Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR238929
MARCHIANO, P. J.
Timothy P. Graff (defendant) appeals a judgment following his conviction of two misdemeanor counts of driving under the influence, and driving with a blood alcohol level of .08 percent or greater. (Veh. Code, §§ 23152, subd. (a); 23152, subd. (b) [counts one and two]), one count of fleeing or evading a police officer in a motor vehicle (§ 2800.2, subd. (a) [count three]), and one count of deterring an executive officer in the performance of duty by means of threat or violence (Pen. Code, § 69 [count four]). The jury also found true an allegation that defendant had refused to take a blood alcohol chemical test. The court suspended imposition of sentence and placed defendant on probation for three years on condition that he serve one year in the county jail.
The jury acquitted defendant of two felony counts of driving under the influence and causing injury, and driving with a blood alcohol level of .08 percent or greater and causing injury, and instead convicted him of these misdemeanor lesser included offenses.
All subsequent statutory references are to the Vehicle Code unless otherwise indicated.
Defendant’s sole contention on appeal is that the court abused its discretion by denying his pretrial motion for discovery under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess or Pitchess motion). We find no abuse of discretion and affirm the judgment.
Facts
On December 11, 2006, at approximately 3:00 p.m., California Highway Patrol Officer Mark Headrick heard a report over his radio to be on the lookout for a white vehicle passing other motorists in the center divide. Soon thereafter he observed a white Buick drive by at 90 to 95 miles per hour. When Officer Headrick maneuvered his cruiser behind the Buick, the driver slowed to 72 miles per hour. Officer Headrick turned on his lights and siren, but the driver maintained the same speed and did not pull over. After following the Buick for approximately three-quarters of a mile, Officer Headrick decided to terminate the pursuit because he had a civilian passenger. He radioed to other officers, turned off his lights and sirens, and remained behind the Buick. He observed the Buick accelerate as the driver changed lanes, causing other drivers to hit their brakes. After reaching speeds of 120-130 miles per hour, the driver of the Buick drove into the center divide, causing rocks to fly up and a dust cloud to form, and continued to drive on the center divide for a mile and a half.
Meanwhile, Officer Bellerive pursued the Buick on the center divide at speeds up to 105 miles per hour, but was unable to catch up. Just before breaking off his pursuit, Officer Bellerive observed cars taking evasive action to avoid a collision with the Buick as the driver entered the number one lane and sped away.
The Buick also passed two marked highway patrol cruisers driven by Officers Ervin and Ericson. Both officers turned on their lights and sirens and followed the Buick as it sped at approximately 110 miles per hour down the center divide, fishtailing, passing other cars, and nearly causing accidents. The driver of the Buick finally lost control, swerved into the number one lane and rear-ended a red Mustang. The driver of the Buick also side-swiped another car and came to a stop across the numbers one and two lanes.
Officers Ervin and Ericson pulled up to the accident scene and were joined by Officer Julie Saraiva. Defendant was the driver and sole occupant of the Buick. He did not get out of the vehicle when asked and grabbed on to something when the officers attempted to physically remove him. Defendant threw punches and wildly flung his arms before he was handcuffed.
The driver of the Mustang, Theresa Stiles, complained of neck pain and was transported to the hospital. The driver of the other vehicle declined to go to the hospital, but subsequently underwent physical therapy for back pain.
Defendant was also transported to the hospital, where he was handcuffed to a gurney and tied down because he was being physically disruptive. Officer Ervin explained the implied consent law to defendant. After defendant refused a chemical test, Officer Ervin called his superior, Sergeant Mulholland, to obtain his approval and to ask him to observe the procedure for a forced blood draw. Sergeant Mulholland arrived with Officer Saraiva. When a nurse arrived to take defendant’s blood, he struggled, and Officers Ervin and Saraiva, along with Sergeant Mulholland, physically restrained him. While Officer Saraiva was assisting in restraining defendant, defendant turned to her and threatened to kill her and hunt down her family. His blood alcohol sample contained a concentration of .14 percent.
Analysis
I.
