Metropolitan News-Enterprise


Thursday, March 26, 2009


Page 3


S.C. to Decide if Pitchess Applies to Preliminary Hearing




The California Supreme Court yesterday agreed to decide whether the limited right of a criminal defendant to discover relevant evidence in a police officer’s personnel file applies where the evidence is sought for use in a  preliminary hearing.

The justices, at their weekly conference in San Francisco, voted 6-1 to review the Jan. 7 decision of this district’s Court of Appeal, Div. Eight, in Galindo v. Superior Court (City of Los Angeles Police Department), 169 Cal.App.4th 1332. Only Justice Marvin Baxter voted not to hear the case.

The Court of Appeal concluded that because of the limited purpose of a preliminary hearing, a defendant does not have the right to discovery set forth in Pitchess v. Superior Court (1974) 11 Cal.3d 531 and Evidence Code Secs. 1043 to 1045.

The panel denied a writ of mandate sought by Moses Galindo, who is charged with resisting an officer by threats or violence and making criminal threats. An arrest report asserts that officers saw Galindo drinking beer in public; that he walked away at the sight of the police, holding his waistband as if to conceal a gun; and that he ran away when officers called for him to stop.

Police, according to the arrest report, obtained permission to enter the apartment into which Galindo had fled, then placed Galindo under arrest. While being escorted to the patrol car, Galindo alleged told them he was “from Hazard” and would have them killed.

Big Hazard, or Hazard Grande, is the name of a gang known for activity in the  Boyle Heights area of Los Angeles, particularly around the Ramona Gardens housing project. It was the subject of an anti-gang injunction obtained by the city attorney in 2005.

Prior to a preliminary hearing, the defense filed a Pitchess motion.  In a declaration, the defendant said he was not drinking and did not have a beer can in his hand when the officers spotted him; that the officers did not interact with him before he went into the apartment, which was his parents’ residence; that the police entered the apartment without consent, and that one of the officers assaulted him in the patrol car on the way to the police station.

The motion asserted that the defense needed evidence of any accusations of aggressive behavior, excessive force, fabrication of charges, or the like in order to cross-examine the officers at the preliminary hearing. The magistrate denied the motion, and Los Angeles Superior Court Judge Steven Van Sicklen denied the ensuing writ petition, finding the Criminal Discovery Act, which does not permit discovery for purposes of a preliminary hearing, applicable.

The Court of Appeal initially denied the defendant’s mandate petition summarily, but was ordered by the Supreme Court to consider the merits.

Acting Presiding Justice Laurence Rubin, writing for the panel, said the lower court judges were correct.

He acknowledged that in Saulter v. Municipal Court (1977) 75 Cal.App.3d 231, the Court of Appeal held that the defendant made a sufficient showing of relevance to obtain discovery of an officer’s personnel records for use at a preliminary hearing.

But the current validity of Saulter is questionable, Rubin said, because it preceded the adoption not only of the Evidence Code sections setting out the Pitchess procedure, but of Proposition 115, which eliminated the previous practice of allowing defense counsel to use the preliminary hearing as a vehicle for discovery.

In other conference action, the justices:

•Agreed to decide whether an injured worker who is unable to participate in rehabilitation for a non-medical reason, such as inability to understand English, qualifies as permanently totally disabled. The Sixth District, in Hertz Corporation v. Workers’ Compensation Appeals Board (2008) 169 Cal.App.4th 232, said an employer is not liable for that portion of an employee’s permanent disability that is caused by such “pre-existing nonindustrial factors.”

•Ordered the reinstatement of former Riverside attorney Timothy Paul Miller, who resigned with charges pending in 2001, as a member of the State Bar. According to news accounts, Miller agreed to resign and was placed on probation as part of a plea deal in which he agreed not to contest a charge of insurance fraud.

The charge grew out of an investigation of a now-defunct Northern California construction firm represented by Miller, whose officers allegedly formed numerous shell corporations in order to defraud insurance carriers out of worker’s compensation insurance premiums.


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