Opinion
No. H037060
09-15-2011
ANGEL BOTELLO, Petitioner, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent, CITY OF SOLEDAD, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS100108
I. INTRODUCTION
After the preliminary examination, defendant Angel Botello was held to answer to the charges of felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and possession of ammunition by a prohibited person (§ 12316, subd. (b)(1).) Defendant subsequently filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess))for the discovery of two City of Soledad police officers' personnel records relating to, among other things, falsification of police reports, dishonesty, and instances of fabrication of evidence or evidence tampering. In support of his motion, defendant asserted the defense theory that he did not have possession of a firearm and police officers had fabricated the firearm evidence by planting the gun. On May 27, 2011, the trial court denied the Pitchess motion on the ground that defendant's alternative factual scenario—that the police officers had planted the gun—was "internally inconsistent" and unpersuasive.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant challenged the trial court's May 27, 2011 order denying his Pitchess motion by filing a petition for writ of mandate in this court. For reasons that we will explain, we will issue a peremptory writ in the first instance (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1258 (Lewis)directing the trial court to (1) vacate the May 27, 2011 order denying defendant's Pitchess motion; (2) enter a new order granting the motion with respect to the discovery of the police personnel records of Sergeant Moy and Officer Gruss relating to fabricating evidence, evidence tampering, falsifying police reports, and other instances of dishonesty, deception or falsehood; and (3) conduct an in camera review in accordance with the applicable law.
II. FACTUAL BACKGROUND
Our summary of the facts is taken from the testimony given at the preliminary hearing held on September 29, 2010, and the police report dated May 31, 2010. The record reflects that the proceedings held on September 29, 2010, were the second session of the preliminary examination that began on September 23, 2010.
The record filed with defendant's writ petition lacks a copy of the reporter's transcript of the preliminary examination held on September 23, 2010.
On May 30, 2010, at approximately 9:45 p.m., Officer Gruss and Sergeant Moya of the City of Soledad Police Department were dispatched to the area near Soledad High School due to a report that defendant and a woman, identified as Roseanne Lujan, were having a verbal argument and defendant was believed to have a gun. As the officers approached in their police vehicle, Officer Gruss observed defendant and Lujan walk into the Eden Valley Care Center, a facility for elderly residents. The police officers parked and entered the Eden Valley Care Center. They did not have their guns drawn.
As Officer Gruss was walking down a hallway in the Eden Valley Care Center, he saw defendant sit in a chair next to Lujan. The chair was about 35 to 40 feet away from a sofa. Officer Gruss contacted defendant and conducted a parole search of defendant's person after he confirmed that defendant was on parole. Officer Gruss recovered a .25 caliber bullet from defendant's pocket, as well as a pipe used for smoking drugs, a syringe with the needle broken off, a pair of wire clippers, a piece of wire with a "fish eye" hole bent into it, and a metal device that looked like a tiny spoon. Officer Gruss believed that these items, other than the bullet, are often used to prepare illegal narcotics. He also observed that defendant was exhibiting physical symptoms of being under the influence of a controlled substance.
While Officer Gruss was still at the scene, an employee of the Eden Valley Care Center reported that defendant had entered the men's restroom prior to the police officers' arrival. Officer Gruss then conducted a search of the bathroom, where he found a red Winchester brand 12 gauge shotgun shell. Officer Gruss also searched the area around a television because he had observed defendant coming from that area. He found a part of a pipe used for smoking narcotics, which was similar to the pipe recovered from defendant's pocket.
After arresting defendant, Officer Gruss took him to the police station. Officer Gruss was then contacted on the police radio by Sergeant Moya, who had remained at the Eden Valley Care Center. Sergeant Moya informed Officer Gruss that he had found a firearm at the scene and requested Officer Gruss's return.
