Friday, July 23, 2010
S.C. Clarifies Application of Pitchess to Preliminary Hearings
By KENNETH OFGANG, Staff Writer
A criminal defendant may seek to discover relevant evidence in a police officer’s personnel file prior to a preliminary hearing, but the magistrate need not invariably delay the hearing for that purpose, the California Supreme Court ruled yesterday.
In an opinion by Justice Joyce L. Kennard, the high court said, contrary to lower court rulings, that a defendant may bring a Pitchess motion prior to a preliminary hearing. But the court affirmed the Court of Appeal’s denial of Moises Galindo’s petition for writ of mandate, finding it “highly unlikely” that discovery of past misconduct by the officers who arrested Galindo would defeat a showing of probable cause.
Galindo is charged with resisting an officer by threats or violence and making criminal threats. The arrest report says 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 a 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.
In a declaration accompanying his Pitchess motion, Galindo 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.
Div. Eight of this district’s Court of Appeal 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.”
Presiding Justice Laurence 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.
Kennard, writing yesterday for the high court, agreed that the law anticipates speedy preliminary hearings and abhors unnecessary delays. But that does not necessarily preclude Pitchess motions, she said.
“The Pitchess discovery statutes...do not restrict the use of evidence obtained through such discovery to any particular proceeding,” Kennard wrote. “As there is no legislative prohibition against the filing of a Pitchess discovery motion before a preliminary hearing is held, we conclude that such a filing is permissible.”
But given the facts of Galindo’s case, the justice wrote, the magistrate acted within his discretion in concluding that the potential for discovery of evidence favorable to the defense did not justify delaying the preliminary hearing.
Kennard added the following, however:
“Although we agree with the District Attorney, and with the Court of Appeal, that the magistrate did not err in denying the Pitchess motion, we do not agree with the District Attorney that the amendment of Penal Code section 866 by Proposition 115 has impliedly repealed what was, until its passage, an informal practice of granting Pitchess discovery motions before the holding of a preliminary hearing and permitting the fruits of such discovery to be used at the preliminary hearing. Although one statute may impliedly repeal another statute if the two statutes are entirely irreconcilable and incapable of operating concurrently...no statute has ever authorized Pitchess discovery for use at a preliminary hearing, and thus the rules concerning implied repeals are not helpful in this context.”
Chief Justice Ronald M. George and Justices Marvin Baxter, Ming Chin, Carlos Moreno and Carol Corrigan joined in the opinion.
Justice Kathryn M. Werdegar concurred separately.
“Because the Pitchess process facilitates the gathering of evidence that potentially could impeach the credibility of such officers, it follows logically that Pitchess discovery material may be relevant and thus admissible at the preliminary hearing,” Werdegar wrote. “In a given case, denying a defendant a fair opportunity to impeach the witnesses against him could....produce a hearing so fundamentally unfair that the error implicates his due process right to a fair hearing.”
She agreed, however, that no reversible error occurred in Galindo’s case because the magistrate properly balanced the public interest in a speedy preliminary hearing against the potential prejudice to the defendant and did not abuse the traditional discretion given judicial officers in ruling on requests to continue.
The case was argued in the high court 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), 10 S.O.S. 4187.
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