ORIGINAL PROCEEDINGS in mandate. Lisa B. Lench, Judge. Petition for a writ of mandate granted. (Super. Ct. No. BA160668)
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
Carmen A. Trutanich, City Attorney, Carlos De La Guerra, Managing Assistant City Attorney, Kjehl T. Johansen, Supervising Deputy City Attorney, and Jess J. Gonzalez, Assistant City Attorney, for Real Party in Interest Charlie Beck.
Petitioner Francisco Eulloqui filed the instant petition for a writ of mandate to challenge the trial court's denial of a discovery motion he filed in a habeas corpus proceeding. Petitioner contends he made a sufficient showing under both Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194] (Brady) to require the trial court to examine a detective's personnel file and disclose certain categories of information. We conclude petitioner made a sufficient showing under Brady with respect to one category of information sought in the motion and thus grant the petition.
In 1998 petitioner was convicted of murdering Enrique Gonzalez and attempting to murder Joseph Aflague on August 21, 1995. Aflague was the chief witness against petitioner at trial. Aflague testified that petitioner, whom Aflague had known for about 15 years, shot him while Max Padilla, who had asked Aflague to meet him at that location, shot Gonzalez. Petitioner and Padilla then fled together. Aflague also testified that he had seen petitioner wearing a gold charm that police recovered at the scene of the charged crimes. Aflague did not initially tell the police that petitioner was involved in the shooting but later did so when Detective Parga interviewed him in Arizona.
Detective William Eagleson testified at petitioner's trial regarding his investigation of another murder, the 1996 murder of Salvador Gutierrez-a crime with which petitioner was not charged. Eagleson testified that Raul Ceja told him that petitioner, Padilla, and Padilla's brother asked Ceja to kill Gutierrez because Gutierrez was talking about the murder of Gonzalez and attempted murder of Aflague. Eagleson also provided expert testimony about the Mexican Mafia, its control over Latino gangs, the reluctance of gang members to testify, and the reasons for that reluctance. Eagleson was never asked whether he had any knowledge of, or dealings with, Aflague or whether Aflague was a paid informant.
Petitioner was sentenced to life in prison plus 35 years to life. On March 25, 1999, this court affirmed petitioner's conviction on appeal in a nonpublished decision in docket No. B124364. Thereafter, petitioner filed numerous unsuccessful habeas corpus petitions in state and federal courts.
Sometime in 2007 petitioner discovered that on January 22, 2007, in an unrelated proceeding (the retrial of Jose Quesada), Aflague admitted that he was a paid police informant and had received about $25,000 from "state authorities" "in the last 10 years." After a petition for a writ of habeas corpus filed in the trial court was denied, petitioner filed a habeas corpus petition in this court (docket No. B209576), alleging that his right to due process was violated by (1) the prosecution's suppression of evidence that Aflague was paid for his testimony against petitioner (a Brady violation), and (2) the prosecution's knowing presentation of false evidence at his trial. We issued an order to show cause, returnable before the superior court.
In connection with the evidentiary hearing ordered by this court, petitioner filed two discovery motions in the trial court, both of which were denied. Only the second of those motions is in issue in this proceeding. That motion sought disclosure of (1) complaints and related material in Eagleson's personnel file alleging dishonesty; fabrication of evidence; fabrication of reports; unauthorized payments or incentives given to informants; unauthorized use of informants; failure to report payments or other incentives to informants to his supervisors, the prosecution, or the defense; and any other evidence of misconduct amounting to moral turpitude; and (2) any other exculpatory material within the scope of Brady. (Petitioner's motion was not made under authority of Penal Code section 1054.9, which applies only to persons sentenced to death or life in prison without the possibility of parole.)
Counsel's declaration attached to the discovery motion stated, in pertinent part, the following: "(3) Detective Eagleson . . . was an investigating officer in the case and was also involved in the investigation of a 1996 homicide, said to be related, involving Salvador Gutierrez; [¶] (4) The pending Petition for Writ of Habeas Corpus alleges that the prosecution or its agents withheld evidence at trial that Joseph Aflague was a paid informant rather than just a victim/witness; [¶] (5) A key issue to be decided at the upcoming evidentiary hearing is whether or not Aflague was paid or otherwise compensated for his testimony in petitioner's case; [¶] (6) The District Attorney has presented a declaration from Detective Eagleson that, at the time of petitioner's trial, Aflague was a street dealer, not an informant, and was not paid by the Los Angeles Police Department for his testimony in petitioner's case; [¶] (7) Counsel assumes that Detective Eagleson will testify in accordance with his declaration; (8) The District Attorney has presented a declaration from Aflaque [sic] that he was not paid for his testimony in petitioner's case and did not become a paid informant until sometime after his testimony in petitioner's case. [¶] (9) Counsel makes no assumption as to whether or not Aflaque will testify in accordance with his declaration, as in the declaration he admits having committed perjury in a prior court case; [¶] (10) Aflaque [sic] has made previous inconsistent statements under oath, which led to the issuance of the Order to Show Cause, wherein he admitted having been working with the police and receiving compensation prior to, immediately thereafter, and in connection with, his testimony in petitioner's case."
The declaration by Eagleson referenced by petitioner's discovery motion was one of many similar declarations of various Los Angeles Police Department (LAPD) officers attached to the return to the petition for a writ of habeas corpus. In it, Eagleson declared that he was one of the investigators in the underlying case against petitioner; he had never met or heard of Aflague before he was assigned to investigate the case against petitioner; Aflague was not an informant before "the shooting" or at the time he testified in petitioner's trial; Aflague was not paid by the LAPD for his testimony in petitioner's trial; and "[a]t the time of this case," Eagleson knew Aflague only as a "street dealer."
At the hearing on the motion, the court asked counsel to identify Eagleson's alleged misconduct that purportedly entitled petitioner to the requested discovery. Counsel for petitioner explained that she expected Eagleson to testify in conformity with his declaration and the requested discovery "would be relevant to his impeachment if he has engaged in acts of dishonesty, especially within the last five years, or he similarly used informants and not told [sic] the DA." Petitioner's counsel later agreed with the court's statement that she was arguing that petitioner had "a right to Pitchess discovery for anticipated testimony that you believe will be untrue." Counsel later expanded the alleged misconduct to include the Brady violation alleged in the habeas petition: "My allegation of misconduct in the writ is that the police department, not necessarily specifically Detective Eagleson-but he was definitely was [sic] one of the ones named in the concealed evidence-namely that this person was receiving compensation for his testimony. That's why we were sent back here, for an evidentiary hearing on that." Finally, counsel clarified for the court that petitioner was "alleging that at the time of trial, there was a Brady violation" and that "now . . . they're going to lie about it."
Counsel and the court also discussed the applicability of the five- year limitation provided by Evidence Code section 1045, subdivision (b)(1), and the relevant "benchmark" or ending point of the retrospective five-year period. (Unless otherwise ...