On Officer Gruss's return to Eden Valley Care Center, Sergeant Moya took him to a sofa in the facility's common area. Sergeant Moya told Officer Gruss that he had observed what appeared to be a gun underneath a sofa cushion. When Sergeant Moya lifted the sofa cushion, Officer Gruss saw a dark-colored sawed off shotgun, approximately eight inches in length, with electrical tape wrapped around the grip. The shotgun was loaded, had no serial number, and no fingerprints were later recovered from it. In addition to discovering the shotgun under the sofa cushion, Officer Gruss found what appeared to be the missing piece of the needle of the broken syringe recovered from defendant's pocket.
In Officer Gruss's opinion, the shotgun shell recovered from the men's bathroom in the Eden Valley Care Center would work in the sawed-off shotgun found under the sofa cushion. Another police officer, Officer Arreola, found several more Winchester brand 12 gauge shotgun shells in Lujan's backpack when he conducted an inventory search after arresting her for being under the influence of a controlled substance. Officer Arreola also found photographs on Lujan's cell phone of defendant holding what appeared to be the same shotgun.
While defendant was in the holding area at the police station, defendant asked "what his charges were." After Officer Gruss "informed him of the violations he was being charged with," defendant "continued to insist that he did not have a gun on his person when [police officers] contacted him so he could not be charged with it. [Defendant] then demanded to know what gun he was in possession of, at which time [Officer Gruss] told him the gun he was holding in the photograph we have. [Officer Gruss] then showed [defendant] the picture of him holding what appears to be the firearm on Lujan's phone. [Defendant] stated, 'That's a toy gun, it's not even real. Besides, the gun that you brought in was chrome."
Officer Gross added the following statement to his police report: "It should be noted that [defendant] never saw the firearm recovered at the scene. When he was placed into the holding cell at the police station, I covered the window to the door with paper in preparation for my narcotics investigation. Furthermore, the gun was placed in a brown paper bag and wrapped as to prevent contamination. There is no way [defendant] could have observed the firearm that was recovered at the scene." (Italics omitted.)
III. PROCEDURAL BACKGROUND
A. The Charged Offenses
The record lacks a copy of the complaint filed in the instant case. However, we discern from the minute order of October 13, 2010, that defendant is charged with the offenses of felon in possession of a firearm (§ 12021, subd. (a)(1)), possession of ammunition by a prohibited person (§ 12316, subd. (b)(1)), and misdemeanor using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a).) It also appears that the complaint includes the special allegations that defendant has served four prior prison terms (§ 667.5, subd. (a)) and has at least one prior felony conviction (§ 1170.12, subd. (c)(2).)
B. The Pitchess Motion
Defendant filed a Pitchess motion in which he sought discovery of certain police personnel records of Sergeant Moya and Officer Gruss, including (1) All records of complaints, including unsustained complaints, alleging instances of errors or falsification in reports, instances of dishonesty, deception, or falsehood, and instances of fabrication of evidence or evidence tampering; (2) Names, addresses, and telephone numbers of all complainants alleging instances described in item one; (3) All statements, written or oral, by persons who have brought complaints against Sergeant Moya and Officer Gruss as described in item one; (4) Names, addresses, phone numbers, and statements of witnesses interviewed by the police department with respect to the allegations described in item one; (5) All information relating to investigative reports related to the allegations described in item one, including the names and assignments of the investigators; (6) The police department's written procedures for investigating citizen complaints against the department or its personnel; (7) Any and all department records of statements and opinions by superior and fellow police officers involving the allegations described in item one, including but not limited to findings, letters, formal reports, and oral conversations; and (8) Records of all discipline imposed for behavior errors or allegations as described in item one. Alternatively, defendant sought an in camera inspection of the requested police personnel records.
