Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. Debre K. Weintraub, Fumiko H. Wasserman and Anita H. Dymant, Judges. L.A.S.C. No. 8PS03804; App. Div. No. BS122596
Michael P. Judge, Public Defender, Albert J. Menaster, Katherine DeGovia and Mark Harvis, Deputy Public Defenders for Petitioner.
No appearance for Respondent.
Michele Beal Bagneris, City Attorney, Frank L. Rhemrev, Assistant City Attorney for Real Parties in Interest.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
The Appellate Division abused its discretion when it denied defendant Emanuel Charles’ petition for writ of mandate to review the denial by the trial court of his supplemental Pitchess motion.Accordingly, the petition is granted in part and denied in part.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
FACTUAL AND PROCEDURAL BACKGROUND
Emanuel Charles is charged with the misdemeanor of interfering with a police officer. The trial court has already heard and granted Charles’ Pitchess motion and disclosed the names and addresses of persons who made complaints against the involved police officers or who were witnesses.
Charles subsequently filed a motion for supplemental Pitchess discovery requesting disclosure of the verbatim written statements given by the complainants and the witnesses. The motion was supported by the declaration of the Public Defender Investigator who stated that he had made numerous attempts to locate and interview the 14 witnesses but they either could not be located, did not return telephone calls/messages or were uncooperative. In opposition, the Pasadena Police Department argued that Charles failed to make a proper showing that he was entitled to further Pitchess discovery. Moreover, Charles’ motion showed the investigator made no real effort to locate the witnesses.
At oral argument, the trial court denied Charles’ motion for supplemental Pitchess discovery and stated, in relevant part: “Before we start, let me just say that I appreciate the defense’s difficulty in terms of getting witnesses to cooperate. But it seems to be more that than a witness actually being unavailable. I couldn’t find any case law that holds, as is the situation in this case, where there was a refusal to cooperate, that the court could find the witness unavailable.”
Charles filed a petition for writ of mandate in the Appellate Division of the Superior Court. The Pasadena Police Department filed an opposition.
On October 1, 2009, the Appellate Division summarily denied the petition for writ of mandate.
DISCUSSION
The standard of review for Pitchess discovery is generally considered to be an abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
When the Pitchess discovery initially provided by the trial court “prove[s] inadequate”, the defendant may move for further discovery. (Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 829.) A criminal defendant has the right to discover the statements of Pitchess complainants and witnesses when the defendant shows they “either were unavailable for interviews or could not remember the details of the events about which they had complained.” (City of Azusa v. Superior Court (1987)191 Cal.App.3d 693, 697.)
In Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107,“[t]he defense was provided with the name of a deputy sheriff who had filed a complaint of ‘workplace violence’ against one of the sheriffs who had arrested petitioner. When contacted by the defense investigator, the complaining deputy refused to discuss the incident that had formed the basis of his complaint. The defense then sought discovery of the complainant’s statements about the incident. The trial court denied the motion. This petition followed. [The appellate court] grant[ed] relief.” (Id. at p. 1109.)
Division Four reasoned: “Nonetheless, the practice of disclosing only the name of the complainant and contact information must yield to the requirement of providing sufficient information to prepare for a fair trial. For example, in Pitchess, supra, 11 Cal.3d 531, two individuals who had filed complaints against the deputy sheriffs were unavailable for interview by defense counsel. In addition, two other complainants could not recall the details of the events. (Id. at p. 537.) Given that showing, the Supreme Court held disclosure of additional information was required. Disclosure of the prior statements given by the unavailable complainants to the sheriff’s investigators was ‘necessary for effective cross-examination.’ (Ibid.) And disclosure of the sheriff’s records was ‘necessary to refresh [the] recollection’ of the individuals who could not remember the operative events. (Ibid.) The Pitchess court reasoned that the defendant ‘cannot be held responsible for [the complainants’] unavailability or lack of memory, and he has no access to the sheriff’s investigative records. Furthermore, the information which defendant seeks may have considerable significance to the preparation of his defense, and the documents have been requested with adequate specificity to preclude the possibility that defendant is engaging in a “fishing expedition.” We therefore conclude that defendant demonstrated sufficient good cause under the appropriate standards of criminal procedure, as developed in case authority, to warrant the trial court in compelling discovery.’ [Citations.]” (117 Cal.App.4th at p. 1112.)
