Supreme Court of California Justia
Citation 50 Cal. 4th 1, 235 P.3d 1, 112 Cal. Rptr. 3d 673

Galindo v. Super. Ct.

Filed 7/22/10

IN THE SUPREME COURT OF CALIFORNIA

MOISES GALINDO,
Petitioner,
S170550
v.
Ct.App. 2/8 B208923
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Los Angeles County
Super. Ct. No. BA337159
Respondent;
CITY OF LOS ANGELES POLICE
DEPARTMENT et al.,
Real Parties in Interest.

Charged by felony complaint with threatening and resisting an arresting
officer in the performance of his duties (Pen. Code, §§ 422, 69), petitioner Moises
Galindo brought a Pitchess motion (see Pitchess v. Superior Court (1974) 11
Cal.3d 531; Evid. Code, §§ 1043-1045) for disclosure of prior citizen complaints
made against the arresting officer and four other officers involved in the incident.
Pitchess motions are so named after this court‟s 1974 decision in Pitchess
v. Superior Court, supra, 11 Cal.3d 531, which afforded criminal defendants a
judicially created right to discovery of prior citizen complaints alleging
misconduct by California peace officers. In 1978, the Legislature codified the
right and set forth which officer records are subject to Pitchess discovery. (Pen.

1


Code, §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.) As relevant here, these
statutes permit a criminal defendant to “ „compel discovery‟ of certain relevant
information in the personnel files of police officers by making „general allegations
which establish some cause for discovery‟ of that information and by showing
how it would support a defense to the charge against him.” (Warrick v. Superior
Court (2005) 35 Cal.4th 1011, 1018-1019.) When the trial court, in exercising its
discretion, grants a defendant‟s Pitchess motion, it orders disclosure of the names,
addresses, and telephone numbers of individuals who have in the past witnessed
alleged officer misconduct or who have complained of misconduct by the officer
named in the motion. (Warrick, at p. 1019; see, e.g., People v. Prince (2007) 40
Cal.4th 1179, 1283.)
When petitioner here moved for Pitchess discovery, no preliminary hearing
had yet been held to determine whether there was probable cause to conclude that
he had committed the charged offenses. The magistrate denied the motion by an
order that did not preclude petitioner from renewing the motion after the
preliminary hearing. The magistrate gave two reasons for the denial: Pitchess
discovery was as a matter of course not available for use at the preliminary
hearing; and petitioner had not shown that Pitchess discovery would yield
“something that would change the outcome” of the hearing. Petitioner
unsuccessfully sought a writ of mandate first in the superior court, then in the
Court of Appeal. We granted petitioner‟s petition for review.
Although no statute prohibits a criminal defendant from filing a Pitchess
motion before a preliminary hearing is held, neither does any statute expressly
grant a right to obtain Pitchess discovery for use at the preliminary hearing.
Accordingly, we hold that although a defendant may file a Pitchess motion before
a preliminary hearing, the pendency of that motion will not necessarily or
invariably constitute good cause for postponing the preliminary hearing over the
2
prosecution‟s objection. The purpose of the preliminary hearing is merely “to
establish whether there exists probable cause to believe that the defendant has
committed a felony” (Pen. Code, § 866, subd. (b)), and “[b]oth the defendant and
the people have the right to a preliminary examination at the earliest possible
time” (id., § 859b, 2d par.).
Here, petitioner sought Pitchess discovery to obtain evidence for use at the
preliminary hearing, and his attorney told the trial court that petitioner would be
requesting a continuance of that hearing if the Pitchess discovery revealed
potential defense witnesses. Under these circumstances, as we explain below, the
magistrate‟s denial of the motion was not erroneous. When this case returns to the
trial court, petitioner may, however, renew his Pitchess motion for the purpose of
obtaining evidence relevant to issues at trial.
I
The police report contains these facts: On the evening of February 29,
2008, Los Angeles Police Department Officers “S. Flores” and “J. Smith” were
patrolling on foot when they saw petitioner Moises Galindo drinking alcohol in a
public place, a municipal code violation. At their approach, petitioner fled into an
apartment. Soon a crowd of petitioner‟s angry relatives and neighbors gathered
outside the apartment. After three more officers arrived, the officers obtained
permission from petitioner‟s father to enter the apartment, where they arrested
petitioner. Also arrested was petitioner‟s brother, whose presence in the apartment
complex was prohibited by a gang injunction.
As the two brothers were being taken to a police car, they made death
threats against the officers escorting them. The brothers were placed in the
backseat of the patrol car for transport to the police station. Petitioner sat between
his brother and Officer Flores. During the trip, both brothers “became extremely
belliger[e]nt,” and petitioner told Officer Flores, “I am going to . . . kill you and
3
your family.” Then petitioner, who was apparently handcuffed, struck his head
against Officer Flores‟s head.
The complaint charged petitioner with resisting a police officer in the
performance of his duties. (Pen. Code, § 69.) But on March 14, 2008, an
amended felony complaint added a charge of making threats to kill or cause great
bodily injury to Officer Flores (id., § 422), a serious felony (id., § 1192.7, subd.
(c)), and alleged that the offense was committed to benefit a criminal street gang
(id., § 186.22, subd. (b)(1)(B)).
Petitioner was arraigned on March 26, 2008, and a preliminary hearing was
set for April 18, but on that date defendant waived time. On or after April 24,
before a preliminary hearing was held, petitioner filed a motion seeking Pitchess
discovery as to the five officers who had been present at his arrest.
Petitioner‟s Pitchess motion sought disclosure by the Los Angeles Police
Department of the names and contact information of “all persons” who had
witnessed or complained of prior incidents involving excessive force, violence,
false arrest, fabrication or dishonesty, and any departmental discipline imposed on
Officer Flores, Smith, or any of the other three officers. Defense counsel‟s
declaration in support of the motion denied that petitioner had threatened Officer
Flores and accused the officer of assaulting petitioner both inside and outside the
patrol car on the way to the police station.
On May 16, 2008, the magistrate held a hearing on petitioner‟s Pitchess
motion. At the hearing, petitioner‟s attorney told the magistrate that if Pitchess
discovery revealed potential witnesses, petitioner would seek postponement of the
preliminary hearing, which had been set for June 2. Without precluding petitioner
from renewing the motion at a later time, the magistrate denied the Pitchess
motion, giving two reasons. First, the magistrate concluded that Pitchess
discovery was not normally available before a preliminary hearing, because the
4
discovery sought would be pertinent only to issues at trial, where the prosecution
had to prove petitioner‟s guilt of the charged offenses. Second, the magistrate
concluded that even if Pitchess discovery was permissible before the preliminary
hearing, petitioner had failed to establish that the discovery sought would affect
the crucial issue at the preliminary hearing of whether there was probable cause to
hold petitioner to answer on the charges against him. In the magistrate‟s words:
“If you make a Pitchess motion pre-prelim in addition to the ordinary Pitchess
showing, you have to show . . . a reasonable chance you are going to discover
something that will change the outcome of the [preliminary] hearing,” such as
evidence negating required elements of the offense, which would preclude finding
probable cause of petitioner‟s guilt. (See Pen. Code, § 866, subd. (a).)
The date for petitioner‟s preliminary hearing was postponed, apparently to
permit preparation of a petition for a writ of mandate challenging the magistrate‟s
ruling on petitioner‟s Pitchess motion. On June 17, 2008, petitioner filed a
mandate petition in the superior court, seeking an order directing the City of Los
Angeles (City) to disclose the Pitchess information requested. When the superior
court denied relief, petitioner sought a writ of mandate in the Court of Appeal.
That court stayed the preliminary hearing and asked both the District Attorney of
the County of Los Angeles (District Attorney) and the City to brief the issue of
whether a criminal defendant has a right to obtain Pitchess discovery before a
preliminary hearing is held. After consideration of the parties‟ briefs, the Court of
Appeal summarily denied relief and vacated the stay.
Petitioner then filed in this court a petition for review and a request to stay
the proceedings, arguing that without the fruits of Pitchess discovery he could not
receive effective assistance of counsel at the preliminary hearing, which he
described as a “critical stage” in a criminal proceeding. We stayed the preliminary
hearing, granted the petition for review, vacated the Court of Appeal‟s order
5
denying the petition for a writ of mandate, and transferred the matter to the Court
of Appeal, directing it to order the superior court to show cause why the requested
relief should not be granted. After briefing and oral argument, the Court of
Appeal issued its opinion rejecting “petitioner‟s contention that Pitchess discovery
is a precondition for effective assistance of counsel” at a preliminary hearing.
II
A defendant who is arrested and arraigned on a felony complaint is entitled
to a preliminary hearing. Both the defendant and the prosecution possess the right
to have the hearing occur “within 10 court days of the date the defendant is
arraigned or pleads, whichever occurs later.” (Pen. Code, § 859b, 2d par.)
The purpose of the preliminary hearing is to determine whether there is
probable cause to conclude that the defendant has committed the offense charged.
(People v. Wallace (2004) 33 Cal.4th 738, 749; Pen. Code, § 872.) Probable cause
exists if a person “ „ “ „of ordinary caution or prudence would be led to believe
and conscientiously entertain a strong suspicion‟ ” ‟ ” that the defendant
committed the crime. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 251; see
People v. Slaughter (1984) 35 Cal.3d 629, 636.)
Petitioner here argues that his right to the effective assistance of counsel as
