Metropolitan News-Enterprise


Thursday, January 8, 2009


Page 3


Pitchess Inapplicable to Preliminary Hearings, Court of Appeal Rules




The right of a criminal defendant to discover relevant evidence in a police officer’s personnel file does not apply where the evidence is sought for use in a  preliminary hearing, the Court of Appeal for this district ruled yesterday. 

Div. Eight 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.

Galindo ran into a nearby apartment, and the officers called for their sergeant, but residents began taunting them and taking flash photos. When the sergeant came to the scene and the residents refused to disperse, several of them—including Galindo’s brother—were arrested.

Police, according to the arrest report, obtained permission from the occupant of the apartment into which Galindo had fled to enter the apartment, 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 motion for discovery of the personnel files of the arresting officers, commonly referred to as 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 that Pitchess discovery is subject to the Criminal Discovery Act, which does not permit discovery for purposes of a preliminary hearing.

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

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

The justice concluded that while Evidence Code Secs. 1043 to 1045, codifying the rule of Pitchess v. Superior Court (1974) 11 Cal.3d 531, does not deal with the issue expressly, “we conclude the sounder approach is to find no such right [to discovery for purposes of a preliminary hearing] exists.”

Rubin explained that allowing such discovery would be inconsistent with the policy favoring quick preliminary hearings and the express statutory limitations on the scope of a preliminary hearing.

The justice acknowledged that in Saulter v. Municipal Court (1977) 75 Cal.App.3d 231, which was decided after the Pitchess ruling but before it was codified by the Legislature, 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.

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.

The case was argued on appeal by Deputy Public Defender Mark Harvis for Galindo, Deputy District Attorney Gilbert Wright for the prosecution, and Deputy City Attorney Kjehl T. Johansen for the LAPD.

The case is Galindo v. Superior Court (City of Los Angeles Police Department), B208923.


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