In his points and authorities filed in support of the motion, defendant argued that he had shown good cause for the discovery because he presented a plausible factual scenario that established a defense to the charges, and because the credibility of Sergeant Moya and Officer Gruss was suspect. Specifically, defense counsel stated in his supporting declaration that he was informed and believed that the weapon allegedly discovered by Sergeant Moya on May 30, 2010, was never in defendant's possession; the weapon was placed under the sofa cushion by Sergeant Moya or Officer Gruss; the partial needle discovered under the same sofa cushion did not match the broken syringe discovered in defendant's pocket; it is proper procedure for officers who believe a suspect is armed to approach the suspect with weapons drawn; the Monterey County District Attorney's office had "alerted" defense counsel that "there is a possible Brady issue involving Sergeant Moya related to a background file"; and "the City of Soledad is in possession of the personnel records for Sergeant Moya and Officer Gruss."
The City of Soledad (City) filed opposition to the Pitchess motion, arguing that defendant had not shown good cause for the discovery sought from the police personnel records of Sergeant Moya and Officer Gruss. Relying on the dissent in City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 (dis. opn. of Panelli, J.), the City claimed that defendant's showing was inadequate because he had failed to "state facts that show similar and prior acts of misconduct do exist in the officer's files, but are unable to be obtained by other means, either because the defendant is unable to locate the complainants, or the complainants' or witness' memories have faded."
The City further argued that defendant's good cause showing was inadequate because he had failed to provide a specific factual scenario establishing a plausible foundation for the allegations of police misconduct, as set forth in City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135. According to the City, "defense counsel's declaration is internally inconsistent as his assertions that officers placed the gun on site conflict with Defendant's own statements of a 'chrome' gun being found onsite and thus, . . . the alternative 'factual' scenario does not meet the standard of either reasonableness or good cause as Defendant[']s own statements corroborate that the officers found the gun on site . . . ."
The City also argued that defendant's discovery requests were overbroad. Alternatively, the City urged that the motion be denied because defendant had not "alerted the Court as to its previous ruling on the motion" and had provided no new evidence or information to warrant a renewed Pitchess motion.
C. The Trial Court's Order
The trial court denied the Pitchess motion during the May 27, 2011 hearing on the motion. The court found that defendant had failed to make the requisite showing of good cause for in-camera review of the police personnel records sought in the motion, because the alternative factual scenario provided by defendant "is internally inconsistent . . . it just seems like it is. It raised my eyebrow. Apparently, it raised somebody else's eyebrow." The court also indicated that defendant's alternative factual scenario was not persuasive and was not supported by anything other than speculation.
D. Writ Proceedings
Defendant filed a petition for a writ of mandate in this court on June 27, 2011, in which he sought issuance of a peremptory writ of mandate directing the trial court to set aside its order of May 27, 2011, denying his Pitchess motion and to "issue a new ruling granting discovery subject to an in camera hearing." Defendant also requested a temporary stay of trial court proceedings pending this court's writ review.
On July 22, 2011, we issued an order staying all trial court proceedings until further order of this court. We also gave the City, as the real party in interest, the opportunity to file opposition to the petition for writ of mandate and allowed defendant to file a reply. The City notified us, in a letter dated August 9, 2011, that the City had elected not to file a formal opposition to the writ petition and would instead rely upon its opposition to the Pitchess motion filed in the trial court. The City also pointed out that the record lacked copies of any papers with respect to defendant's original Pitchess motion and the trial court's January 14, 2011 order denying the motion. The City attached a copy of the transcript of the hearing on defendant's original Pitchess motion, but did not provide any other documents relating to that motion.
The reporter's transcript for the proceedings of January 14, 2011, shows that the hearing on defendant's first Pitchess motion was held before a different judge, who ruled that "it's too much of a stretch for me to conclude that there's good cause based upon that [sic]to believe that the officers have lied, have conspired to lie, and that their personnel files should be exposed for evidence of previous occasions where they have conspired to lie and have lied. [¶] For those reasons the motion is denied."
