People v. Superior Court (McKunes)

• Decision Date: 18 October 1976
• Citation: 62 Cal.App.3d 853,133 Cal.Rptr. 440
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF the State of California, COUNTY OF SANTA CLARA, Respondent, Michael Joseph McKUNES, Real Party in Interest. Civ. 39704.

Page 440

133 Cal.Rptr. 440

62 Cal.App.3d 853

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT OF the State of California, COUNTY OF SANTA CLARA, Respondent Michael Joseph McKUNES, Real Party in Interest.

Civ. 39704.

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

Oct. 18, 1976.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Linda Ludlow, Deputy Attys. Gen., San Francisco, for petitioner.

Sheldon Portman, Public Defender, Geoffrey A. Graun, Deputy Public Defender, County of Santa Clara, San Jose, for real party in interest.

SCOTT, Associate Justice.

The People are petitioning for a writ of mandate, requesting that respondent court be directed to set aside its order granting defendant Michael McKunes' discovery motion.

The issue presented is whether a defendant charged with a violation of Penal Code section 245(a) (assault with a deadly weapon) can compel discovery of information in the personnel file of a police officer where the police officer was off duty at the time he was the alleged victim of the assault by the defendant. We conclude that under proper circumstances he is entitled to such discovery.

Here, the preliminary hearing transcript reveals that on June 19, 1976, the police officer, James Neal, when off duty in civilian clothes and unarmed, was socializing with fellow off-duty officers in a public restaurant. Neal had stepped outside and was talking with a young lady when defendant McKunes stepped between the two and shoved Neal, knocking him off balance. Words were exchanged and McKunes pulled out a gun, shoved it into Neal's stomach, and threatened Neal. After Neal stated that there would not be any trouble, McKunes removed the gun, placed it in his coat pocket, and walked to a vehicle parked nearby.

Neal returned to the restaurant and consulted with several of his fellow officers. He obtained a weapon from one of them and went to the car, where he found McKunes seated. Neal identified himself, showed his badge and gun, and asked McKunes to get out of the car. McKunes was arrested and his weapon found on the floor of the car.

On July 16, 1976, defendant McKunes noticed a motion to compel disclosure of Neal's personnel file as it pertained to 'citizen complaints against such officer for alleged acts of unwarranted aggressive behavior, violence, or excessive force against citizens and arrestees.' At a hearing on the motion, held July 30, 1976, McKunes argued that such information was relevant to his defense in that Officer Neal was the aggressor in the altercation.

A motion to discover evidence in a criminal proceeding is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interest of justice demands. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535, 113 Cal.Rptr. 897, 522 P.2d 305; Hill v. Superior Court (1974) 10 Cal.3d 812, 816, 112 Cal.Rptr. 257, 518 P.2d 1353.) The accused has the right to discovery of relevant and reasonably accessible information. (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 535, 113 Cal.Rptr. 897, 522 P.2d 305; Hill v. Superior Court, supra, 10 Cal.3d at p. 816, 112 Cal.Rptr. 257, 518 P.2d 1353.)

In Pitchess, the defendant was charged with battery against four deputy sheriffs. He asserted self-defense as a defense and sought to discover evidence of the alleged victims' propensities for violence. It was held that disciplinary records of police officers are relevant and admissible under Evidence Code section 1103 ¹ as character evidence of the police officer's tendency to violence in support of a theory of self-defense.

The exclusive method to claim governmental privilege in preserving confidentiality of the information is the invocation of Evidence Code section 1040. ² (Pitchess v. Superior Court, supra, 11 Cal.3d at pp 538, 539, 540, 113 Cal.Rptr. 897, 522 P.2d 305.) No such claim of privilege was made here. The petitioner merely contends that the information is not discoverable because Neal was not acting in his official capacity as a police officer at the time of the alleged incident, and therefore the rule of Pitchess does not apply.

In their petition, the People asserted that the record does not indicate that McKunes claimed to be acting in self-defense. At oral argument, however, petitioner conceded that self-defense was raised in argument before the trial court on the motion to discover. This is sufficient to satisfy the requirement of Pitchess as to the relevancy of the information sought.

In In re Valerie E. (1975) 50 Cal.App.3d 213, 123 Cal.Rptr. 242, the court rejected a contention that a discovery request was merely a 'fishing expedition' because the defendant could not state with any certainty that there had in fact been any prior complaints. The court found the request adequate where it sought 'all information regarding citizen complaints for excessive force against the two police officers involved in her arrest' (at p. 219, 123 Cal.Rptr. at p. 246).

In light of the fact that the defense here is that the officer was the aggressor, and the fact that the information sought is in the possession of the prosecution and not readily available to the defendant, the general requirements for discovery have been met. The only difference between this case and...