Opinion
B313207
11-22-2021
CITY OF HAWTHORNE, Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent; HORACE WAYNE SHANKLIN, et al., Real Parties in Interest.
Alison Stevens for Petitioner. No appearance for Respondent. Alternate Public Defender's Office of Los Angeles County, Erika Anzoategui, Felicia Kahn Grant and Gary Wigodsky for Real Party in Interest Catrina Briggs-Bradley.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of mandate. Petition granted. (Los Angeles County Super. Ct. No. TA152285) Michael Shultz, Judge.
Alison Stevens for Petitioner.
No appearance for Respondent.
Alternate Public Defender's Office of Los Angeles County, Erika Anzoategui, Felicia Kahn Grant and Gary Wigodsky for Real Party in Interest Catrina Briggs-Bradley.
COLLINS, J.
Real parties in interest Catrina Briggs-Bradley and Horace Dwayne Shanklin, Jr. (collectively defendants) are defendants in a pending criminal case. They both filed motions seeking pretrial discovery about Los Angeles County Sheriff's Department (LASD) deputies involved in the case, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), Brady v. Maryland (1963) 373 U.S. 83 (Brady), People v. Superior Court (Johnson) (2015) 61 Cal.4th 696 (Johnson), and Serrano v. Superior Court (2017) 16 Cal.App.5th 759 (Serrano). Respondent superior court held two in camera hearings, after which it ordered petitioner City of Hawthorne ("the City"), the former employer of one of the deputies, to disclose to defendants a "destruction log" summarizing confidential personnel records that had been destroyed pursuant to the City's records retention policy.
Briggs-Bradley represents that real parties in interest Gregory James Black, Jr. and Kenneth Bragg, who were involved in these proceedings at the outset, have now "resolved their matter" and are no longer involved in the underlying case. Neither Black nor Bragg has participated in these writ proceedings. Charges remain pending against Shanklin, who joined Briggs-Bradley's papers below but has not joined her return here or otherwise participated in these proceedings.
The City filed a petition for peremptory writ of mandate directing the superior court to vacate the disclosure order. We issued an alternative writ of mandate, ordering the superior court to either vacate the order and issue a new order denying the discovery motions as to the City, or show cause why a peremptory writ of mandate should not issue. After obtaining additional briefing and holding a hearing pursuant to Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, the superior court modified its previous order and directed the City to produce some, but not all, of the entries on the destruction log. Briggs-Bradley subsequently filed a return in this court, the City filed a reply, and we heard oral argument on the matter.
After oral argument, Briggs-Bradley notified this court that she entered a guilty plea in the underlying criminal case. We solicited briefing from the parties as to whether Briggs-Bradley's plea rendered the petition moot. We agree with the City that it did not, as Shanklin remains as a real party in interest.
We now grant the City's writ petition. The entries at issue do not meet the constitutional materiality standard established in Brady, supra, and are therefore not subject to disclosure.
BACKGROUND
Defendants were charged with several crimes, including murder, conspiracy to commit murder, and shooting at an occupied vehicle. The charges were supported by police reports and affidavits generated by three LASD deputies. The prosecutor notified defendants that she had reviewed the Los Angeles County District Attorney's "alert system regarding Brady evidence," and that they may want to file Pitchess discovery motions for information contained in the confidential personnel files of two of the three deputies involved in the case, including former City police officer Francis Hardiman.
Defendants subsequently filed discovery motions, citing as authority Pitchess, Brady, Johnson, and Serrano.
The prosecutor also filed a Pitchess/Johnson/Serrano motion seeking discovery from LASD. The court granted an in-camera hearing on that motion after the prosecutor testified that Hardiman and another deputy were both flagged in the prosecution's "ORWITS" (Officer and Recurrent Witness Information Tracking System) database. There is no indication that the prosecution sought discovery from the City.