guaranteed by the Sixth Amendment to the federal Constitution will be impaired if
he cannot obtain, for use at his preliminary hearing, Pitchess discovery of prior
citizen complaints against all five officers present at his arrest. He asserts that
because “all the witnesses are police officers,” Pitchess discovery is necessary to
enable his counsel to impeach the officers‟ credibility. Particularly, petitioner
seeks to undermine the credibility of Officer Flores, who prepared the police
report and whom petitioner allegedly assaulted and threatened with death.
We agree with petitioner that the right to effective assistance of counsel, as
guaranteed by the Sixth Amendment to the federal Constitution, applies not only
6
to trial but also to the preliminary hearing, which the high court has described as a
“critical phase” in a criminal proceeding (Coleman v. Alabama (1970) 399 U.S. 1,
9-10; see People v. Cudjo (1993) 6 Cal.4th 585, 615). But we disagree that this
right is violated if defense counsel lacks Pitchess discovery for use at the
preliminary hearing. Our conclusion rests not only on the nature of the
preliminary hearing itself but also on the type of evidence obtained through
Pitchess motions, as we explain below.
At a preliminary hearing, the defendant may offer evidence that is
“reasonably likely to establish an affirmative defense, negate an element of a
crime charged, or impeach the testimony” of the arresting officers. (Pen. Code,
§ 866, subd. (a).) Petitioner here contends that “Pitchess witnesses could testify
that the arresting officers had used excessive force” against them and that the
officers “then lied about” doing so. Thus, petitioner argues, the testimony of
witnesses obtained through Pitchess discovery could support a claim by him of
self-defense or the defense of others to the charge against him of resisting an
officer (Pen. Code, § 69), or such testimony could negate an element of that crime.
The availability of such witnesses to testify at the preliminary hearing, petitioner
claims, would make it more likely that the magistrate would exercise discretion
(id., § 866, subd. (b)) to admit their testimony at the hearing. But the magistrate
could also refuse to admit the testimony of these witnesses if strong and credible
evidence of defendant‟s guilt exists apart from the testimony provided by the
arresting officers. (See Evid. Code, § 352; see also People v. Slaughter, supra, 35
Cal.3d at p. 637.) When there is such evidence, “the magistrate may reasonably
assume the possibility of [the defendant‟s] guilt” and find probable cause without
resolving “all conflicts in the evidence.” (Slaughter, at p. 637.)
In this case, various relatives and neighbors of petitioner were present at his
arrest and witnessed some, if not all, of the officers‟ conduct. Petitioner knew the
7
identity of these eyewitnesses to his arrest. Through Pitchess discovery, petitioner
sought to learn the identity of individuals who in the past had filed misconduct
complaints, alleging that these same officers used excessive force or were
untruthful. It is highly unlikely that the testimony of Pitchess witnesses at the
preliminary hearing would defeat a finding that there was probable cause to
believe that the defendant “committed a felony and should be held for trial.”
(Correa v. Superior Court (2002) 27 Cal.4th 444, 452; see Pen. Code, § 872, subd.
(a).) Given this low standard of proof governing preliminary hearings, we
conclude that here the denial of petitioner‟s Pitchess discovery motion, made
before the holding of a preliminary hearing, would not prevent defense counsel
from providing effective representation at the preliminary hearing.
III
The parties dispute the impact in this case of the voters‟ June 1990 passage
of Proposition 115, the Crime Victims Justice Reform Act, a broad anticrime
initiative measure that, as relevant here, (1) adopted a new scheme of reciprocal
discovery in criminal cases; (2) limited criminal discovery to that scheme or to
“other express statutory provisions” for discovery (Pen. Code, § 1054, subd. (e));
and (3) acknowledged the People‟s right in a criminal case to due process of law
and a speedy trial. Our focus is on the measure‟s second and third components in
determining, first, whether Pitchess motions may be made before a preliminary
hearing has been held, and second, whether the preliminary hearing must be
delayed until evidence obtained through Pitchess discovery can be used at the
preliminary hearing. The answer to the first question is “yes,” and the answer to
the second question is “no,” as explained below.
The City and the District Attorney argue that the use of Pitchess discovery
at a preliminary hearing would be inconsistent with both the intent underlying
Proposition 115 and the express statutory changes it made. Petitioner, on the other
8
hand, argues that Proposition 115 did not amend the Pitchess statutory discovery
scheme, thus leaving intact the preexisting practice of allowing Pitchess discovery
motions to be made before the holding of a preliminary hearing and allowing
testimony or evidence obtained through Pitchess discovery to be used at the
hearing. The arguments of both sides have some merit, as we explain below.
As relevant here, Proposition 115 amended the California Constitution
(Cal. Const., art. I, § 30, subd. (c)) and enacted a statutory scheme to provide in
criminal cases for reciprocal discovery between the prosecution and the defense
(see Izazaga v. Superior Court (1991) 54 Cal.3d 356, 364-365). We discuss first
the statutory and then the constitutional changes, and their effect on the issue in
this case.
Proposition 115 added chapter 10 to the Penal Code. That chapter begins
with section 1054, which defines the purpose of pretrial discovery, and limits it to
aiding the trial process. That statute‟s subdivision (e) states 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.”
(Pen. Code, § 1054, subd. (e), italics added.) Predating this new statutory
provision by 12 years are the Pitchess discovery statutes, which therefore are
within subdivision (e)‟s category of “other express statutory provisions” that
survived the voters‟ June 1990 passage of Proposition 115.
The Pitchess discovery statutes (Evid. Code, §§ 1043-1045; Pen. Code,
§§ 832.7-832.8) do not restrict the use of evidence obtained through such
discovery to any particular proceeding. 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.
That conclusion, however, does not mean that over the prosecution‟s
objection the defense is invariably entitled to have the preliminary hearing
9
postponed until the defense has, through Pitchess discovery, obtained evidence
and witnesses for presentation at the preliminary hearing. In this context, repeated
postponements of the preliminary hearing would, as discussed below, defeat a goal
of Proposition 115: to reduce delays in criminal cases.
Before the voters‟ June 1990 passage of Proposition 115, courts would
“routinely” and repeatedly grant continuances to accommodate a criminal
defendant‟s request for “pretrial discovery to prepare for a preliminary
examination.” (Pipes & Gagen, Cal. Criminal Discovery (4th ed. 2007)
Preliminary Examinations, § 2:12, pp. 329-330; see, e.g., Saulter v. Municipal
Court (1977) 75 Cal.App.3d 231, 247.)
In their ballot argument, the proponents of Proposition 115 stressed their
goal of reducing unnecessary delays in criminal proceedings. According to the
measure‟s proponents, criminal “defense lawyers love delays” because it is in their
client‟s interest when “[w]itnesses die or their memories fade,” but Proposition
115 would end the “useless delays that frustrate criminal justice in California.”
(Ballot Pamp., Primary Elec. (June 5, 1990) argument in favor of Prop. 115,
p. 34.) The voters‟ passage of Proposition 115 codified that goal in Penal Code
section 1054, which stresses avoidance of “undue delay” in criminal proceedings.
(Pen. Code, § 1054, subd. (d).) That goal would be frustrated if we were to uphold
the pre-Proposition 115 practice of routinely and repeatedly granting
postponements of a preliminary hearing to accommodate a defendant‟s efforts to
obtain Pitchess discovery for use at the preliminary hearing.
Support for that conclusion is also found in Proposition 115‟s amendment
of our state Constitution by adding a new section declaring that “[i]n a criminal
case, the people of the State of California have the right to due process of law and
to a speedy and public trial.” (Cal. Const., art. I, § 29.) By so amending our state
Constitution, the voters expressly acknowledged that not just the criminal
10
defendant but also the People, represented in a criminal case by the prosecutor, are
constitutionally entitled to due process and to a speedy trial. The People‟s
constitutional right to a speedy trial would be violated if, as petitioner urges us to
do, we were to uphold the pre-Proposition 115 practice in question. Below, we
provide a glimpse of the delays inherent in obtaining and using Pitchess discovery.
Turning Pitchess discovery into evidence admissible at trial is not a rapid
process. To obtain Pitchess discovery of a particular peace officer‟s personnel
records, a criminal defendant must provide not only “a written motion and notice
to the governmental agency which has custody of the records” but also a
“ „description of the type of records or information sought,‟ ” as well as affidavits
“ „showing good cause for the discovery or disclosure‟ ”; and the defendant must
set forth the materiality of the information sought to the pending litigation. (City
of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 82.) If the defendant
shows good cause, the trial court directs the custodian of the records to produce all
potentially relevant documents (People v. Mooc (2001) 26 Cal.4th 1216, 1228-
1229) for its examination in chambers, that is, in a nonpublic proceeding designed
to protect the officer‟s privacy (Alford v. Superior Court (2003) 29 Cal.4th 1033,
1038-1039).
If, after reviewing the officer‟s personnel records, the trial court concludes
that they do not contain information that is statutorily excluded from disclosure
(see Evid. Code, § 1045, subd. (b)), then disclosure is called for. (Alford v.
Superior Court, supra, 29 Cal.4th at p. 1039.) But the information disclosed to the
defense will be limited to names and contact information for persons who have on
prior occasions either witnessed or filed complaints of misconduct by the officer
who is the subject of the Pitchess discovery motion. (Ibid.) The defense then
needs time to locate, interview, and obtain the in-court presence of those
individuals.
11

