Stanford Law School - Robert Crown Law Library

Filed 6/2/05

IN THE SUPREME COURT OF CALIFORNIA

DONALD PAUL WARRICK,
Petitioner,
S115738
v.
Ct. App. 2/2 B160462
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Los Angeles County
Respondent;
Super. Ct. No. BA230651
CITY OF LOS ANGELES POLICE
DEPARTMENT et al.,
)
)

Real Parties in Interest.

On a showing of good cause a criminal defendant is entitled to discovery of
relevant documents or information in the personnel records of a police officer
accused of misconduct against the defendant. (Evid. Code, § 1043, subd. (b).)1
Good cause for discovery exists when the defendant shows both “ ‘materiality’ to
the subject matter of the pending litigation and a ‘reasonable belief’ that the
agency has the type of information sought.” (City of Santa Cruz v. Municipal
Court (1989) 49 Cal.3d 74, 84 (Santa Cruz).) A showing of good cause is

1
Unless otherwise indicated, all statutory references are to the Evidence
Code.

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measured by “relatively relaxed standards” that serve to “insure the production”
for trial court review of “all potentially relevant documents.” (Ibid.)
At issue here is the first part of the good cause requirement—the materiality
to the pending litigation of the discovery sought. Specifically, the question is this:
What must the defendant show to warrant the court’s in-chambers review of
documents or information in the officer’s personnel file that is potentially relevant
to the claimed misconduct? We hold that to obtain in-chambers review a
defendant need only demonstrate that the scenario of alleged officer misconduct
could or might have occurred.
I.
According to the police report, which was attributable to the three arresting
officers, about 6 p.m. on April 23, 2002, Officers Quezada, Lopez, and Ramirez of
the Special Enforcement Unit of the Los Angeles Police Department (LAPD) were
in a marked car patrolling Fifth Street between Spring Street and Towne Avenue,
an area known for violent crime and narcotics activities. The officers noticed
defendant standing next to a wall looking at a clear plastic baggie in his left hand;
the baggie contained “off-white solids.” When the officers got out of the patrol
car, defendant fled, discarding “numerous” off-white lumps “resembling rock
cocaine.” While Officer Quezada retrieved 42 lumps from the ground, Officers
Lopez and Ramirez arrested defendant after a short pursuit. Defendant had an
empty baggie in his hand; his pockets contained $2.75 in cash and three porcelain
sparkplug chips, which Officer Quezada described as “a common tool” of auto
thieves for smashing car windows. Defendant was arrested for possession of
cocaine for sale (Health & Saf. Code, § 11351.5), and for possession of burglary
tools (Pen. Code, § 466). At the time of the arrest, defendant was on parole for
burglary.
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Defendant was charged with one count of possessing cocaine base for sale
(Health & Saf. Code, § 11351.5), and was alleged to have a prior conviction for a
serious or violent felony (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subd. (b)), as
well as having served a prior prison term (id., § 667.5, subd. (b)). Defendant pled
not guilty and denied the allegations.
Before trial, defendant filed a so-called Pitchess motion (Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess)) under section 1043 for disclosure
of any previous citizen complaints against the three arresting officers for making
false arrests, falsifying police reports, or planting evidence. Defendant also sought
discovery of a long list of other misconduct by the officers. (See post, pp. 9-10.)
In support of the motion, defense counsel submitted a declaration giving
this version of the events leading to defendant’s arrest: When the three officers
got out of the patrol car, defendant, who feared an arrest on an outstanding parole
warrant, started to run away, but within moments the officers caught up with him.
Meanwhile, there were “people pushing and kicking and fighting with each other”
as they collected from the ground objects later determined to be rock cocaine.
After two officers retrieved some of the rocks, an officer told defendant, “ ‘You
must have thrown this.’ ” Defendant denied possessing or discarding any rock
cocaine. He said he was in the area to buy cocaine from a seller who was present
there. Defense counsel suggested that the officers, not knowing who had
discarded the cocaine, falsely claimed to have seen defendant, who was running
away, do so. Seeking to show that the officers had falsely arrested defendant and
fabricated the facts in the arrest report, the defense sought to discover previous
complaints against the officers for dishonesty.
In opposition, the city attorney on behalf of the LAPD argued that
defendant had done nothing more than deny his guilt, and that he had not
affirmatively set out any facts to describe a specific factual scenario. Arguing that
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defense counsel’s declaration was essentially a denial of the charges, the “logical
equivalent” of defendant’s not guilty plea, the city attorney maintained that
defendant “needs to assert plausible facts, not reenter his plea.” The city attorney
also asserted that defendant’s contention that the officers falsely claimed to have
seen defendant discard the cocaine was not plausible because defendant failed to
explain how he happened to be in precisely the area where rock cocaine was
allegedly discarded by another person, or why the officers would accuse him of
having possessed the cocaine, or knowing that he was innocent why they would
have planted it on him. According to the city attorney, a scenario “which might
have happened” was implausible; to be plausible a scenario must be “believable.”
