Serrano v. Superior Court of L. A. Cnty.

16 Cal.App.5th 759

224 Cal.Rptr.3d 622

Manuel SERRANO, Petitioner,

v.The SUPERIOR COURT of Los Angeles County, Respondent;

Los Angeles County Sheriff's Department et al., Real Parties in Interest.

B282975

Court of Appeal, Second District, Division 1, California.

Filed October 30, 2017

Kelly Emling, Acting Public Defender, Albert J. Menaster, Mark G. Harvis and Rebecca L. Barnhart, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Fuentes & McNally, Raymond J. Fuentes and Sofia Sarin, Glendale, for Real Parties in Interest.

LUI, J.

Defendant Manuel Serrano, charged with the sale and transportation of a controlled substance, moved for in camera review and pretrial disclosure of potential impeachment material the district attorney informed him is contained in the personnel file of the arresting deputy, who is expected to testify at Serrano's trial. The superior court denied the motion. Serrano petitioned for writ of mandate. We grant the petition and direct the superior court to vacate its order denying Serrano's motion and enter a new and different order granting the motion.

FACTUAL AND PROCEDURAL SUMMARY

A. Serrano's Detention and Arrest

Los Angeles County Sheriff's Deputy Adam Halloran was driving his marked patrol vehicle northbound on Interstate 5 when he spotted a Jeep in the number 2 lane, hugging the left side of the lane.¹ When the Jeep passed a semitrailer, the rear tire crossed over the line into the next lane (an alleged violation of Veh. Code, § 21658, subd. (a) ). After the Jeep crossed over the line into the next lane a second time, Halloran performed a traffic stop. Halloran identified the Jeep's driver as Serrano and the sole passenger as Serrano's cousin, Homar Romero.

Halloran asserts in his report that he immediately noticed Serrano appeared extremely nervous. Serrano was breathing rapidly, and his hands trembled as he fumbled through his vehicle paperwork. Halloran also noticed a FoodSaver box, which his training taught him is used to vacuum seal narcotics. Halloran informed Serrano of the reason for the stop and asked if he had been drinking. Serrano replied that he had not.

Halloran instructed Serrano to exit his vehicle and asked where he had been coming from. Serrano said he had dropped off his grandmother at his aunt's house but was unable to remember the name of the city where she lives. According to Halloran, Serrano was squinting and his nervousness increased. When asked how long he had been in Los Angeles, Serrano did not respond directly and instead stated that he left Fresno at 4:00 a.m. Halloran observed that Serrano was so nervous that his voice began to crack, at which point Serrano, apparently conscious of his nervous behavior, volunteered that he had just consumed an energy drink.

Halloran concluded that while none of these behaviors individually would indicate criminal activity, taken together and considered in light of his law enforcement training and experience, they led him to be "extremely suspicious that a crime was occurring beyond a basic traffic violation." Serrano denied that there were any drugs or guns in the vehicle and refused Halloran's request for permission to search the vehicle. Halloran placed Serrano in the backseat of his patrol car and radioed for a K-9 unit. Up to that point Halloran had been operating alone, but soon was joined by passing California Highway Patrol Officer Smithson, who remained on the scene for officer safety.

When the K-9 unit arrived, the drug-sniffing dog alerted on the car, and in particular on the FoodSaver box in the back. Upon inspection, Halloran found the box contained a vacuum sealer and plastic bags, but no narcotics. Halloran then found a wrapped Christmas present in the backseat, which had a shape, feel, and weight consistent with bulk narcotics packaging of about one kilogram. Halloran unwrapped the present and found approximately 2.5 pounds of what appeared to be cocaine wrapped in foil and FoodSaver plastic material. Halloran also seized two cell phones as evidence consistent with drug dealing.

After advising Serrano of his Miranda rights,² Halloran told him he had found drugs and asked Serrano if Romero was "in on it." Serrano replied, "Nah." Halloran said, "It's just you then?" Serrano nodded. Halloran asked Serrano, "You are saying the drugs do not belong to him (pointing to [Romero] ), they belong to you?" Serrano replied, "Yes." Halloran released Romero at the scene and arrested Serrano and transported him to the Santa Clarita station for booking.

