Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Petition for writ of mandate from an order of Imperial County Superior Court No. JCF-21658, Donal B. Donnelly, Judge.
HUFFMAN, Acting P. J.
In this felony criminal action, defendant Tyun Sockee Dodson petitions for a writ of mandate directing respondent Imperial County Superior Court to vacate that portion of its order of June 12, 2008, which denied his Pitchess motion as to Correctional Officer Henry Sustaita, and to enter a new order "finding good cause and directing respondent court to conduct an in camera review of . . . Sustaita's personnel records for complaints of acts of dishonesty and falsification of reports as prescribed in Evidence Code [section] 1043 . . . ." Dodson specifically contends the superior court's denial of an in camera review of Sustaita's records for evidence of discipline for fabricating evidence and falsifying reports was "contrary to law, an abuse of discretion, and in excess of its jurisdiction," because good cause and a plausible factual foundation for information in Sustaita's records were shown.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535 (Pitchess).
The Attorney General, representing the California Department of Corrections and Rehabilitation (CDCR), filed a response essentially countering that the trial court properly denied that portion of the Pitchess motion of which Dodson complains because he failed to make a sufficient factual showing and show a logical link between the requested discovery and his defense to the charges of assault on two correctional officers to constitute good cause with his bare allegation that Sustaita lied in his report about the prison incident he witnessed.
We conclude the trial court abused its discretion in failing to find that Dodson had met the low threshold for good cause for some of the information sought as to Sustaita in his Pitchess motion. Accordingly, we grant the petition.
PROCEDURAL AND FACTUAL BACKGROUND
On March 28, 2008, the Imperial County Grand Jury indicted Dodson, a Calipatria inmate, on two counts of battery on a nonconfined person (Correctional Officers Joshua Rocha and Heriberto Mora, Jr.) by a prisoner in violation of Penal Code sections 4501.5 and 1170.1, subdivision (c). The indictment also alleged Dodson had suffered various serious/violent felony prior convictions under the three strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
On May 20, 2008, Dodson filed a Pitchess motion under Evidence Code sections 1043 through 1047, seeking the inspection and disclosure of certain personnel records of eight correctional officers, including Rocha, Mora, Sustaita, C.J. Swearingen, V. Canada, M. Tamayo, E. Silva, and D. Bell. By such motion, Dodson specifically sought evidence of complaints to the CDCR that the officers had "committed acts of unnecessary or excessive force, police brutality, improper tactics, false arrest, acts of dishonesty, falsification of reports and the giving of false testimony," including the name of complainants and witnesses, statements of both, names of investigators and their notes, psychiatric reports, disciplinary records, statements of officers in this case to an internal affairs investigator, and any exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83 (Brady).
In support of the motion, Dodson filed points and authorities and the declaration of his counsel. On information and belief, counsel's declaration alleged that Rocha had entered Dodson's cell on July 30, 2005, and said, in reference to a complaint that Dodson's mother had made about Rocha, "You wanna cry to your Mommy, I'll give you somethin' to cry about." Then without any provocation, Rocha attempted to strike Dodson with his baton and Dodson fought back to repel Rocha's attack. Swearingen, who had responded to Dodson's cell, sprayed Dodson with pepper spray and struck him with a baton without provocation. Mora, who had also responded to the cell, grabbed Dodson by the torso and handcuffed him. Tamayo and Canada then responded to the cell and used excessive force by striking Dodson with their batons while he was lying handcuffed on the floor. Silva, who had also responded to the cell, placed his knee on Dodson's neck, covered Dodson's nose and mouth with plastic, and jerked Dodson's head back, causing him to feel as if he were being asphyxiated. Canada and Tamayo then escorted Dodson to the facility's medical clinic, where Canada attempted to cover up the excessive and illegal use of force by whispering to Dodson that he should tell another inmate he was "alright." At the clinic, Silva ordered medical technician assistants (MTAs), one of whom was Bell, to leave the area, and then punched Dodson in the face. Dodson was also kicked by Canada and Tamayo and additionally punched in the stomach by Silva.
Counsel further alleged that Dodson had not provoked any of the officers' use of force and he had only used reasonable force in response to Rocha's attack. Counsel specifically alleged "that any use of force used by [Dodson] against the above-mentioned officers was done in defense of [his] person against acts of excessive and illegal force employed against [him]." Counsel additionally claimed all of the officers omitted from their reports of the incident material facts pertaining to the use of excessive force against Dodson, Silva attempted to cover up the uses of excessive and illegal force, and Sustaita, who witnessed the incident, "omitted from his report material facts pertaining to acts of excessive force committed by . . . Rocha against [Dodson] and falsely sought to portray [Dodson] as the aggressor in the . . . incident." Counsel attached reports of the various officers, including Sustaita, to his declaration to show the force used against Dodson and to support the assertion that a history of falsifying reports and giving false testimony by any of those officers "would be relevant and admissible to establish the officer's character for honesty and truthfulness. [Citation.]"
