Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, David A. Hoffer, Judge. Petition granted. Super. Ct. No. 08WF0665.
Deborah A. Kwast, Public Defender, Denise Gragg, Assistant Public Defender, and Tracy R. Lesage, Deputy Public Defender, for Petitioner.
No appearance for Respondent.
Ferguson, Praet & Sherman and Steven A. Sherman for Real Party in Interest.
OPINION
ARONSON, J.
Petitioner Anh Tu Vo seeks extraordinary relief from an order denying his Pitchess motion to discover information from his arresting officer’s personnel records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) Vo contends the trial court erred in ruling that he failed to make the showing of good cause required for Pitchess discovery. We agree. Finding plain error, we issue a peremptory writ of mandate in the first instance directing the trial court to conduct an in camera review of the confidential police files in question.
I
Factual and Procedural Background
Vo is charged with two felony counts of evading a police officer while driving recklessly and aggravated assault on a police officer. The arrest report prepared by Garden Grove Police Officer Patel describes his pursuit of the fleeing Vo as the latter ran red lights and stop signs through “Little Saigon” and downtown Santa Ana at speeds upwards of 80 miles per hour. Patel’s report states that at one point Vo attempted to cause Patel’s car to crash into his.
Patel’s report describes the incident which led to the aggravated assault charge as follows: “As [Vo’s] vehicle approached the area of Santa Ana College on Westminster just west of Bristol, it began slowing down. As I was catching up to it, I noticed him slam on his brakes as if he were attempting to cause me to crash into him. I swerved into the No. 2 lane....”
Vo filed a Pitchess motion for discovery of information from Patel’s personnel file which related to his veracity and credibility, such as complaints or reports of: “Fabrication of probable cause and/or planting of evidence”; “Dishonesty”; “False arrest”; “false testimony”; and fabrication of reports, evidence, or charges. The supporting declaration from Vo’s counsel asserted the information sought was “highly probative” because Vo’s defense to the aggravated assault charge would be that Patel fabricated his claim Vo had attempted to cause his vehicle to collide with Patel’s patrol car.
The City of Garden Grove Police Department (the City) opposed the Pitchess motion on the ground Vo failed to make the requisite “good cause” showing for discovery of police personnel files. The trial court agreed, finding that the “scenario of officer misconduct” underlying the Pitchess motion (i.e., the assertion Officer Patel fabricated the assault) was “not plausible.” Consequently, the court declined to order the City to produce Officer Patel’s confidential records for in-chambers review and denied the Pitchess motion.
Vo filed a petition for writ of mandate seeking review of the denial of his Pitchess motion, and sought a stay of his approaching trial date. We stayed the trial and invited the City, as the real party in interest, to file an informal response to the petition. We have read and considered that response. For the reasons set forth below, we determine the trial court plainly erred in denying Vo’s Pitchess motion. Because “petitioner’s entitlement to the relief requested is so obvious that no purpose could be served by plenary consideration of the issue,” we issue a peremptory writ of mandate in the first instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1260.)
II
Discussion
In Pitchess, supra, 11 Cal.3d at pages 537-538, the California Supreme Court recognized a criminal defendant’s right to obtain discovery from a police officer’s confidential personnel records if those files contain information that is potentially relevant to the defense. To obtain an in camera review of such records, a criminal defendant must file a motion supported by affidavits showing “good cause” for their discovery. (Evid. Code, § 1043, subd. (b)(3).) Good cause exists if the defendant shows the “materiality” of the requested documents to the pending litigation and a “reasonable belief” that the agency has the type of information sought. (Ibid.; Warrick v. Superior Court (2005)35 Cal.4th 1011, 1016 (Warrick).)
Materiality is obviously the more complex aspect of this two-pronged good cause test. In Warrick, supra,35 Cal.4th 1011, the Supreme Court described the showing needed to establish materiality under Evidence Code section 1043: “[D]efense 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] that would support those proposed defenses.” (Warrick, supra, 35 Cal.4th at p. 1024.)
Here, Vo’s counsel proposed a defense to the aggravated assault charge consisting of a flat out denial. Counsel stated on information and belief, “Defendant never tried to cause Officer Patel to run into the back of his vehicle or make any maneuver to cause such a collision.” Of course, implicit in this defense is an accusation Officer Patel lied in his arrest report when describing the incident. Thus, defense counsel’s declaration placed Officer Patel’s credibility directly in issue in the case and likewise established the materiality of information in his personnel file having to do with his character, particularly his truthfulness. This showing would seem to satisfy the materiality test set out in Warrick, supra,35 Cal.4th at page 1024.
The trial court disagreed, however, finding fault with the proposed “scenario of officer misconduct” underlying Vo’s Pitchess motion. In Warrick, the Supreme Court identified the factual description of such a scenario as an additional element of the good faith showing required for Pitchess discovery. The high court stated: “Counsel’s affidavit must also describe a factual scenario supporting the claimed officer misconduct.” (Warrick, supra, 35 Cal.4th at p. 1024.) Importantly, this proposed scenario of officer misconduct determines the scope of permissible discovery which “is limited to instances of officer misconduct related to the misconduct asserted by the defendant. [Citations.]” (Id. at p. 1021; see, e.g., People v. Hustead (1999) 74 Cal.App.4th 410, 416 (Hustead)[prior complaints of excessive force against arresting officer are irrelevant and thus not discoverable when only charge against defendant is felony evasion of arrest].)