Long before the voters‟ June 1990 passage of Proposition 115, Penal Code
section 859b provided: “Both the defendant and the people have the right to a
preliminary examination at the earliest possible time, and unless both waive that
right or good cause for a continuance is found,” the “preliminary examination
shall be held within 10 court days of the date” on which the defendant “is
arraigned or pleads.” (Italics added.) To postpone a preliminary hearing over the
prosecutor‟s objection beyond the statutory10-court-day period for the sole
purpose of allowing a defense motion for Pitchess discovery, which may or may
not yield a witness whose testimony will be relevant to the issues at the
preliminary hearing, would deny the People their state constitutional rights to
procedural due process and to a speedy trial, in addition to, as discussed earlier,
their statutory right under Penal Code section 859b to a prompt preliminary
hearing.
Here, the magistrate heard petitioner‟s Pitchess discovery motion on May
16, 2008. At that time, petitioner‟s preliminary hearing was scheduled for June 2.
Such a short time, as the magistrate noted at the hearing on the Pitchess motion,
would not enable defense counsel “to look into” any Pitchess disclosures received
before the holding of the preliminary hearing. And defense counsel specifically
informed the magistrate that if Pitchess discovery revealed potential witnesses,
petitioner would seek postponement of the preliminary hearing. For the reasons
discussed above, such delay would have been contrary to one of Proposition 115‟s
goals: to avoid “undue delay” in criminal proceedings. (See p. 10, ante.)
After the magistrate concluded that petitioner‟s purpose in bringing the
Pitchess motion was to develop evidence for use at the preliminary hearing, that
this objective could be realized only by postponing the preliminary hearing, and
that the possibility of discovering evidence favorable to the defense did not justify
delaying the preliminary hearing, the magistrate denied petitioner‟s Pitchess
12
motion. We hold that this ruling was not an abuse of the magistrate‟s discretion.
The ruling does not preclude petitioner from bringing a renewed Pitchess motion,
when this matter returns to the magistrate, for the purpose of obtaining evidence
for use at trial.
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
(Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist.
(1989) 49 Cal.3d 408, 419), 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.
DISPOSITION
Our previously ordered stay is vacated, and the Court of Appeal‟s judgment
denying the petition for writ of mandate is affirmed.