B. Serrano's Pitchess Motion Seeking Brady Material³

On April 17, 2017, the People filed an information charging Serrano with one count of sale and transportation of a controlled substance, cocaine, in violation of Health and Safety Code section 11352, subdivision (a). On the same day, a deputy district attorney informed Serrano's appointed public defender that she should file a discovery motion, and that by so recommending he believed he was fulfilling his obligations under Brady , supra , 373 U.S. 83, 83 S.Ct. 1194. The deputy district attorney explained he had learned from the office's online database of recurring witnesses that Deputy Halloran's personnel file contains potential Brady material, although the entry did not disclose the nature of the material.

On April 24, 2017, Serrano's public defender filed a motion for pretrial discovery, requesting the presentation to the court of all potentially relevant documents in Halloran's personnel file for the court's in camera review. Based on People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 206 Cal.Rptr.3d 606, 377 P.3d 847 ( Johnson ), Serrano asserted the defense is not required to allege officer wrongdoing in order to obtain discovery. Instead, Serrano argued the defense need only aver that there is Brady material in the officer's personnel file and explain how the officer's credibility is relevant to the case. Thus, in her declaration accompanying Serrano's motion, the public defender stated: "The credibility of the arresting deputy is material to both a motion to suppress evidence and to trial. He is the arresting officer and the sole witness for the prosecution on all issues related to the stop of my client, including his observations of my client's driving; my client's demeanor; what was observed in my client's vehicle; what was found in that vehicle; and any statements made by my client." The declaration further asserted that, "[d]epending on the type of Brady evidence in this officer's personnel file, it may be used to impeach this officer's testimony and credibility at any hearing or trial."

Real parties in interest Los Angeles County Sheriff's Department (LASD) and Deputy Halloran (sometimes collectively LASD) opposed Serrano's motion chiefly on the ground that counsel's declaration did not establish "good cause and materiality for the production of the requested documents." LASD argued that under Pitchess , supra , 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, and its progeny, "the defense must allege ... that the officer in question did something wrong," "must further show that this allegation of officer misconduct is ‘plausible,’ i.e., one that ‘might or could have occurred,’ " and "the discovery sought must support a theory of the defense that is logically related to the pending charges."

C. Superior Court's Hearing on Serrano's Motion

At the May 17, 2017 hearing, the public defender characterized Serrano's motion as based on Brady and Johnson , with Pitchess being "merely the mechanism to conduct the in camera review of protected police information." This, she argued, distinguished it from a "pure" Pitchess motion because Serrano was not alleging "particular officer misconduct such as to trigger an in camera review for dishonesty or excessive force."

LASD argued that the defense must follow Pitchess and Evidence Code section "1043 and show good cause and materiality by declaration and misconduct by the Deputy." The public defender conceded Serrano must show "good cause," but, quoting Johnson , supra , 61 Cal.4th at page 720, 206 Cal.Rptr.3d 606, 377 P.3d 847, argued that "the burden is not high. ‘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." ' "

The trial court concluded that a Pitchess motion requires "defense counsel to state upon information and belief, or any fashion in a declaration how Deputy Halloran engaged in acts of misconduct in this case." Because Serrano failed to allege officer misconduct, the court denied the motion without prejudice.

D. Serrano's Petition for Writ of Mandate

On June 7, 2017, Serrano filed a petition for writ of mandate, directing the respondent court to vacate and set aside its ruling denying his motion. Serrano contends the trial court erred by denying his motion on the ground that he failed to allege that Deputy Halloran engaged in acts of misconduct. Serrano asserts that his counsel's declaration, which showed that Deputy Halloran's credibility would be material to both a motion to suppress evidence and at trial, was sufficient to trigger in camera review of the officer's personnel file. Serrano chiefly relies on the statement in Johnson that when the defense has been notified that an officer's personnel file contains potential Brady material, "[a] defendant's providing of that information to the court, together with some explanation of how the officer's credibility might be relevant to the proceeding, would satisfy the showing necessary under the Pitchess procedures to trigger in camera review." ( Johnson , supra , 61 Cal.4th at p. 721, 206 Cal.Rptr.3d 606, 377 P.3d 847.)

We requested opposition. LASD contends that under Warrick v. Superior Court (2005) 35 Cal.4th 1011, 29 Cal.Rptr.3d 2, 112 P.3d 2 ( Warrick ) Serrano was required to allege specific misconduct committed by Deputy Halloran in this case...