City of Alhambra, Petitioners,

The Superior Court of the State of California for the County of Los Angeles, Respondent,

Robert Lee Rodriguez, Real Party in Interest.

The People of the State of California, Petitioner,

The Superior Court of the State of California for the County of Los Angeles, Respondent,

Robert Lee Rodriguez, Real Party in Interest.

Leland C. Dolley, City Atty., Burke, Williams & Sorensen and Slade J. Neighbors, [*398] Los Angeles, for petitioners in Case No. B031755.

Ira Reiner, Dist. Atty., Harry B. Sondheim, Head Deputy Dist. Atty., Donald J. Kaplan and Robert W. Carney, Deputy Dist. Attys., for petitioner in Case No. B032779.

No appearance for respondent.

Brodey & Price, Jeffrey Brodey, Beverly Hills, Paul L. Gabbert, Santa Monica, and Jill Jakes, for real party in interest in both cases.

CROSKEY, Associate Justice.

INTRODUCTION

In these proceedings1 the City of Alhambra ("City"), as an interested third party, and the People, appearing through the district attorney's office, seek writ relief from certain pretrial discovery orders issued at the request of the real party in interest, Robert Lee Rodriguez (hereinafter "defendant") who is a defendant in a multiple murder case. The City's petition (Case No. B031755) argues that the orders were improper because (1) they were issued by a judge who was assigned simply to hear applications under Penal Code section 987.9 for defense investigation funds, (2) compliance with the orders would violate protected governmental interests and (3) there was not a sufficient showing of plausible justification.

The People's petition (Case No. B032779) contends that the order requiring disclosure of records by the district attorney should be vacated because (1) the in camera procedures utilized by the trial court deprived the People of a fair hearing, (2) there was a lack of specificity and timeliness in the defendant's requests and (3) the order imposed an unreasonable burden on law enforcement.

As we conclude that it is improper for a section 987.9 judge, in the absence of an express delegation by the trial judge, to issue pretrial discovery orders, we grant the relief requested by the City. With respect to the People's petition, we conclude that the defendant has made a sufficient showing of plausible justification to receive the requested records which were adequately described and which can be produced without imposing an unreasonable burden on any governmental entity or violating any protected governmental interest. We therefore deny the People's petition.

FACTUAL AND PROCEDURAL BACKGROUND

1. City of Alhambra's Reports

On December 1, 1987, the defendant2 applied for a confidential ex parte order before Judge Gilbert C. Alston, who had previously been assigned by the trial judge (Judge Jack B. Tso), to hear applications for funds under Penal Code section 987.9 . Defendant's attorney submitted to the court a separate declaration under seal in order to preserve the confidentiality of the defense strategy. Judge Alston granted this ex parte application and issued an order authorizing the issuance of a judicial subpoena duces tecum requiring the production of copies of all reports in the possession of the Alhambra Police Department3 of all homicide investigations (1) involving female victims, (2) during the time period July 1, 1983 to July 31, 1985, (3) where death was caused by other than a [*399] firearm or automobile and (4) where the suspects, if any, are adult males. The subpoena duces tecum was returnable for an in camera examination and review by the court before being released to defense counsel.4

Thereafter the following events occurred:

(1) On December 2, 1987, the City was served with the subpoena compelling it to produce the above-mentioned homicide reports for in camera inspection by the court on December 10, 1987;

(2) On December 10, 1987, the City filed an ex parte motion to quash the subpoena along with an ex parte petition to reconsider and vacate the original order of December 1, 1987. These matters were heard by Judge Alston and denied, the court ordering production of the reports for in camera inspection by December 23, 1987;

(3) On December 22, 1987, the City filed a Request for Stay and a Petition for Writ of Mandate with this court to relieve it from the obligation of producing the homicide reports and records requested. That same day, this court issued a temporary stay order and alternative writ of mandate;

(4) On January 5, 1988, the Alhambra Police Department was served with a subpoena issued by the district attorney's office compelling Alhambra police officer Jim Varga to appear in superior court to testify regarding various homicide records and reports of the City;

(5) On January 6, 1988, the City's motion to quash the subpoena heard by Judge Alston was summarily denied and Officer Varga ordered to appear on January 6, 1988 for pretrial testimony in regard to various reports and records. Judge Alston additionally determined that the aforesaid temporary stay order and alternative writ issued by this court on December 22, 1987, did not apply to testimony by Officer Varga;

(6) On January 6, 1988, the City requested from this court a stay order extending the dates for the appearance of Officer Varga to a date 15 days after issuance of a final ruling on its petition for writ of mandate; and

(7) On January 8, 1988, this court ordered the requested temporary stay and issued a second alternative writ of mandate.