KENNARD, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
13






CONCURRING OPINION BY WERDEGAR, J.
Before his scheduled preliminary hearing, petitioner moved for Pitchess
discovery, that is, discovery of information from the arresting police officers‟
personnel files that might be relevant to the officers‟ respective credibility.
(Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evid. Code, §§ 1043-1045.)
The magistrate denied the motion without prejudice to its renewal before trial,
explaining that, before he would grant the motion, “the defense has to logically
show they are going to discover something or might discover something that
would change the outcome of the preliminary hearing.” In addition, noted the
magistrate, “[e]ven if the Court orders disclosures, you wouldn‟t have [the] time to
look into it [before the] preliminary hearing.” The majority concludes the
magistrate did not abuse his discretion by so ruling. (Maj. opn., ante, at p. 13.)
I concur. I write separately to explain my reasons and to clarify what I believe to
be the majority‟s holding.
I. Effective Assistance of Counsel
As the majority explains (maj. opn., ante, at pp. 6-7), a criminal defendant
is guaranteed the constitutional right to the effective assistance of counsel at the
preliminary hearing. (People v. Cudjo (1993) 6 Cal.4th 585, 615.) Moreover, to
facilitate the right to effective assistance of counsel and to prepare for a
meaningful preliminary hearing, a criminal defendant can, as the majority affirms,
file for Pitchess discovery in advance of the hearing, not only because “[t]he
1


Pitchess discovery statutes . . . do not restrict the use of evidence obtained through
such discovery to any particular proceeding” (maj. opn., ante, at p. 9), but also
because “there is no legislative prohibition against the filing of a Pitchess
discovery motion before a preliminary hearing is held . . .” (ibid.). However,
responding to petitioner‟s argument that denial of Pitchess discovery deprived him
of the effective assistance of counsel, the majority concludes that the right to
effective assistance of counsel is not violated “if defense counsel lacks Pitchess
discovery for use at the preliminary hearing.” (Maj. opn., ante, at p. 7.)
Notwithstanding petitioner‟s argument, petitioner‟s right to effective
assistance of counsel at the preliminary hearing is, in my view, only tangentially
related to his Pitchess motion. Instead, a defendant‟s inability to obtain and
present relevant evidence at the preliminary hearing relates to the defendant‟s due
process right to a fair hearing. Although the function of a preliminary hearing is
merely to determine if probable cause exists to bind a defendant over for trial, the
ability to impeach accusatory witnesses at the hearing is an important part of that
process. The value of impeachment is explicitly recognized by Penal Code section
866, subdivision (a), which provides that a criminal defendant may present
evidence at the preliminary hearing that is “reasonably likely to . . . impeach the
testimony of a prosecution witness . . . .” “The purpose of this right is obvious: to
permit the defendant to rebut the People‟s evidence of probable cause and
persuade the magistrate not to make a probable cause finding. One of „ “[t]he
purpose[s] of the preliminary hearing is to weed out groundless or unsupported
charges of grave offenses, and to relieve the accused of the degradation and
expense of a criminal trial. Many an unjustifiable prosecution is stopped at that
point where the lack of probable cause is clearly disclosed.” ‟ ” (Nienhouse v.
Superior Court (1996) 42 Cal.App.4th 83, 91.)
2
From the facts of petitioner‟s case, we may surmise that some of the
principal witnesses against him will be the arresting police officers. 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. In a
given case, denying a defendant a fair opportunity to impeach the witnesses
against him could infringe on his statutory right under Penal Code section 866 and,
possibly, produce a hearing so fundamentally unfair that the error implicates his
due process right to a fair hearing.1 Nevertheless, as explained below, I do not
believe denial of petitioner‟s Pitchess motion deprived him of due process.
II. Proposition 115
Neither the right to a fair hearing or to effective counsel at the hearing nor
Penal Code section 866 guarantees a defendant the right to introduce any and all
evidence at the preliminary hearing. The right to introduce evidence at the
hearing, as in a trial proper, is subject to numerous constraints. In this case, the

