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JAN I. GOLDSMITH, City Attorney
MARLEA F. DELL’ANNO, Assistant City Attorney ANGIE M. REDDISH-DAY, Assistant City Attorney STEVEN K. HANSEN, Deputy City Attorney
California State Bar No. 134774 Office of the City Attorney 1200 Third Avenue, Suite 700 San Diego, California 92101-4103 Telephone: (619) 533-5500 Attorneys for Plaintiff
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN DIEGO THE PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff, v.
JEFFREY DAVID BLACKFORD, Defendant.
Case No. M161738/837075 AMENDED POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL DISCOVERY (PITCHESS)
Date: March 19, 2013 Time: 9:00 a.m. Dept.: 11 Witnesses: 0
Estimated Time: 1 hour
INTRODUCTION
Defendant, a police officer employed by the San Diego Police Department (SDPD), is charged with violating Vehicle Code sections 23152(a) and (b) on or about December 7, 2012. On that day while driving at approximately 12:52 a.m. Defendant crashed his department issued vehicle. Defendant telephoned two off-duty police officer friends, who telephoned other on-duty officers. Eventually a traffic officer was summoned to investigate the collision and that officer summoned another officer to conduct a driving under the influence (DUI) investigation. The DUI investigator eventually obtained a breath test using his trunk-mounted Intoxilyzer at 3:59 a.m., then transported Defendant to a hospital.
After the incident the SDPD Internal Affairs unit commenced an investigation of
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discovery of the interview of Defendant pursuant to Evidence Code section 1043 and Penal Code section 832.7. Because the information sought is relevant and material to the instant prosecution it must be disclosed to the People.
ITEMS SOUGHT TO BE DISCOVERED
1. Any and all Internal Affairs’ investigative reports concerning Defendant’s traffic collision on December 7, 2012, and subsequent events leading to the DUI investigation conducted by Officer Zirpolo. Items sought include, but are not limited to:
a. Any reports containing statements written or oral made by SDPD Sergeant John D. Iammarino, I.D. No. 5432, concerning the events leading to Defendant’s prosecution for violating Vehicle Code section 23152 on December 7, 2012.
b. Any reports containing statements written or oral made by SDPD Detective Daniel Caropreso, I.D. No. 5363, concerning the events leading to Defendant’s prosecution for violating Vehicle Code section 23152 on December 7, 2012.
c. Any reports containing statements written or oral made by SDPD Sergeant William Brown, I.D. No. 5379, concerning the events leading to Defendant’s prosecution for violating Vehicle Code section 23152 on December 7, 2012.
d. Any reports containing statements written or oral made by SDPD Sergeant
Christopher N. Tivanian, I.D. No. 5871, concerning the events leading to Defendant’s prosecution for violating Vehicle Code section 23152 on December 7, 2012.
2. Any evidence relating to a preliminary alcohol sensor (PAS) test conducted on Defendant on December 7, 2012, prior to the arrival of Officer Zirpolo.
STATEMENT OF THE CASE
On December 7, 2012, Defendant was investigated for driving under the influence of alcohol. On January 23, 2013, a complaint was filed charging Defendant with violations of Vehicle Code sections 23152(a) and (b). The complaint was later amended to allege that Defendant drove in violation of Vehicle Code section 23582(a).
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and authorities in opposition. The People filed points and authorities in reply. On February 15, 2013, after an in-chambers discussion the court continued the motion to March 19, 2013.
On February 20, 2013, Defendant was arraigned and pleaded not guilty. A readiness hearing was calendared for March 27, 2013.
STATEMENT OF FACTS
On or about December 7, 2012, at approximately 12:52 a.m., Defendant crashed his department-issued vehicle while driving in the area of Mission Gorge Road and Princess View Drive in the City and County of San Diego, California. Defendant telephoned two off-duty police officer friends, Sergeant Iammarino and Detective Caropreso, who came to the collision scene. Sergeant Iammarino telephoned Sergeant Tivanian and Sergeant Brown and asked Sergeant Tivanian to bring a PAS device. Sergeant Tivanian obtained a PAS device and brought it to the scene, where a PAS test was conducted. Sergeant Tivanian left before Sergeant Brown arrived and took the PAS device with him.