With specific regard to Sustaita, his report stated that he was on duty on July 30, 2005 at approximately 8:40 p.m. as the Housing Unit A-3 control officer where Dodson's cell 217 was located, when he saw Rocha standing to the right of that cell and heard him yell out loud "open cell 17." Sustaita then noted that Dodson stepped outside his cell and placed a large plastic bag filled with inmate property in front of the cell door. When Rocha bent over to grab the bag, Dodson punched Rocha several times "with his left and right fist to the facial area. . . ." Sustaita then activated his alarm and opened doors for responding staff, who ran in to assist Rocha. Sustaita said Dodson returned to his cell and began throwing "for[eign] objects" from inside his cell striking . . . officers in the upper chest and facial area." Dodson was eventually restrained by several officers and others who responded to his cell.
Dodson sought an in camera inspection of the personnel records mentioned above alleging the material was necessary for the proper preparation of his case for trial because it could lead to other witnesses and evidence regarding the aggressive and dishonest character of the officers involved to show that they acted in conformity with those character traits at the time of this incident; it could be used to refresh the recollection of witnesses to incidents of the use of illegal or excessive force; it could be used to prepare for cross-examination and impeachment of prosecution witnesses; and it could be used by the trier of fact to properly assess his own credibility, as well as that of his witnesses. Counsel alleged that the records, data and materials sought were in the exclusive possession and control of CDCR and were relevant to the issues of excessive and illegal force by the officers against Dodson and the officers' dishonesty in omitting material facts pertaining to such use of force from their incident reports.
CDCR opposed the motion for discovery, arguing there was an insufficient factual basis to constitute good cause for the release of the sought after confidential peace officer records, Dodson had failed to show that the records were relevant to the litigation or his proposed defenses, his request was overbroad, and his alleged factual scenario of officer misconduct "is not plausible when read in light of the pertinent documents" thereby rendering his proposed defense without a plausible factual foundation.
In its opposition, CDCR gave its factual scenario of the July 30, 2005 incident, stating that Dodson was the aggressor who lunged forward and struck Rocha in the mouth with his fist when Rocha opened Dodson's cell door to complete an inventory of bagged property in the cell. Rocha only drew his baton and swung it defensively as he fell backwards when hit by Dodson. The other officers came to Rocha's aid and exerted force only to subdue Dodson who did not retreat. At the clinic, Dodson told the MTAs that he had been "spooked" when Rocha opened his cell door and that "[i]t was all my fault."
CDCR requested that to the extent the court granted any discovery, that it be limited and the court proceed in accordance with Evidence Code sections 1043 and 1045.
At the June 12, 2008 hearing on the motion, the court tentatively ruled that there was "a sufficient showing of good cause and materiality to allow for an in camera review relating to the records of alleged excessive force or violence, as well as false reporting by Officer Rocha." The court was not inclined to find a sufficient specific plausible factual scenario that would allow for discovery of Officer Mora's records, but would entertain argument. As to the other officers, including Sustaita, the court tentatively ruled there was no legal or factual basis for discovery. The court was unsure whether an allegation that the officers were dishonest in their reporting of the events "would be a sufficient basis to allow for full-scale discovery of all of their files." The court noted that it had carefully evaluated Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick) and the various "thresholds that need to be met here." Although the court was inclined to deny the remaining requests for discovery, it would hear argument from counsel.
Dodson's counsel argued that aside from Mora, all the other officers, including Sustaita, were potential prosecution witnesses that Dodson was alleging either engaged in excessive force or sought to cover up the use of excessive force by omissions or false statements in their reports regarding any provocation by Dodson in the incident which would be relevant to effective cross-examination of all witnesses. CDCR's attorney countered that there were no allegations of force by any of the other officers and with specific regard to Sustaita, there were no allegations he had done anything or had "lied in any specific way," only that his report was wrong.
Dodson's counsel disagreed, saying that as to Sustaita, the allegations relate to his omissions or false portrayal of Dodson "as being the aggressor." Counsel believed the fact that Sustaita and the other officers lied about the incident in their reports was relevant to show a cover up and important for cross-examination of each officer. In response to the court's inquiry as to whether there was any case law on a defendant's right to discovery of personnel records of law enforcement officers who were merely eyewitnesses to an incident, but not victims of the incident, to attack their credibility as prosecution witnesses at the trial, counsel explained that he was "not aware of any requirement that the person for whom the Pitchess discovery is sought is required to be a charged complaining witness," and cited People v. Memro, in which discovery was obtained from several officers who were not the charged victims in that murder case.
