NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE

We hold that, because the defendant provided a reasonable explanation of why he was on the premises where marijuana was being grown and packaged, the superior court abused its discretion in denying the defendant's motion for an in camera review of the personnel files of the officer who reported his observation of the defendant and of the personnel files of the officer who reported his interview with the defendant.

BACKGROUND

Benjamin Brewster is charged with engaging in a conspiracy with John Talarico and Milagros Triango Canaber to cultivate marijuana. (Pen. Code, § 182, subd. (a)(1)1 In the sheriff's department incident report, Deputy Matthew Prather stated that, about 10:40 a.m., on July 29, 2010, he responded to a call of "shots fired" at a Palmdale residence. After Deputy Prather knocked on the door and identified himself, he heard noises. When Talarico opened the door, Deputy Prather detected the odor of both burnt and fresh marijuana and told Talarico about the report of "shots fired." Talarico responded that there had been no gunfire but also told the sergeant that he cultivated marijuana for himself and Canaber, his mother, for medicinal purposes.

Deputy Prather saw a small scale; canisters with marijuana; small bags with labels identifying the type of marijuana stored in the bags; and many items for growing marijuana indoors, including sun lamps and seedling-growing containers.

In the backyard, Deputy Rogers reported that he saw Brewster mixing earth in a bucket. He and Deputy Prather saw more marijuana-growing items in the garage.

Deputy Prather advised Brewster of his rights, and Brewster agreed to speak to the officers without an attorney. Deputy Prather states in the report: "The suspect said he had c[o]me to the location today to smoke some weed with S/Talarico, then he was going to drive home an[d] do some yard work. He also stated he would come over and check on the marijuana S/Talarico was growing and give him tips on how to do it. [¶] I then contacted S/Canabek [Talarico's mother] who was being detained in the front living room at the location. . . . She told me that S/Brewster worked for her around the house doing house work as well as assisting with the growing of the marijuana. She stated she was too old to get outside and do the work any longer. [¶] Due to the fact I was unable to verify. . . the certificate and marijuana license, I arrested all three of the suspects for the indicated crime. Also coupled with the fact that the marijuana found at the location was bagged and labeled in separate containers is consistent with how dealers will store the[ir] product prior to packaging it for individual sale. Also based on my training and experience a small pocket scale is used to weigh small amounts of narcotics to ensure it is properly packaged. [¶] Based on all the lighting equipment and the ventilation system that was set up in the new addition to the garage, I formed the opinion that all three suspects had a plan to expand the growing operation of the marijuana."

At the preliminary hearing, Deputy Prather testified that seven deputies were present, but Deputy Prather was the only officer who took statements from the suspects.

Pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), Brewster moved for discovery of the personnel records of Deputies Prather and Rogers to determine whether the files reflect "the deputies' propensity for dishonesty," and provided a non-exclusive list including, but not limited to, such matters as "any accusation of false arrest," "fabrication of evidence," "fabrication of probable cause," "filing or writing false police reports," "perjury," "planting evidence," and lying in a police report or to a fellow deputy to cover up another act of misconduct, such as the use of excessive force, or making false or misleading internal reports that would benefit the deputy in any way, such as overtime reports or medical reports."

In support, his counsel stated that Brewster would testify at trial that he was not mixing earth in the backyard and had never assisted Talarico or Canaber in any way in the cultivation of marijuana. Counsel added that Brewster was present at the residence to help Talarico take care of Talarico's mother, Canaber, and Brewster was outside, in the backyard, smoking a cigarette, when the deputies arrived.

Respondent court denied the motion.

DISCUSSION

Brewster gave a reasonable explanation of why he was in the residence (to help Talarico take care of Canaber) and gave a reasonable explanation of what he was doing in the backyard (smoking a cigarette), thus providing the "relatively low threshold" for establishing the good cause necessary to compel the trial court to conduct an in camera review. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83-84.)

The standard of review of the denial of a Pitchess motion is abuse of discretion. (People v. Moreno (2011) 192 Cal.App.4th 692, 701.) Any "plausible" showing that "might or could have occurred" is sufficient to require in camera review of the personnel files of the officers involved. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1026.)

"`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." [Citation.] A showing of good cause is measured by "relatively relaxed standards" that serve to "insure the production" for trial court review of "all potentially relevant documents." [Citation.]'" (People v. Sanderson (2010) 181 Cal.App.4th 1334, 1340.) "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." (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1024-1025.) "[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." (Id. at p. 1026.)

Unlike the defendant in People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319, who simply denied the elements of the offense charged and failed to state "a nonculpable explanation for his presence in an area where drugs were being sold" (id. at p. 1317), Brewster gave "a nonculpable explanation for his presence" in the backyard where marijuana was being cultivated.

Again, unlike the defendant in People v. Sanderson, supra, 181 Cal.App.4th 1334, who simply denied making criminal threats overheard by police officers, Brewster gave a reasonable explanation for his presence in the residence of Talarico and Canaber. Charged with making criminal threats, Sanderson sought the personnel files of two officers who had reported hearing him make those threats, but, in support of the motion, defense counsel simply denied that Sanderson made the threats. (Id. at p. 1338.)

ACCORDINGLY,

As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate "in the first instance." (Code Civ. Proc., § 1088; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1237-1238; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court's intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

DISPOSITION

THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of June 30, 2011, denying Petitioner's motion for discovery pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, and to issue a new and different order granting same, in Los Angeles Superior Court case No. MA050377, entitled People v. Benjamin Brewster, conducting an in camera inspection of the personnel files of Deputy Prather (#521024) and Deputy Roger (#476218) to determine what information, if any, is relevant to the case and exercise its discretion to determine whether any of the information to be released shall be released under a protective order.

All parties shall bear their own costs.

THE COURT:

CHANEY, Acting P. J. and JOHNSON, J., concurs.