Concluding that defendant had not made the required showing of good
cause, the trial court declined to order the LAPD to produce the officers’ records
for in-chambers review, and it denied defendant’s Pitchess motion. Referring to
the allegations in defense counsel’s affidavit the trial court stated: “It appears to
me that this is not police misconduct but really an argument about what happened,
one that should be resolved by the trial court, but not one that gives rise to looking
at a police personnel file based on the paucity of information and the
implausibility of the defendant’s allegation as to why somehow these officers must
have engaged in misconduct.” The court paraphrased defendant’s claim of officer
misconduct in these words: “ I don’t know what they did, but I did not have
drugs, therefore they must have done something wrong. ”
In August 2002, after the Court of Appeal’s summary denial of his petition
for a writ of mandate, defendant sought review in this court. We granted review
and transferred the matter to the Court of Appeal, directing that court to issue an
order to show cause why defendant was not entitled to the relief he sought. After
issuing the order and receiving briefing from the parties, the Court of Appeal
denied issuance of the writ. It held that defendant had satisfied only one of the
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two requirements for good cause. The Court of Appeal acknowledged that
defense counsel’s declaration presented a specific factual scenario of police
misconduct. But the court concluded, as the trial court had, that defendant’s
declaration failed to satisfy “the second element of good cause, the articulation of
a ‘plausible factual foundation’ ” for his officer misconduct claim. Quoting a
dictionary definition of the word plausible as “ ‘worthy of approval or acceptance;
credible; believable,’ ” the Court of Appeal concluded that defendant’s factual
scenario failed to show “a degree of reasonable probability, a degree of apparent
credibility greater than mere possibility.” It held that the trial court had not abused
its discretion in denying defendant’s Pitchess motion, and it denied defendant’s
petition for a writ of mandate. As we explain below, the Court of Appeal applied
a stricter standard for obtaining in-chambers review of officer personnel
information than is required by law.
II.
This court’s 1974 decision in Pitchess, supra, 11 Cal.3d at pages 536 to
537, established that a criminal defendant could “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.
In 1978, the California Legislature codified the holding of Pitchess by
enacting Penal Code sections 832.7 and 832.8, as well as Evidence Code sections
1043 through 1045. (Added by Stats. 1978, ch. 630, §§ 1-3 & 5-6, pp. 2082-2083;
see City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 9.) To initiate
discovery, the defendant must file a motion supported by affidavits showing “good
cause for the discovery,” first by demonstrating the materiality of the information
to the pending litigation, and second by “stating upon reasonable belief” that the
police agency has the records or information at issue. (§ 1043, subd. (b)(3).) This
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two-part showing of good cause is a “relatively low threshold for discovery.”
(Santa Cruz, supra, 49 Cal.3d at p. 83.)
If the trial court finds good cause for the discovery, it reviews the pertinent
documents in chambers and discloses only that information falling within the
statutorily defined standards of relevance. (People v. Mooc (2001) 26 Cal.4th
1216, 1226-1227; see City of Los Angeles v. Superior Court, supra, 29 Cal.4th at
pp. 9-10.) The trial court may not disclose complaints more than five years old,
the “conclusions of any officer” who investigates a citizen complaint of police
misconduct, or facts “so remote as to make [their] disclosure of little or no
practical benefit.” (§ 1045, subd. (b); City of Los Angeles, supra, 29 Cal.4th at
p. 9.) Typically, the trial court discloses only the names, addresses, and telephone
numbers of individuals who have witnessed, or have previously filed complaints
about, similar misconduct by the officer. (See Haggerty v. Superior Court (2004)
117 Cal.App.4th 1079, 1089-1090.) That practice “imposes a further safeguard to
protect officer privacy where the relevance of the information sought is minimal
and the officer’s privacy concerns are substantial.” (Id. at p. 1090.)
At issue here is the showing of good cause required for Pitchess discovery.
According to the Court of Appeal, to establish good cause under section 1043 the
defense must show materiality to the pending action by setting forth a “ ‘specific
factual scenario’ ” that establishes “a ‘plausible factual foundation’ ” for the
alleged officer misconduct. The quoted phrases of the Court of Appeal’s test
derive from language in certain decisions of this court, which we discuss below.
III.
In Santa Cruz, supra, 49 Cal.3d at pages 78-79, the defendant, who was
charged with resisting arrest, contended that officers had used excessive force to
arrest him, and he sought disclosure of prior complaints of excessive force made
against those officers. Defense counsel’s supporting declaration asserted that the
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defendant had been handcuffed, grabbed by the hair, thrown to the ground, and
one officer had stepped on his head while another “ ‘twisted his arm behind his
back.’ ” (Id. at p. 79.) Focusing on the materiality of the information sought to
the pending litigation, we concluded that the declaration’s description of specific
acts of officer force against the defendant set out “a specific factual scenario” to
support the defendant’s claim of excessive force. (Id. at p. 85, italics added.) We
went on to say that when considered together with the police reports (stating that