Sergeant Brown arrived shortly thereafter. Sergeant Brown evaluated the accident scene and spoke with Defendant. At about 2:15 a.m. Sergeant Brown requested a traffic unit to come to the scene to investigate the collision. Officer Witt responded and arrived at about 2:25 a.m. As part of his investigation Officer Witt spoke with Defendant. As a result, at about 2:50 a.m. an officer was summoned to conduct a DUI investigation. Officer Zirpolo responded to the scene and, after administering a PAS test, conducted a breath test using his trunk-mounted Intoxilyzer at 3:59 a.m.
At that point Defendant was expressing physical discomfort and Officer Zirpolo
transported him to the hospital. At the hospital Defendant was held for tests. Officer Zirpolo later filed his report and requested that Defendant be charged with a violation of Vehicle Code section 23152.
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Evidence Code section 1043 requires that the party seeking discovery file a written motion with the appropriate court and upon the governmental agency which has custody and control of the records. At the motion hearing, the court examines the required affidavits for a showing of good cause. The affidavits must provide adequate factual details demonstrating the manner in which the records are relevant to the pending litigation and state “upon reasonable belief” that the agency in question possesses the records. Haggerty v. Superior Court, 117 Cal. App. 4th 1079, 1085–86 (2004). The affidavits must show a plausible justification for discovery of records of each officer. People v. Luttenberger, 50 Cal. 3d 1, 20 (1980). The affiant need not have personal information as to the alleged events. City of Santa Cruz, 49 Cal. 3d 74, 86 (1989). An affidavit based on information and belief is sufficient. Id. This initial threshold for showing good cause is “relatively relaxed.” Id. at 84. Furthermore, “[t]rial courts are granted wide discretion when ruling on motions to discover police officer personnel records.” People v. Samayoa, 15 Cal. 4th 795, 827 (1997).
If the court finds good cause, the governmental agency is entitled to claim the privilege pursuant to Evidence Code section 1040. When the claim of privilege is made, the court must conduct an in-camera hearing to balance the consequences to the public of disclosure against the consequences to the litigant of nondisclosure. Pitchess v. Superior Court, 11 Cal. 3d 531, 539 (1974). Evidence Code section 1045 requires the court to exempt from disclosure several
specified matters and allows it to condition disclosure for good cause upon a motion made by the agency asserting the privilege.
ARGUMENT I
POLICE PERSONNEL RECORDS ARE DISCOVERABLE WITH A COURT ORDER
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requires that a motion for discovery of such records include affidavits showing good cause for disclosure, setting forth the materiality of the discovery to the pending litigation, and stating upon reasonable belief that the agency has the discovery sought.
In Fagan v. Superior Court, 111 Cal. App. 4th 607 (2003), the court stated that the protections afforded by the statutory scheme are not limited to the circumstance of a criminal defendant seeking discovery of a police witness's file. Id. at 614. A prosecutor must also comply with Evidence Code section 1043 to obtain discovery of a former police officer's personnel file when prosecuting that person for a crime. Id. Similarly, in People v. Superior Court
(Gremminger), 58 Cal. App. 4th 397 (1997), the court held that the People must comply with the
procedural requirements of Evidence Code section 1043 in order to obtain the personnel records of a peace officer charged with murder.
Good cause to compel discovery in a criminal proceeding is satisfied upon a showing that “the requested information will facilitate the ascertainment of facts and a fair trial.” Pitchess, 11 Cal. 3d at 536. Courts have held that a sufficient showing must be made in three areas. First, there must be a “specific factual scenario’ which establishes a ‘plausible factual foundation’” for the requested discovery. California Highway Patrol (CHP) v. Superior Court, 84 Cal. App. 4th 1010, 1020 (2000), quoting City of Santa Cruz v. Municipal Court, 49 Cal. 3d 74, 85–86 (1989).
Second, the information must be requested with at least some degree of specificity. People v.
Mooc, 26 Cal. 4th 1216, 1226 (2001). Finally, the requesting party must demonstrate that the
information cannot readily be obtained through his or her own efforts. Craig v. Municipal Court, 100 Cal. App. 3d 69, 73 (1979).
II
THERE IS GOOD CAUSE FOR DISCLOSURE
“The purpose of the statutory scheme governing police personnel records is to balance the conflicting interests of a peace officer’s claim to confidentiality and a litigant’s equally
compelling interest to all information pertinent to pending litigation.” Rosales v. City of
Los Angeles, 82 Cal. App. 4th 419, 430 (2000). Evidence Code section 1043(b) requires a litigant
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information to the pending litigation, and (2) a “reasonable belief” that the governmental agency had the information. City of Los Angeles v. Superior Court, 29 Cal. 4th 1, 10–11 (2002). The California Supreme Court categorizes this threshold as “relatively low.” Id. at 11.
