Metropolitan News-Enterprise


Thursday, January 13, 2011


Page 1


Court of Appeal Says Judge May Compel Homeowner To Grant Access to Criminal Defense Counsel


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeals yesterday ruled that a Riverside county homeowner could be ordered to grant a criminal defense attorney access to his residence, which was the site of a client’s alleged crime prior to the owner’s purchase of the property.

In an unpublished opinion by Justice Betty Ann Richli, Div. Two concluded the defendant was entitled to some avenue by which he could obtain the specific evidence sought and that Riverside Superior Court Judge Richard Todd Fields’ order compelling Joseph Welch—an attorney now working in Irvine—to allow inspection of the interior of his home was justified.

The panel, however, granted Welch’s petition for mandate and remanded the matter for the trial court to consider whether a less intrusive means was available to allow the defense to obtain the information it said it wished to discover from Welch’s home.

In January 2009, law enforcement officers forcibly entered the residence then occupied by Joe Armenta, who allegedly shot at them after they entered the house. He was later charged with four counts of attempted murder, as well as several lesser related offenses.

During pretrial discovery, Armenta’s attorney filed an application for an order granting access to the crime scene. Defense counsel contended that entry into the premises, which Welch had purchased in November 2009, was necessary in order to “assess the interior and exterior sight lines, the distances between any two or more relevant points inside and out, and to get a three dimensional appreciation of the crime scene generally.” In a three-page declaration submitted under seal, defense counsel described his need for specific information in regard to Armenta’s planned defense.

After receiving notice of the application, Welch objected to the requested order as an invasion of his personal privacy, but Fields found an “appropriate level of necessity” for the access requested by the defense had been shown.

Fields issued a written order directing that only Armenta’s counsel and an investigator could enter the home and remain for a period of 40 minutes. The judge limited the areas for inspection to the outside perimeter of the home, the laundry area, and the area leading into and out of the master bedroom. Fields also prohibited the defense representatives from opening drawers or closes, or distributing any of the photographs taken outside of trial.

Richli agreed with the trial court’s determination that the defense showing was sufficiently detailed and specific to show at the very least “plausible justification” for the access requested, and she was “satisfied that the proffered scenario that Armenta hopes to buttress by his inspection of the residence is both plausible and highly relevant.”

The jurist acknowledged that the requested access “seriously impacts Welch’s personal right of privacy,” but emphasized that “the right of privacy is not absolute and must be measured against a defendant’s constitutional rights.”

She explained that the Fourth Amendment does not prohibit the government from issuing warrants to search a private residence for evidence if the owner is not suspected of criminal involvement, and reasoned, “what is sauce for the goose must be sauce for the gander—that is, if a discovery or information-gathering option is available to the People, similar options must be available to the defendant.”

Richli further noted that statutory law does not provide a criminal defendant with an explicit right of pretrial access for investigative purposes, but it does provide an option to demand such access during trial. In Armenta’s case, the justice said, “we can comfortably state that if pretrial access were not granted and, if the testimony at trial goes as Armenta suggests it will, Armenta could well have a very strong case in asking the trial court to permit a jury view of Welch’s home.”

As a trial court has discretion to deny a request for a jury viewing if other evidence can be substituted, Richli posited such a consideration should also apply in a pretrial setting, and that remand was appropriate to give the trial court an opportunity to consider the adequacy of alternatives that will not require personal access into Welch’s home.

Justice Thomas E. Hollenhorst joined Richli, but Justice Jeffrey King dissented. He agreed that Armenta’s due process rights outweighed Welch’s claim of privacy, but contended no less intrusive alternatives to allowing access to Welch’s home existed and so the writ petition should have been denied.

The case is Welch v. Superior Court (Armenta), E050535.


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