We presume counsel was referring to Memro I (People v. Memro (1985) 38 Cal.3d 658), in which the Supreme Court found the records of police officers who had trained with the defendant's four interrogators would be discoverable regarding a coerced confession claim. (Id. at p. 686.) The denial of discovery of similar records in Memro II (People v. Memro (1995) 11 Cal.4th 786, 832), however, was found not to be an abuse of discretion where no nexus or connection was shown for such records. (Ibid.)
After further discussion, the court made its final ruling, granting in camera review as to Rocha for both excessive force and violence and dishonesty and false reporting, and as to Mora on complaints of dishonesty or false reporting. The court noted it would also review the officers' files for any Brady material. As to the other officers, the court said it would "go out on a limb here and deny the remaining requests for discovery." The court explained that it did not think there was a sufficient showing of a conspiracy to use force against Dodson or of a cover up in their reports, which would provide a logical link for discovery of those other officer's files, and that it was "not convinced by the law or authority cited that the defense's mere desire to seek to impeach the credibility of prosecution witnesses would be sufficient to allow for discovery of all of those officers' personnel records." The court believed it would merely be a "fishing expedition" unwarranted by current law to grant the request as to Sustaita and the remaining officers.
In the subsequent in camera review of Rocha and Mora's personnel files, the court determined there was one discoverable record, which it ordered CDCR to submit under seal to the court as well as provide the information directly to Dodson's counsel.
Dodson filed the instant petition for a writ of mandate on July 1, 2008, seeking in camera review of only Sustaita's personnel records for complaints of acts of dishonesty and falsification of reports. On July 23, 2008, we directed the People to file an informal response to the petition. After reviewing the informal response from the CDCR, on August 19, 2008, we issued an order to show cause (OSC) why the relief requested should not be granted. On August 29, 2008, CDCR requested we accept its informal response as its return to the petition and requested oral argument on the matter. Dodson subsequently filed a reply to CDCR's responsive pleadings and also requested oral argument. On September 23, 2008, we granted Dodson's request to stay all proceedings in the trial court pending further order of this court.
DISCUSSION
At the outset, we note that even though Dodson may possibly have other avenues for seeking relief, such as bringing a renewed Pitchess motion or seeking appellate relief after conviction, because it is doubtful from this record that the trial court would change its ruling even if another motion more narrowly and specifically seeking relief were brought, "writ review is appropriate because [Dodson] has sought relief from a discovery order which could undermine his right to present a defense because appellate remedies are not adequate to cure the erroneous denial of disclosure of information, and general guidelines appear to be necessary for the lower court [in this case]. [Citation.] In reviewing the discovery order, we apply the abuse of discretion standard, 'keeping in mind that "[t]rial courts are granted wide discretion when ruling on motions to discover [correctional] officer personnel records." [Citation.]' [Citation.]" (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 49 (Abatti).) A trial court's exercise of its discretion, however, is not unlimited and must be governed by the controlling legal principles. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)
A. The Controlling Law
In Abatti, supra, 112 Cal.App.4th 39, this court set out at length the statutory background for Pitchess motions which were codified in California in 1978 to provide a criminal defendant the limited right to discovery of a police officer's personnel records. (Abatti, supra, at pp. 49-51.) Under such statutory procedures, a defendant generally must file a motion, stating the records sought, and submit declarations on information and belief "showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation." (Evid. Code, § 1043, subd. (b)(3); City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86-93 (City of Santa Cruz).) If the materiality or good cause showing is made, the trial court then conducts an in camera review of an officer's personnel records to determine whether any are relevant to the litigation. (Evid. Code, § 1045, subd. (b).) The specific procedures for conducting an in camera review, if warranted, are set out in People v. Mooc (2001) 26 Cal.4th 1216 at pages 1228 to 1230 (Mooc).