In his motion, Shanklin sought "[a]ll complaints from any and all sources relating to acts of aggressive behavior, violence, excessive force, or attempted violence or excessive [sic], racial bias, gender bias, ethnic bias, sexual orientation bias, coercive conduct, violation of constitutional rights, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, illegal search/seizure[, ] false arrest, perjury, dishonesty, writing of false law enforcement reports to cover up the use of excessive force, planting of evidence, false or misleading internal reports including but not limited to false overtime or medical reports, and any other evidence of misconduct amounting to moral turpitude. . . ." Shanklin sought discovery regarding Hardiman from Hardiman's current employer, LASD, and his former employer, the City. He asserted that such records were subject to Brady, even if they were beyond the five-year limitations period that circumscribes Pitchess motions. Shanklin also joined Briggs-Bradley's similar motion.
The City opposed the motions. It argued that nothing in Hardiman's file was material to any conceivable defense to the pending charges. It further noted that Hardiman separated from its employ in 2007, and argued that Evidence Code section 1045, subdivision (b)(1) bars disclosure of "complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is sought."
The superior court heard the motions on May 26, 2021. It granted in camera review of Hardiman's records from the City, which employed him from January 18, 1994 through April 30, 2007. After the hearing, the court ordered the matter continued for further in camera proceedings on June 17, 2021.
On June 17, 2021, the superior court held another in camera hearing at which the City's custodian of records testified and produced a document. After the in camera portion of the hearing, the court informed defendants that it was "ordering disclosure of certain records." The court granted the City's request to temporarily stay the order so the City could seek writ relief. The court did not provide defendants with further information about the records or their contents, though the City's writ petition identifies the material as a "subject log of destroyed records," on which "the most recent, relevant item" was "generated in 2005."
The City filed a petition for peremptory writ of mandate, prohibition, or other appropriate relief on June 23, 2021. In the petition, the City disclosed certain information from the in camera hearings. Specifically, it stated that at the May 26 hearing, its custodian of records advised the court that "all police internal investigation records" pertaining to Hardiman "had been destroyed pursuant to a five-year records retention policy"; Hardiman had executed a waiver permitting LASD to review his personnel files, and LASD had reviewed the files; Hardiman "was not on a Brady list maintained by the Hawthorne Police Department"; and "the Court ordered the Custodian to return with a log maintained by the Hawthorne Police Department." With respect to the June 17, 2021 hearing, the City represented that the court "conducted an in camera review of the subject log of destroyed records, the most recent, relevant item on the log being generated in 2005," and "ordered disclosure of the log." The City argued that the entries on the destruction log were "(a) not Brady material and (b) are over 5 years old in direct violation of Evidence Code § 1045(b)(1)." The City's petition was accompanied by exhibits including defendants' motions and supporting declarations, its oppositions thereto, the officers' affidavits supporting the charges, and the court's minute order. The City also filed under seal a copy of the destruction log, a declaration from its custodian of records, and transcripts of the in camera hearings.
On June 29, 2021, we issued an alternative writ of mandate. We directed the superior court to either "(a) after notice and hearing (see Brown, Winfield & Canzoneri, Inc. v. Superior Court[, supra, ] 47 Cal.4th [at p.] 1250, fn. 10), vacate the June 17, 2021 disclosure order, and enter a new order denying real parties' discovery motion, to the extent it seeks disclosure of officer records from petitioner (see City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 15-17); or, (b) in the alternative SHOW CAUSE . . . why a peremptory writ of mandate ordering you to do so should not issue on the ground that petitioner has demonstrated entitlement to relief." We invited defendants to file returns by July 26, 2021, and the City to file a reply by August 16, 2021.
On July 27, 2021, the superior court issued an order stating that it was "considering following the directive set forth in paragraph (a) to vacate the June 17, 2021 disclosure order, and enter a new order denying defendants' discovery motion to the extent it seeks disclosure of officer records from the City of Hawthorne." The superior court set the matter for hearing on September 1, 2021 and requested that the parties provide briefing on three issues: (1) "If a prosecutor discloses to the defense that an officer is on their 'Brady list,' and/or their 'ORWITS' list, is that sufficient cause for the Court to evaluate the officer's personnel records from a prior police department to ascertain whether there is material and exculpatory 'Brady' information that should be disclosed to the defense?" (2) "Is it lawful for a law enforcement agency to partially destroy confidential records, where the partial destruction of records may adversely impact a trial court's ability to ascertain whether the substance of those records contain discoverable information?" and (3) "If a law enforcement agency partially destroys confidential records [verbatim reports], while retaining records that identify the witnesses' identities, the dates of the complaints and a brief summary regarding the nature of the complaints, can the Court comply with its responsibility to ascertain whether there is material and exculpatory Brady information that should be disclosed to the defense? In such a circumstance, does the brief summary regarding the nature of the complaints provide a sufficient basis to order disclosure within the meaning of Brady?"
