Metropolitan News-Enterprise


Monday, September 22, 2003


Page 1


Pitchess Applies to Records of Ex-Officer, Appeals Court Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


The procedures set forth in the Evidence Code for obtaining discovery of police personnel records still apply when the incident leading to the request occurred after the officer left law enforcement, the Fourth District Court of Appeal has ruled.

Div. One ruled Thursday that David Randy Abatti was entitled to an in camera hearing on his  motion for disclosure of “counseling memos” in the files of former Calexico Officer Jesse Torres.

The court granted Abatti’s petition for writ of mandate and set aside Imperial Superior Court Judge Juan Ulloa’s order denying the motion, brought under Brady v. Maryland (1963) 373 U.S. 83, Pitchess v. Superior Court (1974) 11 Cal.3d 531, and the Evidence Code sections codifying Pitchess.

Abatti is charged with felonious assault, leaving the scene of an accident, and with drawing or exhibiting a firearm, all based on an incident in October 2002 in which Abatti allegedly struck the victim’s vehicle on purpose and ran him off a dirt road outside El Centro.

Pitchess Motion

Earlier this year, Abatti’s attorney filed a Pitchess motion seeking various records concerning Torres from the Calexico Police Department. In a declaration, the attorney said that Torres had been listed as a witness and that records of his former employment were relevant with regard to the veracity of certain statements Torres had made incriminating Abatti.

Torres, according to the declaration, had told authorities that Abatti came into the business where Torres was working about two months after the accident and admitted having been present at the scene. A defense investigator had spoken to Torres, the attorney added, and Torres had told him that he left the police department due to a disability.

The defense argued that disclosure of Torres’ personnel records would lead to relevant and potentially exculpatory evidence by showing that Torres had a tendency to prevaricate. Counsel claimed that officers had told him, on condition of anonymity, that Torres had a tendency to exaggerate and fabricate with record to his police work and had been asked to leave the department in lieu of discipline.

The city responded that since Torres had not worked for Calexico in 12 years, the five-year limitation on discovery set forth in Evidence Code Sec. 1045(b) applied. The city also argued that the defense failed to show good cause and materiality, and that some of the material constituted psychological records for which no compelling need had been shown.

Higher Threshold

The defense in turn cited City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, which held that personnel records more than five years old are discoverable as a matter of constitutional law, but only if the defense meets the higher threshold set by Brady of showing that the information is so material it could mean things come out differently at trial.

In denying disclosure, Ulloa reasoned that good cause had not been shown. He also held that the motion was defective because Torres had not been served, and that the five-year limitation applied because the Brady threshold had not been met.

The judge also expressed concern as to whether Pitchess applied to an ex-officer.

But Justice Richard Huffman, writing for the Court of Appeal, said counsel’s declarations showed good cause and materiality on their face, and that the judge should not have turned down the “hybrid” Brady/Pitchess motion without examining the records in camera.

Standard Met

The declarations, Huffman said, met the Pitchess threshold because they “established a ‘plausible factual foundation’ for allegations Torres was untruthful in his report of the encounter with Abatti to the police or prosecution, put the court on notice Torres’s credibility would likely be an issue at trial, and articulated a valid theory of how the requested information might be admissible, i.e., as impeachment evidence.”

The justice further concluded that the records might constitute Brady material because a jury might acquit Abatti if it disbelieves Torres’ testimony. The fact that Torres is no longer a police officer has no bearing, the court concluded.

Huffman agreed with the trial judge that Torres was entitled to notice, but said that could be remedied by ordering the city to give him notice.

The case is Abatti v. Superior Court (People), 03 S.O.S. 5077.


Copyright 2003, Metropolitan News Company