IN THE COURT OF APPEAL STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

4th Court of Appeal No. G036362 Orange County Superior Court No. 04NF2856 IN THE COURT OF APPEAL STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE LERCY WILLIAMS PETITIONER, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, RESPONDENT. CITY OF ANAHEIM, REAL PARTY IN INTEREST. AMICUS CURIAE BRIEF IN SUPPORT OF REAL PARTY IN INTEREST, THE CITY OF ANAHEIM 057758 ROCKARD J. DELGADILLO, City Attorney, S.B.N.125465x CLAUDIA MCGEE HENRY, Sr. Assistant City Attorney, S.B.N. KIM RODGERS WESTHOFF, Deputy City Attorney, S.B.N. 102881 900 City Hall East 200 North Main Street Los Angeles, California 90012 Telephone No.: (213) 978-7732

Attorneys for Amicus Curiae The League of California Cities I. INTRODUCTION Evidence Code section 1043 et seq. embodies what has come to be known as the Pitchess motion. 1 Named after Pitchess v. Superior Court (1974) 11 Cal.3d 531 a Pitchess motion is generally used by criminal defendants to obtain privileged, confidential information from a peace officer s personnel record for use during trial for the purpose of impeaching an officer s credibility. (Garden Grove Police Department v. Superior Court (2001) 89 Cal.App.4th 430, 433) In City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 this Supreme Court stated: The Penal Code provisions define personnel records (Pen. Code, 832.8) and provide that such records are confidential and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, 832.7) Evidence Code sections 1043 and 1045 set out procedures for discovery in detail. As here pertinent, section 1043, subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, inter alia, (2) A description of the type of 1 The California League of Cities, as Amicus Curiae, submits these points and legal authorities on behalf of Real Party in Interest the City of Anaheim. The League of California Cities is interested in this matter because each of its 476 member cities has a relationship with the custodian of records for a police agency and therefore each member city must respond to Pitchess motions on behalf of that custodian of records. In short, the issues raised by the pending case has the potential to effect every member city of the League of California Cities. This Amicus Brief is filed to offer arguments or a viewpoint that are not presented in the existing briefs.

records or information sought, and [para.] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof... (Emphasis added.) ( 49 Cal.3d at p. 82) This case is focused on an issue which was first and only addressed in City of Los Angeles v. Superior Court (Davenport) (2002) 96 Cal.App.4th 255. That issue was whether the declaration required under Evidence Code section 1043 may be filed under seal, such that counsel for the custodian of records is precluded from reviewing the declaration, but the trial court nevertheless may determine the declaration sufficient to show good cause as required under the Evidence Code. The Davenport court rejected such practice. (96 Cal.App.4th at p. 261) The Respondent Court ruled that Davenport was the law and declined to consider the Petitioner s declaration unless it was subject to a protective order as provided under Davenport. (Exhibit F, page 42:13-16) The Petitioner refused to follow this ruling. The Pitchess motion was denied for lack of good cause in the statutorily required declaration as it existed--redacted by Petitioner of all information Petitioner contended was privileged. (Exhibit F, page 43:3-8) Davenport is correct. Petitioner is incorrect. Some of the reasons are set forth in the City of Anaheim s Response to Petitioner s Petition for Writ of Mandate. The amici herein, the League of California Cities, joins those reasons. 3

There are additional reasons set forth in this amicus brief. First, the Petitioner erroneously contended that counsel representing the custodian of records and opposing the Pitchess motion had an attorney client relationship with the peace officer who was the subject of the Pitchess motion and would share information disclosed to counsel in violation of the protective order, if one were issued. This is incorrect and not supported by the record. The Amicus are concerned with preserving the relationship between the municipal attorney and his client, the custodian of records. The Petition attacks that relationship because of erroneous and mistaken assumptions as to the nature of that relationship. These erroneous assumptions can not be ignored. Second, a Pitchess motion is a form of third party discovery, as stated in Alford v. Superior Court (2003) 29 Cal.4th 1033. As the custodian of records is a third party to the case, also stated in Alford, if the declaration may be filed under seal, a protective order would be appropriate to prevent disclosure of anything included within the declaration filed under Evidence Code section 1043. (Evidence Code section 1045, subdivision (d)) Enabling the custodian of records and his separate attorney to view an unredacted declaration, subject to a protective order, would preserve the adversarial process for all Cities and preserve a criminal defendant s right to privacy. Alford would be in harmony with this position. The Court is respectfully requested to consider these additional arguments. 4

