Citation: 113 Cal.Rptr.2d 11,92 Cal.App.4th 1036
• Court: California Court of Appeals Court of Appeals
• Parties: MICHAEL P., Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Orange County Sheriffs Department et al., Real Parties in Interest.

113 Cal.Rptr.2d 11

92 Cal.App.4th 1036

MICHAEL P., Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Orange County Sheriffs Department et al., Real Parties in Interest.

No. G028277.

Court of Appeal, Fourth District, Division 3.

October 11, 2001.

Law Offices of Joel M. Garson and Joel M. Garson, Anaheim Hills, for Petitioner.

No appearance for Respondent.

Laurence M. Watson, County Counsel, James L. Turner, Deputy County Counsel, for Real Party in Interest Orange County Sheriffs Department.

Jones & Mayer, Harold W. Potter, Fullerton, and Krista MacNevin Jee, for Real Party in Interest Westminster Police Department.

Law Offices of Harold LaFlamme and Craig E. Arthur for the minor Alexandria P.

OPINION

RYLAARSDAM, ACTING P.J.

Petitioner Michael P., a party to a juvenile dependency action, served subpoenas duces tecum on real parties in interest Orange County Sheriffs Department and the Westminster Police Department prior to the jurisdictional hearing. Petitioner sought to discover forensic evidence and various investigative reports compiled by real parties during their ongoing criminal investigation into the death of 21-month-old Monika G. The trial court granted real parties' motion to quash the subpoenas, finding the official information privilege applied and precluded disclosure of materials relating to an ongoing criminal investigation. We conclude the court abused its discretion by failing to conduct an in camera review of the requested items before ruling on real parties' motion. Accordingly, we grant the petition and remand the matter for the court to conduct an in camera review.

FACTS

Petitioner is the biological father and custodial parent of seven-year-old Alexandria P. His girlfriend Kirsten M. would frequently bring her 21-month-old daughter Monika on weekend visits to his home. On one of these visits Kirsten left Monika in petitioner's care; less than an hour later, Monika was transported to a hospital emergency room where she was treated for "subdural hemorrhaging, cerebral edema, optic nerve hemorrhaging, and retinal hemorrhaging." She died the following day.

Alexandria, who was also in petitioner's care and present when Monika sustained her injuries, was taken into protective custody by officers of the Westminster Police Department. Petitioner told investigating officers Monika fell off a couch and landed on a table. Alexandria told a social worker "the baby died and I did it." Alexandria later explained that she and Monika were playing a game on the couch. At one point during the game, Monika grabbed her and caused both of them to fall. Alexandria said she accidentally landed on top of Monika.

Orange County Social Services Agency (SSA) filed a Welfare and Institutions Code section 300 petition, alleging petitioner caused Monika's death and put Alexandria at risk of serious physical harm. The petition stated petitioner was "under investigation by the Westminster Police Department in connection with the homicide of [Monika] due to [her] suffering non-accidental trauma consistent with multiple blunt force trauma[.]" The treating physicians suspected shaken-baby syndrome. The assistant coroner's preliminary finding, however, was that Monika suffered seven blunt force blows to the head.

On the day scheduled for the jurisdictional hearing, the court granted petitioner's motion for a continuance. Petitioner's lawyer complained the coroner's office had yet to complete its report, no medical reports had been provided, and, although he received a copy of one police report, he had not received a copy of a taped interview with Alexandria. The deputy county counsel stated she had provided petitioner's lawyer with all discovery in her possession. This included reports containing the social worker's synopsis of various SSA, medical, and police reports, but no original documents or forensic evidence.

The following day, petitioner's lawyer served subpoenas duces tecum on the custodians of records for the Orange County Sheriffs Forensic Services Department, the Orange County Coroner's office, and the Westminster Police Department. Of the forensic services department, petitioner requested "[a]ll reports, writings, recordings, notes, photographs, video tape, blood and tissue laboratory examination reports/results. All crime scene investigation records, photographs, diagrams, reports, evidence collection logs, [and] video...." He requested "[a]ll reports, writings, recordings, notes, photographs, [and] video tape ..." from the coroner's office, and "[a]ll reports, writings, recordings, notes, video tape, crime scene investigation records, photographs, diagrams, reports, evidence collection logs, [and] video taped and audio taped interviews ..." from the Westminster Police Department.

