PEOPLE v. GUTIERREZ, (October 30, 2003)

112 Cal.App. 4^th 1463

In a criminal case involving sexual assault on a prostitute, the defendant, following his conviction, appealed. One of the issues on appeal was whether the case of Brady v. Maryland trumped the discovery laws embodied in the Pitchess scenario (Evidence Code § 1043). The defendant had filed a Pitchess motion prior to his trial requesting information about acts involving falsification of testimony, fabrication of evidence, false police reports, perjury, excessive force, and race or gender bias by the arresting officer. The trial court denied the Pitchess motion, finding that Gutierrez failed to establish good cause since his allegations amounted to nothing more than a general denial of the charges and the theory he advanced in his moving papers was implausible.

In his appeal he attempted to show that the concept of Brady trumped the Pitchess scenario and required the prosecutor to examine the peace officer personnel records for all significant peace officer witnesses and disclose any exculpatory or impeaching material.

The court went through an exhaustive analysis of the differences between Brady and Pitchess disclosure and affirmed the concept that "the prosecution has no general duty to seek out, obtain, and disclose all evidence that might be beneficial to the defense". (In re Littlefield (1993) 5 Cal. 4^th 122). The Second Appellate District ruled that "the Pitchess scheme does not unconstitutionally trump a defendant's right to exculpatory evidence. Instead, the two schemes operate in tandem and the Pitchess process operates in parallel with Brady and does not prohibit the disclosure of Brady information." The court found "the statutory Pitchess procedures implement Brady rather than undercut it." The "state statutory scheme allowing defense discovery of certain officer personnel records creates both a broader and lower threshold for disclosure than does the high court's decision in Brady." It further ruled that "if a defendant meets the good cause requirement for Pitchess discovery, any Brady material in an officer's file will necessarily be included."

The court disagreed with Gutierrez's assertion that the prosecutor was obligated to conduct a review of the files for all significant peace officer witnesses and disclose any Brady material contained therein. The court cited the recent decision in Alford v. Superior Court, (2003) 29 Cal. App. 4th 1033 wherein the California Supreme Court ruled that the prosecutor is not entitled to the disclosure of Pitchess information contemporaneously to the defendant receiving the request unless the prosecution files its own Pitchess motion or joins the defense Pitchess motion. Since under Alford the prosecution did not generally have the right to possess and does not have access to confidential peace officer files, Gutierrez's argument for routine review of the complete files of all police officer witnesses in a criminal proceeding necessarily fails.

So What Do We Do Now?

This is a good case for illustrating the point that we have been explaining for years in terms of the interplay between Brady and Pitchess. We have been saying for years that Brady and Pitchess are parallel concepts and should not be confused with one another. While they both deal with discovery of potentially relevant information in a criminal case, they operate on two independent tracks that sometimes intersect with one another but do not overlap one another.

We have been very successful when confronting a combination Pitchess discovery and Brady discovery motion by simply ignoring in our written opposition any aspect relating to Brady and at the oral argument, when and if the Brady issue comes up during argument, we simply turn to the district attorney and tender the issue to them. Just like the prosecution does not have a duty to seek out potential Brady information in peace officer personnel files, neither does a police department have a duty to tattle to the prosecution potential Brady material in the officer's files.

EBBERT v. SUPERIOR COURT (CITY OF

SAN DIEGO)

(February 18, 2004)

115 Cal. App. 4^th 1012

This case deals with the next step from the Alford decision referenced above. In Alford the California Supreme Court upheld the notion that a court may issue a protective order under Evidence Code § 1045(d) and (e) such that the information disclosed following the in camera review of a peace officer's personnel record on a Pitchess motion may be limited to the specific case for which discovery was ordered and the information disclosed may not be used in any other case. Ebbert deals with the situation where once a defense attorney obtains Pitchess information pursuant to court order from a police agency, and then sends an investigator to take statements from the individuals so provided does the protective order in place on one case prevent the use of those statements taken by the defense in a subsequent case. This case referred to the witness statements taken by the defense following the disclosure of Pitchess information to them as derivative information obtained from the use of a Pitchess motion.