II. THE CUSTODIAN OF THE RECORDS, NOT THE PEACE OFFICER WHO IS THE SUBJECT OF THE PITCHESS MOTION, IS THE CLIENT OF COUNSEL OPPOSING THE PITCHESS MOTION A review of the underlying record available to this Court, and in particular the opposition to the Pitchess motion itself, will show that the opposition was not filed on behalf of the peace officers, but on behalf of the Custodian of Records, Anaheim Police Department. There was no representation ever made that there was or is an attorney client relationship between the City of Anaheim and the peace officers who were the subject of the Pitchess motion. 2 In criminal matters the peace officer is a part of the prosecution team. The prosecution team includes both investigative and prosecutorial agencies and personnel. (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315) In Alford, supra, 29 Cal.4th at p.1045 the California Supreme Court made the 2 The privilege against disclosure of official police records is held both by the individual officer involved and by the police department. Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 401 and San Francisco Police Officers Association v. Superior Court (1988) 202 Cal.App.3d 183, 189. The court in the Davis case noted that the record indicated the Los Angeles County Sheriff s Department, objected to disclosure of the personnel records. There was no mention of the peace officer himself objecting to disclosure or to the Pitchess motion. In the pending case there is no evidence the peace officer himself exercised his privilege, only that the City of Anaheim, through the Custodian of Records, Anaheim Police Department exercised its privilege. 5

following telling observation: In a Pitchess hearing, the district attorney prosecuting the underlying criminal case represents neither the custodian of records nor their subject, and thus has no direct stake in the outcome... for a prosecutor to actively challenge the sufficiency of a Pitchess movant s good cause showing is to advance the interests of the third party custodian and police officer. Cases support the position of the Amicus as does the fact that the custodian of records and the officer who is the subject of the Pitchess motion are not represented by the same counsel and there was not an attorney client relationship between the custodian s counsel and the subject officer. 3 3 None of the foregoing is to deny the peace officer s privilege in the personnel file or standing to oppose the Pitchess motion, if he so chooses. However the facts are that in this case, the officers did not exercise that privilege, did not file opposition and did not appear in opposition to the motion. 6

Although the law enforcement agency and the officer may both assert the privilege, the custodian of the records, was the only one to actually assert it, and then only on behalf of the custodian of records. This is typical of oppositions to Pitchess motions. 4 There is, and was, no evidence of an attorney-client relationship between counsel opposing the Pitchess motion and the peace officer in the pending case. Despite the lack of factual evidence of such a relationship, Petitioner incorrectly assumes that there will be improper communication and that a protective order, if issued, would not be honored. 5 Petitioner s assumption without factual evidence has lead to an incorrect, an unsupported conclusion, that permitting counsel for the custodian of records and the custodian of records to see an unredacted declaration in support of the Pitchess motion did not protect the criminal defendant because the real party was not a neutral third party so long as it serves as law enforcement s counsel and claims the privilege on behalf of the police officer. (Petition page 38) This statement is wrong. Counsel for the Custodian of Records, the Real Party, is just and only that, 4 Anedoctially, the Custodian of Records for the Police Department for the City of Los Angeles responded to 1562 Pitchess motions in 2005. None of those oppositions were filed on behalf of an individual officer. 5 Failure to honor a protective order could expose an attorney to an ethical violation. 7

counsel for the Custodian of Records. There is no claim of being counsel for the peace officer. There is no factual support to the contrary. The Opposition to the Pitchess Motion was filed by separate counsel from that counsel which is prosecuting the criminal action. In this case the prosecuting agency is the District Attorney and the agency representing the Custodian of Records is the City Attorney for the City of Anaheim. Separate counsel was used for a reason, to create and honor the protective order procedure of Davenport. The factual evidence is that every effort is being made to honor the separation of interests and inviolate nature of a protective order. III. THE PROTECTIVE ORDER PROCEDURE OF DAVENPORT IS APPROPRIATE WHEN A PITCHESS MOTION IS VIEWED AS A THIRD PARTY MOTION BROUGHT AGAINST A THIRD PARTY As this Court stated in Alford, supra, a Pitchess motion is a form of third party discovery. A third party could be controlled with a protective order reasonably fashioned, as provided in Davenport, to keep whatever is disclosed in a declaration made under Evidence Code section 1043 confidential and used only in the pending case for purposes of the Pitchess motion and not disclosed to any other person or entity or as otherwise directed by the court. (96 Cal.App.4th 255) 8