Pitchess Motion
1. Summary of Motion and Ruling Below
Defendant filed a pretrial Pitchess motion seeking discovery of documents in the personnel files of Officers Ervin, Headrick, Ericson, Saraiva, McIntyre, Mulata and Mulholland. With respect to each of these officers, defendant sought records, complaints or reports concerning lack of credibility or falsification of police reports, illegal detentions, searches and arrests, or using excessive force, and records of discipline for any misconduct or prior acts involving moral turpitude, and records of prior law enforcement employment.
Defense counsel attached his declaration of good cause for the above-described discovery. He declared upon information and belief “that much of Ervin, Headrick, Ericson, Saraiva, McIntyre, Mulata, and Mulholland’s account of the detention and arrest is false. . . . [T]he officers used excessive force in arresting Graff. As such, it will be a defense in this case at trial, that Ervin, Headrick, Ericson, Saraiva, McIntyre, Mulata and Mullholland wrote false police reports[,] . . . lied about what they observed, and used excessive force in arresting Graff. Graff will demonstrate at trial that the officers have a pattern of dishonesty, filing false police reports, conducting illegal detentions, searches, and arrests, and using excessive force. [¶] Additionally, I am informed and believe that on December 11, 2006, Graff was not driving recklessly, did not exceed 100 miles per hour, did not resist arrest, did not begin fighting, did not attempt to punch officers, did not threaten to kill officers, and was subjected to excessive force during his arrest and during his blood draw. I am informed and believe that Graff was driving with the flow of traffic and was cooperative with officers when he was assaulted without provocation.”
Counsel further declared that the “defense of the case will rest on the credibility and actions of Ervin, Headrick, Ericson, Saraiva, McIntyre, Mulata and Mulholland. They will be the primary witnesses for the prosecution at trial. Simply put, if the jury believes their version of the incident, [defendant] will likely be convicted of Count 2,” and therefore any information that “they have a lack of credibility, filed false police reports, provided false testimony, committed crimes of moral turpitude, conducted illegal detentions, searches, or arrests, or used excessive force is crucial” to the defense.
Defense counsel attached police reports filed by Officers Headrick and Ervin. Officer Headrick described his initial observation of defendant speeding, his efforts to stop defendant by sounding his siren and flashing his lights, and his observation of defendant driving at speeds in excess of 100 miles per hour, crossing through lanes of traffic and driving down the center divide. Officer Ervin’s report described how he took over the chase. He observed defendant driving at 110 miles per hour, crossing lanes of traffic, driving on the center divide, fishtailing, losing control and crashing into two other vehicles before coming to a halt across two traffic lanes. Officer Ervin stated that he stopped parallel to defendant’s vehicle, and Officers Saraiva and Ericson stopped behind it. According to Officer Ervin, defendant was removed from the vehicle at gunpoint. Defendant attempted to throw punches and was restrained with control holds. Officer Ervin also observed defendant threaten to kill Officer Saraiva and her family during the forced blood draw.
Officer Ervin’s report included statements from the two victims. The first victim described seeing defendant veer onto the center median and approach her vehicle at a high rate of speed before he struck her vehicle. The second victim reported that she saw defendant driving at a high rate of speed. She saw him go into the center median and heard a crash. Just as she saw that he had crashed in the first victim’s vehicle, defendant crashed into her vehicle.
Ervin’s report listed the officers involved as follows: Officer Headrick observed defendant driving. Sergeant Mulholland was the incident commander. Officer Ericson investigated the collision. Officer Saraiva assisted with arrest and conducted the storage of vehicles. Officer McIntyre detained defendant at the hospital until Officer Ervin arrived, and Officer Mulata transported Graff to the county jail when he was released from the hospital.
At the hearing on the Pitchess motion, the court expressed doubt whether the declaration established good cause. Defense counsel argued that “it is sufficient at least with respect to the excessive force issue. There were several officers that did use force on Mr. Graff. And I believe that the declaration is sufficient with respect to that. The rest of it, I submit.” The district attorney responded that many of the officers whose personnel information was sought were not even involved in the arrest, nor did defendant provide any specific factual scenarios identifying who had used excessive force, and noted that one of officers was only involved in transporting defendant from the hospital to the county jail. After further argument the court ruled as follows:
This is an apparent reference to the request for information pertaining to Officer Mulata, who, according to Ervin’s police report, transported defendant from the hospital to the jail.
