Metropolitan News-Enterprise


Friday, April 29, 2022


Page 1


San Diego Superior Court Appellate Division:

City Attorney Must Provide Discovery in Infraction Case

Panel Says Case Properly Dismissed Based on Brady Violation


By a MetNews Staff Writer


A city attorney’s office is obliged to respond to discovery requests in infraction cases, the Appellate Division of the San Diego Superior Court has held, rejecting a contention that a failure to provide records was excusable because such obligations had been delegated by the city to local law enforcement agencies.

A refusal of the San Diego City Attorney’s Office to involve itself in the discovery process, the court held, was an error of federal constitutional dimensions, justifying a dismissal of the case.

The opinion was filed April 13. Div. One of the Fourth District Court of Appeal on April 20 determined that transfer of the cause to itself was unnecessary, and the opinion was publicly posted on Wednesday.

It was a San Diego police officer who cited Matthew Sterling Houser for violating a city ordinance by camping overnight in Balboa Park and, under the system that’s been set up, it was up to the San Diego Police Department to respond to discovery requests made by Houser’s lawyer, Coleen Cusack.

Discovery Duty Denied

Cusack was sent a letter on Sept. 23, 2019, saying:

“The San Diego City Attorney’s Office does not appear on nor participate in any infraction cases tried in Kearny Mesa Traffic Court. This citation was directly filed with Kearny Mesa Traffic Court, and we are not in receipt of any discovery on this matter.

“Any discovery that you are seeking must be obtained from the law enforcement agency that issued the citation. On the reverse of this letter is a list of the contact information for the law enforcement agencies that regularly submit cases to Kearny Mesa Traffic Court.”

Cusack pressed for information, including body camera footage. The San Diego Superior Court on Nov. 8, 2019, issued an “Order of the Court” commanding City Attorney Mara Elliott (as well as the police chief) to provide a copy of the video. It was not furnished.

The defense lawyer filed a “Motion to Compel Discovery and for Monetary Sanctions.” Opposition was filed in which it was contended “that “the San Diego City Attorney’s Office is not the proper recipient for any discovery request or order” because “there is no prosecuting attorney for purposes of discovery under Penal Code section 1054.”

That section provides in subd. (e) that “no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.”

Further Order

On Feb. 5, 2020, then-Commissioner (now Judge) Nadia J. Keilani ordered the police department to produce five items including the body cam recording. There was only partial compliance; the footage was not supplied.

After a further hearing, Commissioner Peter L. Fagan on Aug. 4, 2021, dismissed the action against Houser as a sanction. It was that order that the Appellate Division affirmed, in a per curiam opinion.

The judges noted that Penal Code §1054.5(c) provides that “[t]he court shall not dismiss a charge” based on refusing to provide discovery “unless required to do so by the Constitution of the United States.” They held that discovery was mandated by the federal Constitution.

They pointed to the U.S. Supreme Court’s 1963 decision in Brady v. Maryland which proclaims that, under the Due Process Clause of the Fourteenth Amendment, state prosecutors must turn over to the defendant any evidence which “would tend to exculpate him or reduce the penalty.”

Panel’s Opinion

A three-judge panel explained:

Brady places on a prosecutor an affirmative, constitutional obligation to seek, review and turn over exculpatory evidence (including merely impeaching material), even without a defense request….

“For Brady purposes, the City Attorney is the prosecutor, a duty that it cannot delegate….

“We find substantial evidence supports an inference that the City Attorney made no efforts to learn and disclose Brady-required materials. Accordingly, Mr. Houser’s federal Constitutional rights under Brady were violated in this case….The trial court appropriately dismissed this action as a sanction….”

The case People v. Houser, 211A900016C.


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