one officer punched defendant and then helped another officer wrestle the
defendant to the ground), “counsel’s averments establish a plausible factual
foundation for an allegation of excessive force.” (Id. at p. 86, italics added.)
Moreover, we continued, defense counsel’s averments “put the court on notice that
the officers’ alleged use of excessive force” was a potential defense to the resisting
arrest charge against the defendant, and they “articulate[d] a valid theory” of how
prior excessive force complaints against the officers “might be admissible.” (Id. at
p. 86.) In sum, in Santa Cruz the declaration of defense counsel “plainly
demonstrated” the materiality of the information sought to the crime charged and
the proposed defense to it. (Ibid.)
The origins of the “plausible factual foundation” language this court used in
Santa Cruz can be traced to cases of criminal discovery predating our 1974
decision in Pitchess, supra, 11 Cal.3d 531. Eight years earlier, in Ballard v.
Superior Court (1966) 64 Cal.2d 159, we stated that a criminal defendant’s motion
for discovery must describe the information sought and “must be sustained by
plausible justification.” (Id. at p. 167, italics added.) Thereafter, in Hill v.
Superior Court (1974) 10 Cal.3d 812, we quoted the “ ‘plausible justification’ ”
language from Ballard and said that a criminal defendant was “not entitled to
inspect material as a matter of right” but must make “a prior showing of good
cause.” (Id. at p. 817.) Three months later, we decided Pitchess. As mentioned
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earlier, under Pitchess a criminal defendant is entitled to discover certain
information from a police officer’s personnel records that would support a defense
to the charge against the defendant—a holding that the Legislature codified in
1978. Several years later, we noted the similarity between the “good cause” test of
the statutory scheme and the “plausible justification” test used in our pre-Pitchess
cases, and we concluded that the Legislature had not intended to abrogate that
older case authority when it codified our Pitchess holding. (People v. Memro
(1985) 38 Cal.3d 658, 679, fn. 19.)
IV.
In the 15 years since our decision in Santa Cruz, supra, 49 Cal.3d 74, the
Courts of Appeal have repeatedly had to determine whether a defendant has shown
good cause for in-chambers review of a police officer’s personnel records by
making the threshold showing that the information sought is material to the
pending litigation. Some Courts of Appeal have described the good cause inquiry
in language that hews rigorously to descriptive terms this court used in Santa
Cruz, and they assess good cause under a two-part test requiring a “specific factual
scenario” that establishes a “plausible factual foundation.” (See, e.g., California
Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020-1023; City
of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1146-1150.) Other
Courts of Appeal have framed the good cause inquiry around the statutory
formulation of materiality to the subject matter of the pending litigation (§ 1043,
subd. (b)) or some equivalent terminology. (See, e.g., People v. Johnson (2004)
118 Cal.App.4th 292, 303 [defense counsel’s declaration provided “a sufficient
factual foundation” to show materiality of the officer’s truthfulness]; People v.
Hustead (1999) 74 Cal.App.4th 410, 416-417 [defendant “must make an initial
showing that the information he is seeking is material to the case at hand”].)
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Regardless of how the materiality inquiry is described, however, a showing
of good cause requires a defendant seeking Pitchess discovery to establish not
only a logical link between the defense proposed and the pending charge, but also
to articulate how the discovery being sought would support such a defense or how
it would impeach the officer’s version of events. This court has long required that
the information sought must be described with some specificity to ensure that the
defendant’s request is not so broad as to garner “ ‘all information which has been
obtained by the People in their investigation of the crime’ ” but is limited to
instances of officer misconduct related to the misconduct asserted by the
defendant. (Pitchess, supra, 11 Cal.3d at p. 537; accord, People v. Mooc, supra,
26 Cal.4th at p. 1226; Santa Cruz, supra, 49 Cal.3d at p. 85.)
This specificity requirement excludes requests for officer information that
are irrelevant to the pending charges. (See, e.g., People v. Hustead, supra, 74
Cal.App.4th at p. 416 [prior complaints of excessive force by arresting officer
“irrelevant” after charge of resisting arrest was dropped and remaining charge was
evasion of arrest in an automobile].) And it enables the trial court to identify what
types of officer misconduct information among those requested will support the
defense or defenses proposed to the pending charges. This inquiry establishes the
statutorily required materiality prong of the good cause showing that a defendant
must make to receive in-chambers review of potentially relevant officer records.
V.
Here, the Court of Appeal characterized defendant’s discovery request as
overbroad. Defendant’s Pitchess motion sought complaints of officer misconduct
and discipline relating to acts or attempted acts of “aggressive behavior, violence,
excessive force, . . . racial bias, gender bias, ethnic bias, sexual orientation bias,
coercive conduct, violation of constitutional rights . . . . [¶] . . . [and] misconduct
amounting to moral turpitude” such as “false arrest, planting evidence, fabrication
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of police reports, fabrication of probable cause, false testimony, perjury, using