“At this time, I’m going to deny the motion without prejudice. And it’s based on the following analysis: . . . . There are seven officers whose records are being sought. The names are: Ervin, Headrick, Ericson, Saraiva, McIntyre, [Mulata] and [Mulholland]. [¶] Records are being sought that relate to issues of credibility and excessive force, unlawful arrests involving all seven officers. Attached to the motion is a copy of the report that was submitted in this case, and the only author of that report that I saw was Officer Ervin. I didn’t see reports by any of the other officers. [¶] There’s no specific [statement] of facts that describes what happened from the defense perspective, and [whether] there was any involvement in fabricating conduct or excessive force by these officers. And so I do believe the law requires that there be an articulated specific set of facts by the defendant as to each officer to justify the invasion into the personnel records and that was not present in this case. [¶] And so with that, the Court will deny the motion without prejudice and will allow you an opportunity to provide for each officer the set of facts that would justify the Court granting a Pitchess motion” (italics added).
Defendant never revised his motion, and proceeded to trial.
2. Relevant Legal Principles
A defendant is entitled to discovery of a police officer’s confidential personnel records that contain information relevant to the defendant’s defense, upon a showing of good cause. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) Good cause for discovery exists when the defendant shows materiality to the subject matter and a reasonable belief that the agency has the type of information sought. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016) (Warrick). If the defendant makes the requisite showing, the trial court must conduct an in camera review of the records and allow discovery of relevant material. (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316; Evid. Code, § 1045, subd. (a).) Absent a showing of good cause, the court may summarily deny the motion.
A showing of good cause for an in camera review is measured by “ ‘relatively relaxed standards.’ ” (Warrick, supra, 35 Cal.4th at p. 1016.) The defendant must “ ‘establish a plausible factual foundation’ ” for the alleged misconduct and its relevance to his defense by presenting “a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents.” (Id. at p. 1025.) To be plausible, a factual scenario need not be likely, nor credible. (Id. at p. 1026.) It is a scenario “that might or could have occurred.” (Ibid.) “Corroboration of or motivation for alleged officer misconduct is not required. [Citation.] Rather, ‘a plausible scenario of officer misconduct is one that might or could have occurred.’ ” (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.) It may, “depending on the circumstances of the case, . . . consist of a denial of the facts asserted in the police report.” (Warrick, at pp. 1024-1025.) The factual scenario must, however, present “an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges.” (Id. at p. 1026.)
The request must also be specific in describing the type of information sought and in establishing not only a “logical link between the defense proposed and the pending charge,” but also must “articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events. . . . [T]he information sought must be described with some specificity to ensure” that the defendant’s request is not overbroad. (Warrick, supra, 35 Cal.4th at p. 1021.) The request must be “limited to instances of officer misconduct related to the misconduct asserted by the defendant” and must exclude requests for information that are irrelevant to the pending charges. (Ibid.) This “specificity requirement . . . 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.” (Ibid.) A request for broad categories of information that is “untethered either to the factual scenario or to the proposed defenses outlined in defense counsel’s declaration” is overbroad. (Id. at p. 1022.) The trial court’s ruling on a Pitchess motion is subject to reversal only if the defendant demonstrates that the court abused its discretion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
3. Analysis of Defendant’s Contention
Defendant asserts that the court summarily denied his Pitchess motion, and assumes the court denied the motion on the grounds that the bare denial in counsel’s declaration of the basic facts underlying the charges was not a plausible specific factual scenario of police misconduct sufficient to support a showing of good cause. Based upon this characterization of the ruling below, defendant argues that “depending upon the circumstances of the case” a plausible factual scenario of police misconduct may “consist of a denial of the facts asserted in the police report.” (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) He reasons that counsel’s declaration denying many of the statements made in the police report constituted an adequate factual foundation for a defense that Officers Headrick, Ervin, Ericson, and Saraiva lied about the way defendant drove when Officers Headrick, Ericson, and Ervin tried to pull him over, and that they lied about defendant threatening Officer Saraiva during the blood draw. (See People v. Hustead (1999) 74 Cal.App.4th 410, 417 (Hustead) [in case where there were no witnesses other than the police officer, defense counsel’s declaration denying facts stated in officer’s report was sufficient plausible factual foundation to support a claim the officer falsified report].) Defendant contends that this alleged police misconduct could have been a defense at least with respect to the charge of evading a police officer (count three), and deterring an officer by making a threat (count four). He concludes the court should have performed an in camera review with respect to at least these four of the seven officers named in his motion, and examined their files for documents relevant to a defense based upon falsification of police reports, and other acts of dishonesty or moral turpitude.