1
The majority opines that “the magistrate could also refuse to admit the
testimony of [impeaching] witnesses if strong and credible evidence of
defendant‟s guilt exists apart from the testimony provided by the arresting
officers.” (Maj. opn., ante, at p. 7.) I am unaware of any legal authority
authorizing a magistrate to refuse to admit evidence impeaching a prosecution
witness on the ground that the magistrate had—midhearing—already decided the
prosecution‟s evidence demonstrated probable cause. “Depending on the
credibility of the testimony and the circumstances of the case, probable cause
would be found present or absent by the magistrate at the conclusion of the
hearing.” (Nienhouse v. Superior Court, supra, 42 Cal.App.4th at p. 91.) Nor is
the majority‟s citation to People v. Slaughter (1984) 35 Cal.3d 629, 637 of any
assistance. Slaughter holds only that, after hearing all the evidence, the magistrate
may be able to discern that probable cause exists, sufficient to bind an accused
over for trial, without resolving all the factual disputes raised by the evidence.
Slaughter does not hold the magistrate may deny an accused the right to present
impeachment evidence suggesting his innocence.
3


majority relies on one such limitation on evidence: the delay inherent in the
Pitchess discovery process. (Cf. Evid. Code, § 352 [“The court in its discretion
may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . necessitate undue consumption of time
. . .”].) Thus, the majority emphasizes Proposition 115‟s concern for “undue
delay” (Pen. Code, § 1054, subd. (d)) and the creation by Proposition 115 of the
People‟s right to a speedy trial (Cal. Const., art. I, § 29). From this, the majority
opines that petitioner‟s acknowledged right to move for prehearing Pitchess
discovery “does not mean that over the prosecution‟s objection the defense is
invariably entitled to have the preliminary hearing postponed . . . .” (Maj. opn.,
ante, at pp. 9-10, italics added; see also id. at p. 10 [“repeated postponements of
the preliminary hearing would . . . defeat a goal of Proposition 115: to reduce
delays in criminal cases” (italics added)]; ibid. [the “goal [of a speedy hearing]
would be frustrated if we were to uphold the pre-Proposition 115 practice of
routinely and repeatedly granting postponements” (italics added)].) I agree.
The converse, of course, is also true: a criminal defendant‟s need for
Pitchess discovery could, depending on the particular circumstances of the case,
justify a magistrate‟s exercise of discretion to grant a request to continue the
preliminary hearing over the prosecutor‟s objection. Just as the magistrate should
not invariably or routinely grant postponements of the hearing, neither should he
or she invariably or routinely deny them. Instead, whether to continue the
preliminary hearing is committed to the magistrate‟s traditional discretion, after
considering all the relevant factors including, but not limited to, the speedy
hearing rights of both the People and the accused. Thus, the second paragraph of
Penal Code section 859b provides: “Both the defendant and the people have the
right to a preliminary examination at the earliest possible time, and unless both
waive that right or good cause for a continuance is found as provided for in
4
Section 1050, the preliminary examination shall be held [within prescribed time
limits].” (Italics added.) Penal Code section 1050, referenced in Penal Code
section 859b, provides that “[n]either the convenience of the parties nor a
stipulation of the parties is in and of itself good cause” (Pen. Code, § 1050, subd.
(e)), and “[w]hen deciding whether or not good cause for a continuance has been
shown, the court shall consider the general convenience and prior commitments of
all witnesses, including peace officers” (id., subd. (g)(1)).
In sum, the importance of a speedy preliminary hearing, explicit in Penal
Code section 1054, subdivision (d), must be balanced against both a defendant‟s
right to a fair hearing and the defendant‟s statutory right, set forth in Penal Code
section 866b, to impeach the witnesses against him at the hearing. Thus, despite
the admitted value of a speedy preliminary hearing, a magistrate entertaining a
prehearing Pitchess motion should also consider whether an accused can receive a
fair hearing in the absence of Pitchess discovery and whether he has had a fair and
reasonable opportunity to marshal the available evidence to impeach the
prosecution‟s witnesses.
On the facts of this case, I agree with the majority that the magistrate did
not abuse his discretion by denying the Pitchess motion. The need for a speedy
hearing is an important consideration. Petitioner‟s motion for discovery, which
was not heard until May 16, 2008, even if granted, would not reasonably have
enabled him to obtain any pertinent discovery (if any existed in the officers‟
personnel files) before the preliminary hearing, then scheduled for June 2.
Defense counsel expressly stated she would ask for a continuance if Pitchess
discovery revealed potential witnesses, thus making delay fairly certain rather than
merely speculative. But also significant to the magistrate‟s decision is that
evidence other than any potentially impeaching Pitchess material was available to
petitioner to rebut the prosecution‟s case. Judging from the police report,
5
petitioner‟s arrest was witnessed by several people who were friends and family of
petitioner; if the officers were lying, some of those witnesses could likely
contradict the police version of events, diminishing the importance of the potential
Pitchess evidence. “[T]he trial court has discretion to exclude impeachment
evidence . . . if it is . . . cumulative . . . .” (People v. Price (1991) 1 Cal.4th 324,
412.) Finally, the magistrate‟s denial was without prejudice to petitioner‟s
renewing the motion before trial, ensuring that if the officers‟ personnel files
contained pertinent information, petitioner would not be forever denied access to
that evidence.
Because I agree the magistrate did not abuse his discretion, I concur in the
majority opinion, which affirms the Court of Appeal‟s judgment denying
petitioner a writ of mandate. I do so with the understanding that the majority‟s
opinion neither imposes a categorical bar to defendants moving for, and obtaining,
Pitchess discovery before the preliminary hearing, nor prohibits the admission at
the hearing of information gained through the Pitchess process. Instead, I
understand the majority opinion to hold that the decision whether to grant
prehearing Pitchess discovery is within the magistrate‟s discretion after balancing
the likelihood of delay with the defendant‟s right to a fair hearing, as well as his
right, under Penal Code section 866, to present evidence impeaching the
prosecution‟s witnesses at the hearing. The discretion to grant a continuance, as
always, is committed to the magistrate‟s traditional discretion under Penal Code
section 1050. With those caveats, I concur.

