Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS062224
RUSHING, P.J.
Defendant David Ford appeals a judgment entered following his guilty plea to one count of battery by a prisoner on a non-prisoner (Pen. Code, § 4501.5). On appeal, defendant asserts the trial court erred in denying his Pitchess motion to discover the personnel records of the correctional officers involved in the altercation that gave rise to the charges.
All further statutory references are to the Penal Code.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Statement of the Facts and Case
In April 2006, defendant was an inmate at Soledad Correctional Facility, and was in the day room that housed 20 other inmates. At the time, defendant was acting in a disruptive manner, and was cursing and being confrontational to the corrections staff.
Correctional officers were ordered to remove defendant from the day room due to defendant’s agitated state. Sergeants Verdestoto and Miranda took defendant from the day room down the hall. Defendant cursed at Sergeant Miranda as they left the day room. Defendant was very angry and agitated.
When defendant and the correctional officers were in the hall, at the officers’ request, defendant faced the wall and put his hands flat against the wall. Officers pat-searched defendant, finding no contraband.
Sergeant Verdesoto decided to handcuff defendant following the search, because defendant was still very agitated and angry. Verdesoto asked defendant to put his hands behind his back, to which defendant cursed and told him to say “please.” Verdesoto said “please, ” and grabbed defendant’s left wristed and tried to put it behind defendant’s back. Defendant looked back at Verdesoto and said, “You ask me nicely, motherfucker.” While Verdesoto was placing the handcuff on defendant’s left wrist, defendant bent his elbow, twisted right, and hit his right elbow back into Verdesoto’s right eye. Verdesoto’s eye began to bleed.
Sergeants Verdesoto and Miranda and other corrections officers placed defendant on the floor to prevent any further assault by defendant. It took numerous officers to eventually handcuff defendant while he was on the floor, because he continued to resist.
Defendant was charged by information with one count of battery by a prisoner on a non-prisoner (§ 4501.5), with a prior strike allegation (§ 1170.12, subd. (c)(1)). The trial court granted defendant’s motion to dismiss the prior strike conviction.
Defendant filed a Pitchess motion to discover the personnel records of the correctional officers involved in the altercation. The basis of defendant’s motion was that he was beaten by the officers, and any actions he took were to defend himself from their assault. In support of the motion, defendant’s counsel filed a declaration in which he averred that he believed defendant did not attack Sergeant Verdesoto, that he was a victim of excessive force, and was beaten by Sergeant Verdesoto.
In denying defendant’s Pitchess motion, the court stated: “I don’t think there’s a factual scenario that warrants release of the information. In addition, I don’t think that there is a defense that is alleged that adequately supports his actions or [explanation] that would adequately support his defense that would also jive with the factual scenario in some fashion to present good cause to go forward and disclose the information.”
Following the denial of his Pitchess motion, defendant waived his right to a jury trial, and proceeded with a court trial. At the trial, defendant called fellow Soledad inmate, Lonnie Johnson to testify on his behalf. Johnson testified that he was in the day room on the day defendant was escorted out by the correctional officers. Johnson stated that defendant was not angry or agitated, and seemed to be cooperative with the officers. Johnson later filed a complaint about the way the correctional officers treated the inmates later that day.
At the conclusion of the trial, the court found defendant guilty, and sentenced him to two years in state prison. Defendant filed a timely notice of appeal.
Discussion
On appeal, defendant asserts the trial court erred in denying his Pitchess motion. A motion to discover police officer personnel records is addressed to the discretion of the trial court, whose ruling can be overturned only if an abuse of that discretion is demonstrated. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1145 (San Jose).)
The key question is whether defendant made an adequate showing of “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).) In San Jose, supra, 67 Cal.App.4th 1135, a panel of this court held that in order to establish good cause for production under section 1143, the defendant must “provide a ‘specific factual scenario’ establishing a ‘plausible factual foundation’ for his allegations of police misconduct. [Citation.]” (San Jose, supra, 67 Cal.App.4th at pp. 1138, 1146-1147, quoting City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85-86 (Santa Cruz).)
In considering the good cause requirement for a Pitchess motion, the California Supreme Court in Warrick v. Superior Court (2005) 35 Cal.4th 1011, stated: “[t]o show good cause as required by section 1043, defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations]....” (Id. at p. 1024.) In addition, the Warrick court noted the specificity requirement referred to in Santa Cruz, supra, 49 Cal.3d 74, “enables the trial court to identify what types of officer misconduct information, among those requested, will support the defense or defenses proposed to the pending charges. This inquiry establishes the statutorily required materiality prong of the good cause showing that a defendant must make to receive in-chambers review of potentially relevant officer records.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1021-1022.) “Counsel’s affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.” (Id. at pp. 1024-1025.)
“[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.” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1026.)
Here, counsel’s declaration does not meet the standard for good cause as articulated in Warrick. The declaration asserted that defendant did not hit or attack the correctional officers, however, it does not deny that defendant was verbally abusive to the officers, was uncooperative, and refused to be handcuffed. While the declaration makes a blanket assertion that the reports filed by the correctional officers involved in the altercation contain false information, it does not name specific instances of falsehoods. In addition, the declaration does not contain a plausible factual scenario to counter the allegedly false information in the reports, nor does it contain an explanation of defendant’s actions that supports his defense.
While the threshold showing of good cause and materiality the defense must make to justify an in camera review of the records is “relatively low” or “relatively relaxed, ” (Santa Cruz, supra, 49 Cal.3d at pp. 83-84), we find the showing was insufficient under Warrick for an in camera review of records material to the defense claims.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.