PALMER'S PITCHESS UPDATE

By: Greg P. Palmer

CALIFORNIA APPEALS COURT ISSUES VERY GOOD PITCHESS DECISION ON THE DISCOVERABILITY OF DISHONESTY RECORDS

The Court of Appeal for the Sixth Appellate District has issued a very good case for law enforcement agencies that further clarifies the discoverability of records pertaining to lying, dishonesty and preparing false police reports in a Pitchess Motion. In California Highway Patrol ("CHP") v. Superior Court (Luis Luna) (November 9, 2000) 2000 DJ DAR 12053, the Court of Appeal held that a Pitchess Motion request for records of dishonesty in preparing false police reports should be limited to the officer(s) who prepared the police report.

Five CHP officers (Pinedo, McCain, Conley, Karsgor and Legarra) were involved in the arrest of Luis Luna following a traffic accident. The officers were dispatched to a collision scene and upon arrival they found a white BMW with damage that indicated it had been involved in an accident. They conducted an investigation and found two individuals, one of which was Luna, at a nearby gas station. Both of these individuals appeared to be injured. Further investigation revealed that Luis Luna was the driver of the white BMW involved in the accident. Luis Luna was arrested for drunk driving and Officer McCain wrote the DUI report and the traffic collision report.

After being placed in the police car Luna's chin began to bleed onto his chest. Pinedo grabbed some gauze to stop the bleeding. When he tried to do so Luna began spitting blood and saliva into Pinedo's face and began kicking and yelling at the officers. He was removed from the patrol vehicle and after a brief, intense struggle, was restrained and placed back into the patrol car.
He was charged with driving under the influence, felony battery on an officer and resisting arrest.
Luna filed a Pitchess Motion requesting records pertaining to acts of excessive force, violence, threats, lying and preparing false police reports. In the declaration in support of his request, Luna stated that the officers struck or slapped at him as he sat restrained in the back of the patrol car. When he responded by spitting and yelling he was removed from the car, forced to the ground and battered by 3 to 5 officers. He claimed also in his declaration that an independent witness, whose statement had been disclosed to the prosecution, would verify his account.

The CHP did not file a written opposition but appeared in court with the officers' personnel files. The court performed an in camera review and the only records the court found discoverable was a problem with the preparation of a police report by Officer Conley and an issue of documentation of a time card with respect to Officer McCain. The court was being very careful to speak about the subject matter of the complaints only in vague terms and we do not know any further information about the details of the contents of these complaints.

The trial did not expressly order disclosure of any particular records but gave the defendant's attorney the information so that the attorney could go to the CHP to obtain the information. As you might imagine, the CHP decided not to cooperate when an investigator asked for the memo of Sgt. Kerr related to the report writing problem involving Officer Conley.

The defendant then returned to court, said he was unable to obtain the information on his own and requested information from the records themselves. The court agreed with defense counsel and ordered the investigative report pertaining to the problem police report by Officer Conley and the investigative report pertaining to Officer McCain's time card documentation issue. From this the CHP filed a writ.

EXCESSIVE FORCE

The Court of Appeal first analyzed whether there was sufficient good cause to discover any excessive force records pertaining to the officers. The court found that the declaration established a plausible factual foundation and used a specific factual scenario to support the assertion that excessive force occurred and even supported the notion with a statement that an independent witness would verify the account of the defendant. Thus, excessive force records were appropriately reviewed in camera but no such records were found by the trial court.

DISHONESTY

The court held that the Pitchess Motion established good cause for discovery of complaints that Officer McCain had previously falsified police reports. It was Officer McCain's DUI report and TC report that indicated the defendant was violent and resisted arrest. These reports, when viewed in conjunction with counsel's declaration that an independent witness will testify the defendant did not act violently until the officer used excessive force provided a specific factual scenario that established a plausible factual foundation that the police report might have been falsified. The Appellate Court then said that had the trial court found information pertaining to falsification of police reports by Officer McCain in its in camera review it could have properly ordered disclosure of that information.