The Orange County Sheriff-Coroner moved to quash the subpoenas; the West-minster Police Department joined in the motion. Mindful of our recent decision in County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 94 Cal.Rptr.2d 261, the court declined to conduct an in camera review of the requested items, granted the motion to quash with the sole exception of a taped Child Abuse Service Team interview with Alexandria, and continued the trial.

Petitioner then filed a petition for writ of mandate with this court, requesting review of the ruling and a stay of the juvenile court proceedings. We granted father's request for a stay and invited the parties to respond informally. Subsequently, we issued an alternative writ.

At oral argument, real parties' lawyers reported the criminal investigation was ongoing and no criminal charges had been filed. Petitioner remained a suspect in the case. Police officials had "largely ruled out" Kirsten as the perpetrator. Alexandria, who was initially detained in Orangewood Children's Home, was later placed with her mother on a Conditional Release to Intensive Supervision agreement. Several doctors involved in Monika's treatment discounted accidental death. According to one doctor interviewed by a social worker, "there is a murderer out there, and it's not the seven year old."

DISCUSSION

Petitioner contends the court erred by granting the motion to quash without holding an in camera review of the items listed in his subpoenas duces tecum. He also contends real parties waived any privilege by sharing information with SSA. The first argument has merit.

The Court Must Conduct an In Camera Inspection

"Discovery in juvenile matters rests within the control of the juvenile court and the exercise of its discretion will be reversed on appeal only on a showing of a clear abuse. [Citations.] The juvenile court rules encourage the informal exchange of information between the parties and create an affirmative duty to disclose favorable evidence, subject only to a showing of privilege or other good cause. [Citation.]" (In re Tabatha G. (1996) 45 Cal. App.4th 1159, 1166, 53 Cal.Rptr.2d 93; see also Cal. Rules of Court, rule 1420.)

Real parties contend several privileges preclude disclosure of any of the requested materials: the official information privilege (Evid.Code, § 1040), the public records exemption (Gov.Code, § 6254, subd. (f)), criminal discovery provisions (Pen.Code, § 1054 et seq.), and the privacy rights of the "witnesses and ... parties involved in [the] case." Three of these claims may be summarily rejected.

Criminal discovery provisions are limited to criminal cases. (Pen.Code, § 1054, subd. (e).) Real parties' argument to the contrary is unsupported by citation to authority or argument. The same defect plagues the assertion of privacy interests for unidentified witnesses and parties. We need not address arguments for which a party provides no supporting authority. (People v. Williams (1997) 16 Cal.4th 153, 226, fn. 6, 66 Cal.Rptr.2d 123, 940 P.2d 710.) The public records exemption is part of the California Public Records Act. (Gov. Code, § 6250 et seq.) Application of the exemption is limited to proceedings under the act. (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123-124, 130 Cal. Rptr. 257, 550 P.2d 161.)

Of the privileges asserted, only the conditional privilege contained in Evidence Code section 1040, subdivision (b)(2) (hereafter section 1040(b)(2)) may be applicable. This section "`represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.' [Citation.]" (Shepherd v. Superior Court, supra, 17 Cal.3d at p. 123, 130 Cal.Rptr. 257, 550 P.2d 161.) "A public entity has the privilege of refusing to disclose and of preventing another from disclosing official information if the privilege is claimed by an authorized person and `[disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.... In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.' [Citations.]" (People v. Montgomery (1988) 205 Cal.App.3d 1011, 1017, 252 Cal.Rptr. 779.)

In Shepherd v. Superior Court, supra, 17 Cal.3d 107, 130 Cal.Rptr. 257, 550 P.2d 161, the Supreme Court made clear that a public entity can withhold information as privileged under section 1040(b)(2) "only upon a finding that ... its disclosure would be `against the public interest.'" (Id. at p. 125, 130 Cal.Rptr. 257, 550 P.2d 161.) The court stated, "[t]his determination requires that the trial court consider, with respect to each item of material [sought] ... whether there is `a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.'... Such a weighing procedure will entail a separate assessment of the `necessity for disclosure in the interest of justice' and the `necessity for...