To show good cause for an in camera review, a defendant must demonstrate both a "specific factual scenario" establishing a "plausible factual foundation" for the allegations of officer misconduct (City of Santa Cruz, supra, 49 Cal.3d at pp. 85-86; California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020), and that the misconduct would, if credited, be material to the defense (Warrick, supra, 35 Cal.4th at p. 1016). Since our decision in Abatti, the California Supreme Court in Warrick has "clarified that the materiality element requires the defendant to establish a logical link between the pending charge and the proposed defense, and to articulate how the requested discovery will support the proffered defense. [Citation.] Accordingly, defense counsel's supporting declaration must propose a defense, and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proffered defense, or how the requested discovery may lead to such evidence. [Citation.] Thus, a defendant meets the materiality element by showing: (1) a logical connection between the charges and the proposed defense; (2) the requested discovery is factually specific and tailored to support the claim of officer misconduct; (3) the requested discovery supports the proposed defense or is likely to lead to information that will do so; and (4) the requested discovery is potentially admissible at trial. [Citation.]" (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 319 (Giovanni).) The plausible factual foundation for the claim of officer misconduct "is one that might or could have occurred," and is not one that must be reasonably probable or apparently credible. (Warrick, supra, 35 Cal.4th at pp. 1025-1026.)
Additionally, the court in Warrick also recognized that in some cases the good cause materiality showing will be based not only on counsel's declaration, but also on a reading or consideration of the declaration in conjunction with a police report, witness statements and other pertinent documents. (Warrick, supra, 35 Cal.4th at p. 1025.) If all the supporting documents and counsel's declaration adequately respond to the above questions, and state " 'upon reasonable belief that the governmental agency identified has the records or information from the records' [citation], then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant." (Id. at p. 1027.)
B. Application of the Law to this Case
Based upon the above principles, we believe Dodson's motion was sufficient to satisfy the "relatively low" threshold showing of good cause under Pitchess for an in camera review of Sustaita's personnel records. (Evid. Code, § 1043, subd. (b)(3); Warrick, supra, 35 Cal.4th at p. 1019; Abatti, supra, 112 Cal.App.4th at p. 59.)
Dodson was charged with assault on several correctional officers. His version of events is plausible given the factual scenario described in his counsel's declaration which alleged that it was Rocha who instigated the attack on Dodson by verbally assaulting him and then trying to strike him with his baton before Dodson fought back with reasonable force to repel the attack, which was then joined by other correctional officers. The scenario described in counsel's declaration is internally consistent and conflicts with the version of the incident and the allegations of force used by Dodson narrated in Sustaita's report. Specifically, it can be gleaned from a reading of Dodson's counsel's declaration together with Sustaita's report of the incident, which begins with noting Rocha's call to open Dodson's cell door and then describes the events of the altercation, that Sustaita had been in a position to hear and to see the exchanges between Rocha and Dodson from the beginning of the incident. As such, Dodson's denial that the incident occurred in the manner Sustaita reported was sufficient in this case to constitute the required factual scenario of officer misconduct. (Warrick, supra, 35 Cal.4th at pp. 1024-1025.)
Contrary to the Attorney General's position that the declaration was not specific enough about the whereabouts of Sustaita during the incident or about the length of time he observed the events to provide a plausible factual foundation for Dodson's claim of officer misconduct, such specificity is not required where, as here, it can reasonably be inferred from Sustaita's own report that stated he personally observed the incident.
Clearly, whether Sustaita fabricated his report of the incident was material to the issue of whether Dodson was the aggressor in the incident, whether he could claim self-defense and whether he could claim Rocha or any other officer used excessive force. The discovery request was tailored to complaints of acts of dishonesty and falsification of reports which, if found, would certainly be admissible at trial for impeachment of Sustaita, by attacking his credibility as a percipient witness of the incident from its inception, thereby providing support for Dodson's defense. Because the trial court found otherwise, appearing to ignore the reasonable inferences from counsel's declaration read in conjunction with Sustaita's report and the arguments at the motion hearing, it abused its discretion in denying that portion of Dodson's Pitchess motion relating to Sustaita without conducting an in camera review of his personnel records to determine whether they contain information relevant to such limited issue. (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9; Mooc, supra, 26 Cal.4th at p. 1229; City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1143.)
In light of finding an abuse of discretion, we grant Dodson's petition for relief, directing the superior court to vacate that portion of its June 12, 2008 order denying his Pitchess motion as to Sustaita and to enter a new order granting that portion of the motion and directing the superior court to conduct an in camera review of Sustaita's personnel files for complaints of acts of dishonesty and falsification of reports.
We presume the court will also review the files for any Brady material, as it did with Rocha and Mora.
DISPOSITION
Let a writ issue directing the superior court to vacate that portion of its order of June 12, 2008 regarding Correctional Officer Sustaita, and to enter a new order consistent with this opinion. The stay issued by this court on September 23, 2008, will be vacated when this opinion is final as to this court.
WE CONCUR: HALLER, J., McDONALD, J.