ORIGINAL PROCEEDINGS; petition for writ of mandate. Superior Court of Los Angeles County. Steven R. Van Sicklen, Judge. Writ denied. (Los Angeles County Super. Ct. No. BA337159).
The opinion of the court was delivered by: Rubin, J.
CERTIFIED FOR PUBLICATION
Petitioner Moises Galindo seeks a writ of mandate compelling respondent Los Angeles Superior Court to order Pitchess discovery from real parties in interest, the City of Los Angeles and the Los Angeles Police Department. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evid. Code, § 1043 et seq.) Petitioner intends to use the discovery during his preliminary hearing on a charge of resisting an executive officer and making criminal threats. (Pen. Code, §§ 69, 422.) Because we conclude a defendant may not seek Pitchess discovery for use in a preliminary hearing, we deny the writ.
According to an arrest report filed by Los Angeles police officers S. Flores and J. Smith, the officers were on foot patrol in the early evening of February 29, 2008, when they saw petitioner Moises Galindo drinking from a can of beer while in public. When petitioner noticed the officers, he walked away from them, holding his front waistband as if he were trying to conceal a handgun. The officers ordered him to stop, but he fled into a nearby apartment. The officers surrounded the apartment and requested that their supervising sergeant come to the scene. As the officers waited for their sergeant, residents of nearby apartments began yelling at the officers while filming them and taking their pictures with flash photography. When the residents refused to disperse, the officers arrested several of them, including petitioner's brother. In the meantime according to the arrest report, Sergeant Vargas received permission from the resident of the apartment into which appellant had fled for officers to enter the apartment. Shortly thereafter, the officers arrested petitioner without further resistance. While police escorted petitioner to their patrol car, he told them he was "from Hazard" and would have them killed.
The People filed an amended felony complaint against petitioner. It alleged petitioner had by means of threat or violence resisted Executive Officer Flores in the performance of his duties. (Pen. Code, § 69.) It also alleged he had made criminal threats against him. (Pen. Code, § 422.) Petitioner pleaded not guilty.
Before the preliminary hearing, petitioner filed a Pitchess motion under Evidence Code section 1043 et. seq. seeking discovery of the personnel files of Sergeant Vargas and officers Smith and Flores. (See Pitchess v. Superior Court, supra, 11 Cal.3d 531.)
In support of the motion, petitioner denied having a can of beer when the officers saw him. He claimed no interaction occurred between him and the officers, who were engaged with neighborhood residents when he entered his parents' apartment. The officers did not order him to stop, and they did not ask for permission to enter his parents' apartment to arrest him. He further claimed that his brother, who was one of the bystanders the police arrested, was in the back seat of the patrol car when officers placed petitioner there. During the drive to the police station for booking, Officer Flores sat in the back seat with petitioner and his brother and, petitioner alleged, physically assaulted them while en route.
Through his Pitchess motion, petitioner sought evidence of misconduct from the personnel files of the officers who arrested him. The motion requested discovery of evidence, if any, of accusations against the officers alleging aggressive behavior, violence, excessive force, fabrication of charges, illegal search and seizure, false arrest, perjury, and false police reports. Petitioner reasoned such discovery might help his defense counsel cross-examine and impeach the testimony of the officers in the then-upcoming preliminary hearing. The magistrate presiding over the preliminary hearing denied the motion without prejudice.
Petitioner filed a petition for writ of mandate in the superior court directing the magistrate to grant petitioner's Pitchess motion. The superior court denied the petition. It reasoned that the Criminal Discovery Act (Pen. Code, § 1054), which governs criminal discovery, did not permit discovery at a preliminary hearing. Petitioner then filed a petition before this court for a writ of mandate. Arguing that the preliminary hearing was a critical stage in the proceedings against him, he asserted his right to effective assistance of counsel rested on counsel's adequate investigation and preparation, which entitled him to Pitchess discovery. We stayed the preliminary hearing. In addition, we directed the district attorney and the real party in interest, City of Los Angeles, to file letter briefs answering the question "Does a criminal defendant have a right to obtain Pitchess discovery before the preliminary hearing?" After reviewing the petition and the district attorney's and city's responses, we summarily denied the petition.
Petitioner filed a petition for review in the California Supreme Court. He argued his right to effective assistance of counsel rested on counsel's adequate preparation, entitling him to Pitchess discovery. He further argued the superior court erred in relying on Penal Code section 1054 to deny his Pitchess motion. That statute exclusively governs discovery between the parties, which are the defendant and the prosecutor representing the People of California. (Pen. Code, § 1054, subd. (e).) Penal Code section 1054 expressly states, however, that it applies to criminal discovery only in the absence of "other express statutory provisions." (Ibid.; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315.) Evidence Code section 1043, which governs third-party Pitchess discovery from law enforcement agencies not parties to the criminal prosecution, is one such provision. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045-1046; Albritton v. Superior Court (1990) 225 Cal.App.3d 961, 963; 5 Witkin & Epstein, Cal. Criminal Law (3d 2000) Trial, § 32, p. 77.)
The Supreme Court granted his petition for review. Transferring the case back to us, the Supreme Court directed us to vacate our order denying petitioner's petition for writ of mandate, and told us to order respondent Los Angeles Superior Court to show cause why the superior court should not grant petitioner the relief he sought. We complied with the Supreme Court's directions and ordered the superior court to show cause why it should not grant petitioner's motion for Pitchess discovery. Before oral argument on the order to show cause, real party in interest City of Los Angeles filed a return to the petition, and petitioner filed a reply. The parties then appeared before us for oral argument.
In 1974, the California Supreme Court ruled in Pitchess v. Superior Court, supra, 11 Cal.3d 531 that a criminal defendant may discover evidence of citizen complaints alleging misconduct by law enforcement officers if that misconduct assists in the defense. In 1978, the California Legislature codified procedures governing Pitchess discovery at Evidence Code sections 1043 to 1045. (See also Pen. Code, §§ 832.7, 832.8 [defining officer's personnel records subject to Pitchess discovery].) We review denial of a Pitchess discovery for abuse of discretion. (People v. Lewis (2006) 39 Cal.4th 970, 992; Pitchess v. Superior Court, supra, at p. 536.) Because we conclude a defendant is ...