Division Four concluded: “Here, the trial court found good cause when it initially granted petitioner’s Pitchess motion and ordered disclosure of the complaint filed by Deputy Summer. Consequently, the ‘materiality’ of the information, as defined by Evidence Code section 1043, subdivision (b)(3), to the issues raised in this criminal prosecution has been established. However, petitioner’s ability to investigate that information to determine if it would lead to the discovery of admissible evidence has been stymied by Deputy Summer’s refusal to cooperate. The only way petitioner can effectively investigate this matter before trial is to be given the deputy’s statements. Petitioner therefore has established ‘good cause’ for the information within the meaning of section 1043, subdivision (b)(3). To deny him access to this information would constitute an abuse of discretion.” (117 Cal.App.4th at p. 1113.)
Based on Alvarez v. Superior Court, supra, we determine that good cause for the supplemental discovery was provided by the Investigator’s declaration as to the measures he took to locate the following 11of the 14 complainants and witnesses:
The Investigator stated that Deputy District Attorney Daniel O’Connell was uncooperative. On March 19, 2009, the Investigator received a message from Mr. O’Connell advising that he was not a complainant, but that the Internal Affairs Division of the Pasadena Police Department had interviewed him about Officer Karg. Mr. O’Connell declined to discuss the situation further, and referred the Investigator to the recorded statements in the custody of the Pasadena Police Department.
The Investigator stated that Timothy Herrera cannot be located. On March 3, 2009, the Investigator sent a call-in letter to Mr. Herrera. On March 10, 2009, the Investigator called the telephone number provided in the discovery and learned that the address and phone number are for the Law Offices of Julie R. Gaviria. At the request of a staff member of the office, the Investigator faxed a more detailed letter to the attorney, but has not received a response. The Investigator searched several proprietary and governmental data bases, but has been unable to locate any further information.
The Investigator stated that Aaron David Ezor cannot be located. He sent a call-in letter to Mr. Ezor on March 3, 2009. He called Mr. Ezor on March 10, 2009, but there was no answering machine, so he could not leave a message. On June 13, 2009, the Investigator went to the address provided and spoke to Mr. Ezor’s father. He confirmed that Mr. Ezor lived at that address. He left a business card for Mr. Ezor with his father, but has not received a response.
The Investigator stated that Brian Travis cannot be located. He sent a call-in letter to Mr. Travis on March 3, 2009 but has not received any response. The Investigator called the telephone number provided in discovery on March 10, 2009, and learned that the number belongs to a doctor’s office. No one at the office knew Mr. Travis. On June 18, 2009, the Investigator attempted to indentify Mr. Travis through D.M.V. records, but there were four different addresses listed under his name, ranging in age from 19 to 71 years, and none of the addresses were near Pasadena. On July 6, 2009, the Investigator went to the last known address for Mr. Travis. Neighbors advised him that Mr. Travis had moved out several months ago. The manager was not on-site. The Investigator was advised that Mr. Travis had been evicted and there was no known forwarding address.
The Investigator stated that Raymunda Travis cannot be located. He sent her a call-in letter on March 3, 2009 and left a voice mail message on March 10, 2009. He has not received a response. On June 18, 2009, the Investigator conducted a search of proprietary data bases that indicated Ms. Travis is associated with the same address as Brian Travis. On July 6, 2009, the Investigator went to the last known address of Ms. Travis. Neighbors advised him that she had moved out several months ago. The manager was not on-site, but the Investigator was advised that she had been evicted so there was no known forwarding address.