However, the trial court did not find any such records. Instead, it found records pertaining to a problem police report prepared by Officer Conley, not McCain. That, according the Court of Appeal, was an abuse of discretion because the defendant has not claimed that Officer Conley prepared a false police report concerning his arrest, nor did his motion set forth any specific factual scenario to support any allegation of misconduct by Officer Conley other than excessive force.

While the trial court did appropriately find good cause for the discovery of falsification of police report information by Officer McCain, it erred in finding good cause for the discovery of complaints reflecting time card irregularities. The Appellate Court held that there was an insufficient similarity between an allegation of officer misconduct consisting of filing a false police report and prior officer misconduct consisting of time card irregularities. Evidence of time card irregularities would not establish a habit, custom or reputation for making false police reports.

The Appellate Court did this in the face of a contention by the defendant that this would be information constituting a non-felony act of moral turpitude and discoverable under People v. Wheeler (1992) 4 Cal. 4th 284. The Court of Appeal distinguished the Wheeler holding in terms of a Pitchess Motion by saying the Supreme Court in Wheeler held that non-felony conduct involving moral turpitude should be admissible to impeach a criminal witness. The Supreme Court in Wheeler did not address any issues relating to discovery of peace officer personnel records. There is nothing in the decision to suggest the defendant is entitled to obtain any police personnel records reflecting moral turpitude without first making a good cause showing. Decisions following Wheeler addressed the propriety of obtaining the discovery of information about non-peace officer witness. To apply Wheeler so broadly would be to grant discovery of peace officer personnel records on the basis that Wheeler permits discovery of all personnel records reflecting officer misconduct involving moral turpitude without requiring the defendant to comply with evidence Code Section 1043. It would have the effect of destroying the statutory scheme.

SO WHAT DO WE DO NOW?

This is a very good case for law enforcement in terms of Pitchess Motion discovery of information involving lying and preparing false police reports. We now have case authority support for the notion that requests for lying and preparing false police reports should be limited to only those officers who are directly involved in the allegation of preparing false police reports (i.e. only those officers who wrote a report about the incident). The phrase to remember is "directly involved in the fracas." This concept has been used for the past 25 years in Pitchess law as it pertains to excessive force, meaning that an excessive force allegation will only relate to those officers who were directly involved in the fracas. This case applies that concept to an allegation of false reporting.

Every Pitchess Motion which contains an allegation of dishonesty or false police report writing should be looked at very carefully to determine which officer or officers are directly involved in the allegation of lying or preparing false police reports. The Pitchess discovery should be limited to only those officers who are directly involved in that misconduct allegation.
This case is also helpful in instructing courts what to do in determining relevancy when they are in camera with the custodian of the records. The trial court here held that information pertaining to Officer McCain and a time card irregularity was relevant and should be discoverable when it was reviewing a good cause request for preparing false police reports. The Court of Appeal held that a time card irregularity is insufficiently similar to the requested information for false police reports to be discoverable. This will be very helpful in future in camera hearings because some judges have tended to broadly apply the dishonesty and lying standard to include any time when there is a conflict between statements in an internal affairs investigation or any kind of aspect to a prior complaint that has to do with dishonesty in general. This case will teach the judges that they should be very circumspect in determining which dishonesty complaints are relevant and which are not in camera.

Finally, the Court of Appeal decision severely limits the application of Wheeler material to Pitchess Motion law. For years now we have seen public defenders and defense counsel put a request for Wheeler material (morally lax character information) in Pitchess Motion requests. After this case this should not be allowed. This court severely limited the application of Wheeler material to impeaching criminal witnesses and not peace officers.

I would encourage everyone to make their city attorneys and county counsels aware of this case so that their oppositions can be changed in conformance therewith. I have substantially modified the opposition I use for Pitchess Motions in light of this case.

As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Greg P. Palmer at (714) 446-1400.