WERDEGAR, J.
6



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Galindo v. Superior Court
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 169 Cal.App.4th 1332
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S170550
Date Filed: July 22, 2010
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Steven R. Van Sicklen

__________________________________________________________________________________

Attorneys for Appellant:

Michael P. Judge, Public Defender, Albert J. Menaster, Susanne Blossom and Mark Harvis, Deputy Public
Defenders, for Petitioner.

Mary Greenwood, Public Defender (Santa Clara) and Michael Ogul, Deputy Public Defender, for
California Public Defenders Association and Santa Clara County Public Defender, as Amici Curiae on
behalf of Petitioner.

John T. Philipsborn; Sanger & Swysen and Stephen P. Dunkle for California Attorneys for Criminal Justice
as Amici Curiae on behalf of Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

Steven Cooley, District Attorney, John K. Spillane, Chief Deputy District Attorney, Irene Wakabayashi,
Head Deputy District Attorney, Sharon J. Matsumoto, Brentford J. Ferreiera, Natasha Cooper and Gilbert
Wright, Deputy District Attorneys, for Respondent.

Rockard Delgadillo and Carmen A. Trutanich, City Attorneys, Carlos De La Guerra and Jess J. Gonzalez,
Assistant City Attorneys, and Kjehl T. Johansen, Deputy City Attorney, for Real Parties in Interest.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark Harvis
Deputy Public Defender
320 West Temple Street, Suite 590
Los Angeles, CA 90012
(213) 974-3066

Gilbert Wright
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 974-5911

Kjehl T. Johansen
Deputy City Attorney
201 North Los Angeles Street, L.A. Mall Space #301A
Los Angeles, CA 90012
(213) 978-2130


Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issue: Does a criminal defendant have a right to obtain Pitchess discovery (Pitchess v. Superior Court (1974) 11 Cal.3d 531) prior to the preliminary hearing?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 07/22/201050 Cal. 4th 1, 235 P.3d 1, 112 Cal. Rptr. 3d 673S170550Review - Criminal Original (non-H.C.)submitted/opinion due

Pitchess v. Superior Court, 522 P.2d 305 (Cal. 1974), superseded by statute, CAL. EVID. §§ 1043-1047 (West 2009), CAL. PENAL § 832.5, 832.7, 832.8 (West 2009), as recognized in People v. Mooc, 36 P.3d 21 (Cal. 2001).
Galindo v. Superior Court, 88 Cal. Rptr. 3d 73 (Cal. Ct. App. 2009)
Galindo v. Superior Court, 203 P.3d 1112 (Cal. 2009)


Parties
1Galindo, Moises (Petitioner)
3930 Glen Albyn
Los Angeles, CA 90065

Represented by Mark G. Harvis
Office of the Los Angeles County Public Defender
320 W. Temple Street, Suite 590
Los Angeles, CA

2Superior Court of Los Angeles County (Respondent)
3City of Los Angeles Police Department (Real Party in Interest)
Represented by Kjehl Thomas Johansen
Office of the City Attorney
200 N. Main Street
800 City Hall East
Los Angeles, CA

4City of Los Angeles (Real Party in Interest)
Represented by Carmen A. Trutanich
Los Angeles City Attorney
200 N. Mail Street, 800 City Hall East
Los Angeles, CA

5City of Los Angeles (Real Party in Interest)
Represented by Kjehl Thomas Johansen
Office of the City Attorney
200 N. Main Street
800 City Hall East
Los Angeles, CA

6The People (Real Party in Interest)
Represented by Attorney General - Los Angeles Office
300 South Spring Street, 5th Floor
300 South Spring Street, 5th Floor
Los Angeles, CA

7The People (Real Party in Interest)
Represented by Natasha Cooper
Office of the District Attorney--Appellate Division
320 W. Temple Street, Suite 540
Los Angeles, CA

8The People (Real Party in Interest)
Represented by Brentford J. Ferreira
Office of the District Attorney--Appellate Division
320 W. Temple Street, Suite 540
Los Angeles, CA

9The People (Real Party in Interest)
Represented by Gilbert Steven Wright
Office of the Los Angeles County District Attorney
210 W. Temple Street
Los Angeles, CA

10The People (Real Party in Interest)
Represented by Irene Taye Wakabayashi
Office of the District Attorney--Appellate Division
320 W. Temple Street, Suite 540
Los Angeles, CA

11California Attorneys for Criminal Justice (Amicus curiae)
Represented by Stephen Kerr Dunkle
Sanger & Swysen
233 E. Carrillo Street, Suite C
Santa Barbara, CA

12California Public Defenders Association (Amicus curiae)
Represented by Michael S. Ogul
Office of the Santa Clara County Public Defender
120 W. Mission Street
San Jose, CA

13Santa Clara County Public Defender (Amicus curiae)
Represented by Michael S. Ogul
Office of the Santa Clara County Public Defender
120 W. Mission Street
San Jose, CA


Opinion Authors
OpinionJustice Joyce L. Kennard
ConcurJustice Kathryn M. Werdegar

Dockets
Feb 13 2009Petition for review filed
  Moises Galindo, petitioner by Mark Harvis, Deputy Public Defender - Los Angeles County (Received in the L. A. Office)
Feb 18 2009Record requested
 
