Filed 12/1/14 Nauman v. A ppellate Div. of Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NANCY JANE NAUMAN,

Petitioner,

v.

APPELLATE DIVISION OF THE ORANGE COUNTY SUPERIOR COURT , Respondent;

CITY OF HUNTINGTON BEACH, Real Party in Interest. G050786
(Super. Ct. Nos. 13WM02844, 30

- 2014

- 00745573)

O P I N I O N

Original proceedings; petition for a writ of mandate to challenge an order of
the Appellate Division of the Orange County Super ior Court, Deborah C. Servino, Glenn R. Salter, and Richard Y. Lee, J udge s . Petition granted.

Frank Ospino, Public Defender, Mark S. Brown and Scott Van Camp, Deputy Public Defenders for Petit ioner.2 No appearance for respondent. Jennifer McGrath, City Attorney and Daniel K. Ohl, Deputy City Attorney, for Real Party in Interest.

THE COURT: 

Respondent trial court denied petitioner, Nancy Jane Nauman’s discovery motion and she sought review in the Superior Court Appellate Division. The Appellate Division denied relief on the basis that Nauman has an adequate remedy at law. We disagree and grant the petition.

FACTS

Petitioner, Nancy Jane Nauman, was arrested for two misdemeanor counts
of driving under the influence. According to the police report, dispatch advised Huntington Beach police officers that a possible drunk driver left a bar on Beach Boulevard traveling in an unknown direction. The caller identified the driver as a female
and provided a description of the license plate number and the car, an older yellow Dodge

Dart . According to the police report, while traveling on Main Street, officer s observed a yellow Dodge Dart with the same license plate number that had been broadcast by the dispatcher . According to the officer who prepared the police report , as they were traveling behind the car travel ing southbound on Main Street , they observed the car “as it began to drift into the single lane of northbound Main Street approximately t hree times for several seconds, violation of CVC 21658(a).” A ccording to the police report, the
officer s conducted a traffic stop and spoke to Nauman, who was identified as the sole

 Before O’Leary, P. J., Ikola , J., and Thompson, J.3

occupant of the car. According to the police report, Nauman displayed signs of being
under the influence and she “advised me she was coming from [the] bar and was driving home.” After administering field sobriety tests, Nauman was arrested for suspicion of driving under the influence. The car, whi ch the police report states was illegally parked along a red curb, was towed.

Nauman filed a discovery motion pursuant to Evidence Code section s 1043 through 104 7 , and Pitchess v. Superior Court (197 4 ) 11 Cal.3d 531 ( Pitchess )

. According to counsel’s dec laration filed in support of the motion, Nauman was not driving when she was arrested by the officers in this case. According to counsel’s declaration, at the time Nauman was contacted by the officers , (1) her car was already parked o n Main Street , (2) sh e was asleep in side the car, (3) the officers never observe d her driving on Main Street as claimed in the police report, (4) the officers never observe d
her car drift into the northbound lane as claimed in the police report , and (5) she never
told the officer s she was driving home from a bar as the officer also claimed in the police report

. According to counsel’s declaration, the officer who prepared the arrest report committed acts of misconduct in the form of dishonesty when he prepared a police rep ort claim ing he witnessed Nauman driving and drifting into the northbound lane . He was also intentionally false when he attributed the statement to her that she said she was driving home from a bar.

Counsel’s declaration s tates that based on “the informa tion alleged in the police report, we are informed and believe that [the officer] fabricated his description of
events in this case and he did not see [ ] Nauman driving.” According to counsel, the digital audio or video recording system are unavailable a nd “[i]n the absence of an alternative verification tool, the credibility of the testimony given from the officer who reported the alleged events . . . is a material issue to the defense ’s case.” A ccording to counsel’s declaration, the discovery motion is being used to “locate and investigate other4

witnesses to [,] and other victims of this officer’s acts of dishonesty and fabrication of police reports. It will be used in cross

- examination and impeach the officer at trial.”