The trial court’s error in the instant case flows from its misapprehension of the legal standard that applies to the “scenario of officer misconduct” presented in a Pitchess motion. In Warrick, supra, 35 Cal.4th 1011, the Supreme Court articulated the standard as follows: “What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents [police report, witness statements, etc.]. [Citations.]” (Id. at p. 1025, italics added.) The trial court erred here because it adopted an overly strict interpretation of the term “plausible” as used by Warrick.
At the Pitchess hearing, the trial court explicitly grounded its denial of the motion on Vo’s failure to present “a plausible scenario of officer misconduct.” The court stated that although it was “possible” Officer Patel lied when he described Vo’s driving maneuver as an attempt to cause the police car to crash, the court found Vo’s claim the officer lied “not plausible.” Focusing on the fact that Patel suggested in his lengthy report only one chase-related charge –– felony evading –– and did not urge the assault charge ultimately selected by the district attorney, the court concluded Patel had no motivation to lie when he claimed Vo attempted “to cause me to crash into him.” Finding the officer had no reason to lie, the court founded it unlikely he had done so. The court thus concluded that Vo’s proffered scenario of officer misconduct was simply “not plausible” and denied the motion on that basis.
Though the trial court did not define “plausible” during the hearing, its repeated use of the word made its meaning clear: The court interpreted “plausible” as “believable.” In Warrick, supra, 35 Cal.4th 1011, however, the Supreme Court specifically rejected that very meaning for “plausible” within the context of the good cause showing for Pitchess discovery.
In Warrick, supra, 35 Cal.4th 1011, the Supreme Court reversed an appellate court decision refusing to grant writ relief from the denial of a Pitchess motion. The trial court had denied the motion based on the “implausibility” of the defendant’s allegations of officer misconduct. (Id. at p. 1018.) The Court of Appeal likewise concluded the “defendant’s showing fell short by not providing a plausible factual foundation for his allegations of officer misconduct.” (Id. at pp. 1023.) The Supreme Court held the appellate court erred because it defined “plausible” as “believable,” and thereby “applied a stricter standard for obtaining in-chambers review of officer personnel information than is required by law.” (Id. at p. 1018.)
The Supreme Court explained its reasoning as follows: “Here, the Court of Appeal concluded that to be plausible a factual foundation must be reasonably probable or apparently credible and not merely possible. In so doing, the Court of Appeal imposed a greater burden on the party seeking Pitchess discovery than required by our prior cases or the statutory scheme. To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial court’s task in assessing a Pitchess motion is to weigh or assess the evidence. It is not.” (Warrick, supra, 35 Cal.4th at p. 1026.)
The Supreme Court went on to proclaim a simple, easily-met standard for showing the requisite “‘plausible’ factual foundation” for Pitchess discovery: “We conclude that a plausible scenario of officer misconduct is one that might or could have occurred.” (Warrick, supra, 35 Cal.4th at p. 1026, italics added.) Vo met that standard here.
As already explained, the factual scenario of officer misconduct proposed in Vo’s Pitchess motion was that Officer Patel lied in the arrest report when he stated that Vo slowed his car in an attempt “to cause me to crash into him.” The scenario Vo claimed occurred — that Patel fabricated his account of Vo’s aggravated assault — is “one that might or could have occurred.” (Warrick, supra, 35 Cal.4th at p. 1026.) Thus, Vo presented the “plausible scenario of officer misconduct” required to support his Pitchess motion. (Id. at pp. 1024-1025 [“a denial of the facts asserted in the police report” may be a sufficient factual scenario of officer misconduct to support Pitchess motion]; see also Hustead, supra, 74 Cal.App.4th at pp. 416-417 [defendant showed good cause for Pitchess discovery as to arresting officer’s veracity where proposed defense to felony evading charge was that defendant did not drive as described in arrest report].) Because Vo met his burden of showing good cause for discovery of Officer Patel’s personnel files, we conclude the trial court abused its discretion in failing to conduct the requested in camera review.
We note that the City objects to Vo’s discovery request as overly broad because it seeks certain additional categories of documents unrelated to Officer Patel’s honesty (e.g., reports of illegal searches and seizures, and violations of constitutional rights). The point is well taken. As already stated, Pitchess discovery “is limited to instances of officer misconduct related to the misconduct asserted by the defendant....” (Warrick, supra, 35 Cal.4th at p. 1021.) We trust the trial court will limit the in camera review to information concerning only past incidents that reflect on the officer’s truthfulness, in accordance with the guidelines set out in Evidence Code section 1045.
III
Disposition
A peremptory writ of mandate shall issue directing the superior court to vacate its order denying the Pitchess motion and conduct an in camera review of the information in Officer Patel’s personnel file relating to his truthfulness. The stay issued by this court on April 30, 2009, is dissolved.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.