Metropolitan News-Enterprise


Wednesday, December 26, 2001


Page 1


S.C. Clarifies Scope of Production Required by Pitchess


By a MetNews Staff Writer


A police department need not produce a police officer’s entire personnel file for in camera review in response to a discovery motion, but must be prepared to describe what documents were omitted and why, the state Supreme Court unanimously ruled yesterday.

Concluding that a Fourth District Court of Appeal panel went too far in its interpretation of the discovery obligations imposed by Pitchess v. Superior Court (1974) 11 Cal.3d 531, the justices reinstated Bau A. Mooc’s Orange Superior Court conviction for battery on a police officer.

Mooc, who was being detained at the Santa Ana jail because of immigration problems, was charged after hitting the officer, Frank Garcia. Mooc contended that Garcia started the fight, and sought to discover the officer’s personnel records under Pitchess.

Under Pitchess and statutes that codify it, trial judges can order that officials produce personnel records in camera. The judge will then review the files and determine whether there is anything relevant to the case that must be disclosed to the moving party’s attorneys.

Under longstanding practice, city and police custodians of records gather the files they determine to be potentially relevant and, under oath, are questioned in chambers by the judge.

In Mooc’s case, Orange Superior Court Judge Frank F. Fasel, heard the motion and agreed to review what the assistant city attorney said was Garcia’s personnel file. On appeal, Mooc asked the appeals court to look at the file to determine whether Fasel had abused his discretion.

The Div. Three panel, complaining of “a mountain of bureaucratic disobedience,” ordered that the city produce the entire file for its review. After doing so, it determined that because there might be relevant documents in the file that the trial judge never saw, the defendant was entitled to a reversal and an in camera review by the trial judge of the entire file.

What ensued, Justice Kathryn M. Werdegar wrote yesterday, was “no small amount of excitement” as prosecutors, defense lawyers, cities, and law enforcement groups submitted letters urging review and/or filed amicus briefs after it was granted.

There was, Werdegar said, a “fundamental procedural flaw” in the trial court proceedings—the failure of the court to make a record of what files, records or documents were turned over by the city.

That error was exacerbated, the justice said, when the court—after reviewing the records submitted and finding that none were discoverable—allowed the documents to be returned without creating a confidential record of them, based on the assistant city attorney’s promise to maintain them and the defense attorney’s acquiescence.

The proper procedure, Werdegar concluded, is for the city to produce all “potentially relevant” documents for the judge’s review. This means that clearly irrelevant documents such as employment applications, health records, and letters of recommendation need not be produced, the justice explained, but any doubt must be resolved in favor of production.

“Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records,” Werdegar explained. In order to ensure that relevant documents have not been withheld, the justice added, the custodian of records must be prepared to tell the judge, under oath, what types of documents were not produced.

The trial judge, Werdegar went on to say, must prepare a complete, sealed record of what he or she reviewed, either by attaching copies of the documents or by describing them on the record.

The justice also had words of caution for appellate courts. If the trial court fails to make a complete and proper record, she said, the remedy is for the reviewing tribunal to order the record augmented by the trial court—not to order production, as the Div. Three panel did—of a complete file containing documents the trial judge never saw.

Werdegar concluded there was no need to send Mooc’s case back to the trial court, however. Since the high court’s own review of Garcia’s entire file had revealed no documents relevant to Mooc’s defense, she said, the conviction should be affirmed.

 The case is People v. Mooc, S090666.


Copyright 2001, Metropolitan News Company