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IV. DISCUSSION
In his writ petition, defendant contends that the trial court erred in denying his Pitchess motion on the ground that the alternative factual scenario provided by defendant was internally inconsistent, in light of the court's failure to specify the inconsistency and the scenario's actual consistency. Defendant also argues that he has shown good cause for the requested Pitchess discovery because his alternative factual scenario constitutes a plausible denial of the facts asserted in the police report.
Defendant does not address the City's contention that the instant Pitchess motion should be denied as an improper renewal of a previous Pitchess motion. We will disregard the City's contention since the City did not provide any record of the previous Pitchess motion other than the January 14, 2011 reporter's transcript of the hearing on the motion.
We will begin our evaluation of the merits of defendant's writ petition with an overview of the rules governing the discovery of police personnel records.
A. Discovery of Police Personnel Records
In Pitchess, the California Supreme Court "recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge." (People v. Mooc (2001) 26 Cal.4th 1216, 1219 (Mooc).) The procedure for "Pitchess motions" was codified by the California Legislature in 1978 through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. (Mooc, supra, 26 Cal.4th at p. 1220.)
The statutory scheme provides that "[w]hen a defendant seeks discovery from a peace officer's personnel records, he or she must 'file a written motion with the appropriate court' (Evid. Code, § 1043, subd. (a)) and identify the proceeding, the party seeking disclosure, the peace officer, the governmental agency having custody of the records, and the time and place where the motion for disclosure will be heard (id., subd. (b)(1))." (Mooc, supra, 26 Cal.4th at p. 1226.)
"In addition, the Pitchess motion must describe 'the type of records or information sought' (Evid. Code, § 1043, subd. (b)(2)) and include '[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records' (id., subd. (b)(3))." (Mooc, supra, 26 Cal.4th at p. 1226.)
"The affidavits may be on information and belief and need not be based on personal knowledge [citation], but the information sought must be requested with sufficient specificity to preclude the possibility of a defendant's simply casting about for any helpful information [citation]." (Mooc, supra, 26 Cal.4th at p. 1226.)
Where the trial court determines that the defendant has complied with the statutory requirements for a Pitchess motion, including an adequate showing of good cause, "the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion. [Citation.]" (Mooc, supra, 26 Cal.4th at p. 1226.) "The trial court 'shall examine the information in chambers' (Evid. Code, § 1045, subd. (b)), 'out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present' (id., § 915, subd. (b); see id., § 1045, subd. (b) [incorporating id., § 915]). Subject to statutory exceptions and limitations . . . the trial court should then disclose to the defendant 'such information [that] is relevant to the subject matter involved in the pending litigation.' (Id., § 1045, subd. (a).)" (Id. at p. 1226.)
The statutory scheme for discovery of police personnel records also provides for protective orders. "Section 1045 requires in-chambers record review by the trial court, permits that court to issue an order protecting the officer against 'unnecessary annoyance, embarrassment or oppression' (subd. (d)), and requires the trial court to limit the use of any records that are disclosed. By doing so, the section maintains a balance between the officer's legitimate privacy interests and the criminal defendant's constitutionally guaranteed right to a fair trial. [Citation.]" (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1027-1028 (Warrick).)
B. The Good Cause Showing
The California Supreme Court has clarified the showing that a defendant must make in order to establish good cause for the discovery of police personnel records. "A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.]" (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines).)
To establish good cause, the affidavit filed in support of the Pitchess motion must " 'propose a defense or defenses to the pending charges.' [Citation.] To show the requested information is material, a defendant is required to 'establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events.' [Citation.] The information sought must be described with some specificity to ensure that the defendant's request is 'limited to instances of officer misconduct related to the misconduct asserted by the defendant.' [Citation.]" (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71 (Garcia).)
Additionally, "[c]ounsel's affidavit must also describe a factual scenario that would support a defense claim of officer misconduct. [Citation.] 'That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.' [Citation.] 'In other cases, the trial court hearing a Pitchess motion will have before it defense counsel's affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendant's averments, "[v]iewed in conjunction with the police reports" and any other documents, suffice to "establish a plausible factual foundation" for the alleged officer misconduct and to "articulate a valid theory as to how the information sought might be admissible" at trial.' [Citation.]" (Garcia, supra, 42 Cal.4th at p. 71.)