excessive force, making false arrests, writing false police reports to cover up the
use of excessive force, and false or misleading internal reports including . . . false
overtime or medical reports.” Included in this exhaustive list were items, such as
gender or sexual orientation bias, that were completely untethered either to the
factual scenario or to the proposed defenses outlined in defense counsel’s
declaration. At the hearing on the Pitchess motion, defense counsel did not
advance any additional justification for the relevance of all the requested
categories. The Court of Appeal observed that “the vast majority of categories of
possible misconduct” listed by the defense had “no support” in the factual scenario
outlined by counsel, and it specifically rejected the request for documents in the
officers’ personnel files that would relate to false overtime claims. The Court of
Appeal concluded that only information about prior complaints that any of the
three officers “had made false statements in police reports” would have relevance
to petitioner’s claims of officer misconduct.
The Court of Appeal also concluded that defendant had not shown good
cause for discovery of prior complaints of false statements in police reports written
by the three arresting officers, because he had not established a “plausible” factual
scenario. Defendant’s factual scenario, according to the Court of Appeal, “was
not objectively plausible,” that is, “no reasonable person would find it plausible.”
Correctly acknowledging that “collateral supportive evidence” is not necessary to
establish a plausible factual foundation for alleged officer misconduct, the Court
of Appeal nonetheless concluded that such evidence “contributes” to such a
finding.
As we mentioned earlier, defendant was charged with possessing cocaine
base for sale. Defense counsel’s declaration in support of the Pitchess motion,
however, denied that defendant had “possess[ed] any narcotics for the purpose of
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sale on the date of his arrest” and denied that defendant had discarded any rocks of
cocaine. Instead, the declaration stated, defendant was at the scene to buy cocaine
and, fleeing at the sight of the officers because he feared arrest for an outstanding
parole warrant, ran past the actual seller. Defense counsel postulated two
explanations—either the officers did not know who had discarded the rocks of
cocaine and they falsely accused defendant of having done so, or they knew who
had discarded the cocaine but falsely accused defendant. Under either theory,
defense counsel asserted, the officers falsely arrested defendant and made false
statements in the police report to support his arrest. This factual scenario, the
Court of Appeal concluded, was specific. We agree.
We are not persuaded, however, by the Court of Appeal’s further
conclusion that defendant’s factual foundation was not “plausible.” His proposed
defense to the charge of possessing cocaine base for sale was straightforward: he
asserted he did not possess, and therefore could not have discarded, the 42 rocks of
cocaine. By denying the factual assertions made in the police report—that he
possessed and discarded the cocaine—defendant established “a reasonable
inference that the [reporting] officer may not have been truthful.” (People v.
Hustead, supra, 74 Cal.App.4th at p. 418.)
In the Court of Appeal’s view, defendant’s showing fell short by not
providing a plausible factual foundation for his allegations of officer misconduct.
Referring to a dictionary definition, the court stated that “ ‘[p]lausible’ means
‘seemingly true’ ” and “denotes a degree of reasonable probability, a degree of
apparent credibility greater than mere possibility.” The Court of Appeal, in effect,
concluded that to establish good cause for Pitchess discovery a defendant must
show not only that the proposed factual scenario when “[v]iewed in conjunction
with the police reports” will support his allegations of officer misconduct (Santa
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Cruz, supra, 49 Cal.3d at p. 86), but also a reasonable probability that the
defendant’s version of events actually occurred.
According to the Court of Appeal, defendant’s factual scenario was “not
objectively plausible.” It reasoned that his possessing only $2.75 when arrested
was materially inconsistent with his story that he was on the scene to buy, not to
sell, cocaine and that he brought an empty baggie to hold his purchase. The Court
of Appeal also noted that “[o]ther undisputed facts add to the implausibility of the
scenario” defendant had asserted. Questioning why a person other than defendant
would have discarded the 42 rocks of cocaine in public view, the Court of Appeal
stated: “[I]t defies belief that a person would have followed” the fleeing defendant
pursued by officers “in order to discard the cocaine in [defendant’s] proximity, in
the middle of a street.”
The Court of Appeal’s conclusion that defendant’s factual scenario was
implausible turns on assumptions lacking any factual basis or relies on inferences
it drew that went beyond the facts as described in the police report and in defense
counsel’s declaration. Defense counsel’s declaration asserted that the true seller
tossed the cocaine as defendant ran past the seller “who was not running.” The
police report stated that two officers pursued defendant as he ran down the
sidewalk and that he discarded the cocaine as he started to run across a street. But
neither the police report nor defense counsel’s declaration described the discarded
cocaine as having been found “in the middle of the street,” as the Court of Appeal
asserted.
Defense counsel’s declaration in support of the Pitchess motion, the
parties’ argument at the hearing on the motion, and the police report make no
mention of the street price of a single rock of cocaine the size of the 42 pieces
