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Galindo v. Superior Court of Los Angeles County

July 22, 2010


Ct.App. 2/8 B208923 Los Angeles County Super. Ct. No. BA337159 Judge: Steven R. Van Sicklen

The opinion of the court was delivered by: Kennard, J.

Charged by felony complaint with threatening and resisting an arresting officer in the performance of his duties (Pen. Code, §§ 422, 69), petitioner Moises Galindo brought a Pitchess motion (see Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evid. Code, §§ 1043-1045) for disclosure of prior citizen complaints made against the arresting officer and four other officers involved in the incident.

Pitchess motions are so named after this court's 1974 decision in Pitchess v. Superior Court, supra, 11 Cal.3d 531, which afforded criminal defendants a judicially created right to discovery of prior citizen complaints alleging misconduct by California peace officers. In 1978, the Legislature codified the right and set forth which officer records are subject to Pitchess discovery. (Pen. Code, §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.) As relevant here, these statutes permit a criminal defendant to " 'compel discovery' of certain relevant information in the personnel files of police officers by making 'general allegations which establish some cause for discovery' of that information and by showing how it would support a defense to the charge against him." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019.) When the trial court, in exercising its discretion, grants a defendant's Pitchess motion, it orders disclosure of the names, addresses, and telephone numbers of individuals who have in the past witnessed alleged officer misconduct or who have complained of misconduct by the officer named in the motion. (Warrick, at p. 1019; see, e.g., People v. Prince (2007) 40 Cal.4th 1179, 1283.)

When petitioner here moved for Pitchess discovery, no preliminary hearing had yet been held to determine whether there was probable cause to conclude that he had committed the charged offenses. The magistrate denied the motion by an order that did not preclude petitioner from renewing the motion after the preliminary hearing. The magistrate gave two reasons for the denial: Pitchess discovery was as a matter of course not available for use at the preliminary hearing; and petitioner had not shown that Pitchess discovery would yield "something that would change the outcome" of the hearing. Petitioner unsuccessfully sought a writ of mandate first in the superior court, then in the Court of Appeal. We granted petitioner's petition for review.

Although no statute prohibits a criminal defendant from filing a Pitchess motion before a preliminary hearing is held, neither does any statute expressly grant a right to obtain Pitchess discovery for use at the preliminary hearing. Accordingly, we hold that although a defendant may file a Pitchess motion before a preliminary hearing, the pendency of that motion will not necessarily or invariably constitute good cause for postponing the preliminary hearing over the prosecution's objection. The purpose of the preliminary hearing is merely "to establish whether there exists probable cause to believe that the defendant has committed a felony" (Pen. Code, § 866, subd. (b)), and "[b]oth the defendant and the people have the right to a preliminary examination at the earliest possible time" (id., § 859b, 2d par.).

Here, petitioner sought Pitchess discovery to obtain evidence for use at the preliminary hearing, and his attorney told the trial court that petitioner would be requesting a continuance of that hearing if the Pitchess discovery revealed potential defense witnesses. Under these circumstances, as we explain below, the magistrate's denial of the motion was not erroneous. When this case returns to the trial court, petitioner may, however, renew his Pitchess motion for the purpose of obtaining evidence relevant to issues at trial.


The police report contains these facts: On the evening of February 29, 2008, Los Angeles Police Department Officers "S. Flores" and "J. Smith" were patrolling on foot when they saw petitioner Moises Galindo drinking alcohol in a public place, a municipal code violation. At their approach, petitioner fled into an apartment. Soon a crowd of petitioner's angry relatives and neighbors gathered outside the apartment. After three more officers arrived, the officers obtained permission from petitioner's father to enter the apartment, where they arrested petitioner. Also arrested was petitioner's brother, whose presence in the apartment complex was prohibited by a gang injunction.

As the two brothers were being taken to a police car, they made death threats against the officers escorting them. The brothers were placed in the backseat of the patrol car for transport to the police station. Petitioner sat between his brother and Officer Flores. During the trip, both brothers "became extremely belliger[e]nt," and petitioner told Officer Flores, "I am going to . . . kill you and your family." Then petitioner, who was apparently handcuffed, struck his head against Officer Flores's head.

The complaint charged petitioner with resisting a police officer in the performance of his duties. (Pen. Code, § 69.) But on March 14, 2008, an amended felony complaint added a charge of making threats to kill or cause great bodily injury to Officer Flores (id., § 422), a serious felony (id., § 1192.7, subd. (c)), and alleged that the offense was committed to benefit a criminal street gang (id., § 186.22, subd. (b)(1)(B)).

Petitioner was arraigned on March 26, 2008, and a preliminary hearing was set for April 18, but on that date defendant waived time. On or after April 24, before a preliminary hearing was held, petitioner filed a motion seeking Pitchess discovery as to the five officers who had been present at his arrest.

Petitioner's Pitchess motion sought disclosure by the Los Angeles Police Department of the names and contact information of "all persons" who had witnessed or complained of prior incidents involving excessive force, violence, false arrest, fabrication or dishonesty, and any departmental discipline imposed on Officer Flores, Smith, or any of the other three officers. Defense counsel's declaration in support of the motion denied that petitioner had threatened Officer Flores and accused the officer of assaulting petitioner both inside and outside the patrol car on the way to the police station.

On May 16, 2008, the magistrate held a hearing on petitioner's Pitchess motion. At the hearing, petitioner's attorney told the magistrate that if Pitchess discovery revealed potential witnesses, petitioner would seek postponement of the preliminary hearing, which had been set for June 2. Without precluding petitioner from renewing the motion at a later time, the magistrate denied the Pitchess motion, giving two reasons. First, the magistrate concluded that Pitchess discovery was not normally available before a preliminary hearing, because the discovery sought would be pertinent only to issues at trial, where the prosecution had to prove petitioner's guilt of the charged offenses. Second, the magistrate concluded that even if Pitchess discovery was permissible before the preliminary hearing, petitioner had failed to establish that the discovery sought would affect the crucial issue at the preliminary hearing of whether there was probable cause to hold petitioner to answer on the charges against him. In the magistrate's words: "If you make a Pitchess motion pre-prelim in addition to the ordinary Pitchess showing, you have to show . . . a reasonable chance you are going to discover something that will change the outcome of the [preliminary] hearing," such as evidence negating required elements of the offense, which would preclude finding probable cause of petitioner's guilt. (See Pen. Code, § 866, subd. (a).)

The date for petitioner's preliminary hearing was postponed, apparently to permit preparation of a petition for a writ of mandate challenging the magistrate's ruling on petitioner's Pitchess motion. On June 17, 2008, petitioner filed a mandate petition in the superior court, seeking an order directing the City of Los Angeles (City) to disclose the Pitchess information requested. When the superior court denied relief, petitioner sought a writ of mandate in the Court of Appeal. That court stayed the preliminary hearing and asked both the District Attorney of the County of Los Angeles (District Attorney) and the City to brief the issue of whether a criminal defendant has a right to obtain Pitchess discovery before a preliminary hearing is held. After consideration of the parties' briefs, the Court of Appeal summarily denied relief and vacated the stay.

Petitioner then filed in this court a petition for review and a request to stay the proceedings, arguing that without the fruits of Pitchess discovery he could not receive effective assistance of counsel at the preliminary hearing, which he described as a "critical stage" in a criminal proceeding. We stayed the preliminary hearing, granted the petition for review, vacated the Court of Appeal's order denying the petition for a writ of mandate, and transferred the matter to the Court of Appeal, directing it to order the superior court to show cause why the requested relief should not be granted. After briefing and oral argument, the Court of ...

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