C. Analysis
The standard of review for an order denying a Pitchess motion is abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) "An abuse of discretion is shown when the trial court applies the wrong legal standard. [Citation.]" (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733; People v. Kelly (2010) 189 Cal.App.4th 73, 77.)
In the present case, we determine that the trial court did not apply the " 'relatively relaxed standards' " established by the California Supreme Court for the discovery of police personnel records in a criminal case. (Gaines, supra, 46 Cal.4th at p. 179.) The court indicated, when it ruled on the motion during the May 27, 2011 hearing, that the alternative factual scenario provided by defendant—that defendant did not have possession of a firearm and the police officers had fabricated the evidence by planting the shotgun in the sofa—was internally inconsistent and speculative. The trial court did not specify the nature of the internal inconsistency, and we understand the trial court to have implied that defendant's alternative factual scenario was not persuasive, since the court stated, "what I'm thinking is if they're fabricating all of this, then why didn't they just say that [defendant] said the gun is dark."
In Warrick, the California Supreme Court instructed that "[t]o require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial court's task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. A trial court hearing a Pitchess motion normally has before it only those documents submitted by the parties, plus whatever factual representations counsel may make in arguing the motion. The trial court does not determine whether a defendant's version of events, with or without corroborating collateral evidence, is persuasive—a task that in many cases would be tantamount to determining whether the defendant is probably innocent or probably guilty. [Citation.] [¶] Moreover, a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language and with [the court's] previous decisions requiring only that defense counsel's affidavit supporting a defendant's Pitchess motion be made on information and belief. (§ 1043, subd. (b)(3); [Citations.]" (Warrick, supra, 35 Cal.4th at p. 1026.)
Additionally, our Supreme Court in Warrick established the standard that a moving party must meet "to show a 'plausible' factual foundation for the Pitchess discovery requested[.] We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. . . . Once that burden is met, the defendant has shown materiality under section 1043." (Warrick, supra, 35 Cal.4th at p. 1026.)
We find that defendant's Pitchess motion made an adequate showing of good cause for discovery of certain police personnel records of Sergeant Moya and Officer Gruss. Defense counsel's declaration proposes a defense to the charge that defendant was a felon in possession of a firearm (§ 12021, subd. (a)(1)), consisting of a denial on information and belief that defendant was ever in possession of the shotgun discovered by the officers under the sofa cushion on May 30, 2010, and the claim that the shotgun was placed there by Sergeant Moya or Officer Gruss. Defense counsel also asserted on information and belief that the partial needle also found under the sofa cushion did not match the broken syringe that Officer Gruss had found in defendant's pocket. Defendant's alternative factual scenario is internally consistent and supports the defense theory that Sergeant Moya and/or Officer Gruss fabricated the evidence of defendant's firearms possession by planting the shotgun under the sofa cushion.
The City's contention that defendant's alternative factual scenario is internally inconsistent does not convince us otherwise. According to the City, "defense counsel's declaration is internally inconsistent as his assertions that officers placed the gun on site conflict with Defendant's own statements of a 'chrome' gun being found onsite and thus, . . . the alternative 'factual' scenario does not meet the standard of reasonableness or good cause as Defendant[']s own statements corroborate that the officers found the gun on site . . . ." We disagree. The record reflects that defendant made the statement describing the gun recovered from the Eden Valley Care Center as chrome after being informed by Office Gruss that a gun had been found there. Therefore, contrary to the City's assertion, defendant did not corroborate the police officers' recovery of a gun by describing the gun spontaneously and without knowing that a gun had been recovered.