The Investigator stated that Cpl. Ara Bzdigian is uncooperative. The Investigator spoke with him on March 24, 2009 and he declined to be interviewed. He referred the Investigator to the Pasadena Police Department’s Internal Affairs section.
The Investigator stated that Officer Mario Calderon cannot be located. On March 3, 2009, he sent a call-in letter to the officer. On March 10, 2009, he left a message at the number provided in the discovery, but has not received a response. On June 18, 2009, he left another message for this officer but has not received a response. On July 7, 2009, he left another message for this officer, but has not received a response.
The Investigator stated that Officer Sheri Schwab cannot be located. On March 3, 2009, he sent a call-in letter to the officer. On March 10, 2009 he attempted to call Officer Schwab, but the number provided in the discovery rings continuously without being answered. On June 18, 2009, the Investigator was able to leave a message for the officer, but has not received a response. On July 7, 2009, he left another message for this officer, but has not received any response.
The Investigator stated that Tanya Diaz cannot be located. He sent Ms. Diaz a call-in letter on March 3, 2009. He attempted to call her at the telephone number provided in the discovery, but it has a continuous busy signal. On June 13, 2009, the Investigator went to the address provided in the discovery, but it is a CVS store, and Ms. Diaz is not employed there. On June 18, 2009, he conducted a D.M.V. search that revealed 32 records associated with this name; without further information, he cannot locate this witness.
But the Investigator’s efforts were inadequate as to three of the 14 complainants and witnesses as follows:
The Investigator stated that Jason Padula cannot be located. He sent a call-in letter to Mr. Padula’s last known address on March 3, 2009, and left messages on both of his known telephone numbers, and has not received any response. On June 12, 2009, he left two other messages and has not received a response. But the Investigator did not physically check for Mr. Padula at his last known address.
The Investigator stated that Rose Marie Lee cannot be located. He sent a call-in letter to Ms. Lee on March 3, 2009. He left a voice mail message for Ms. Lee on March 10, 2009. He has not received a response. On June 13, 2009, the Investigator went to Ms. Lee’s address, but no one was home. He left a business card at her residence. He has not heard from Ms. Lee. Having received no response, the Investigator checked D.M.V. and obtained two different post office box addresses, and an address in Rancho Cucamonga. He sent call-in letters to all locations, but one was returned by the Post Office because that box is closed. He received no other responses from the other addresses. But, the Investigator did not go to the residence.
The Investigator stated that Juana Jimenez cannot be located. On March 3, 2009, he left a call-in letter to Ms. Jimenez, but it was returned as undeliverable. He left a message on the telephone number provided in the discovery on March 24, 2009, but has not received a response. On June 18, 2009, the Investigator checked D.M.V. records, but failed to locate any records that may be associated with this witness. A review of proprietary data bases revealed several other addresses associated with this witness. He went to one of the addresses and spoke to the building manager. He informed the Investigator Ms. Jimenez lived at that location but she was working and would return Friday. He has not received any other contact since that time. But, the Investigator never mailed to her a call-in letter or went back to her address.
We conclude the Investigator did a sufficient search for all complainants and witnesses except Jason Padula, Rose Marie Lee and Juana Jimenez. As to these three, the search was not adequate. And it was obvious that the deputy district attorney and the police officers refused to cooperate with the Investigator. (Alvarez v. Superior Court, supra.)
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent Appellate Division to vacate its order of October 1, 2009, denying the petition for writ of mandate to permit Charles to conduct supplemental discovery and to issue a new and different order granting same, except as to witnesses/complainants Jason Padula, Rose Marie Lee and Juana Jimenez, in Appellate Division No. BS122596, entitled Emanuel Charles v. Superior Court (Pasadena Police Department and Officers Karg #4830, Aguilar #0091, Real Parties in Interest).
THE COURT
MALLANO, P. J., ROTHSCHILD, J., CHANEY, J.