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					                                   September 1, 2004



Honorable Ronald M. George, Chief Justice
 and the Associate Justices
California Supreme Court
350 McAllister Street
San Francisco, California 94102-7303


      RE: California Supreme Court Case No. S127432
          Court of Appeal No. G032739
          Garcia v. Superior Court of Orange County
          Letter in Support of Petition for Review pursuant to CRC Rule 28(g)

To the Chief Justice and the Associate Justices of the California Supreme Court:

       On behalf of the League of California Cities1, we submit this letter pursuant to
California Rule of Court 28(g) and respectfully request that the California Supreme
Court grant the petition for review filed in the above entitled matter by Real Party in
Interest City of Santa Ana.

       In the alternative, the League of Cities respectfully requests that this Court
order depublication of the Court of Appeal’s opinion in the above entitled matter
under California Rule of Court 979(a).

      I. The Nature of the Interest of the League of California Cities.

        The case in question, Garcia v. Superior Court of Orange County, involves two
significant questions concerning the procedural handling of a criminal defendant’s



      1
       The League of California Cities is an association of 476 California cities
united in promoting the general welfare of cities and their citizens. The League is
advised by its Legal Advocacy Committee, which is comprised of 24 city attorneys
representing all 16 divisions of the League from all parts of the state. The
committee monitors appellate litigation affecting municipalities and identifies
those that are of statewide significance.
Ronald M. George, Chief Justice
August 30, 2004
Page 2



Pitchess motion2 and satisfaction of the requirements of Evidence Code section
1043. Each police agency in this state, as a department of a city, has standing and
an interest in the outcome of a Pitchess motion.3 In reference to Pitchess motions,
the cities represented by the League act as representatives of the custodians of the
record, maintaining the personnel records of the peace officers whose personnel
records are sought through a Pitchess motion. It is the task of these individual cities
to oppose the Pitchess motion in criminal court, and argue whether the Pitchess
motion itself meets the good cause standard of City of Santa Cruz v. Municipal Court
(1989) 49 Cal.3d 74 and required through Evidence Code section 1043(b)(3). As
explained below the League believes the Garcia holding conflicts with prior California
case law, in particular City of Los Angeles v. Superior Court (Davenport) (2002) 96
Cal.App.4th 255.

       Additionally the League is concerned that the Garcia opinion makes some
assumptions of fact which are erroneous and without citation to the record below.
These erroneous facts incorrectly influenced the Fourth Appellate Court’s opinion. As
explained below if the correct facts are considered and the Pitchess motion is viewed
as the third party discovery motion, which it was said to be in Alford v. Superior Court
of San Diego County (2003) 29 Cal.4th 1033, the protective order procedure set forth
in Davenport is an appropriate procedure to follow and apply in determining whether
good cause does exist in a Pitchess motion.

          II. Why Review of Garcia v. Superior Court of Orange County Should Be
              Granted.

A. There is a Direct Conflict with City of Los Angeles v. Superior Court (Davenport).

       As fully explained in the Petition for Review, City of Los Angeles v. Superior
Court (Davenport) from the Second Appellate District and Garcia v. Superior Court of
Orange County from the Fourth Appellate District are in direct conflict. The language
the Fourth Appellate District used in addressing the Davenport case shows that the
court knew exactly what it was doing as it drafted its opinion. It knowingly
contradicted Davenport. The conflict was not an accident. (“Petitioner’s purported
distinction [of Davenport] is not persuasive.” “[W]e are not persuaded the Davenport
court’s procedure,...” “Contrary to Davenport, we conclude....”)

        This conflict leaves the State of California in a quandary. Which case is to be
followed? Which case is better reasoned? The League submits that this is the exact
situation that Rule 28(b) was created to address, to enable this Court to “secure

         2
             Pitchess v. Superior Court (1974) 11 Cal.3d 531
         3
             Davis v. City of Sacramento (1994) 24 Cal.App.4th 393, 401
Ronald M. George, Chief Justice
August 30, 2004
Page 3




uniformity of decision or to settle an important question of law.”

B. There are Erroneous Factual Assumptions Made in Garcia Which Lead to an
    Erroneous Conclusion.

       At page 12 of the Slip Opinion there are erroneous assumptions made. The
opinion assumes that counsel representing the custodian of records would find it
necessary to consult with the “police officer client.” There is no citation to the record
below to support this assumption. This is counsel for the custodian of the records
being discussed. This counsel represents the police agency, the city and the
custodian of records. This is not counsel representing the officer. The officer is a
part of the prosecution team and is generally represented by counsel for the
prosecution4 and, in fact, is not prohibited from obtaining his or her own
representation in opposition to a Pitchess motion. In the Garcia case counsel
opposing the Pitchess motion represented the custodian of the records and the City
of Santa Ana Police Department, not the individual officer. This is consistently true
throughout the State of California. The officer is not represented by the counsel who
appears to oppose the Pitchess motion. Therefore when the Garcia court says “one
must assume counsel would find it necessary to consult with the police officer client”
and “communications between the attorney and police officer client” the Garcia court
is making an erroneous assumption.

        Alford v. Superior Court (2003) 29 Cal.4th 1033,1045 said the Pitchess motion
is a third party motion. (“The Pitchess procedure is . . . in essence a special instance
of third party discovery.”)5 If the officer is a part of the prosecution team, he is not the
third party from whom discovery is sought. The custodian of records and the police
agency or city is the third party. As the Alford Court noted ( 29 Cal.4th at pp. 1045-
1046) in the context of third party discovery, if the third party objects to disclosure of
the information sought the party seeking the information must make a “plausible
justification or a good cause showing of need therefor.” Furthermore, if it is accepted
that the defense “is not required, on pain of revealing its possible strategies and work
product, to provide the prosecution with notice of its theories of relevancy of the
materials sought,. . .” (Emphasis added.) (People v. Superior Court (Barrett) (2000)
80 Cal.App.4th 1305, 1320-1321) then, there is no prohibition on providing the third
party with notice of the theories of relevancy and materiality of the Pitchess

      People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315 “The
         4

prosecution team includes both investigative and prosecutorial agencies and
personnel....”
         5
        Ultimately Alford said that the prosecution had no standing in a Pitchess
motion to argue or receive any information because it was a third party discovery
motion.
Ronald M. George, Chief Justice
August 30, 2004
Page 4


documents sought.

        If a Pitchess motion is third party discovery as this Court has previously stated,
then the protective order provided for in Davenport would be appropriate and
sufficient. The protective order would be directed to the third party, the city, police
agency or custodian of records. These parties, as third parties to the action, can be
directed to keep the information they obtain confidential. In exchange for this
information these third parties are able to have meaningful discussion and fair
adversarial hearing. The erroneous factual assumptions made in the Garcia opinion
lead to an incorrect decision.

          III. Conclusion

       The Garcia case should be reviewed by this court. Not only does the Garcia
case conflict with Davenport, the court made erroneous factual assumptions that led
to an erroneous legal conclusion that should be reversed or, in the alternative
depublished.


                                               Very truly yours,

                                                 Kim Rodgers Westhoff
                                  Deputy City Attorney for the City of Los Angeles
                                  on behalf of the League of California Cities


KRW/
cc: Donald Earl Landis--Orange County Public Defender
    Hon. Carla M. Singer
    Clerk of the Court--Fourth Appellate District, Division Three
    Tony J. Rackauckas, District Attorney Orange County
    Attorney General, San Diego
    Paula Coleman, Assistant City Attorney, City of Santa Ana

				
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