recovered, which together weighed only 0.10688 of an ounce. The Court of
Appeal questioned why, if defendant was buying cocaine, he had so little cash.
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One could just as well question why, if defendant was selling 42 rocks of cocaine,
he had only $2.75 in his pockets with which to make change for his customers.
Nor is it unlikely that in an area described by the officers as one of “blatant”
narcotics sales, someone other than defendant might discard 42 rocks of cocaine to
avoid being found in possession of a saleable quantity of drugs.
Having
decided
that defendant had too little cash to buy cocaine and that
only he would have discarded the rocks of cocaine in question, the Court of
Appeal concluded that defendant’s factual scenario was implausible, not because
his version of events could not have occurred, but because in the court’s view that
version of events was unlikely. In doing so, the Court of Appeal elevated the
showing of good cause for Pitchess discovery beyond that required by law.
To show good cause as required by section 1043, defense counsel’s
declaration in support of a Pitchess motion must propose a defense or defenses to
the pending charges. The declaration must articulate how the discovery sought
may lead to relevant evidence or may itself be admissible direct or impeachment
evidence (People v. Hustead, supra, 74 Cal.App.4th at p. 417; Larry E. v. Superior
Court (1987) 194 Cal.App.3d 25, 32-33) that would support those proposed
defenses. These requirements ensure that only information “potentially relevant”
to the defense need be brought by the custodian of the officer’s records to the
court for its examination in chambers. (People v. Mooc, supra, 26 Cal.4th at
p. 1216; Santa Cruz, supra, 49 Cal.3d at p. 84.)
Counsel’s affidavit must also describe a factual scenario supporting the
claimed officer misconduct. That factual scenario, depending on the
circumstances of the case, may consist of a denial of the facts asserted in the
police report. In People v. Hustead, supra, 74 Cal.App.4th 410, a defendant
facing a charge of felony evasion of arrest brought after a high-speed automobile
chase sought Pitchess discovery of whether the pursuing officer had “a history of
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misstating or fabricating facts” in police reports. (Id. at p. 416.) In support of the
motion, the defense declaration denied that defendant had driven in the way or
along the route described by the officer. (Id. at p. 417.) Presiding Justice Ardaiz,
writing for the Court of Appeal in Hustead, concluded that the defendant had met
his burden of making “an initial showing that the information he is seeking is
material to the case at hand.” (Id. at p. 416.) In other words, defense counsel’s
declaration in Hustead made allegations sufficient to “establish a plausible factual
foundation” for a defense that the defendant did not drive in the fashion described
in the police report and that the officer’s report was untrue. (Id. at p. 417.)
In other cases, the trial court hearing a Pitchess motion will have before it
defense counsel’s affidavit, and in addition a police report, witness statements, or
other pertinent documents. The court then determines whether defendant’s
averments “[v]iewed in conjunction with the police reports,” and any other
documents suffice to “establish a plausible factual foundation” for the alleged
officer misconduct and to “articulate a valid theory as to how the information
sought might be admissible” at trial. (Santa Cruz, supra, 49 Cal.3d at p. 86.)
Although a Pitchess motion is obviously strengthened by a witness account
corroborating the occurrence of officer misconduct, such corroboration is not
required. What the defendant must present is a specific factual scenario of officer
misconduct that is plausible when read in light of the pertinent documents. (Santa
Cruz, supra, 49 Cal.3d at p. 86; Haggerty v. Superior Court, supra, 117
Cal.App.4th at p. 1087.)
A
Pitchess motion need not, however, provide a motive for the alleged
officer misconduct. We do not require the prosecutor to prove motive at trial in
order to obtain a conviction. (CALJIC No. 2.51.) It would be anomalous to
require a criminal defendant to do so in order to obtain discovery. Moreover,
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because most defendants will only be able to postulate an officer’s motive for
misconduct, to require every defendant to demonstrate a motive would require
most of them “to allege with particularity the very information” they seek to
discover. (People v. Memro, supra, 38 Cal.3d at p. 684.) Imposing a motive
requirement would be contrary to the principles of discovery and would, in most
instances, require defense counsel to engage in rank speculation.
The question remaining is this: What degree or quantity of justification
must the moving party offer to establish a plausible factual foundation for the
claim of officer misconduct? Here, the Court of Appeal concluded that to be
plausible a factual foundation must be reasonably probable or apparently credible
and not merely possible. In so doing, the Court of Appeal imposed a greater
burden on the party seeking Pitchess discovery than required by our prior cases or
the statutory scheme. To require a criminal defendant to present a credible or
believable factual account of, or a motive for, police misconduct suggests that the
trial court’s task in assessing a Pitchess motion is to weigh or assess the evidence.
It is not. A trial court hearing a Pitchess motion normally has before it only those
documents submitted by the parties, plus whatever factual representations counsel
may make in arguing the motion. The trial court does not determine whether a
defendant’s version of events, with or without corroborating collateral evidence, is