Counsel’s declaration stated on information and belief that defendant “was not driving recklessly, did not exceed 100 miles per hour, did not resist arrest, did not begin fighting, did not attempt to punch officers, did not threaten to kill officers, and was subjected to excessive force during his arrest and during his blood draw. I am informed and believe that [defendant] was driving with the flow of traffic and was cooperative with the officers when he was assaulted without provocation.” The declaration did not deny that defendant was driving under the influence of alcohol or that he hit two other vehicles, nor did he offer an alternative factual scenario for how he came to be stopped by the officers.
We shall not reach this contention because it is based upon an incorrect characterization of the trial court’s ruling. As we explain more fully below the court denied the motion without prejudice because the request was overbroad and failed to present a sufficiently specific factual scenario as to the type of misconduct in which each officer was alleged to have been involved. Instead of availing himself of the opportunity to revise and renew his motion, defendant proceeded to trial. Consequently, the trial court never was presented with the opportunity to rule on the narrower and more factually specific argument limiting the request to four officers, and to misconduct involving false statements and reports that defendant presents for the first time on appeal. We shall conclude that defendant’s contention that the court should have granted a much narrower and more factually specific request is waived, and find no abuse of discretion with respect to the court’s ruling based upon the motion and argument actually presented to it.
Defendant incorrectly characterizes the court’s ruling below as a summary denial of his Pitchess motion. The court denied the motion without prejudice, based in part on its conclusions that the request was overbroad, and not sufficiently factually specific to allow the court to determine which officers were involved in which type of misconduct. The court invited defense counsel to make a narrower motion specifying what type of information was sought with respect to each officer, and providing a more specific factual scenario identifying which officers engaged in what type of misconduct, and relating it to a defense to the charges, but counsel never did. In similar circumstances, the court in Davis v. City of Sacramento (1994) 24 Cal.App.4th 393 (Davis) held that the failure to renew the motion waives any challenge to the discovery ruling on appeal. (Id. at pp. 401-402.) In Davis, the plaintiffs in a wrongful death action against a police officer and several public entities sought to challenge the trial court’s denial of a motion for discovery of police personnel records. The Court of Appeal held the issue was waived because the court had never conclusively denied their motion. Instead, the trial court had deferred ruling on a claim of privilege and denied the plaintiffs’ motion on the ground that the information was available by other less intrusive means. The court invited the plaintiffs to renew their request if, after taking the officer’s deposition and pursuing other methods, they still sought the requested discovery. The plaintiffs never renewed their motion, and the Court of Appeal ruled that the failure to do so waived their contention on appeal. (Ibid.) Similarly here, the court did not conclusively deny defendant’s motion, but rather denied it without prejudice, and invited defendant to renew the motion presenting a narrower and more specific request as to each officer, yet defendant never did so. The failure to renew the motion waives any argument on appeal that the court could, and should, have granted a narrower and more specific request never presented in the first instance to the trial court.
The record does not reveal the reasons why counsel elected not to renew the motion. We note, however, that the discovery initially sought relating to falsification of reports, the officers’ credibility, and use of excessive force were not pertinent to the defenses ultimately adopted at trial: In closing argument, defense counsel conceded that defendant was guilty of the lesser included offense of driving under the influence and with a blood alcohol level of .08 percent or greater, but argued there was no evidence that either driver of the two vehicles he hit had suffered bodily injury because the victims only experienced pain at the scene of the accident, and asserted that treatment one of the victims received for back pain was unnecessary or was for a preexisting condition. With respect to count three, evading an officer, defense counsel conceded that defendant drove “with wanton disregard for the safety of others” and that the pursuing officer had his lights and siren on. Nonetheless, he argued defendant did not have the specific intent to evade the officer because he had been driving recklessly even before Officer Headrick began pursuing defendant. Defense counsel also argued voluntary intoxication interfered with the formation of specific intent. For both these reasons defense counsel suggested the evidence showed that defendant’s only intent was to “drive recklessly down the freeway” for “fun,” not to evade a police officer. With respect to count four, which was based upon the threat to Officer Saraiva during the blood draw, defense counsel did not dispute that defendant made the threat, but argued defendant only intended to convey that she was hurting him, and did not intend to deter her from performing her duty with respect to assisting in the blood draw. Since these defenses essentially accepted as true that defendant had driven in the manner described by the officers, did not stop when they tried to pull him over, was under the influence, and made the threat to Saraiva, discovery pertaining to misconduct involving false reports or other acts of dishonesty was not relevant.
