(San Diego County Super. Ct. No. SCN259845)
The opinion of the court was delivered by: McCONNELL, P. J.
CERTIFIED FOR PUBLICATION
PROCEEDINGS in mandate following the partial denial of a motion for discovery of peace officer personnel information. Harry M. Elias, Judge. Petition granted in part and denied in part.
In this petition, we must decide whether a criminal defendant charged with provocative act murder showed good cause for discovery of complaints of dishonesty, false reporting, and excessive force in peace officers' personnel records. We must also decide whether a trial court, when conducting an in camera review of such records, must examine the records itself or whether it may rely in whole or in part on the custodian's sworn testimony about the records' contents and the custodian's opinion about whether any information in the records is discoverable.
We conclude the defendant showed good cause for discovery of complaints of dishonesty or false reporting as to some officers, but did not show good cause for discovery of complaints of excessive force as to any officers. We further conclude a trial court conducting an in camera review of peace officer personnel records must examine the produced records itself and may not rely on the custodian's assessment of the discoverability of information contained in the records. We, therefore, grant the petition in part and direct the trial court to conduct further proceedings consistent with our decision.
Ronald Jay Sisson, also known as Brian Lee Olsen, is charged with one count of murder (Pen. Code, § 187, subd. (a)) and three counts of assaulting a peace officer with a deadly weapon (Pen. Code, § 245, subd. (c)). The charges stem from an incident in which peace officers attempting to apprehend Sisson at a home in Carlsbad fired multiple shots into Sisson's vehicle, killing his front seat passenger.
Officers' Version of Events
According to a report of the incident prepared by the Carlsbad Police Department, Costa Mesa Police Sergeant Scott May; Costa Mesa Police Detectives Eric Wisener, Larry Fettis, Aaron Parsons, Kevin Westman, Bang Le, and George Escanuelos; and state parole agents Eric Kraus and Shad Colbert traveled to Carlsbad on November 1, 2007, in three unmarked vehicles. May, Parsons and Westman were in a Nissan Armada; Escanuelos and Fettis were in a Chevrolet Impala; and Wisener, Le, Colbert, and Kraus were in a Chevrolet Uplander.
The purpose of the officers' trip was to apprehend Sisson, who had absconded from parole. At the time, the officers believed Sisson was an associate of a criminal street gang. They also believed he was wanted by another law enforcement agency on identity theft charges and for possibly kidnapping his infant child from foster care. They considered him to be armed and dangerous.
All of the officers wore badges. Four of the officers wore clothing identifying them as peace officers. Parsons wore the Costa Mesa Police Department's gang unit uniform, including "a black polo style shirt with a soft police badge patch sewn on the upper left chest. On the back of the shirt, POLICE GANG UNIT was written in large white lettering." Kraus*fn1 and Colbert both wore black T-shirts with "POLICE" written in large white letters on the front, back and both sleeves. They also wore soft body armor with "POLICE" written on both the front and back. Le wore a blue, long-sleeve nylon raid jacket with "POLICE" written on the back and both sleeves.
When the officers arrived at Sisson's home, Wisener contacted the Carlsbad Police Department and requested the assistance of two marked police units. While the officers waited for the marked police units, Fettis and Escanuelos, who were watching the home, radioed that Sisson was preparing to leave. May decided to stop Sisson and directed the officers to move in and make contact.
The officers blocked Sisson's vehicle by parking the Uplander and the Armada behind it. Parsons, who had previous contacts with Sisson, and Westman got out of the Armada and approached the driver's side of Sisson's vehicle. Parsons had his gun drawn and his flashlight out. Wisener, who also had previous contacts with Sisson, and Colbert got out of the Uplander and positioned themselves at the rear passenger side of Sisson's vehicle.
Parsons stood next to the driver's side door of Sisson's vehicle and identified himself as a police officer. Parsons commanded Sisson to stop and to put his hands up. Sisson made eye contact with Parsons and initially raised his hands, as if complying with Parsons's commands. However, Sisson then put his hands back on the steering wheel of his vehicle and reversed it. He swerved it toward Parsons and ran over Parsons's foot and lower leg. Parsons yelled several times that he had been hit.
Meanwhile, Sisson repeatedly rammed his vehicle into the Uplander and Armada until he forced his way between them. At the time, Kraus and Le, both of whom had previous contacts with Sisson, were inside the Uplander and May was inside the Armada.
Sisson continued reversing his vehicle in a circular pattern through a neighbor's yard. Fettis was standing next to the driver's door of the Impala, which he had parallel parked west of Sisson's driveway. Sisson looked over his shoulder at Fettis and then drove his vehicle directly toward Fettis. Fettis ran to a safe location just before Sisson rammed the Impala.
After Sisson rammed the Impala, he continued driving his vehicle in reverse at an accelerated speed toward a nearby intersection. When Sisson reached the intersection, he turned his vehicle around and lurched forward as he transitioned from reverse to drive. By then, several of the officers had moved to the middle of the street and Wisener, Fettis, and Kraus fired their weapons at Sisson's vehicle. Wisener fired one shot, Fettis fired 13 shots, and Kraus fired 12 shots.
Sisson drove away, eventually crashing his vehicle into a telephone pole and fleeing on foot. Police officers apprehended him approximately an hour after the crash. He had only minor injuries; however, his front seat passenger was taken to a hospital for treatment and died two days after the incident from a gunshot wound to the head.
Parsons also received treatment at a hospital. He had a sprained ankle and there were tire marks on his right leg below the knee.*fn2
Sisson's Motions and Version of Events
Sisson filed two motions under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), Evidence Code section 1043, and Penal Code section 832.5. One motion sought discovery of certain documents from the Costa Mesa officers' personnel files, including any complaints of excessive force, dishonesty, and fabrication of charges or evidence. The other motion ...