persuasive—a task that in many cases would be tantamount to determining
whether the defendant is probably innocent or probably guilty. (See People v.
Johnson, supra, 118 Cal.App.4th at p. 304.)
Moreover, a credibility or persuasiveness standard at the Pitchess discovery
stage would be inconsistent with the statutory language and with our previous
decisions requiring only that defense counsel’s affidavit or declaration supporting
a defendant’s Pitchess motion be made on information and belief. (§ 1043, subd.
(b)(3); People v. Mooc, supra, 26 Cal.4th at p. 1226; Santa Cruz, supra, 49 Cal.3d
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at pp. 86-89; Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 395.) As we
have previously noted, the legislative history of section 1043 shows that the
“Legislature expressly considered and rejected a requirement” that counsel’s
affidavit be made on personal knowledge. (Santa Cruz, supra, 49 Cal.3d at
pp. 88-89, original italics.) Because defense counsel would only rarely be present
when the alleged officer misconduct occurred, counsel has little information to
offer based on counsel’s personal knowledge.
What standard must a moving party meet to show a “plausible” factual
foundation for the Pitchess discovery requested? We conclude that a plausible
scenario of officer misconduct is one that might or could have occurred. Such a
scenario is plausible because it presents an assertion of specific police misconduct
that is both internally consistent and supports the defense proposed to the charges.
A defendant must also show how the information sought could lead to or be
evidence potentially admissible at trial. Such a showing “put[s] the court on
notice” that the specified officer misconduct “will likely be an issue at trial.”
(Santa Cruz, supra, 49 Cal.3d at p. 86.) Once that burden is met, the defendant
has shown materiality under section 1043.
To determine whether the defendant has established good cause for in-
chambers review of an officer’s personnel records, the trial court looks to whether
the defendant has established the materiality of the requested information to the
pending litigation. The court does that through the following inquiry: Has the
defense shown a logical connection between the charges and the proposed
defense? Is the defense request for Pitchess discovery factually specific and
tailored to support its claim of officer misconduct? Will the requested Pitchess
discovery support the proposed defense, or is it likely to lead to information that
would support the proposed defense? Under what theory would the requested
information be admissible at trial? If defense counsel’s affidavit in support of the
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Pitchess motion adequately responds to these questions, and states “upon
reasonable belief that the governmental agency identified has the records or
information from the records” (§ 1043, subd. (b)(3)), then the defendant has
shown good cause for discovery and in-chambers review of potentially relevant
personnel records of the police officer accused of misconduct against the
defendant.
Here, defendant’s version of events is plausible given the factual scenario
described in defense counsel’s declaration. The declaration asserted that the
officers mistook defendant for the person who actually discarded the cocaine, and
falsely accused him of having done so. The scenario described in defense
counsel’s declaration is internally consistent; it conflicts with the police report
only in denying that defendant possessed any cocaine and that he was the one who
discarded the rocks of cocaine found on the ground. Those denials form the basis
of a defense to the charge of possessing cocaine for sale. Thus, defendant has
outlined a defense raising the issue of the practice of the arresting officers to make
false arrests, plant evidence, commit perjury, and falsify police reports or probable
cause. (People v. Jackson (1996) 13 Cal.4th 1164, 1220 [overbroad discovery
request is properly narrowed by the trial court to misconduct similar to that
alleged]; People v. Memro, supra, 38 Cal.3d at pp. 681-683 [“evidence that the
interrogating officers had a custom or habit of obtaining confessions by violence,
force” or threats would be admissible to support a coerced confession claim].)
Defendant has established the relevance of such information to his pending trial
(see, e.g., People v. Gill (1997) 60 Cal.App.4th 743, 750 [prior complaints that
arresting officer fabricated probable cause and planted evidence were material to
defense that drugs were planted on a defendant changed with drug possession]),
and having advanced a basis for admitting it into evidence at trial, he has shown its
materiality.
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To summarize, defendant has established good cause for Pitchess
discovery, entitling him to the trial court’s in-chambers review of the arresting
officers’ personnel records relating to making false arrests, planting evidence,
fabricating police reports or probable cause, and committing perjury. In other
words, defendant has “satisfied the criteria for discovery under section 1043,
subdivision (b),” thus entitling him to a determination of relevance under the
provisions of section 1045. (Santa Cruz, supra, 49 Cal.3d at p. 93.) Section 1045
requires in-chambers record review by the trial court, permits that court to issue an
order protecting the officer against “unnecessary annoyance, embarrassment or
oppression” (subd. (d)), and requires the trial court to limit the use of any records
that are disclosed. By doing so, the section maintains a balance between the
officer’s legitimate privacy interests and the criminal defendant’s constitutionally
guaranteed right to a fair trial. (People v. Mooc, supra, 26 Cal.4th at p. 1227.)
DISPOSITION