Feb 18 2009Received Court of Appeal record
 
Mar 25 2009Petition for review granted (criminal case)
  Votes: George, C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ.
Apr 23 2009Opening brief on the merits filed
Petitioner: Galindo, MoisesAttorney: Mark G. Harvis  
May 26 2009Answer brief on the merits filed
Real Party in Interest: City of Los Angeles Police DepartmentAttorney: Kjehl Thomas Johansen Real Party in Interest: City of Los Angeles  
May 26 2009Answer brief on the merits filed
Real Party in Interest: The PeopleAttorney: Irene Taye Wakabayashi  
Jun 10 2009Request for extension of time filed
  to file reply brief to July 17, 2009, submitted by Deputy PD Mark G. Harvis for appellant, Moises Galindo
Jun 17 2009Extension of time granted
  On application of appellant and good cause appearing it is ordered that the time to serve and file the reply brief on the merits is extended to and including July 17, 2009.
Jul 16 2009Received:
  Oversized Reply Brief on the Merits for the petitioner, by Mark Harvis, deputy public defender.
Jul 16 2009Application to file over-length brief filed
  Moises Galindo, petitioner by Mark Harvis, deputy public defender
Jul 22 2009Order filed
  The application of petitioner to file the oversized reply brief on the merits is hereby granted.
Jul 22 2009Reply brief filed (case fully briefed)
Petitioner: Galindo, MoisesAttorney: Mark G. Harvis   *filed with permission* Moises Galindo, petitioner by Mark Harvis, counsel
Aug 14 2009Application to file amicus curiae brief filed
  California Public Defenders Association and Santa Clara County Public Defender (non-party)
Aug 18 2009Permission to file amicus curiae brief granted
  The application of California Public Defenders Association and Santa Clara County Public Defender for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 18 2009Amicus curiae brief filed
Amicus curiae: California Public Defenders AssociationAttorney: Michael S. Ogul   California Public Defenders Association and Santa Clara County public Defender in support of appellant.
Aug 24 2009Application to file amicus curiae brief filed
  California Attorneys for Criminal Justice in support of petnr. (8.25(b))
Aug 27 2009Permission to file amicus curiae brief granted
  The application of California Attorneys for Criminal Justice for permission to file an amicus curiae brief in support of petitioner is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Aug 27 2009Amicus curiae brief filed
Amicus curiae: California Attorneys for Criminal JusticeAttorney: Stephen Kerr Dunkle   California Attorneys for Criminal Justice in support of petitioner.
Sep 17 2009Request for extension of time filed
  to file answer to AC brief to 9-30-09
Sep 22 2009Extension of time granted
  On application of real party in interest and good cause appearing it is ordered that the time to serve and file the answer to amicus curiae brief is extended to and including September 30, 2009.
Mar 30 2010Case ordered on calendar
  to be argued on Wednesday, May 5, 2010, at 1:30 p.m., in San Francisco
Sep 30 2009Response to amicus curiae brief filed
Real Party in Interest: City of Los Angeles Police DepartmentAttorney: Kjehl Thomas Johansen  
Apr 12 2010Filed:
  letter from Kjehl T. Johansen, counsel for real party Los Angeles Police Department, submitted as joint request to divide oral argument time equally between real party Los Angeles Police Department and real party The People (Los Angeles County District Attorney).
Apr 20 2010Order filed
  The request of counsel for real parties in interest in the above-referenced cause to allow two counsel to argue on behalf of real parties in interest at oral argument is hereby granted. The request of real parties in interest to allocate to City of Los Angeles Police Department 15 minutes and The People 15 minutes of real parties' 30-minute allotted time for oral argument is granted.
Apr 22 2010Filed:
  counsel for petnr. (Galindo) List of Additional Authorities for Oral Argument
Apr 23 2010Filed:
  counsel for Real Party in Interest (Los Angeles Police Department Custodian of Records) List of Additional Authorites for Oral Argument.
Apr 23 2010Filed:
  counsel for Real Party In Interest (People) List of Additional Authorities
Apr 26 2010Filed:
  counsel for Real Party In Interest (People) List of Additional Authorities for Oral Argument. (8.25(b))
Apr 28 2010Letter sent to:
  each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument."
Apr 29 2010Stipulation filed
  Stipulation by counsel Kjehl T. Johansen, that real party in interest City of Los Angeles Police Department has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
Apr 29 2010Stipulation filed
  Stipulation by counsel Mark Harvis, that petitioner has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 5 2010Stipulation filed
  Stipulation by counsel Gilbert S. Wright, that real party in interest The People has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 5 2010Cause argued and submitted
 
Jul 21 2010Notice of forthcoming opinion posted
  To be filed on Thursday, July 22, 2010 at 10 a.m.

Briefs
Apr 23 2009Opening brief on the merits filed
Petitioner: Galindo, MoisesAttorney: Mark G. Harvis  
May 26 2009Answer brief on the merits filed
Real Party in Interest: City of Los Angeles Police DepartmentAttorney: Kjehl Thomas Johansen Real Party in Interest: City of Los Angeles  
Jul 22 2009Reply brief filed (case fully briefed)
Petitioner: Galindo, MoisesAttorney: Mark G. Harvis  
Aug 18 2009Amicus curiae brief filed
Amicus curiae: California Public Defenders AssociationAttorney: Michael S. Ogul  
Aug 27 2009Amicus curiae brief filed
Amicus curiae: California Attorneys for Criminal JusticeAttorney: Stephen Kerr Dunkle  
May 26 2009Answer brief on the merits filed
Real Party in Interest: The PeopleAttorney: Irene Taye Wakabayashi  
Sep 30 2009Response to amicus curiae brief filed
Real Party in Interest: City of Los Angeles Police DepartmentAttorney: Kjehl Thomas Johansen  
Brief Downloads
application/pdf icon
Petitioner's Opening Brief on the Merits.pdf (143336 bytes) - Petitioner Galindo's Opening Brief on the Merits
application/pdf icon
Answer Brief on the Merits for the City of LA.pdf (67391 bytes) - Answer Brief on the Merits for the City of LA
application/pdf icon
Answer Brief on the Merits for the LA District Attorney.pdf (155902 bytes) - Answer Brief on the Merits for the LA District Attorney
application/pdf icon
Petitioner's Reply Brief on the Merits.pdf (154059 bytes) - Petitioner Galindo's Reply Brief on the Merits
application/pdf icon
Amicus Brief in Support of Petitioner.pdf (378902 bytes) - Amicus Brief in Support of Petitioner Galindo
application/pdf icon
City's Answer to Amicus Brief in Support of Petitioner.pdf (61631 bytes) - City's Answer to Amicus Brief in Support of Petitioner
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 26, 2010
Annotated by slake

FACTS

Two Los Angeles police officers saw petitioner Galindo drinking alcohol in public. Galindo fled into a nearby apartment as the officers approached and a crowd of relatives and neighbors then gathered outside. Three more officers arrived and the police obtained consent to enter the apartment, where they arrested Galindo and his brother.

