Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-061011-3.
McGuiness, P.J.
A jury found appellant Robert Allen Hillmann guilty of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) based on eyewitness testimony from a police officer identifying him as the driver of a stolen car. In this appeal, appellant argues he was deprived of his constitutional rights to due process and confrontation when the trial court denied his request for a continuance of trial in order to file a motion under Evidence Code section 1043 and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We conclude the judgment must be reversed and the case remanded for further proceedings.
BACKGROUND
At approximately 12:45 a.m. on January 13, 2006, Officer Santiago Martinez of the Antioch Police Department was stopped at a stop sign when he saw a white Toyota approach the intersection heading in the opposite direction. It was dark outside, but the street was illuminated by streetlights, and the headlights of the officer’s car were turned on. Martinez noticed the approaching Toyota was missing a front license plate. As the car drove through the intersection, Martinez shined a spotlight into the driver’s side and observed that two people were sitting in front. The driver appeared to lean back or slouch. Nevertheless, Martinez recognized the driver to be appellant, whom he had previously seen and spoken to on about 10 occasions. Martinez made an immediate U-turn and attempted to follow the Toyota, but the driver turned off the Toyota’s lights and sped up to between 45 to 50 miles per hour. Eventually, Martinez followed the Toyota into the parking lot of an apartment complex. When Martinez arrived, he found the car abandoned in the middle of the lot, still running and with the driver’s and passenger’s doors left open. The ignition area of the steering column had been smashed open and showed scrape marks, and a screwdriver was sitting on the passenger seat. Martinez saw no one in the area. After he called dispatch and determined the car had been stolen, Martinez stayed with the car and did not try to locate its previous occupants. No suspect was apprehended that night, and no fingerprints were found on the car. The police later contacted the owner of the Toyota and returned the car, which had been missing for approximately a week.
After a preliminary hearing, appellant was charged with the felony crime of unlawfully driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) He pleaded not guilty and did not waive time for trial, and trial was set for October 10, 2006. Appellant’s sole defense at trial was that he was not the individual Officer Martinez saw driving the stolen car. Appellant’s mother testified that appellant was with her at her sister’s house earlier in the evening on January 12, 2006. However, because she went home without appellant around 8:30 or 9:00 p.m., she had no personal knowledge of where he was at 12:45 in the morning when Martinez chased and recovered the stolen vehicle. The jury found appellant guilty, and the court suspended imposition of sentence and placed him on felony probation for three years.
DISCUSSION
During the noon recess on the first day of appellant’s trial, when the court and counsel were in the process of conducting voir dire, the prosecutor learned Officer Martinez had been placed on paid administrative leave from the Antioch Police Department. The reason for this action was not disclosed to her. She immediately informed defense counsel, and at counsel’s request the court scheduled an Evidence Code section 402 hearing for the following morning. Voir dire resumed and, by the end of the day, a full jury was sworn by the clerk.
At the hearing the next morning, defense counsel sought leave to cross-examine Martinez about the reason for the change in his employment status. Because Martinez’s credibility was a central issue in the case, counsel argued that a denial of cross-examination on this topic would deprive appellant of his due process and confrontation rights. The trial court denied the request on the ground that peace officer personnel records “are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” (Pen. Code, § 832.7, subd. (a); Hackett v. Superior Court (1993) 13 Cal.App.4th 96.) The court advised that the only course open to defense counsel was to file a motion to subpoena the personnel records under Evidence Code section 1043; however, such a motion required 30 days’ notice, and a jury had already been impaneled to hear appellant’s case. In light of these circumstances, defense counsel asked the court to dismiss the case or, in the alternative, continue the trial to allow her to file an appropriate motion. The court complained that counsel should have raised the issue the previous day, before a jury was impaneled, and it denied the motion to dismiss as untimely. The court further observed it would be “pure speculation” to assume the officer was on administrative leave for a reason bearing upon his credibility as a witness.
The court also denied counsel’s request to elicit testimony that Martinez was not currently working for the Antioch Police Department, without inquiring as to the reason why. The court explained such evidence in itself was not relevant to any issue before the jury.
On appeal, appellant does not challenge the portion of the court’s ruling that prevented him from questioning Officer Martinez about the fact that he was on leave or the reasons why. Instead, appellant argues the court abused its discretion in refusing to grant his request for a continuance in order to file a Pitchess motion for evidence that could be used to impeach the officer’s credibility.