Although Nauman never claimed a Fourth Amendment violation when
officers contact ed her while she was sleeping in a car illegally parked on a city street, respondent trial court questioned why a motion to suppress had not been filed and said,

“

. . . t here may be a fertile ground here for a challenge based on Fourth Amendment rights of the defendant that this

– I think the officer has to have some reason for an enforcement stop , and if it seems to me that information would come out in a 1538.5, if , in fact, the information at a suppression motion might reveal a plausible scenario to review the officer’s personnel records.” ( Italics added. )

When respondent trial court addressed the merits of the motion, it said, “I’m not convinced at this juncture based upon the dispute over whether or not, I gather, the vehicle was moving or not is sufficient for this court to grant a Pitchess motion that would be to the extent where the court would go into chambers, review the officer’s records for dishonesty; bec ause it seems to me that under a 1538 you might achieve, essentially, the objective in terms of this case of having all evidence of a detention and a stop suppressed rather than this court at this juncture based upon th e se scant facts that, frankly, don’t suggest to me a plausible scenario that would warrant this court reviewing the officer’s personnel records in chambers and in camera.”

When it finally ruled on the motion, respondent court said, “. . . I’m going to deny the Pitchess motion. I’m not going to go in to chambers based upon what I would deem as a fairly threadbare allegation of what happened in terms of the version, the plausible scenario presented by the defense counsel as opposed to the scenario presented by the city attorney. [¶] The botto m line is that’s why we have appeals court. I may be wrong on that. It may be that the standard is so low at this juncture that any allegation that there is a difference of opinion in terms of what happened based upon what your client is telling you what happened based upon what the police officer has alleged in his5

report upon which the district attorney elected to file a charge

– perhaps, I am mistaken.” ( Italics added.)

To clarify matters, t he court said, “. . . I want to make clear that my ruling

to day in denying this Pitchess motion at this time with prejudice in that I believe there has to be more to the factual scenario, the plausible scenario, other than the difference as to whether the vehicle was observed or not observed based upon the facts an d circumstances as presented in this particular case.” ( Italics added.)

Nauman sought review of the trial court’s ruling in the Superior Court Appellate Division. The Appellate Division denied relief with the statement, “Petitioner has an adequate remed y at law.”

Nauman sought relief in this court and we invited real party (the City) to file an informal response to the petition and issued Palma notice

. ( Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180

. ) In its informal response, t he City
takes the p osition the trial court’s ruling is correct because good cause was lacking as a result of petitioner failing to “ ‘ explain the facts in the police report, ’ [citation] [she] did not deny conversing with [the officer] or provide an alternat e version of the facts concerning the reason and nature of her conversation with him [ , ] [citation] [t]he motion failed to include her path of travel to the location of the stop, her objective symptoms of alcohol intoxication, her apparent confusion in answ ering simple questions concerning her drinking that evening, her inability to pass the field sobriety test, her admissions regarding her drinking, or that someone was concerned enough to report to the police that someone in a car matching hers, with the sa me license plate, left [the bar] with a possibly drunk driver.”6 DISCUSSION

Subdivision (b) of Evidence Code section 1043 states a motion seeking discovery into an officer’s personnel record , “shall include all of the following: [¶] (1)
Identificati on of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, the peace or custodial officer whose records are sought, the governmental agency which has custody and control of the records, and the time and plac e at which the motion for discovery or disclosure shall be heard[;] [¶] (2) A description of the type of records or information sought[;] [¶] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereo f to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.”

To the extent denial of the Pitchess motion and subsequent review was based on Nauman’s failure to file a suppression motion before filing the Pitchess motion, Nauman is entitled to relief. There is no requirement in either Evidence Code section
1043 or Pitchess that requires the moving party to make an elect ion between pretrial motions. Nor is there a designated order or hierarchy as to which motions must be filed
and considered first before the court rules on the merits of a Pitchess motion. D ecisions to file pretrial motions, such as a motion to suppress evidence, are tactical decisions, within the discretion of counsel to control trial strategy. ( People v. Turner (1992) 7 Cal.App.4th 1214, 1220

- 1222.)