As stated in City of Alhambra v. Superior Court: In making this determination the trial court must recognize that while ex parte hearings may be necessary to protect a defendant s rights...it does not follow that the prosecutor (or interested third parties), must be precluded from effective participation in an important pretrial matter merely because the defendant asserts that the factual or legal showing made in support of a particular motion should remain confidential. If that were the rule, all defense discovery motions would soon be made and conducted in camera, to the detriment of our system of criminal justice in that those proceedings would not then be tested by the stringent and wholesome requirements of adversary litigation. [ ]The basic elements of due process are reasonable notice and an opportunity to be heard. The People (and interested third parties) are entitled to that process no less than the defendant. (205 Cal.App.3d at pp. 1130-1131) In justifying the use of a protective order, Davenport relied in part on Evidence Code section 1045, subdivision (d). The relatively low threshold for discovery embodied in section 1043 requires a showing of good cause for discovery in two general categories: (1)the materiality of the information to the subject matter involved in the pending litigation, and (2) a reasonable belief that the governmental 9

agency has access to the information. These fairly simple requirements are offset by section 1045's significant protective provisions. (City of Santa Cruz, at p. 83) Those provisions (1) explicitly exclude from disclosure certain enumerated categories of information ([Evid. Code,] 1045. sudb. (b)); and (3) issue a forceful directive to the courts to consider the privacy interest of the officers whose records are sought and take whatever steps justice requires to protect the officers from unnecessary annoyance, embarrassment or oppression. [Evid. Code,] 1045, subds. (c), (d) &(e)) (96 Cal.App.4th at p. 260) It was made clear that knowledge on behalf of the custodians and their counsel would not compromise a criminal defendant s right to a fair trial and the protective order procedure would help to insure that. (96 Cal.App.4th at p.263-264) The important determinant is whether the person or agency has been acting on the government s behalf [citation] or assisting the government s case. (96 Cal.App.4th at p. 263 citing People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315) To the Davenport court it was determinative of the case that the opposition was filed on behalf of the Custodian of Records and not the peace officer. The protective order would preclude the custodian and his counsel from discussing the content of the defendant s declaration with the prosecutor, thereby protecting the defendant s right to 10

confidentiality and concurrently enable the custodian and counsel to defend the Pitchess motion and engage in the adversary system. Davenport examined the protocols to be followed when a declaration is filed under seal. These procedures will protect the defendant s right to confidentiality and at the same time allow the matter to be properly tested by the stringent and wholesome requirements of adversary litigation. (Davenport, supra, 96 Cal.App.4th at p. 264) Davenport, supra, was mindful of the adversary system. The Pitchess statutory scheme is mindful of the need to balance a criminal defendant s need for information from a peace officer s file with that officer s right to privacy. 6 A protective order satisfies both needs. It permits the defendant to say anything he or she desires in an effort to set forth good cause without disclosing claims or allegations to the prosecution, but concurrently disclosing those claims and allegations to the custodian of records and counsel so that there may be a meaningful oral argument and hearing as required under the statute, outside the presence of the prosecution team. IV. EVIDENCE CODE SECTION 1043 REQUIRES A MEANINGFUL 6 "As Pitchess makes clear, the right of an accused to obtain discovery is not absolute. (11 Cal.3d at p. 538) (People v. Memro (1985) 38 Cal.3d 658, 685) 11

HEARING AND ORAL ARGUMENT ON A PITCHESS MOTION. Petitioner has argued that Evidence Code section 1043 does not require a hearing or oral argument with knowledge of the full affidavit of the criminal defendant filed in support of the Pitchess motion, asserting instead that a redacted affidavit would be sufficient. However that position is incorrect, ignores basic tenants of the adversary process and espouses a position that would keep custodians and counsel in the dark, something akin to boxing in the dark. Evidence Code section 1043 requires a hearing. Subdivision (b)(1) states the motion shall include the time and place at which the motion for discovery or disclosure shall be heard. (Emphasis added.) Subsection (c) states [n]o hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions of this section... (Emphasis added.) Those notice provisions include service of an affidavit setting forth good cause. (Evidence Code section 1043, subdivision (b)(3)) Cases interpreting other code sections have held similar language to require actual oral hearings, with an opportunity for oral argument. In Brannon v. Superior Court (2004) 114 Cal.App.4th 1203 the Fourth Appellate District held that in summary judgments oral arguments were required because Code of Civil Procedure section 437c(a) and (b) included references to time appointed for hearing and date for hearing. Similar statutory interpretation applies here. Actual hearings are 12