Briggs-Bradley filed in the instant proceedings the parties' briefs addressing these questions.
Briggs-Bradley subsequently sought, and we granted, an extension of time to file her return. We set the filing deadlines for the return and reply after the scheduled superior court hearing.
The superior court held its hearing on September 1, 2021. The City argued that it had no duty to preserve documents that it had reviewed pursuant to its pattern and practice and found "nothing in there." It asserted that Hardiman "was not on a Brady list" during his employment, yet now "there's this attempt to make a determination that the officer was on a Brady list." The City acknowledged that it had not provided the court with a declaration stating it had reviewed the records prior to destroying them, but asserted that it "certainly" could "provide that declaration as to pattern and practice of how the records are reviewed and destroyed, before destruction." The City further argued that defendants failed to show it had destroyed the records in bad faith.
The appellate record contains no such declaration.
Briggs-Bradley's counsel argued that "[t]here's no such thing as Brady evidence that's too stale for disclosure," and that Hardiman's presence or absence on any sort of Brady list maintained by the City was "completely irrelevant." He further contended that the destruction of "evidence that a police officer committed perjury or filed a false police report" would constitute bad faith, even if it were done in accordance with a department policy. Shanklin's counsel joined Briggs-Bradley's counsel's arguments, and further contended that the City had a heightened obligation to retain Hardiman's records because he transferred to a new agency. The court took the matter under submission.
On September 7, 2021, the superior court issued an order partially vacating and modifying its previous order. In the unredacted portion of the order, the court found that the City had "partially destroyed" Hardiman's confidential personnel records, "while retaining records that identify the witnesses' identities, the dates of the complaints and a summary regarding the nature of the complaints." The court ordered the City to "provide discovery to the defendants." In the redacted portion of the order, the court clarified which specific destruction log entries were to be disclosed, and why.
On September 13, 2021, the City filed a notice of intent to file a new writ petition concerning the superior court's modified order. On September 15, 2021, we issued an order stating that the original petition was not moot and would proceed to hearing according to the previously established briefing schedule. Briggs-Bradley timely filed her return, and the City its reply, in accordance with that schedule. Both filings addressed the original writ petition as well as the three questions on which the superior court sought additional briefing. As previously noted, sole remaining real party in interest Shanklin did not file anything in these proceedings.
DISCUSSION
I. Brady
In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) "'For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness.' [Citations.] Evidence is material '"if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."' [Citation.]" (Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 40.) "'A reasonable probability does not mean that the defendant "would more likely than not have received a different verdict with the evidence," only that the likelihood of a different result is great enough to "undermine[ ] confidence in the outcome of the trial."' [Citation.]" (Ibid.) Determining whether evidence is material "requires consideration of the collective significance of the undisclosed evidence," as well as 'the effect of the nondisclosure on defense investigations and trial strategies.'" (Ibid.) The standard of materiality is the same before judgment, when evaluating whether evidence must be disclosed, as it is after judgment, when evaluating whether Brady was violated. (Ibid.)
The duty to disclose evidence under Brady belongs to the government, not merely the prosecutor. (Serrano, supra, 16 Cal.App.5th at p. 767.) Thus, to comply with Brady, a prosecutor must learn of any favorable evidence known to others acting on the government's behalf in the case, including the police; "'"[e]xculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does."' [Citation.]" (Ibid.) The duty applies even in the absence of a request by the defendant. (Ibid.) The prosecutor may fulfill its obligations by informing the defendant that specified records may contain exculpatory information; the defendant can then decide whether to pursue discovery of those records using the Pitchess process described below. (Johnson, supra, 61 Cal.4th at p. 705.)