In this case there a number of reasons why counsel either did not file a motion to suppr ess , or filed the Pitchess motion first, not the least of which is counsel’s explanation at the hearing, “The issue is not a stop,” and the possibility that complaints may be purged from an officer’s personnel file while the defendant litigates or investig ates pretrial motions. (Pen. Code, § 832.5, subd (b).) “R eviewing court s should7

avoid second

- guessing counsel’s informed choice among tactical alternatives. ” ( People v. Pope (1979) 23 Cal.3d 412, 424.)

The only issue respondent court should have consid ered is whether Nauman made the required showing of good cause to be entitled to the in c amera review by the
court. As City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74 ( Santa Cruz ) , explained, t o show “good cause” a moving party must present a “s pecific factual scenario” establishing a “plausible factual foundation” for allegations of officer misconduct. ( Id . at p p. 85

- 86.)

Although the trial court described Nauman’s specific factual scenario as a “very minor divergence , ” “[ t he] factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.” ( Warrick v. Superior Court (2005) 35 Cal.4th 1011 , 1024

- 1025 ( Warrick )

. )

Without the benefit of an audio or digital recording, it’s unclear what
additional facts Nauman sh ould have alleged. The City contends Nauman failed to
discuss her path of travel, her symptoms of intoxication , her inability to pass a field sobriety test, and her conversation with the officer . B ut these facts ar e largely irrelevant and miss the point. Nauman did not claim that she was not intoxicated or that she did not speak to the officers

.

Nauman’s specific factual scenario in this case consists of more than a general denial and alleged that at the time the officers in this case claimed they conducted a traffic stop, she was asleep in a parked car and therefore any police report that describe s her driving on Main Street, in any manner, is false. Nauman states further that any police report that claims she to ld the officer she was driving home from a b ar is also false. As a
result of the disparity between Nauman’s version of events and the description of her arrest in the police report, Nauman states the officer who prepared the arrest report
committed acts o f misconduct in the form of dishonesty when he prepared the police report and claimed to have seen her driving and drifting into the northbound lane, and8

attributed the statement to her that she was dri ving home from a bar. This “minor divergence” could n ot be more colossal.

With respect to presenting a plausible factual foundation, respondent trial court concluded the “scant facts . . . don’t suggest . . . a plausible scenario . . . warranting reviewing the officer’s personnel records in chambers and in camera.” Respondent trial

court ’s e xpla nation t hat Nauman’s version of the facts represent a fairly threadbare allegation “as opposed to ” the scenario presented by the city attorney, suggests respondent court judged the credibility of the versions provided by the parties, which “elevate[s] the showing of good cause for Pitchess discovery beyond that required by law.” ( Warrick v. Superior Court , supra , 35 Cal.4th at p. 1024.) “To require a criminal
defen dant 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.

. . . The trial court does not determine wh ether 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.” ( Id. at p. 1026.)

“[A] pl ausible 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 charge s.” ( Warrick , at p. 1026.)

Although we review Pitchess orders under the abuse of discretion standard ( People v. Hughes (2002) 27 Cal.4th 287, 330 ) , our Supreme Court has emphasized the threshold showing of good cause required to obtain Pitchess discove ry is “relatively low.” ( Santa Cruz , supra , 49 Cal.3d at p. 83; Garcia v. Superior Court (2007) 42 Cal.4th
63 , 70.) In this case, the trial court was tasked with making a determination of whether Nauman’s version, that she was asleep in a parked car when approached by the officers, “might or could have occurred , ” not weigh Nauman’s version against the officer’s9

account in the police report. “ [W] hen a trial court’s decision rests on an error of law, that decision is an abuse of discretion.” ( People v. Superior Court ( Humberto S. ) (2008) 43 Cal.4th 737, 746.) It is an abuse of discretion to apply the wrong legal standard. ( Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)

DISPOSITION

Let a peremptory writ of mandate issue in the first instance directing the Appellate Division of the Orange County Superior Court to vacate its order denying the petition for writ of mandate, and instead consider the merits of the petition.