required. The City of Anaheim and the amicus herein are asking for the opportunity to be able to have well reasoned, equal footed oral argument between the parties. In order to have such hearings where the parties are able to equally discuss whether good cause has been stated, the affidavits required to be served under Evidence Code section 1043, subdivision (b)(3) must be served. Neither party should be left in the dark to guess at the allegations or claims of the other. Evidence Code section 1043 does require service of the supporting affidavit of good cause which is included as part of the motion under subdivision (b)(3). Subsection (a) says service of the Pitchess motion shall be given as prescribed in Code of Civil Procedure section 1005, subdivision (b). Code of Civil Procedure section 1005, subdivision(b) says [u]nless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. (Emphasis added.) Therefore Petitioner cannot say he is not required to provide a copy of the affidavit of good cause to opposing counsel. When Petitioner asks that the moving affidavits be redacted such that only part of the affidavits are disclosed to opposing party and counsel, Petitioner wants to preclude the custodian of records and counsel from seeing all of the affidavit and 13

thereby prevent the custodian from being able to participate in a meaningful hearing. There can not be a meaningful hearing if one of the parties is precluded from having all of the available facts. If the Davenport procedure of a protective order is utilized, thereby enabling the custodian s counsel to have all the facts then there can be a meaningful hearing. Unless oral arguments are meaningful the reason for the hearing is hollow. Evidence Code section 1043, subdivision (b)(3) requires an affidavit showing good cause. There are many cases discussing what is good cause and when good cause has been shown. None of those cases would exist if a criminal defendant were able to file that affidavit as the Petitioner proposes to do here, under seal and never allow the custodian of records to see it. Each case which discusses good cause --Santa Cruz, supra, California Highway Patrol v. Superior Court (Luna) (2000) 84 Cal.App.4th 1010; City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135 and many others all exist because the parties were able to review and discuss, in a meaningful way, the claims, factual information and beliefs of the other party. Accordingly, we determine that in proceedings held pursuant to Evidence Code section 1043, the question whether the defendant has shown good cause should be, whenever possible, tested by adversarial proceedings. (Davenport, supra, 96 Cal.App.4th at p. 263) 14

V. CONCLUSION The California League of Cities as amicus curiae on behalf of the City of Anaheim respectfully request that the judgment of the Court of Appeal to deny the Petition for Writ of Mandate and affirm the trial court s decision. DATED: January 23, 2006 ROCKARD J. DELGADILLO, City Attorney CLAUDIA MCGEE HENRY, Sr. Assistant City Attorney KIM RODGERS WESTHOFF, Deputy City Attorney By KIM RODGERS WESTHOFF Deputy City Attorney for the City of Los Angeles Attorneys for Amicus Curiae The League of California Cities 15

CERTIFICATION OF COMPLIANCE I certify that pursuant to California Rules of Court, Rule 14(c), this Amicus Curiae Brief In Support of Real Party In Interest, The City of Anaheim was produced on a computer in 14-point type. The word count, including footnotes, as calculated by the word processing program is 3218. DATED: January 23, 2006 ROCKARD J. DELGADILLO, City Attorney CLAUDIA MCGEE HENRY, Sr. Assistant City Attorney KIM RODGERS WESTHOFF, Deputy City Attorney By KIM RODGERS WESTHOFF Deputy City Attorney Attorneys for Amicus Curiae the League of California Cities 16

TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii I. INTRODUCTION... 1 II. III. THE CUSTODIAN OF THE RECORDS, NOT THE PEACE OFFICER WHO IS THE SUBJECT OF THE PITCHESS MOTION, IS THE CLIENT OF COUNSEL OPPOSING THE PITCHESS MOTION... 4 THE PROTECTIVE ORDER PROCEDURE OF DAVENPORT IS APPROPRIATE WHEN A PITCHESS MOTION IS VIEWED AS A THIRD PARTY MOTION BROUGHT AGAINST A THIRD PARTY... 7 IV. EVIDENCE CODE SECTION 1043 REQUIRES A MEANINGFUL HEARING AND ORAL ARGUMENT ON A PITCHESS MOTION 11 V. CONCLUSION... 14 CERTIFICATE OF COMPLIANCE... 16 i

