Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD195535 Charles G. Rogers, Judge.
NARES, J.
In October 2006 a jury convicted Bradley Queen of robbery (Pen. Code, § 211) and found that he discharged a firearm during the commission of that crime (§ 12022.53, subd. (c)). In January 2007 the court sentenced Queen to a prison term of 22 years.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal Queen asserts (1) the court erred in concluding that he had not established good cause for an in camera review on his Pitchess motion, and (2) the court erred in denying his motion to continue the trial date to obtain discovery as to systemic problems with San Diego County's jury selection procedures in establishing jury pools that led to underrepresentation of minorities. We reject these contentions and affirm the judgment.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTUAL BACKGROUND
In the late night hours of December 6, 2005, Queen robbed Jason Olea in Pacific Beach. Olea and his friend, Kristopher Yates, were getting into their car when Queen approached, pulled the car door open, displayed a handgun, and ordered Olea to give him his cash and wallet. After Olea complied, Queen ran off. Olea exited the vehicle and began chasing Queen. During the chase, Queen turned and fired a shot toward Olea. Olea stopped chasing Queen and called the police.
The next night, Chula Vista Police Officer Bradley Wentzel pulled Queen's vehicle over because it did not have a rear license plate. During the stop, Queen agreed to allow Officer Wentzel to search his car. During the search, Officer Wentzel discovered Olea's wallet. A records check revealed that Olea had been the victim of a robbery, and Queen was arrested for possession of stolen property. A few days later, Olea identified Queen in a photographic line-up and at trial identified appellant as the person who robbed him.
DISCUSSION
I. PITCHESS MOTION
A. Background
Prior to trial Queen filed a Pitchess motion to discover the personnel files of Officer Wentzel, the officer who initially stopped Queen for the traffic violation and arrested him for possession of stolen property. In the motion, Queen asserted that Officer Wentzel's actions at the time of detention and arrest went beyond normal procedures. Queen asserted Officer Wentzel's reason for initiating the traffic stop was pretextual because Queen had insurance information taped to his rear window. Queen also argued that Officer Wentzel used excessive force and created a false and inaccurate police report. Counsel for Queen stated in a declaration that "Officer Wentzel unlawfully arrested . . . Queen."
At the hearing on Queen's motion, however, defense counsel conceded that Officer Wentzel did nothing wrong during the detention and subsequent arrest. Counsel explained that the reason for the motion was the fact the prosecutor had informed him that Officer Wentzel had been terminated from the Chula Vista Police Department because he had brandished a weapon against his wife. Counsel argued that Queen was entitled to determine whether there was more information as to Officer Wentzel's professional conduct to determine whether there was any other conduct that could call his credibility into question.
The court denied the motion, finding that counsel's assertion Officer Wentzel's police personnel file contained discoverable information was "speculation" and a "fishing expedition." The court stated that counsel had not "articulated to the court how it would be admissible in [Queen's] case; how it's material; how it's relevant; how it could assist you in a defense." The court stated that this was particularly so because Queen was not alleging that Officer Wentzel did anything wrong at the time of the detention or arrest.
B. Analysis
A defendant is entitled to discovery of a police officer's confidential personnel records if those files contain information that is potentially relevant to the defense. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) To exercise this right, a defendant must file a motion demonstrating good cause for the discovery which, if granted, results first in an in camera court review of the records and subsequent disclosure to the defendant of information "relevant to the subject matter involved in the pending litigation." (Evid. Code, § 1045, subd. (a).)
There is a " 'relatively low threshold' " for establishing the good cause necessary to compel in camera review by the court. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) Nevertheless, a defendant is not entitled to even an in camera review of police personnel files unless he first "'establish[es] a plausible factual foundation'" for the defense asserted. (Id. at p. 1025.) The defendant "must present . . . a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents." (Ibid.) A scenario sufficient to establish a plausible factual foundation "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." (Id. at p. 1026.)
"Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records." (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992 [reviewing trial court's ruling that no in camera review necessary under Pitchess for abuse of discretion].) Consequently we may reverse on this ground only if the party appealing the trial court's ruling demonstrates that the court abused its discretion.
Here, the court did not abuse its discretion in denying Queen's Pitchess motion. Not only did Queen fail to submit a "plausible factual scenario" of officer misconduct, counsel conceded at oral argument that there was no misconduct.
Queen asserts the court erred because Pitchess motions are not limited to discovering evidence of "excessive force during an arrest." Queen is correct. (See People v. Hustead (1999) 74 Cal.App.4th 410, 417.) However, Queen did not identify any other type of misconduct, such as falsifying a police report or planting evidence. Again, counsel for Queen conceded there was no misconduct during the detention and arrest and put forth no "plausible factual scenario" of any other type of misconduct by Officer Wentzel. Accordingly, the court properly denied Queen's Pitchess motion without conducting an in camera review.
II. DENIAL OF MOTION TO CONTINUE TRIAL
A. Background
While this case was pending trial, another case was also pending wherein defense counsel questioned the jury selection process the County of San Diego employed in summoning potential jurors to court. (Roddy v. Superior Court (2007) 151 Cal.App.4th 1115, 1120-1132.) In Roddy, the Honorable David M. Gill granted the defendant's discovery motion in September 2006, and later ordered the jury commissioner to produce source lists from the California Department of Motor Vehicles. The jury commissioner filed a petition for writ of mandate seeking to set aside that order, which this court granted. (Id. at p. 1120.)