The arrestees made various death threats against the officers as they were transported to the station and, while in the squad car, Galindo banged his head against a police officer’s head.

As a result, the District Attorney charged Galindo with resisting a police officer in the performance of his duties, making threats to kill or cause great bodily injury to an officer, and committing these offenses to benefit a criminal street gang.

PROCEDURAL HISTORY

Galindo was arraigned on March 26, 2008. Prior to the preliminary hearing, Galindo moved for Pitchess disclosure of the names and contact information of any individuals who had been involved in incidents (e.g. excessive force, violence, false arrest) involving any of the five officers involved in his arrest.

On May 16, 2008 the magistrate denied Galindo’s Pitchess motion, reasoning that

  1. Pitchess discovery is typically not available before a preliminary hearing, and
  2. If discovery were available, Galindo had not shown that discovery would lead to evidence that there was not probable cause to hold him.

On July 17, 2008 Galindo filed a mandate petition for an order directing the city to disclose the Pitchess information in the superior court. The superior court denied his request.

Galindo then filed a writ of mandate in the Court of Appeal, which stayed the preliminary hearing and requested briefing on whether Pitchess discovery must be permitted before a preliminary hearing. The court then denied Galindo’s request and vacated the stay.

Galindo then appealed to the California Supreme Court, seeking review and a stay of the preliminary hearing. The Supreme Court stayed the preliminary hearing and granted the petition for review. It vacated the Court of Appeal’s order denying the petition for a writ of mandate and transferred the case back to the Court of Appeal. It instructed the Court of Appeal to order the superior court to show cause why the Pitchess discovery should not be granted.

The Court of Appeal again rejected Galindo’s request for Pitchess discovery on the basis that it is not required to ensure effective assistance of counsel at a preliminary hearing.

ISSUES

  1. Whether effective assistance of counsel at a preliminary hearing requires the court to permit Pitchess discovery before the hearing
  2. Whether defendants can file Pitchess motions before a preliminary hearing in light of Proposition 115, which limits criminal discovery based on specific statutory provisions and acknowledges the general right to due process of law and a speedy trial

Holding

Defendants may file Pitchess motions before a preliminary hearing, but the court need not delay the hearing to allow time for discovery, particularly where the prosecutor objects to the delay.

In this case, the magistrate did not err by denying the Pitchess motion because there were witnesses present during the arrest who could potentially impeach the police officers’ testimony, dampening the need for Pitchess discovery.

ANALYSIS

  1. Denying Pitchess discovery before a preliminary hearing does not violate a defendant’s right to effective assistance of counsel. The preliminary hearing is designed only to establish that there is probable cause to believe that a defendant committed a felony and should be tried. The magistrate is not required to admit witness testimony at all at this stage, and the bar for prosecutors to prevail is quite low. As a result, it is unlikely that denying Pitchess discovery would impact counsel’s ability to represent a defendant at a preliminary hearing.
  2. Proposition 115 does not, as a broad rule, implicate a defendant’s right to file a Pitchess motion before a preliminary hearing. The proposition has two relevant effects:

First, it adds a provision to the penal code stating that criminal discovery is limited to that permitted in express statutory provisions or the U.S. Constitution. However, the Pitchess discovery statutes had been in place for twelve years before Proposition 115 and thus remain untouched.

Second, Proposition 115 amended the California Constitution, adding that “[i]n a criminal case, the people of the State of California have the right to due process of law and to a speedy and public trial.” The Court found that delaying a preliminary hearing to allow Pitchess discovery could violate the right to due process and a speedy trial given the lengthy Pitchess discovery process. Specifically, it noted that unless both the defense and prosecution consent to delaying a preliminary hearing, delays beyond the statutory ten-day-period would violate Penal Code § 859b and implicate Proposition 115.

CONCURRENCE

Judge Werdegar’s opinion minimizes the effective assistance of counsel issue at the preliminary hearing stage. She believes instead that the focus should be on the due process right to a fair hearing. In her view, the Pitchess denial in this case does not violate due process because Galindo could rely on arrest witnesses to impeach the police officers’ testimony and thus did not need to rely on Pitchess discovery for his defense.

She also notes that the right to introduce evidence at any trial or hearing may be judicially limited for various reasons, including delay. Proposition 115, by emphasizing the right to a speedy trial, militates against permitting Pitchess discovery where it will result in delays. However, she does not advocate for a blanket rule, as the facts of some cases may warrant delay in favor of lengthier discovery.

TAGS

Pitchess motion; preliminary hearing; proposition 115; effective assistance of counsel; due process; speedy trial; criminal discovery; resisting arrest; threatening an officer; impeaching credibility

RELATED / CITED CASES

Pitchess v. Superior Court, 522 P.2d 305 (Cal. 1974), superseded by statute, CAL. EVID. §§ 1043-1047 (West 2009), CAL. PENAL § 832.5, 832.7, 832.8 (West 2009), as recognized in People v. Mooc, 36 P.3d 21 (Cal. 2001).
http://scholar.google.com/scholar_case?case=15520905555230302925&hl=en&a...

Galindo v. Superior Court, 88 Cal. Rptr. 3d 73 (Cal. Ct. App. 2009).

Galindo v. Superior Court, 203 P.3d 1112 (Cal. 2009).

Warrick v. Superior Court, 112 P.3d 2 (Cal. 2005).
http://scholar.google.com/scholar_case?case=15838847411389357251&hl=en&a...

People v. Wallace, 93 P.3d 1037 (Cal. 2004)
http://scholar.google.com/scholar_case?case=225841871161090354&hl=en&as_...

Izazaga v. Superior Court, 815 P.2d 304 (Cal. 1991)
http://scholar.google.com/scholar_case?case=10329838313229727043&hl=en&a...

Annotation by: Stephanie Lake