“A ‘trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. ([Pen. Code,] § 1050, subd. (e) . . . .) A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 670.) “A defendant is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory [citation], and the trial court may in its discretion deny a motion for continuance . . . if the motion is made during trial. [Citations.]” (People v. Rhines (1982) 131 Cal.App.3d 498, 506.) However, if sufficient diligence is shown, the trial court’s “discretion ‘may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.’ [Citation.] ‘To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges.’ [Citation.]” (People v. Roldan, supra, 35 Cal.4th at p. 670.)
In determining whether denial of a continuance was so arbitrary as to deny a criminal defendant due process, “the appellate court looks to the circumstances of each case and to the reasons presented for the request. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 1013.) Having done so, we conclude the trial court abused its discretion by denying a continuance or motion to dismiss the charge without prejudice to allow appellant to pursue discovery of potentially relevant Pitchess evidence.
The Attorney General suggests that granting a continuance would have been the equivalent of a mistrial, barring retrial of appellant, because a jury had already been impaneled. However, jeopardy does not attach to the discharge of a jury without a verdict if the defendant consents to the discharge. (Curry v. Superior Court (1970) 2 Cal.3d 707, 712; Carrillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1524.) Thus, the court could have granted appellant’s motion for a continuance or dismissal without prejudice without hindering the state’s ability to retry him on the charge.
“On a showing of good cause a criminal defendant is entitled to discovery of relevant documents or information in the personnel records of a police officer accused of misconduct against the defendant. (Evid. Code, § 1043, subd. (b).)” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016, fn. omitted; see also Pitchess, supra, 11 Cal.3d at pp. 536-537.) “To initiate discovery, the defendant must file a motion supported by affidavits showing ‘good cause for the discovery’ first by demonstrating the materiality of the information to the pending litigation, and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue. ([Evid. Code,] § 1043, subd. (b)(3).) This two-part showing of good cause is a ‘relatively low threshold for discovery.’ [Citation.] [¶] If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. [Citations.]” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019.)
Although appellant’s counsel did not have time to submit a formal motion, she made an oral showing sufficient to establish good cause for commencing the Pitchess discovery process. Appellant’s defense was that he was not the person driving the Toyota, and Officer Martinez was the sole witness against him. Without question, the prosecution’s entire case was built upon Martinez’s identification of appellant: Martinez saw the driver only very briefly as he drove past at night; there were no other eyewitnesses; and the police found no fingerprints or other evidence of appellant’s presence in the car. As a result of these factual circumstances, Officer Martinez’s credibility was the central issue in the case, and any evidence that he had misstated facts or fabricated evidence against other suspects would have been relevant for impeachment. (See People v. Hustead (1999) 74 Cal.App.4th 410, 416-417 [requiring in camera inspection of officer’s files regarding acts of dishonesty].) Pitchess motions are not limited to issues of officer violence; another legitimate goal of such discovery is to obtain information for use in impeaching an adverse witness. (People v. Hustead, supra, 74 Cal.App.4th at p. 417; see also People v. Warrick, supra, 35 Cal.4th at p. 1024 [good cause declaration must show how discovery sought “may lead to relevant evidence or may itself be admissible direct or impeachment evidence”].) Furthermore, the news that Martinez had been placed on administrative leave gave counsel a “reasonable belief” that the police department had relevant impeachment evidence in its possession. (Evid. Code, § 1043, subd. (b)(3).) Certainly, the reason for this leave might have been completely irrelevant to the officer’s credibility, but the threshold showing of good cause appellant needed to satisfy is quite low. To obtain an in camera review of information in an officer’s personnel files, “a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred.” (People v. Warrick, supra, 35 Cal.4th at p. 1016, italics added.)