The Prior Unrelated Case

In early 2003 defense counsel represented an individual named Cruz during which pre-trial pendency a Pitchess motion was run concerning three police officers, including officer Michael T. Following the Pitchess motion, certain information was ordered disclosed from officer Michael T.'s personnel file. A protective order was issued limiting the use of this material to only the Cruz matter. Following that disclosure an investigator for Cruz interviewed several witnesses connected to the complaints lodged against officer Michael T. and obtained a statement from these witnesses.

The Ebbert Case

The same defense counsel in the Cruz matter represented Ebbert in the criminal proceeding at issue on this appeal. He likewise ran a Pitchess motion on the officers involved in the Ebbert case, one of whom was also officer Michael T. The court granted the Pitchess motion and ordered the same material disclosed in the Cruz matter to be disclosed in the Ebbert matter concerning officer Michael T. Rather than send his investigator out to simply take the statements again from the same complaining parties that had been taken in the Cruz matter, defense counsel sought clarification of the Cruz protective order concerning whether or not the protective order restricted just the use of the names, addresses, and phone numbers, or the derivative statements obtained thereby. The trial court barred any use of the witness statements obtained in the Cruz matter for the Ebbert matter and essentially held that the witnesses were going to have to be re-interviewed for the Ebbert matter. A writ of mandate seeking review of that order was filed by Ebbert.

Derivative Information May Be Used in a Subsequent Matter When a Pitchess Motion Has Been Brought In That Subsequent Matter

The Appellate Court held that although the protective order placed limits on the litigant's use of the disclosed information, it concluded any evidence developed as a result of the use of the disclosed information is the work product of the successful Pitchess movant and the protective order did not limit use of the developed information to the case in which the Pitchess motion was granted.

This court drew a distinction between the protective order limiting any use of the disclosed information from the Pitchess discovery motion (i.e. simply the list of the name, address and phone numbers of the complaining parties found in the peace officer's personnel file) versus the witness statements obtained derivatively therefrom by the defense investigator. The protective order limited the use of disclosed information, i.e., the names and addresses only, but not the derivative information, i.e., the statements obtained. The simple basis for this conclusion "is that the statements obtained by the litigant from the disclosed complainant or witness are not materials obtained from the peace officer's personnel records maintained by any state or local agency. Rather, the statements obtained by investigation following a successful Pitchess motion are part of the information available to anyone should the complainant be willing to discuss the matter. Only the identity of the complainant is secreted in the personnel records and the substance of the interviews that complainant gives to a litigant is not, and does not become part of the peace officer's personnel record maintained by the employer.

When a litigant who has separately prevailed on a Pitchess motion and obtained Pitchess information duplicative of that obtained by the first litigant - the first litigant may disclose the derivative information without redacting the duplicative Pitchess information. The granting of the subsequent motion that discloses Pitchess information duplicative of the prior Pitchess motion permits the sharing of the confidential Pitchess information between the successful Pitchess movants that otherwise would be limited to use only in the action in which the motion was granted. Put another way, when there is a successful Pitchess motion and a subsequent case that discloses duplicative Pitchess information from the personnel file of the same police officer who was the subject of a prior successful Pitchess motion, the duplicative Pitchess motion in the two cases (the identities, addresses and telephone numbers of complainants) may be shared between the litigants in the two cases without violating any protective order in either case.

So What Do We Do Now?

There is no real change here for the police agencies to consider in terms of this case. Any change invoked by this case primarily deals with the way in which defense lawyers and/or public defenders have to deal with duplicative Pitchess information in their own files.

