Saulter v. Municipal Court

• Decision Date: 21 November 1977
• Docket Number: OAKLAND-PIEDMONT
• Citation: 75 Cal.App.3d 231,142 Cal.Rptr. 266
• Court: California Court of Appeals Court of Appeals
• Parties: Frank Leroy SAULTER, Petitioner, v. MUNICIPAL COURT FOR theJUDICIAL DISTRICT, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 41421.

Page 266

142 Cal.Rptr. 266

75 Cal.App.3d 231

Frank Leroy SAULTER, Petitioner, v. MUNICIPAL COURT FOR the OAKLAND-PIEDMONT JUDICIAL DISTRICT, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 41421.

Court of Appeal, First District, Division 1, California.

Nov. 21, 1977.

As Modified on Denial of Rehearing Dec. 12, 1977.

As Modified Dec. 16, 1977.

Dennis M. Sullivan, Sullivan, Nakahara & Du Bois, Oakland, for petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K Thompson, Jr., Martin S. Kaye, Deputy Attys. Gen., San Francisco, for real party in interest.

SIMS, Associate Justice.

An alternative writ of mandate was granted in these proceedings to review the actions of respondent court in connection with the petitioner's motions for discovery. Petitioner is charged by an amended complaint with attempted murder of Officer Munoz of the Oakland Police Department, with two counts of possession of firearms by an ex-felon (Pen.Code, §§ 12021 and 12500), with aggravating armed with and use of a firearm and an intentional injury allegations, and with five prior felony convictions. On October 8, 1976, by a supplemental motion for discovery, his attorney alleged that the defense in the case would rest heavily upon a claim of self-defense by the defendant, and that Officer Munoz, his fellow officer Vaughn and special agent Newberry of the Federal Alcohol, Tobacco and Firearms Division utilized illegal tactics and excessive force and violence in executing a search warrant and did not comply with the provisions of section 1531 of the Penal Code, and that as a result, the defendant acted to protect his own life and property and without knowledge that the individuals breaking into his house were in fact police officers and agents. He sought official records concerning the prior conduct of those officers, and reports of the incident itself. The latter records were furnished, but the magistrate denied petitioner the other relief he sought after examining the police department records of the first two officers.

The petitioner contends that the trial court erred on October 12, 1976 when it denied its motion for discovery, on November 5, 1976 when after examining the records of the Oakland Police Department in camera, it ruled that the material concerning the first two officers was irrelevant, and on November 15, 1976 when it refused to order the prosecution to produce records concerning the federal officer, and indicated that it would not authorize a subpoena duces tecum for those records.

The People contend that the court properly denied discovery of the federal records because they were not in the prosecution's possession or under their control. They originally also complained that the petitioner had made an insufficient record because he had not furnished this court with a record of the hearings at which the magistrate made his rulings, nor with the material which he examined in camera and found irrelevant. They also claimed there was no showing that the matter was not privileged under section 1040 of the Evidence Code. The record has been augmented with a reporter's transcript of the hearings on the petitioner's motion, and with the sealed records examined by the magistrate.

We conclude that the magistrate erred (1) in requiring the accused to take the initiative in securing information available to the prosecution when the accused had shown plausible justification for the discovery of the information, and had described it with sufficient particularity; (2) in determining the relevancy and materiality of the material in the personnel records on the sole basis of the merits of the charges as revealed by those records; (3) in finding that the federal records were unavailable to the prosecution; and (4) in denying the petitioner either an order or a subpoena duces tecum for the production of the federal records. Parenthetically, we note (1) that the extraordinary writ may have been improvidently granted in this case by virtue of the availability of appeal and supersedeas, and (2) belatedly, upon examination of the whole record, that upon proper original showing the writ might have been denied because the petitioner's supplemental request for discovery was not interposed in a timely manner before the magistrate.