Given these “ ‘relatively relaxed standards’ ” for measuring good cause (People v. Warrick, supra, 35 Cal.4th at p. 1016), the supreme importance of Officer Martinez’s credibility in supporting the prosecution’s case, and the reasonable inference that Martinez was placed on administrative leave for employment-related reasons possibly relating to his credibility, we believe appellant’s counsel’s offer of proof was sufficient to establish good cause for a continuance of trial to pursue a noticed motion for such discovery. (See Evid. Code, § 1043, subd. (c) [full compliance with notice provisions required except upon showing of good cause or governmental waiver].) Nevertheless, the trial court denied the motion as “untimely,” even as it conceded “[w]e know defense counsel] didn’t have the information until yesterday . . . .” We respectfully disagree with the trial court’s assessment of counsel’s diligence in seeking a continuance. The prosecutor did not discover and advise defense counsel of the change in Officer Martinez’s employment status until the parties were in the middle of jury selection on the first day of trial. Defense counsel immediately requested an Evidence Code section 402 hearing to question the officer about the reason why, “because it would go to his credibility.” When the court ruled at the hearing the next morning that questions on this topic would not be allowed since the sole means for obtaining such discovery was an Evidence Code section 1043 motion, counsel immediately requested a continuance to make such a motion. Appellant’s counsel acted promptly to seek Pitchess discovery as soon as she learned of circumstances suggesting such materials existed. It is unfortunate that a jury was impaneled before the court and counsel realized a continuance would be necessary, but the inconvenience to the court and jurors was outweighed by the need to protect appellant’s constitutional rights. (See People v. Mooc (2001) 26 Cal.4th 1216, 1227 [Pitchess is based on the premise that withholding evidence from a police officer’s personnel file that may be relevant to an accused’s criminal defense violates the accused’s due process right to a fair trial].)
Accordingly, we conclude the trial court’s denial of a continuance was error. However, because we do not know what evidence, if any, appellant’s Pitchess motion would have discovered, it is impossible to determine whether this error was prejudicial. The Fifth District Court of Appeal faced an analogous situation in People v. Hustead, supra, 74 Cal.App.4th 410, in which a defendant was tried and convicted after what the appellate court concluded was an erroneous denial of his Pitchess motion. Although the defendant had made an adequate showing of good cause to obtain certain evidence, the appellate court could not tell whether any discoverable information existed in the officer’s files. (People v. Hustead, supra, 74 Cal.App.4th at pp. 418-419.) The court determined the proper disposition was to remand the case and direct the trial court to conduct an in camera hearing to review documents provided by the police agency. (Id. at p. 419.) If the officer’s file contained no discoverable information, the trial court was ordered to reinstate the original judgment and sentence. (Ibid.) If the file did contain relevant discoverable information, however, the trial court was required to make a further determination regarding whether denial of the discovery was prejudicial to the defendant under the standard expressed in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Hustead, supra, 74 Cal.App.4th at pp. 419-423.) If the additional evidence the defendant could have adduced as a result of the Pitchess discovery was such that a different outcome of the trial was reasonably probable, then the trial court was directed to grant the defendant a new trial. (People v. Hustead, supra, 74 Cal.App.4th at p. 423.) If no prejudice was shown, the original judgment was to be reinstated and affirmed. (Ibid.)
While we agree Hustead describes an appropriate disposition when a Pitchess motion has been brought and erroneously denied, the case before us is one step removed from this process because appellant never had the opportunity to bring a Pitchess motion in the first place. Accordingly, we shall remand with directions that appellant be permitted to file a properly noticed and supported motion under Evidence Code section 1043. If the trial court concludes the motion establishes good cause for the discovery, it shall proceed in the manner described in People v. Hustead, supra, 74 Cal.App.4th at pp. 418-423.
DISPOSITION
The judgment is reversed and the matter is remanded. On remand, the trial court is directed to permit appellant to file a motion pursuant to Evidence Code section 1043. If the court determines the affidavits presented establish good cause for the discovery sought, the court shall conduct an in camera review of documents provided by the police department in accordance with the guidelines for reviewing Pitchess motions. (See Evid. Code, § 1045; People v. Mooc, supra, 26 Cal.4th at pp. 1226-1227.) If the in camera review reveals the existence of relevant, discoverable information, the court shall grant the discovery and allow appellant an opportunity to demonstrate prejudice. The trial court shall order a new trial if it determines the denial of discovery was prejudicial. In the event appellant’s Evidence Code section 1043 motion does not establish good cause, or the trial court’s in camera review reveals no discoverable information, or appellant fails to show prejudice, the judgment herein shall be reinstated and affirmed. (See People v. Hustead, supra, 74 Cal.App.4th at pp. 419-423.)
We concur: Pollak, J., Siggins, J.