The key thing for local police agencies to remember from this case is to continue to insist on protective orders whenever information is disclosed from a Pitchess motion following an in camera review of the officer's files and to know that before Pitchess information may come in to any subsequent criminal case involving the same defense lawyer and/or the same officer, a separate and distinct Pitchess motion must be run in that subsequent case to determine its relevancy to the subject matter of that subsequent litigation. This case makes it clear that whether or not Pitchess information is relevant to a particular case is to be made on a case by case, not a one size fits all, determination.

ALVAREZ v. SUPERIOR COURT (LOS ANGELES COUNTY SHERIFFS DEPT.) (April 20, 2004)

2004 Cal. App. Lexis 567

Following an altercation in the Los Angeles County Jail between sheriffs deputy Michael Do and Alvarez, he was charged with resisting an executive officer. Alvarez filed a Pitchess motion seeking complaints against two deputies, one by the name of Etter. The trial court granted the motion and, following an in camera review, ordered the disclosure of one item which was described by the court as follows: "The fact that on December 12, 2000, Deputy Sheriff Joseph Summer had lodged a complaint against Deputy Etter alleging workplace violence." With that information, the public defender's investigator located Deputy Summer and asked him about the complaint he lodged against Deputy Etter. As you might imagine, Deputy Summer did not want to discuss the incident. Following that, Alvarez made a supplemental motion for Pitchess discovery explaining the deputy's refusal to cooperate, therefore making him unavailable to take his statement and requested a copy of Summer's complaint against Etter. The trial court found that the officer was not unavailable, but simply uncooperative, and refused to grant any further discovery. A writ followed.

The appellate court cited the City of Santa Cruz case for the proposition that, generally, courts refuse to disclose verbatim reports or records of any kind from peace officer personnel files, ordering, instead, only the names, addresses, and phone numbers of prior complainants and witnesses, is generally disclosed. Further discovery, however, can be ordered if the situation presents itself as it did in the original Pitchess case where two individuals had been located by the defense who had filed complaints against the deputy sheriffs involved in the Pitchess case that were unavailable for interview, and two other individuals who complained about excessive force by the deputies, were located but could not recall the details about the events that happened some time ago. In Pitchess, the court ordered additional information pertaining to those witnesses prior statements to be disclosed. This portion of the Pitchess case has lay dormant for many years, with the exception of a case called People v. Matos and, now, the Alvarez case.

The court ruled here that Alvarez's ability to investigate the information provided to him by the Pitchess motion has been stymied by Deputy Summer's refusal to cooperate. The only way petitioner can effectively investigate this matter before trial is to be given the deputy's statements. The argument that the deputy's refusal to cooperate does not constitute unavailability so as to constitute good cause for further discovery, is without merit.

Distinguishing the Pitchess case, the only two situations tendered to the court about unavailability was that the complainants either couldn't be located or could not remember the events about which they complained. Since those were the only two facts presented to the court concerning unavailability, that did not forestall other factors creating unavailability. The salient point is that Deputy Summer's refusal to speak renders it impossible for the petitioner to pursue his investigation, just as if the deputy was unavailable or lacked memory. Thus, the further discovery of his statement regarding that workplace violence complaint should have been delivered to the defense.

So What Do We Do Now?

This has been a little known area of Pitchess law since the Pitchess case was first decided. The only two case decisions that bear on this supplemental or further discovery motion is People v. Matos and, now, this Alvarez case. We have been explaining this concept for years. The key component of a supplemental Pitchess motion for discovery of the complaints themselves turn on whether or not the named complainants and witnesses are truly unavailable to the defense. We usually make the defense explain what their reasonable good faith efforts to find these people have been. If the defense has not put forth a reasonable good faith effort to find these people on their own and take their statement on their own, then we oppose any further discovery on that ground. If, however, the defense has put forth a reasonable good faith effort to find these people and they either cannot be located, lack memory, or they just simply refuse to talk, as Deputy Summer did, that will constitute unavailability, triggering their right to obtain further information on a subsequent Pitchess motion. Agencies should keep in mind, though, that this is not the entire internal affairs investigation pertaining to that complaint or witness, it is simply the raw material in the form of their statement, whether it is transcribed, tape recorded, or summarized, that should be provided to the defense.