"Closely related to the Brady rule requiring the prosecution to disclose material evidence is the prosecution's obligation to retain evidence. With respect to retention, however, the prosecutor's obligation is narrower. Its failure to retain evidence violates due process only when that evidence 'might be expected to play a significant role in the suspect's defense,' and has 'exculpatory value [that is] apparent before [it is] destroyed.' (California v. Trombetta (1984) 467 U.S. 479, 488-489.)" (City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 8 (emphasis in original) (Brandon).) "In that regard, the mere 'possibility' that information in the prosecution's possession may ultimately prove exculpatory 'is not enough to satisfy the standard of constitutional materiality.' (Arizona v. Youngblood (1988) 488 U.S. 51, 56, fn. *.)" (Brandon, supra, 29 Cal.4th at p. 8.) A failure to retain evidence does not violate due process unless the defendant can show that the government acted in bad faith. (Ibid.)
II. Pitchess
A defendant may affirmatively request potentially favorable evidence directly from law enforcement under the authority of Pitchess, supra, 11 Cal.3d 531, which "established that a criminal defendant could 'compel discovery' of certain relevant information in the personnel files of police officers by making 'general allegations which establish some cause for discovery' of that information and by showing how it would support a defense to the charge against him" or her. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019.) Though such information is ordinarily confidential (see Pen. Code, § 832.7), it may be disclosed if the defendant follows the procedures in Evidence Code sections 1043 through 1045. Those procedures include the filing of a written motion describing the types of records or information sought, along with an affidavit showing good cause for the discovery by explaining the materiality of the information to the litigation and stating on reasonable belief that the governmental agency has the records or information. (See Evid. Code, § 1043, subds. (a) & (b); Johnson, supra, 61 Cal.4th at p. 710.)
If the superior court concludes that the defendant has followed the procedures and demonstrated good cause, the court then holds an in camera hearing at which the agency's custodian of records presents all potentially relevant documents. (Johnson, supra, 61 Cal.4th at pp. 710-711.) The superior court examines the documents in the presence of the custodian and anyone the custodian is willing to have present-generally the prosecutor, but not the defense-and determines what, if any, information is appropriate for disclosure. (Id. at p. 711.) Subject to statutory limitations, the court then discloses to the defendant information that is relevant to the pending litigation. (Ibid.) The statutory limitations include a bar on disclosing "complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigation in aid of which discovery is sought" and those that are "so remote as to make disclosure of little or no practical benefit." (Evid. Code, § 1045, subds. (b)(1), (3).)
The Pitchess procedure must be viewed against the larger background of the prosecution's obligations under Brady. (People v. Mooc (2001) 26 Cal.4th 1216, 1225.) Indeed, the Supreme Court has explained that Pitchess operates "in parallel" with Brady. (Brandon, supra, 29 Cal.4th at p. 14.) Information that satisfies the Brady test of materiality necessarily meets the relevance standard for disclosure under Pitchess. (Johnson, supra, 61 Cal.4th at pp. 711-712.) "Thus, if materiality under the more stringent Brady standard is shown, the statutory restrictions pertaining to the Pitchess procedure are inapplicable [citation]; but if the defendant only shows materiality under the less stringent Pitchess standard, the statutory limitations apply." (Eulloqui v. Superior Court (2010) 181 Cal.App.4th 1055, 1065.)
III. Analysis
The superior court held an in camera hearing and ordered the City to disclose to defendants certain information concerning complaints against Hardiman while he was in the City's employ more than a decade ago. The court thus necessarily concluded that the information met the Brady materiality standard, such that the five-year statutory limitation on disclosure under Pitchess was not applicable. We generally apply independent review to conclusions of law or mixed questions of law and fact, "such as the elements of a Brady claim." (People v. Stewart (2020) 55 Cal.App.5th 755, 770; see also Serrano, supra, 16 Cal.App.5th at p. 767.) However, even if we were to apply the abuse of discretion standard that typically applies to "the discoverability of material in police personnel files" (Serrano, supra, 16 Cal.App.5th at p. 767), we would conclude that the court abused its discretion because its decision rests on an error of law. (See, e.g., People v. Patterson (2017) 2 Cal.5th 885, 894.)