Preliminarily we note that on December 1, 1976, the petitioner filed a petition with the superior court seeking relief. On February 7, 1977, the petition for a writ of mandate was denied. On April 6, 1977 the petitioner appealed from that judgment. On April 19, 1977, the municipal court indicated it was going to reset the preliminary hearing, which had been suspended pending disposition of petitioner's motion. On April 29, that court ordered the matter set for further preliminary hearing on May 24, 1977. The accused then filed the instant proceedings on May 19, 1977. The rulings were subject to review in the pending appeal. (See Long v. Municipal Court (1976) 58 Cal.App.3d 382, 128 Cal.Rptr. 918; Caldwell v. Municipal Court (1976) 58 Cal.App.3d 377, 129 Cal.Rptr. 834; Ross v. Municipal Court (1975) 49 Cal.App.3d 575, 576, 122 Cal.Rptr. 807; Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 238, 111 Cal.Rptr. 539; and 5 Witkin, Cal. Procedure (2d ed.1971) Extraordinary Writs, § 178, p. 3938. Cf. id., § 42.) In view of the questions raised in the case last cited, the petitioner followed both routes to this court, rather than seeking a writ of supersedeas to stay the preliminary hearing pending disposition of his appeal. In the hope the matter could be handled more expeditiously, and no procedural objection having been made by the People, we granted the alternative writ. The appeal was dismissed at the request of the defendant after these proceedings were submitted. Unfortunately delays in securing the records reviewed by the magistrate in camera have prolonged the proceedings. The matter having been briefed and submitted with the concurrence of the parties, we rule on the merits without approving of the irregular procedure followed. (See People v. Superior Court (1937) 10 Cal.2d 288, 290, 73 P.2d 1221. Note Dulaney v. Municipal Court (1974) 11 Cal.3d 77, 81, 112 Cal.Rptr. 777, 520 P.2d 1; Mills v. Municipal Court (1973) 10 Cal.3d 288, 294, 110 Cal.Rptr. 329, 515 P.2d 273; and Castaneda v. Municipal Court (1972) 25 Cal.App.3d 588, 591-592, 102 Cal.Rptr. 230.)

I

The motion presented October 12, 1976, sought an order requiring the prosecution to furnish the petitioner with the following records:

(a) All records and reports of the Oakland Police Department of complaints of misconduct in the execution of search warrants, or the use of excessive force or violence pertaining to the following Oakland Police Officers: Charles Munoz and Harry Vaughn.

(b) The records and/or reports of any internal police investigation by the Oakland Police Department into the circumstances surrounding the execution of the search warrant in this case, as well as the shootings that took place.

(c) Any and all records and/or reports of persons who have filed complaints against Oakland Police Officers Harry Vaughn or Charles Munoz for unnecessary acts of aggressive behavior, violence, or excessive force.

(d) All records and/or reports of the Federal Alcohol, Tobacco and Firearms Bureau concerning complaints by any persons against Special Agent Newberry for unnecessary acts of aggressive behavior, violence, or excessive force.

(e) Any and all records and/or reports of the Bureau of Alcohol, Tobacco and Firearms concerning complaints or reports by any persons against Special Agent Newberry for illegal tactics used in the execution of search warrants.

(f) Any records and/or reports of the Bureau of Alcohol, Tobacco and Firearms concerning an internal investigation by that bureau into the circumstances surrounding the execution of the search warrant in this case and the shootings involved.

It was supported by the declaration of his attorney that has been outlined above.

That motion was denied and the court suggested that the petitioner attempt to secure the records by subpoena duces tecum. The court erred in denying the motion insofar as the records sought were in the possession or under the control of the prosecution. In Pitchess v. Superior Court (1974)11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, the court commented on a similar ruling as follows: "At the threshold we observe that the case comes to us by a somewhat convoluted route. The trial court ordered the prosecution to obtain the records from the sheriff. When the sheriff refused to produce the information, the prosecutor should have invoked process of the court; instead, the burden of so moving was imposed upon the defendant, here the real party in interest." (11 Cal.3d at pp. 534-535, 113 Cal.Rptr. at p. 899, 522 P.2d at p. 307.)

The declaration supporting the motion and the motion itself described the requested information with sufficient specificity and it was sustained by a plausible justification. (See Evid.Code, § 1103; Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 535-538, 113 Cal.Rptr. 897, 522 P.2d 305; Dell M. v. Superior Court (1971) 70 Cal.App.3d 782, 785, 139 Cal.Rptr. 149; People v. Superior Court (McKunes) (1976) 62 Cal.App.3d 853, 855-856, 133 Cal.Rptr. 440; Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-830, 133 Cal.Rptr. 325; Long v. Municipal Court, supra, 58 Cal.App.3d 382, 386, 128 Cal.Rptr. 918; Caldwell v. Municipal Court, supra, 58 Cal.App.3d 377, 380, 129 Cal.Rptr. 834; Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 696-697, 127 Cal.Rptr. 664; and In re Valerie E. (1975) 50 Cal.App.3d 213, 217-219, 123 Cal.Rptr. 242.)

II

Any error in the foregoing proceedings was cured insofar as police department records were concerned by the production of those records on return to a subpoena duces tecum. Those records were...