HAGGERTY v. SUPERIOR COURT (GUINDAZOLA)

(April 20, 2004)

Cal. App. Lexus 565

Guindazola was in the custody of the San Diego County Sheriff's Department when he was instructed by Deputy Haggerty to remove a light cover from a light in his cell. He was also ordered to remove a calendar from his wall. When Guindazola refused, he claimed that Haggerty began beating him by punching him in the ribs. He claimed Haggerty and another deputy took him to a small room where he was again beaten. Guindazola complained to the sheriff's department which then conducted an internal affairs investigation. He also filed a complaint with the citizen's law enforcement review board (CLERB) in the county. Finally, he filed a civil action against Haggerty, the other deputy, and the county alleging civil rights violations, assault and battery.

As part of the civil action, Guindazola filed a Pitchess motion requesting discovery of the entire internal affairs investigation file of the incident between Haggerty and Guindazola. As support for his request, he claimed Haggerty used excessive force on him and attached the claims that he made in his civil lawsuit. He also provided the court with the CLERB report which found Haggerty used excessive force. The Superior Court found good cause to conduct an in camera review for any prior complaints of excessive force, as well as the internal affairs file regarding the incident between Guindazola and Haggerty. The internal affairs report was twenty-three pages long and included the investigating officer's factual summary, analysis and conclusions regarding the Guindazola incident. It also summarized the witness statements made to the investigating officer. The trial court, after reviewing the internal affairs report in camera, ordered that the entire report be disclosed to Guindazola.

The Appellate Court reviewed the entire internal affairs report as well and agreed with the conclusion of the trial court that the file contained relevant information to the issues in Guindazola's lawsuit. It stated, however, that the officer's analysis and conclusions regarding the incident should have been redacted before the trial court ordered production of the report. This conclusion would be in keeping with the statutory mandate explained in Evidence Code Section 1045(b)(2) which states a court shall exclude from disclosure in any criminal proceeding the conclusions of any officer investigating a complaint. The court stopped short of saying that this section applies in all civil proceedings as well, but stated in this case there had been no showing of the relevancy of the investigator's conclusions. If the conclusions and recommendations of the investigating officer is somehow demonstrated to be relevant, they could theoretically be ordered produced as well.

Haggerty argued that Guindazola was not entitled to a copy of the report, but merely the identity of the witness information contained within it in keeping with normal Pitchess procedure. The Appellate Court disagreed with this position because simply disclosing the witness identities would not provide Guindazola with the substance of the relevant information found in the report. The facts gleaned from the internal investigation of the very event Guindazola was suing about, were directly relevant to the matters at issue in his lawsuit. They could be used to impeach witness testimony whose testimony at trial differs from the statements made to the investigating officers, and they could be used to refresh the recollection of these witnesses. This court distinguished the normal situation where a Pitchess litigant is only provided with the names, addresses and phone numbers of complaining parties and witnesses in prior unrelated third party complaints. This case is different and that reasoning did not apply to this case because Guindazola was not requesting information from an unrelated third party complainant, but was requesting information from the investigation of his very own complaint to the sheriff's department. The investigation at issue concerned the very incident that is the subject of his civil client.

Thus, the trial court was required to amend its order and disclose the report after redacting the investigator's opinions and conclusions and inferences drawn from the investigator's assessment of witness credibility. In other words, the raw material witness statement summaries were required to be given to Guindazola.

So What Do We Do Now?