Good cause is established by showing a plausible justification for how the information sought may be admissible. City of Santa Cruz, 49 Cal. 3d at 86. For example, in Santa Cruz, the defendant was charged with resisting arrest, and alleged that the arresting officers used excessive force. The defendant sought prior complaints of excessive force against the arresting officers to show a tendency on the part of the officers to engage in unlawful and excessive force. The court held that the defendant had articulated a valid theory as to how the information sought might be admissible, and held that the defendant had “plainly demonstrated the materiality of the requested information.” Id.
Similarly, in People v. Memro, 38 Cal. 3d 658 (1985), the defendant alleged that his murder confession had been coerced and sought discovery of records of prior complaints of violence against the arresting officers. The court held that the defendant demonstrated good cause for discovery because discovery might lead to admissible evidence that the interrogating officers had a habit or custom of obtaining confessions by use of excessive force, citing Evidence Code sections 1101(b) and 1105. Id. at 681.
The court in Warrick v. Superior Court, 35 Cal. 4th 1001 (2005), went even further and held that the first part of the good cause requirement test, materiality, could be satisfied by the moving party upon a showing that the alleged scenario of “alleged officer misconduct could or might have occurred.” Id. at 1016.
In Fagan, off-duty San Francisco police officers were detained following a street fight. They were ordered to provide urine samples pursuant to their police department policies and procedures. The results of the urinalysis tests were placed in petitioners' personnel files. Although the materiality of the results was not directly addressed, the court did find that the information was properly disclosed as part of the prosecution of felony assault and battery charges. Fagan, 111 Cal. App. 4th at 615-17.
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In this case, Defendant is charged with violating Vehicle Code sections 23152(a) and (b). As referred to in the declaration, the People have reason to believe that the SDPD has additional evidence of Defendant’s BAC that was not submitted with the case. This information is
significant affirmative evidence of Defendant’s guilt in the case. Because the evidence was collected closer in time to the charged violation, it is highly probative of Defendant’s guilt.
In addition, in this case there was a delay of approximately three hours between
Defendant’s collision and his arrest. The People seek statements made by officers who observed and interacted with Defendant during those three hours and investigated the offense. The good cause for production of this material is patently obvious.
For example, when an internal affairs investigation is initiated by a defendant’s complaint, the defendant may seek statements obtained in the investigation for use in his defense against criminal charges related to the subject of the complaint. Rezek v. Superior Court, 206 Cal. App. 4th 633 (2012). Citing Robinson v. Superior Court, 76 Cal. App. 3d 969, 978 (1978) (all
statements made by percipient witnesses and witnesses related to the incident in question are discoverable under the standards set forth in Pitchess), the Rezek court held that “the materiality of statements of alleged eyewitnesses to the charged offense is self-evident.” Rezek, 206 Cal. App. 3d at 644.
Drunk driving cases typically rise or fall on the ability of an expert witness to use retrograde extrapolation to estimate the defendant’s blood alcohol level at the time of driving, based on the blood alcohol level at the time of the test. The defendant’s activities between driving and test and the results of any other blood alcohol tests are vitally important to the expert’s ability to extrapolate. As the Rezek court stated, the materiality of statements of eyewitnesses to these activities and tests is “self-evident.”
As illustrated above, the information sought is relevant and highly probative. Not only is there a plausible justification, but the information sought would almost certainly be admissible evidence at trial. Therefore, good cause exists and the information should be disclosed.
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THE INFORMATION SOUGHT HAS BEEN REQUESTED WITH SPECIFICITY
The party requesting discovery must specify the type of information sought to be
discovered. Mooc, 26 Cal. 4th at 1226. The People have adequately specified the material sought.
IV
THE PROSECUTION CANNOT READILY OBTAIN THE INFORMATION SOUGHT THROUGH OTHER MEANS
The confidentiality afforded police records and personnel files under Penal Code section 832.7, applies equally to all parties seeking discovery of these records. Following proper
procedure and protocol, Internal Affairs cannot release the information. Because this evidence has not been stored or reported in a crime report, it is not available through normal discovery
procedures.
The information sought is privileged and may not be obtained absent a request in compliance with the provisions of Sections 1043 and 1046 of the Evidence Code. Accordingly, the information sought cannot be obtained by any means other than the instant motion.
CONCLUSION
Based on the foregoing, the People respectfully request the Court order the disclosure of the requested information.
Dated: March______, 2013
JAN I. GOLDSMITH, City Attorney
By