The judgment of the Court of Appeal is reversed, and the matter is
remanded to that court with directions to issue a writ of mandate consistent with
the views we have expressed here.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

18

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DISSENTING OPINION BY BROWN, J.

I dissent.
Defendant’s arrest took place in a location known for “blatant use and sales
of narcotics.” Police arrived on the scene. They targeted defendant, and
defendant began to run, the police in close pursuit. Then, according to defendant’s
Pitchess1 affidavit, some unknown person spilled 42 rocks of cocaine at
defendant’s feet as he ran past. Defendant was arrested in possession of an empty
baggie and $2.75. Nevertheless, his affidavit asserted he was in the area to
purchase, not to sell, narcotics. Both the trial court and the Court of Appeal found
defendant’s story that someone else spilled the cocaine utterly unconvincing. And
no wonder. When the lion culls the slowest, weakest, or unluckiest from the herd,
the other gazelles run a safe distance and then return to grazing. No gazelle
commits suicide by flinging itself in the lion’s path. These behaviors are
instinctive, and we encounter them in our everyday experiences. When freeway
commuters who are traveling faster than the posted speed limit spot a police
cruiser in their rearview mirrors, they slow inconspicuously, avoiding any sudden
changes that might draw police attention. When the police flashers are activated
and one commuter is pulled over, the others breathe a sigh of relief and gradually
return to cruising speed. People no more than animals invite calamity when fate
has already selected another victim.
The majority concedes that a defendant must set forth a “plausible factual
foundation” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86 (City
of Santa Cruz)) to support a discovery motion under Evidence Code section 1043,

1
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
1

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subdivision (a), but the majority then deprives the term “plausible” of any
substantive content by holding that a defendant satisfies this requirement so long
as his version of the facts “could have occurred” and is “internally
consistent.” (Maj. opn., ante, at p. 16.) “Plausible,” however, implies something
more than mere internal consistency. (See, e.g., People v. Hernandez (2003) 30
Cal.4th 835, 869-870 [using “plausible” to mean believable]; People v. Cash
(2002) 28 Cal.4th 703, 724 [using “plausible” to mean reasonably believable];
People v. Kipp (2001) 26 Cal.4th 1100, 1123-1124 [using “plausible” to mean
believable]; People v. Trevino (2001) 26 Cal.4th 237, 244 [using “plausible” to
mean persuasive]; In re Cudjo (1999) 20 Cal.4th 673, 695-696 [using “plausible”
to mean believable]; People v. Wader (1993) 5 Cal.4th 610, 645 [using “plausible”
to mean reasonably believable]; People v. Jones (1991) 53 Cal.3d 1115, 1138
[same].) I admit that plausibility in the Pitchess context might mean something
less than believable or persuasive. It certainly does not require circumstances that
are probable or likely, and a trial judge ruling on a discovery motion should not
predetermine issues that are ultimately for the trier of fact. The judge nevertheless
must exercise some discretionary judgment, especially when, as here, the
defendant’s factual assertions are highly unlikely and, though related to matters
within the personal knowledge of the defendant, they are made by his attorney on
information and belief, rather than by the defendant directly, thereby shielding the
defendant from perjury. At the very least, an assertion that runs counter to
experience, nature, logic, and reason should be rejected—even if it is technically
possible.
Defendant’s affidavit claimed he was at the location to purchase narcotics.
That claim is patently absurd. The majority concedes that 42 rocks of cocaine
were strewn on the ground near where defendant had been running and that
defendant was arrested holding an empty plastic baggie. Nevertheless, the
2