TABLE OF AUTHORITIES Page California Cases Alford v. Superior Court 29 Cal.4th 1033 (2003)... 3, 5, 7 Brannon v. Superior Court 114 Cal.App.4th 1203 (2004)... 12 California Highway Patrol v. Superior Court (Luna) 84 Cal.App.4th 1010 (2000)... 14 City of Los Angeles v. Superior Court (Davenport) 96 Cal.App.4th 255 (2002)... 2, 14 City of San Jose v. Superior Court 67 Cal.App.4th 1135 (1998)... 14 City of Santa Cruz v. Municipal Court 49 Cal.3d 74 (1989)... 1 Davis v. City of Sacramento 24 Cal.App.4th 393 (1994)... 4 Garden Grove Police Department v. Superior Court 89 Cal.App.4th 430 (2001)... 1 People v. Memro 38 Cal.3d 658, 685 (1985)... 11 People v. Superior Court (Barrett) 80 Cal.App.4th 1305, 1315 (2000)... 5, 10 Pitchess v. Superior Court 11 Cal.3d 531 (1974)... 1, 4 San Francisco Police Officers Association v. Superior Court 202 Cal.App.3d 183, 189 (1988)... 4 ii

Statutes Code of Civil Procedure 437c(a)... 12 437c(b)... 12 1005(b)... 13 Evidence Code 1043... 1, 3, 8, 11, 13 1043, subd.(a)... 1 1043, subd.(b)... 2 1043, subd. b)(1)... 11 1043, subd.(b)(3)... 12, 13, 14 1043, subd.(c)... 12 1045... 1 1045, subd.(b)... 9 1045, subd.(c)... 9 1045, subd.(d)... 3, 9 1045, subd.(e)... 9 Penal Code 832.7... 1 832.8... 1 iii

PROOF OF SERVICE Business Practice to Entrust Deposit to Others) (CCP SECTION 1013a(3)) (Via Various Methods) I, Tracie D. Ngo, the undersigned, say: I am over the age of 18 years and not a party to the within action or proceeding. My business address is 900 City Hall East, 200 North Main Street, Los Angeles, California 90012. On January 23, 2006, I served the foregoing document(s) described as AMICUS CURIAE BRIEF IN SUPPORT OF REAL PARTY IN INTEREST, THE CITY OF SANTA ANA on all interested parties in this action by placing copies thereof enclosed in a sealed envelope addressed as follows: PLEASE SEE ATTACHED SERVICE LIST [X ] BY MAIL - I deposited such envelope in the mail at Los Angeles, California, with first class postage thereon fully prepaid. I am readily familiar with the business practice for collection and processing of correspondence for mailing. Under that practice, it is deposited with the United States Postal Service on that same day, at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than (1) day after the date of deposit for mailing in affidavit; and/or [ ] BY PERSONAL SERVICE - ( ) I delivered by hand, or ( ) I caused to be delivered via messenger service, such envelope to the offices of the addressee with delivery time prior to 5:00 p.m. on the date specified above. [ ] BY FACSIMILE TRANSMISSION - I caused such document to be transmitted to the offices of the addressee via facsimile machine, prior to 5:00 p.m. on the date specified above, at the respective telephone numbers indicated. [ ] BY OVERNIGHT COURIER - I deposited such envelope in a regularly maintained overnight courier parcel receptacle prior to the time listed thereon for pick-up. Hand delivery was guaranteed by the next business day. [ ] FEDERAL - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury that the foregoing is true and correct. Executed on January 23, 2006, at Los Angeles, California. iv

v TRACIE D. NGO, Secretary

SERVICE LIST LERCY WILLIAMS v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE 4th Court of Appeal Case No. :G032739 Orange County Superior Court Case No.: 04NF2856 January 23, 2006 AMICUS CURIAE BRIEF IN SUPPORT OF REAL PARTY IN INTEREST, THE CITY OF SANTA ANA Attorney General Donald E. Landis, Jr. State of California Senior Public Defender,Orange County P.O. Box 85266 14 Civic Plaza San Diego, CA 92186-5266 Santa Ana, CA 92701 Orange County Superior Court Moses W. Johnson, IV Attn: Honorable Richard M.. King Jack L. White, City Attorney Department C-42 200 South Anaheim Blvd., Suite 356 700 Civic Center Drive West Anahein, CA 92805 Santa Ana, CA 92701 Tony Rackauckas District Attorney Writs & Appeal 401 Civic Center Drive Santa Ana, CA 92701 vi