In teaching Pitchess law for the past decade, I have been predicting that this case was coming. The only three cases we had on the topic were three cases that were decided before Evidence Code Section 1043 was enacted in 1978. Since then no court has been tendered the issue where the internal affairs investigation and the criminal case or the civil case, which generated the Pitchess motion, bear a unity of subject matter (that is, the same subject matter involved in the criminal case or the civil case is identical to the subject matter investigated in the internal affairs report). I have been predicting that when such a case came down, it would rule that, because of the unity of the subject matter between the case that generated the Pitchess motion and the internal affairs report, more detailed discovery would be allowed rather than just names, addresses and phone numbers. Here we have that case.

Remember, when a litigant, be it a criminal defendant or a plaintiff in a civil action, files a Pitchess motion and, in addition to requesting information about unrelated prior third party complaints of excessive force and dishonesty, also includes a request for information from his or her own internal investigation which arose from the same subject matter about which he or she faces criminal charges, or which forms the basis of his or her civil action against the department, more detailed Pitchess discovery is likely to be ordered by the trial court. Because there is unity of subject matter between the case that generated the Pitchess motion and the internal affairs investigative report providing simply the names, addresses and phone numbers of the witnesses interviewed for the investigation, is insufficient. Because the witnesses interviewed in the internal affairs investigation would theoretically be some of the same witnesses that will be called at trial in the criminal case or the civil case, the Pitchess litigant is entitled to the witness statements, either summarized, transcribed, or taped, from the internal affairs report.

So, the bottom line rule is, if a Pitchess litigant simply seeks information from a prior unrelated third party complaint, the names, addresses and phone numbers are all that is released if the complaint is determined relevant to the subject matter of the litigation. If a Pitchess litigant requests information from his or her own complaint, and the subject matter of the civil litigation or the criminal proceeding is the same as that which was investigated in the internal affairs report, witness statements, not just the names, addresses and phone numbers, will be ordered released.

PEOPLE v. JOHNSON

(May 4, 2004)

2004 Cal. App. Lexis 676

Johnson was charged with two counts of attempted possession of a controlled substance. The arrest arose out of an officer posing as a drug dealer in an undercover narcotics operation after the defendant approached him and asked to purchase "chiva" and "powder" from him. Before trial he filed a Pitchess motion requesting access to information about his arresting officer pertaining to instances involving dishonesty or the filing of false police reports. Defendant's counsel submitted a declaration in support of the motion stating "I have reviewed the information in our office file and discussed the case with [defendant] and have ascertained that [defendant] maintains that he never asked the officer for "chiva" or "powder" or negotiated the purchase of either substance. In fact, he never took possession of any packages of purported narcotics." Defense counsel contended that the officer involved in this arrest had not been truthful and that it will be a defense in this matter that the officer in question has a pattern of dishonesty and/or filing of false police reports.

On appeal, one of the issues was whether a declaration containing such facts constitutes good cause under the case law in order for the trial court to grant a Pitchess motion for dishonesty type records. The court held that defense counsel's declaration stated that the officer claimed the defendant asked him for heroin and cocaine by using common slang terms for each, but the defendant maintained he never asked the officer for chiva or powder or negotiated the purchase of either substance. He also claimed the defendant never took possession of any packages of purported narcotics and, thus, it appeared to defense counsel that the officer's statements regarding defendant's conduct were not truthful. The appellate court concluded defense counsel's declarations set forth a sufficient factual foundation showing the officer's truthfulness was material to the case.

So What Do We Do Now?

This case illustrates a trend that we have been monitoring for the past several years with regard to dishonesty based Pitchess motions. The trend began with the case of People v. Hustead and has now been repeated in People v. Johnson. The trend is to require less of a statement of good cause on a dishonesty based Pitchess motion than on an excessive force based Pitchess motion. It has gone as far as to lead me on occasion to complain that a dishonesty based Pitchess motion statement of good cause is nothing more than denying everything that is contained in the police report is true. We haven't gotten to that point yet, but we are rapidly approaching it.