In September 2006 Queen also filed a discovery order, seeking information pertaining to the procedures the County used to draw its jurors from the community. The only support for the motion was contained in defense counsel's declaration, wherein she stated, on information and belief, that there existed "a disparity between the number of Hispanics and/or African Americans living in San Diego County and the number of Hispanics and/or African Americans who are both called to serve, and those who actually serve on juries in San Diego County." The declaration did not allege that the underrepresentation was caused by any improper practices in the jury selection process. At the same time, Queen filed a motion to continue the trial date to allow time to obtain the materials sought in the discovery motion.
In ruling on the motion, the court acknowledged it was familiar with the proceedings before Judge Gill. However, the court denied the motion to continue and the discovery motion based upon its belief that the discovery would not show a systematic exclusion of certain groups of persons in the community. As the court explained, "We live in a county in which, if we look at the [populace] as a whole, there is a significant segment of the population who [sic] is effectively disenfranchised by virtue of their being undocumented. Certainly, we can't expect those people to show up for jury selection. It is also . . . a fact of life, based on this court's experience choosing a fair number of jur[ors], that wage earners and day laborers are put in a particularly difficult position when they're called for jury duty. It is an unfortunate truism, in this court's mind, that ethnic minorities are overrepresented in that class of wage earners and day laborers. [¶] It is . . . unrealistic to expect a high turnout when a person is going to lose a day's pay to even come down and sit in a jury lounge. However, I don't view that as a systemic problem with the jury selection process. It's more a fact of reality. I certainly don't think the Constitution will ever require us to compel economic hardship by a class of people so that we bump up the numbers of that ethnic group's participation."
B. Analysis
"A 'trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. [Citation.] A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.' [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 670.) When a party seeks a continuance of trial to secure evidence, the court should consider "'"not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on the other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion."'" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
The appellant bears the "'[t]he burden . . . [of] establish[ing] an abuse of judicial discretion . . . .'" (People v. Beeler (1995) 9 Cal.4th 953, 1003; People v. Seaton (2001) 26 Cal.4th 598, 660 ["The trial court has substantial discretion in ruling on midtrial motions to continue the case, and appellate challenges to a trial court's denial of such a motion are rarely successful"].) In addition, by statute, a trial court may only grant a continuance "upon a showing of good cause." (§ 1050, subd. (e); § 1050, subd. (a) [codification of legislative finding that "criminal courts are becoming increasingly congested" and that "[e]xcessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses"].)
"It is uncontroverted that '[i]n California, the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution [citation] and by article I, section 16 of the California Constitution [citation].' [Citation.] 'In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.' [Citation.] Once a prima facie case has been made, 'the burden shifts "to the state to come forward with either a more precise statistical showing that no constitutionally significant disparity existed or that there was a compelling justification for the procedure which results in the disparity in the jury pool."' [Citation.]" (People v. Jackson (1996) 13 Cal.4th 1164, 1194 (Jackson).)
Where a defendant seeks to ascertain whether an improper jury selection process exists, that defendant has certain rights to discovery: "Here we consider not whether defendant has made a prima facie case, but the prior question of whether defendant was wrongly denied the discovery of information necessary to make such a case. A defendant who seeks access to this information is obviously not required to justify that request by making a prima facie case of underrepresentation. Rather, upon a particularized showing supporting a reasonable belief that underrepresentation in the jury pool or the venire exists as the result of practices of systematic exclusion, the court must make a reasonable effort to accommodate the defendant's relevant requests for information designed to verify the existence of such underrepresentation and document its nature and extent." (Jackson, supra, 13 Cal.4th at p. 1194, italics added.)
Here, the court did not abuse its discretion in denying Queen's motion for a continuance to obtain discovery of juror underrepresentation. In support of his motion for discovery of information to support his claim of underrepresentation, Queen did not even attempt to make a "particularized showing supporting a reasonable belief that underrepresentation in the jury pool or the venire exists as the result of practices of systematic exclusion," as required by Jackson, supra, 13 Cal.4th at page 1194. Rather, Queen's motion only alleged the bare fact of underrepresentation. (Compare Roddy, supra, 151 Cal.App.4th at pages 1121-1131, where the defendant's motion for discovery of jury selection information contained expert testimony and evidence that there was (1) underrepresentation; and (2) that it was the result of "practices of systematic exclusion.") Queen's reliance on United States v. Rodriguez-Lara (2005) 421 F.3d 932, 946 is similarly unavailing as in that case the defendant alleged in his motion for discovery "a plausible theory of systematic exclusion: specifically, that the use of voter registration records as the sole source of names" for the jury pool systematically underrepresented Hispanics. Although counsel for Queen alleged on information and belief that there was systematic exclusion of certain minority groups, counsel did not attempt to show that exclusion was the result of practices "of systematic exclusion."
Queen asserts that the court abused its discretion because it was "speculating" as to the ultimate success of Queen's motion because of its opinion that any underrepresentation in the jury venire was caused by economics, and not by practices of systematic exclusion. Assuming that there was insufficient evidence in the record from which the court could find that underrepresentation was caused by economics, not a systemic problem with the jury selection process, the court's reasoning for denying Queen's motion does not change the result in this matter. As we have explained, ante, Queen failed to meet his burden of making a particularized showing supporting a reasonable belief that underrepresentationin the jury pool or the venire exists as the result of practices of systematic exclusion, and therefore it was not error for the court to deny his motion for a continuance.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.