EARL v. PEOPLE (1980)

There is a Welfare and Institution Code section 602 petition pending against petitioner which charges him with possession of PCP. (Health & Saf.Code § 11377.) The instant petition for writ of mandate challenges the denial of a discovery motion which sought information relating to citizen complaints against the two Los Angeles Police Department officers who arrested petitioner. The type of complaints which petitioner sought to discover were those in which the complainants alleged that the officers had “planted” contraband on them.

Petitioner's discovery motion was supported by a declaration under penalty of perjury by defense counsel who recited the following to justify the request:

“That it is necessary that said records, data and materials be made available to the minor in order to properly prepare said case for trial. Said records, data and materials are material and relevant to the trial of said action and are necessary for the defense preparation for trial for the following reasons:

1. Prior incidents of planting contraband may tend to show a common scheme or plan—a modus operandi—by Officers Yarnall and Beard to plant contraband on people by the above-named officers.

That the Defense expects that if such evidence exists, it would be relevant and admissible at minor's adjudication.”

At the hearing on the discovery motion petitioner introduced a police report into evidence. It indicated that after having been Mirandaized petitioner had stated: “I was walking down the street with a radio under my arm and the police stopped me and arrested me. I did not have any PCP cigarettes.”

Respondent ruled that petitioner had made a sufficient showing to compel discovery. Counsel conceded that the showing made was insufficient, but requested an in camera hearing, offering to disclose, in such a proceeding, petitioner's entire defense in order to demonstrate the relevance of the materials sought to be discovered. Respondent denied the request for an in camera hearing. Petitioner was not personally present at the discovery hearing, having notified respondent that he was ill.

The present petition seeks an order directing respondent to conduct an in camera hearing. We initially denied the petition summarily. The Supreme Court, however, granted a hearing and retransferred the matter to us with instructions to issue an alternative writ, which we did. In response thereto the People offered an affidavit from the custodian of records to the effect that the personnel files of the two subject officers contained no complaints of the type sought by petitioner. The People sought dismissal of the petition as moot.

In view of petitioner's opposition to such a dismissal and in view of the Supreme Court's directive that the alternative writ issue, we decided to proceed to adjudicate the petition on its merits.

Petitioner concedes that he bears the burden of demonstrating relevance in connection with his discovery motion. He further concedes that that burden is not satisfied by an assertion that petitioner “may” rely on the defense that the evidence was “planted,” and cites People v. Navarro, 84 Cal.App.3d 355, 146 Cal.Rptr. 672.

In People v. Navarro, supra, the defendant sought to discover citizens' complaints relating, among other things, to illegal or false arrests, improper police tactics, dishonesty or excessive force on the part of the arresting officers. The request was predicated on a declaration by defense counsel which asserted that the defense might contend that the defendant was coerced into producing a urine specimen. The court stated: “In a proper case and on a proper and substantial showing by way of detailed affidavit in which defendant commits himself under oath to a particular assertion of fact, it is conceivable the material sought might be discoverable. But this is not that case. Here, there has been no showing of even plausible justification for discovery. [[[[Citations.]” (People v. Navarro, supra, 84 Cal.App.3d 355, at p. 359, 146 Cal.Rptr. 672, at p. 674.)

Petitioner does not quarrel with the standard set forth in Navarro; he asserts that he “is quite willing to fully disclose his defense,” provided he is allowed to do so in camera.¹ He frames the issue presented by the present petition thusly: “Where a minor requests discovery, and can only show the relevance of the material sought by disclosing his defense, is the minor entitled to an in camera hearing, outside the presence of the prosecutor, to make the showing required?”

As formulated, the question cries out for an affirmative answer. The problem is that as formulated the question does not accurately reflect the facts of this case.

The question is not whether petitioner is going to be forced to reveal his defense as a condition precedent to obtaining discovery. He has already revealed it. The question is whether defendant has to “commit himself under oath to a particular assertion of fact” before the People may be compelled to disclose the contents of confidential personnel files. Since the only conceivable way in which the sought after materials might be relevant is if the police planted the contraband that they claim was in petitioner's possession, petitioner effectively disclosed his potential defense when he filed his discovery motion.²

If the contraband was planted, petitioner obviously has first hand knowledge of that fact. Requiring him to assert it under oath as a precondition to discovery would not increase the People's knowledge of his potential defense over that which they must now at lease surmise. Nor is it conceivable that requiring such a minimal showing by petitioner “might lighten the prosecution's burden of proving its case in chief” (Prudhomme v. Superior Court, 2 Cal.3d 320, 326, 85 Cal.Rptr. 129, 133, 466 P.2d 673, 677) nor “serve as a link in a chain of evidence” (Id., at p. 327, 85 Cal.Rptr. at p. 133, 466 P.2d at p. 677) tending to establish the People's case. (Allen v. Superior Court, 18 Cal.3d 520, 524-525, 134 Cal.Rptr. 774, 557 P.2d 65.)

Since petitioner accepts the requirements of Navarro, supra, we need not reach the question of whether an appropriately drafted affidavit by counsel might provide an adequate foundation for discovery. Presumably there are situations in which it would. (Tyler v. Superior Court, 102 Cal.App.3d 82, 87, 162 Cal.Rptr. 82.) Whether this case is one of them is something which only counsel knows at this time.

Since we do not question the sincerity of petitioner's counsel in seeking the in camera hearing, we believe that petitioner should have another opportunity to present a discovery motion which conforms to the standards enunciated herein. We trust that respondent court will permit petitioner that opportunity if he chooses to pursue his quest for discovery. Of course, counsel will want to weigh the burdens on petitioner of making the requisite showing in support of such a motion against the improbability of successful discovery in light of the People's claim that no relevant complaints against the officers exist.

We leave to future cases in which there exists a true danger of disclosure of a type prohibited by Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, and Allen v. Superior Court, 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65, the formulation of a rule governing the showing necessary to compel the granting of in camera hearings to substantiate discovery requests.

The alternative writ is discharged. The peremptory writ is denied.

FOOTNOTES

1.  Presumably petitioner was not immediately prepared to comply with Navarro in camera since he was not present on the day counsel requested the in camera hearing.

2.  It was for this reason that we initially denied the petition, thinking it presented an inappropriate vehicle for adjudicating the issue upon which the public defender seeks a ruling.

STEPHENS, Acting Presiding Justice.

ASHBY and HASTINGS, JJ., concur.