Be aware that this trend of dumbing down the good cause required for a dishonesty based Pitchess motion is out there, and also remember that a better case to use in opposing dishonesty based Pitchess motions is City of San Jose v. Superior Court (Eti). In that case it was not enough to just contend that the voluntary consent to enter and search was not obtained, that material misrepresentations were made in the police report concerning the matter, and that evidence was mishandled. The City of San Jose case required more detail than just those bare assertions. Trying to harmonize the City of San Jose case with the People v. Johnson case, we can see that there were some facts in support of the claimed dishonesty (i.e., that contrary to the officer's report, the defendant asserted that he never asked the officers for any cocaine or heroin using street slang terms, and never negotiated the purchase of either substance). While that sounds rather scant, it is in keeping with the trend to require less on a dishonesty based Pitchess motion.

DANGEROUS TREND

ON THE USE OF

SEALED DECLARATIONS

We have previously reported to you in Palmer's Pitchess Update that the City of Los Angeles v. Superior Court (Davenport) case allowed a defense attorney to file under seal the declaration in support of a Pitchess motion discovery request in order to preserve defense strategy at trial from the prying eyes of the prosecution. This was allowed in that case, however, the case also held that counsel for the police agency on a Pitchess motion, nonetheless has the opportunity to view the declaration and oppose the motion on its merits.

The Orange County Public Defender's Office has taken that case a step further. For the past couple of years, the Orange County Public Defender's Office has filed declarations in support of a Pitchess motion under seal with the trial court and has refused to allow agency counsel access to the sealed declarations (or the redacted portions of the declarations) because they claim the declaration contains attorney/client and/or attorney work product privileged information, and, therefore, the Davenport case doesn't apply. Myself, on behalf of several Orange County cities, as well as the city attorneys of Santa Ana, Irvine, and Costa Mesa, have been battling this trend for the past couple of years.

Up until recently, the Public Defender's Office has been having success in the Court of Appeal by winning three unpublished decisions allowing the practice. Last month a trial court in a Fullerton matter listened to arguments on both sides on the issue of the merits of filing a sealed declaration based upon attorney/client attorney work product privilege. Following the argument, the judge reviewed the redacted, sealed declaration in camera without myself or defense counsel present. The judge then took the bench and announced that all the material in the sealed declaration is protected by the attorney/client privilege; that I would not be allowed to see it, and, oh, by the way, it also stated good cause for the discovery and my custodian was ordered into an in camera review. We refused to cooperate and took a writ to the Court of Appeal for the Fourth Appellate District and last week the Appellate Court granted a stay of the trial court's order. Also last month, Irvine, Santa Ana, and Costa Mesa were before the Court of Appeal in the Fourth Appellate District on the same issue involving cases concerning their agencies. I went down to view the oral arguments on those three pending matters.

It is hard to get a sense of how the justices will rule based upon oral argument, however, it does appear that, at least some of the justices on the panel, understood our point of view of how we are rendered completely useless in opposing Pitchess motions without access to the declaration in support of the discovery request. It was pointed out by one of the justices and adopted by myself in our writ petition that Evidence Code § 1043 itself requires all moving papers (i.e., including the declaration in support of the good cause) to be served upon the governmental agency having custody of the records at issue. By filing a sealed declaration and claiming the attorney/client and/or attorney work product privilege, defense counsel is violating the very words of the statute by failing to provide to the governmental agency all the moving papers in support of the request.

The Appellate Court has yet to rule on any of the three pending cases. We are awaiting a briefing a schedule on the Fullerton Police matter.

Between now and then, though, be aware of this very dangerous trend of filing sealed declarations, claiming attorney/client and attorney work product privilege and distinguishing itself from the Davenport case not allowing agency counsel to view the declaration. It is our best advice that if the trend started in the Orange County Public Defender's Office continues outside of Orange County, every police agency faced with it must, of necessity, fight against it and challenge rulings like this in their own appellate court.

Be sure to consult competent legal counsel before deciding how to proceed on any matter to which these cases may be applicable.