"[A] trial court that in response to a criminal defendant's discovery motion undertakes an in chambers review of confidential documents can, if the documents contain information whose use at trial could be dispositive on either guilt or punishment, order their disclosure." (Brandon, supra, 29 Cal.4th at p. 15, citing Pennsylvania v. Ritchie (1987) 480 U.S. 39.) Here the court reviewed a destruction log that briefly summarizes citizen complaints made against Hardiman during his tenure with the City, which ended in 2007. The entries the court ordered the City to disclose concern complaints the City's briefing accurately describes as at least "16 years old" and devoid of "sustained findings of misconduct." Nothing on the face of the destruction log suggests the complaints are pertinent to the substance of the pending charges, which include murder, conspiracy to commit murder, and shooting at an occupied vehicle. This renders the entries analogous to the 10-year-old complaint regarding an officer's failure to report a coworker's improper use of mace in Brandon, supra, which the Supreme Court found was not reasonably probable to "alter the outcome of defendant's trial" for "lewd conduct on a seven-year-old boy." (Brandon, supra, 29 Cal.4th at p. 16.)
As the Supreme Court recognized in Brandon, information that may be useful for impeaching a witness is subject to disclosure under Brady "because impeachment information affects the fairness of trial." (Brandon, supra, 29 Cal.4th at p. 16.) Indeed, Shanklin asserts that Hardiman lied about violating his rights under Miranda v. Arizona (1966) 384 U.S. 436 and other aspects of the investigation in his affidavits and reports.
The destruction log entries at issue call into question Hardiman's general veracity; they document complaints alleging he engaged in falsity during various stages of policing. However, this type of behavior is similar in kind to information already disclosed by the prosecution, namely that Hardiman has been a defendant in at least eight civil lawsuits alleging that he falsely arrested citizens, violated their civil rights, and destroyed evidence. (See Brandon, supra, 29 Cal.4th at p. 16.) These lawsuits, which were filed from 1998 to 2021, arguably suggest a pattern of behavior independent of the entries on the destruction log. To the extent LASD was separately ordered to disclose information from Hardiman's personnel file with that agency, and that information is similar in kind to the destruction log entries documenting unfounded and not sustained citizen complaints, it further limits the materiality of the destruction log entries. (See Brandon, supra, 29 Cal.4th at p. 16.)
An agency's determination that a citizen complaint is unfounded does not render the complaint undiscoverable. (See People v. Zamora (1980) 28 Cal.3d 88, 93, fn. 1). However, under legislation effective January 1, 2022, it will affect the duration of time an agency must retain records of citizen complaints. Currently, Penal Code section 832.5, subdivision (b) requires an agency to retain records of citizen complaints for five years. Under Senate Bill No. 16 (2020-2021 Reg. Sess.), Penal Code section 832.5, subdivision (b) will be amended to extend the minimum retention period for sustained complaints from five to 15 years.
"'In general, impeachment evidence has been found to be material where the witness at issue "supplied the only evidence linking the defendant(s) to the crime," [citations], or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case. . . ."' (People v. Salazar (2005) 35 Cal.4th 1031, 1050.) The statement of probable cause that defendants seek to impeach identifies several pieces of independent evidence, such as Google location data, surveillance footage, and photographs, that link defendants to the crimes. Hardiman's testimony may prove important to the prosecution, but it is not apparent that the minimal information in the entries on the destruction log would "undermine[ ] a critical element of the prosecution's case." Even considered collectively, both in relation to one another and in relation to the other impeachment evidence already disclosed to defendants, the entries on the destruction log do not rise to the level of constitutional materiality.
It also includes several pieces of "exculpatory information."
Hardiman's inclusion on or absence from the City's Brady list is not relevant to this determination. (See Association for Los Angeles Deputy Sheriffs v. Superior Court, supra, 8 Cal.5th at p. 53 ["nothing guarantees that a Brady list will reflect all information that might prove 'material' in each particular case"].)
DISPOSITION
The petition for writ of mandate is granted. Let a peremptory writ of mandate issue, directing the superior court to vacate its September 7, 2021 order granting in part defendants' motions for discovery of records from City of Hawthorne and to issue a new and different order denying the motions. No costs are awarded. (See Cal. Rules of Court, Rule 8.493(a).)
We concur: MANELLA, P. J., WILLHITE, J.