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majority credits defendant’s unlikely assertion that someone else—the real
seller—spilled the cocaine just as defendant happened to run past. (Maj. opn.,
ante, at p. 12.) The majority also admits defendant had only $2.75 with which he
could make his narcotics purchase. (Ibid.) More precisely, defendant had a $1 bill
and seven quarters, and he possessed no paraphernalia for consuming narcotics.
In the course of many years of studying criminal records, I have never encountered
a case in which (a) a drug purchaser brought his own baggie, and (b) narcotics
were sold on the street in $1 or $2 increments, making defendant’s story very
doubtful. The majority responds that defendant’s lack of money just as readily
undermines the conclusion that he was selling narcotics because, with so little
money, he could not make change for his customers. (Maj. opn., ante, at p. 13.)
Anyone, however, who has walked around the neighborhood in which this court
has its San Francisco office knows that narcotics are sold with a simple
handoff: narcotics for cash.
The majority’s credulity with respect to defendant’s unlikely assertions
completely shifts the careful balance the Legislature struck between the rights of
defendants to reasonable discovery and the privacy interests of police officers. I
would hold that, because defendant failed to establish a “plausible factual
foundation” for his discovery motion (City of Santa Cruz, supra, 49 Cal.3d at p.
86), the trial court was correct to deny the motion, and the Court of Appeal was
also correct to deny the petition for a writ of mandate.
Accordingly, I dissent.
BROWN, J.
I CONCUR:
BAXTER,
J.
3

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

Name of Opinion Warrick v. Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 107 Cal.App.4th 1271
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S115738
Date Filed: June 2, 2005
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Stephen A. Marcus

__________________________________________________________________________________

Attorneys for Appellant:

Michael P. Judge, Public Defender, Albert J. Menaster, Leslie Ringold and Mark G. Harvis, Deputy Public
Defenders, for Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Rockard J. Delgadillo, City Attorney, Cheryl J. Ward and Claudia McGee Henry, Assistant City Attorneys,
Kim Rodgers Westhoff, Martin R. Boags and Michelle S. Wright, Deputy City Attorneys, for Real Parties
in Interest.

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

MarkG. Harvis
Deputy Public Defender
320 West Temple Street, Suite 590
Los Angeles, CA 90012
(213) 974-3056

Kim Rodgers Westhoff
Deputy City Attorney
500 City Hall East
200 North Main Street
Los Angeles, CA 90012
(213) 978-8024

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Opinion Information

Date:	Docket Number:
Thu, 06/02/2005	S115738

Disposition
Jun 2 2005	Opinion: Reversed

Dockets
May 6 2003	Received premature petition for review   petitioner Donald Paul Warrick
May 6 2003	Record requested
May 20 2003	Received Court of Appeal record   one doghouse
May 20 2003	Petition for review filed   By counsel for petitioner
May 20 2003	2nd record request
Jun 10 2003	Received:   copies of Pub. Req. and Order
Jun 25 2003	Petition for Review Granted (criminal case)   George, CJ., was absent and did not participate. Votes: Moreno, ACJ., Kennard, Baxter, Werdegar and Chin, JJ.
Jun 26 2003	Received letter from:   DPD Mark Harvis re representation of petitioner Warrick
Jul 22 2003	Opening brief on the merits filed   petitioner Donald Paul Warrick
Aug 1 2003	Request for extension of time filed   answer brief/merits to 9-22-03>>real party City of Los Angeles
Aug 6 2003	Motion filed (non-AA)   Motion to strike opening brief on the merits, filed by real party in interest City of Los Angeles
Aug 7 2003	Extension of time granted   to 9-22-03 for RPI to file the answer brief on the merits
Sep 22 2003	Answer brief on the merits filed   RPI, City of Los agneles Police Department
Oct 7 2003	Reply brief filed (case fully briefed)   by counsel for petitioner Donald Paul Warrick
Dec 17 2003	Motion denied   The motion to strike the filing of the opening brief on the merits filed on Aug. 6, 2003, is denied.
Jan 26 2005	Filed:   letter from County Public Defender counsel for petnr DONALD PAUL WARRICK
Feb 9 2005	Case ordered on calendar   3/9/05 @9am, S.F.
Feb 23 2005	Filed:   list of additional authorities from counsel for petnr.
Mar 9 2005	Cause argued and submitted
Jun 2 2005	Opinion filed: Judgment reversed   and remanded. Opinion by Kennard, J. ----joined by George, CJ., Werdegar, Chin & Moreno, JJ. Dissenting Opinion by Brown, J. ----joined by Baxter, J.
Jul 6 2005	Remittitur issued (civil case)

Briefs
Jul 22 2003	Opening brief on the merits filed
Sep 22 2003	Answer brief on the merits filed
Oct 7 2003	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website