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City of Tulare v. Superior Court of Tulare County

December 17, 2008

CITY OF TULARE PETITIONER,
v.
THE SUPERIOR COURT OF TULARE COUNTY, RESPONDENT;
M.C., A MINOR, REAL PARTY IN INTEREST.



ORIGINAL PROCEEDING; petition for writ of mandate. Valeriano Saucedo, Judge. (Super. Ct. No. JJD062264).

The opinion of the court was delivered by: Vartabedian, Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION

In a juvenile delinquency matter, the minor, real party in interest, was granted an order releasing names and contact information related to complaints against police officers following a properly noticed Pitchess (Pitchess v. Superior Court (1974) 11 Cal.3d 531) motion. The minor's counsel returned to court seeking additional information, claiming the originally disclosed information was inadequate. Petitioner, the City of Tulare, objected to this supplemental Pitchess hearing on the basis petitioner had not received proper notice, resulting in inadequate time to prepare for the motion. The juvenile court found the hearing was merely a continuation of the previous hearing and ordered disclosure of additional information. On request of petitioner, the court stayed its order. Petitioner filed a petition for writ of mandate seeking a noticed hearing before any additional information was disclosed. We issued an order to show cause to determine if the second Pitchess hearing was subject to the notice requirements contained in Evidence Code section 1043 and Code of Civil Procedure section 1005. For the reasons that follow, we will grant mandate relief.

Background

The minor was charged with assault on a peace officer and eluding a peace officer. According to the officers, one officer threw a flashlight at the car the minor was driving as he tried to flee, breaking the front windshield. The minor disputed this report and claimed the officers used excessive force. The minor filed a Pitchess motion seeking records maintained by the Tulare Police Department that might aid in his defense.

On March 14, 2008, the juvenile court granted the motion, releasing certain names and contact information of complainants and witnesses.*fn1 On May 5, 2008, the minor's counsel communicated by e-mail with counsel for petitioner. The minor's counsel wrote that he had investigated each of the four complainants but had been unable to secure any witnesses. He stated he would be moving for discovery of the complaints themselves on May 13, 2008, the date set for trial. Petitioner's counsel responded that the police department has a strict policy of requiring parties seeking discovery to follow statutory procedures and recommended that the minor file an order shortening time as well as a motion for additional Pitchess disclosure. Even then, disclosed petitioner's counsel, he would object to both.

A notice dated May 9, 2008, was filed stating that on May 13, 2008, the minor would be seeking an order for discovery of all of the relevant complaints themselves because the contact information that had been provided proved fruitless. Attached to the motion was a declaration from counsel. It provided in relevant part:

"3. I am informed and believe that my office received on or about April 1, 2008 the names and addresses of complainants and potential witnesses under the seal of the Court.

"4. I am informed and believe that an investigator from my office has diligently investigated the information with the following results:

"A. Complainant Number 1 reported deceased to the investigator. "B. Complainant Number 2 unable to be located because address is for new purchaser after foreclosure.

"C. Complainant Number 3 unable to be located in mobile home park.

"D. Complainant Number 4 apparently in prison and the associated witness did not wish to testify.

"5. I am therefore informed and believe that the discovery provided by this Court has proven inadequate inasmuch as Minor has not secured any witnesses."

On May 7, 2008, a readiness hearing was held. Counsel for petitioner was not present. Counsel for the minor and the People were present. At that time, the minor's counsel offered to file an order shortening ...


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