Having determined that defendant has established good cause for Pitchess discovery by meeting the " 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents" (Gaines, supra, 46 Cal.4th at p. 179), we further determine that defendant is entitled to the trial court's in camera review of the police personnel records of Sergeant Moya and Officer Gruss relating to fabricating evidence, evidence tampering, falsifying police reports, and other instances of dishonesty, deception or falsehood. However, defendant has not shown how discovery of police personnel records relating to the vague category of all discipline imposed for behavior errors would support his proposed defense to the charge of felon in possession of firearm. Pitchess discovery is " 'limited to instances of officer misconduct related to the misconduct asserted by the defendant.' [Citation.]" (Garcia, supra, 42 Cal.4th at p. 71.) Therefore, defendant is not entitled to discovery of the police personnel records of Sergeant Moya and Officer Gruss relating to all discipline imposed for behavior errors.
D. Peremptory Writ in the First Instance
The "standard practice when Pitchess error has occurred" is to remand the matter to the trial court to conduct in camera review. (Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1051, fn. 4.) Since we have determined that the trial court in the present case erred in denying defendant's Pitchess motion and failing to conduct an in camera review, we will consider whether a peremptory writ in the first instance vacating the trial court's order and directing an in camera review is appropriate to correct the error expeditiously. (See, e.g., Brant v. Superior Court (2003) 108 Cal.App.4th 100, 109.)
In limited situations, an appellate court may issue a peremptory writ in the first instance, without issuance of an alternative writ or order to show cause, and without providing an opportunity for oral argument. (Code Civ. Proc., § 1088; Lewis, supra, 19 Cal.4th at pp. 1252-1253.) "A court may issue a peremptory writ in the first instance ' "only when petitioner's entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue—for example, when such entitlement is conceded or when there has been clear error under well-settled principles of law and undisputed facts—or where there is an unusual urgency requiring acceleration of the normal process. . . ." [Citation.]' " (Lewis, supra, 19 Cal.4th at p. 1241; see also Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1241 [describing the "accelerated procedure"].)
However, Code of Civil Procedure section 1088 " ' "requires, at a minimum, that a peremptory writ of mandate or prohibition not issue in the first instance unless the parties adversely affected by the writ have received notice, from the petitioner or from the court, that the issuance of such a writ in the first instance is being sought or considered. In addition, an appellate court, absent exceptional circumstances, should not issue a peremptory writ in the first instance without having received, or solicited, opposition from the party or parties adversely affected . . . ." ' " (Lewis, supra, 19 Cal.4th at p. 1240.)
We provided notice that a peremptory writ in the first instance might issue (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180) and offered the City a further opportunity to file opposition to the petition. We have received no response from the City. Therefore, we have complied with the procedural requirements for issuance of the writ in the first instance.
The applicable principles of the law regarding the discovery of police personnel records are well established (Gaines, supra, 46 Cal.4th at p. 179; Garcia, supra, 42 Cal.4th at p. 71; Warrick, supra, 35 Cal.4th at p. 1026; Mooc, supra, 26 Cal.4th at p. 1226), the facts relevant to a determination of defendant's Pitchess motion are undisputed, and defendant's entitlement to relief from the trial court's May 27, 2011 order and an in camera review of the specified police personnel records is so obvious that plenary consideration of the issues is unnecessary. (Lewis, supra, 19 Cal.4th at p. 1241.) Accordingly, we will grant the petition for writ of mandate in the first instance.
V. DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to (1) vacate the order of May 27, 2011, denying defendant's Pitchess motion; (2) enter a new order granting the motion with respect to the discovery of the police personnel records of Sergeant Moya and Officer Grass relating to fabricating evidence, evidence tampering, falsifying police reports, and other instances of dishonesty, deception or falsehood; and (3) conduct an in-camera review of the records in accordance with the applicable law (Evid. Code, § 1045). Upon finality of this decision, the temporary stay order is vacated.
BAMATTRE-MANOUKIAN, J. WE CONCUR:
PREMO, ACTING P.J.
MIHARA, J.