We therefore review only the court’s ruling and exercise of discretion based upon the record and argument presented to it at the time of the motion. As presented to the trial court, defendant’s Pitchess motion sought information pertaining to a much wider range of police misconduct than the documents relating to credibility and false report he argues for on appeal. The motion below also sought information pertaining to illegal arrests, detentions, searches and seizures and excessive force. Instead of limiting the request to four officers, the motion sought information relating to this wide range of types of misconduct with respect to all seven officers without providing a sufficiently specific factual scenario to allow the court to determine which officers had allegedly engaged in excessive force, which were allegedly involved in making false statements or reports about defendant’s driving, or his threat to Saraiva after the arrest, or which officers had been involved in an allegedly illegal search or seizure. According to Ervin’s police report, some of the officers whose files defendant asked the court to review for all these categories of information had only been involved in transporting defendant from the hospital to the jail, or detaining defendant at the hospital before other officers arrived to perform the blood draw. These officers therefore would not even have been in a position to observe defendant’s driving, or the threat to Saraiva during the blood draw, much less make false statements about these events, and counsel’s declaration provided no facts to support an inference that they had. Other than a general assertion that excessive force was used in making the arrest, and in drawing defendant’s blood, defense counsel’s declaration also provided no specific facts describing how, when, or by whom, excessive force was used.
The court therefore was well within its discretion to conclude that defendant’s Pitchess motion was overbroad because it sought information pertaining to a broad range of types of misconduct, and sought such information with respect to a large group of officers, without providing the court with a specific factual basis for determining in which type of misconduct any particular officer in this case might have engaged. (See Warrick, supra, 35 Cal.4th at p. 1022.) This lack of specificity created a substantial risk that confidential information could be disclosed from an individual officer’s file concerning past misconduct that was irrelevant to the proposed defense in this case.
Defendant does not even attempt to refute the trial court’s stated concerns regarding overbreadth and lack of specificity except to suggest that the court could itself have undertaken to narrow the request. Yet, without a more specific factual scenario relating the various types of alleged misconduct to specific officers, it is unclear how the court could have done so. Although the court certainly has discretion to grant or deny a Pitchess motion in part (see, e.g., Hustead, supra, 74 Cal.App.4th at p. 416), defendant cites no authority that the court is required to attempt to narrow an overbroad or insufficiently specific request. The trial court’s election, in this case, to explain the problem of overbreadth and lack of specificity in terms of relating the alleged misconduct to each officer, and deny the motion without prejudice, leaving it to defense counsel to cure the cited defects, was entirely reasonable. One of the purposes of the good cause declaration is to provide the court with sufficient specificity so that, if it does conduct an in camera review, it can easily identify what information is responsive to the request and relevant to the defense, while at the same time protecting the officer against overly broad disclosure of irrelevant information. (Warrick, supra, 35 Cal.4th at pp. 1021-1022.) By denying the motion without prejudice, the court did not foreclose the possibility of obtaining the requested discovery. At the same time, by requiring counsel to provide more specific facts relating each category of misconduct to each particular officer, the court insured that, if it did conduct an in camera review, the only information disclosed would be relevant and narrowly responsive to the defense request.
We conclude that the court did not abuse its discretion in denying, without prejudice, defendant’s Pitchess motion on the grounds that it was overbroad because the categories of information sought were not tethered to a specific factual scenario linking each officer to a particular type or types of misconduct. (See Warrick, supra, 35 Cal.4th at p. 1022.) The failure to renew the motion waives any contention on appeal that the court could or should have granted a narrower request only with respect to the certain officers, and particular types of misconduct.
Conclusion
The judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.