Original Proceedings; Petition for writ of mandate challenging an order of the Superior Court of Orange County, Walter P. Schwarm, Judge. (Super. Ct. No. 10CM00225)
The opinion of the court was delivered by: Moore, J.
CERTIFIED FOR PUBLICATION
Are statements of witnesses to the crime with which the defendant is charged immune from discovery because the statements were obtained as the result of an internal affairs investigation and placed in an officer's personnel file? No. A defendant may obtain the statements on a showing of good cause made in a motion brought pursuant to and not precluded under Evidence Code sections 1043 and 1045. We direct the trial court to review the internal affairs report concerning defendant's complaint in camera and to disclose to defendant the relevant nonprecluded statements of percipient witnesses to the charged incident.
I FACTUAL AND PROCEDURAL BACKGROUND
Defendant Edward Rezek is charged in Orange County Superior Court case No. 10CM00225 with one misdemeanor count each of delaying or obstructing a police officer in the performance of his duty (Pen. Code, § 148, subd. (a)(1)) and vandalism (Pen. Code, § 594, subd. (a)). It appears the prosecution theory is defendant punched a motor vehicle driven by a private security guard in a crosswalk at a shopping center in Tustin, causing damage to the vehicle. The security guard, Jose Reyes, then made a citizen's arrest of defendant in the presence of two Tustin plain clothes police officers, Mark Turner and Brian Chupp, and defendant thereafter resisted arrest.
Defendant's version of the incident is quite different. He contends he slapped the hood of the motor vehicle being driven inattentively by Reyes when the vehicle almost struck him in the crosswalk. Defendant claims shortly thereafter, he was talking on his cell phone while waiting to enter the Auld Dubliner restaurant and was accosted by two men who did not identify themselves as police officers and who dragged him away. He alleges the officers inflicted significant injuries on him, including breaking one of his arms. According to defendant, the person he had been talking with on his cell phone heard the incident until the phone was cut off. He also alleges the manager of the restaurant heard the tussle, and attempted to aid him until one of the two men finally identified them as police officers. Paramedics examined defendant and opined his arm was probably broken. He was taken to the hospital where the diagnosis was confirmed.
As a result of defendant's initial Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) which sought information from the arresting officers' personnel files, defendant was provided with the name of the complaining witness to a 2004 incident involving Officer Turner and an allegation of excessive force. Defendant was later given the statements of seven witnesses to the 2004 incident when disclosure of the complaining witness's information proved insufficient.
The present issue arises out of defendant's supplemental discovery motion for the verbatim statements of the percipient witnesses to the charged incident obtained by internal affairs. Defendant filed a complaint with the Tustin Police Department against the arresting officers, alleging abuse. The matter was investigated by Sergeant Del Pickney. According to the return in this matter, statements were obtained from three percipient witnesses.
The superior court denied the supplemental discovery motion. The appellate division of the superior court denied defendant's petition for a writ of mandate. Defendant thereafter filed a petition for a writ of mandate in this court, which we summarily denied. Defendant then filed a petition for review in the Supreme Court. The Supreme Court granted defendant's petition and transferred the matter to this court. We issued an alternative writ of mandate pursuant to the high court's directions.
In Pitchess v. Superior Court, supra, 11 Cal.3d 531, the California Supreme Court held a criminal defendant charged with battery on a number of sheriff deputies could, upon a proper showing, discover complaints of excessive force located in a deputy's personnel file. (Id. at pp. 534, 538.) The court stated the right of a criminally accused to discovery is founded on "the fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. [Citations.]" (Id. at pp. 535-536.) The Legislature subsequently codified the procedure for litigating what has become known as Pitchess motions. (Evid. Code, § 1043 et seq.) These code sections were not only intended to codify the Supreme Court's decision in Pitchess, but also "to curtail record shredding and discovery abuses that allegedly occurred in the wake of the Pitchess decision. [Citation.]" (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1085.)
Penal Code section 832.5 requires law enforcement departments to investigate complaints against their personnel. (Pen. Code, § 832.5, subd. (a)(1).) The complaints and the reports of the resulting investigations must be maintained in either the officer's personnel file or such other files as designated by the officer's agency. (Pen. Code, § 832.5, subd. (b).) Records maintained pursuant to Penal Code section 832.5 "are confidential and shall not be disclosed in any criminal or civil proceeding ...