2. District Attorney's Reports

On February 6, 1988, defendant filed a motion with the trial court for discovery requesting twelve specific homicide investigation/police reports5 from the district attorney's office. To preserve the confidentiality of the defense, defendant's attorney submitted a separate declaration under seal for in camera inspection and review. On February 11, 1988, the trial judge [*400] granted defendant's discovery motion and ordered that "the summary of the investigator" of the twelve crimes be made available to defendant on February 18, 1988.

On that date, the district attorney, on behalf of the People, filed a petition for a writ of mandate annulling and vacating the superior court's order of February 11, 1988, and requesting a new order denying the February 6, 1988 motion for discovery in its entirety. A stay of the discovery order was also requested. This court issued an alternative writ of mandate and granted a temporary stay pending a determination on the merits of the petition.

DISCUSSION

1. City of Alhambra Petitions

a. Subpoenaed Police Reports

In it's petition, the City of Alhambra asserts a number of arguments which, reduced to their essence, may be summarized as follows: (1) the discovery orders were improperly issued by a judge assigned by the trial judge to hear applications for investigative funds under Penal Code section 987.9 ,6 (2) the defendant's discovery motion should have been denied on the grounds that it violated a legitimate governmental interest under Government Code section 6255 7 and Evidence Code section 1040 8 and (3) the defendant failed to provide an adequate showing of plausible justification for the material requested.

With respect to the City's first objection, the defendant argues that because of "Judge Alston's familiarity" with the defense and section 987.9's "umbrella confidentiality" his ex parte application to Judge Alston for the issuance of an order authorizing a subpoena duces tecum was [*401] proper.9

However, since the purpose of section 987.9 is only to provide for payment and funding of investigations, experts, and other pretrial preparation for the presentation of a defense (see Keenan v. Superior Court (1982) 31 Cal.3d 424, 430 , 180 Cal.Rptr. 489 , 640 P.2d 108 ), defendant's application should not have been considered by the section 987.9 judge. Contrary to defendant's argument, it does not necessarily follow that the Code section allows a 987.9 judge to hear all ex parte motions (or applications) a defendant may have in order to preserve confidentiality. The trial judge supervises and handles the substantive case and, without his express delegation, another judge should not hear and decide pretrial discovery motions. Therefore, Judge Alston should have neither heard nor decided defendant's confidential ex parte application. The City's motion to quash should have been granted.10 To hold otherwise would undermine the trial judge's control over the case and would encourage the unacceptable practice of "judge shopping."

b. Officer Varga's Subpoena

After this court issued a temporary stay order and alternative writ of mandate with respect to the subpoenaed police reports, Judge Alston denied the City's motion to quash a subpoena compelling Officer Varga to appear in his court.11 The City argues that its motion to quash should have been granted.

During a hearing before Judge Alston, Officer Varga was identified as the City's "lead detective insofar as homicide investigations go." In an attempt to determine if any other homicide investigation reports existed besides the one turned over to the court by the sheriff's department, the district attorney subpoenaed Officer Varga. A temporary stay order and alternative writ of mandate was then issued by this court to stay the order requiring his appearance.

As noted, supra, in the absence of a specific delegation by the trial judge, the section 987.9 judge's court was not the proper forum for any discovery motion. These motions should have been addressed solely to the sound discretion of the trial judge, who has inherent power to order discovery when the interests of justice so demand. The propriety and necessity of Officer Varga's subpoena must be decided by the trial judge or any judge to whom the task is expressly delegated by him. Consequently, the City's motion to quash should have been granted.

2. The People's Petition

The People argue that (1) since the defendant's ex parte discovery motion (which was properly directed to the trial judge) was in a declaration that was sealed, the prosecutor was forced to speculate that it pertained to modus operandi evidence and, as a result, the People were denied a fair hearing, (2) the requested discovery was too broad and lacked the specificity necessary to support the order made by the trial court, (3) the motion was made in a dilatory manner and was untimely, and (4) motions similar to defendant's are beginning to be made in a number of trial courts posing a serious problem, burdening law enforcement efforts and resources, thus creating a problem which must be dealt with by adequate limiting rules promulgated by the appellate courts. These objections raise a number of issues relating to a criminal defendant's right to pretrial discovery.

[*402] To preserve a defendant's claim of confidentiality at the time of any discovery motion, declarations and other supporting evidence may be submitted to the trial court for in camera examination so that the court may decide if the claim of confidentiality is justified and, if so, to what extent. The trial court should not be bound by defendant's naked claim of confidentiality but should, in light of all of the facts and circumstances, make such orders as are appropriate to ensure that the maximum amount of information, consistent with protection of the defendant's constitutional rights,12 is made available to the party opposing the motion for discovery.

In making this determination the trial court must recognize that while ex parte hearings may be necessary to protect a defendant's rights (see, e.g., Keenan v. Superior Court, supra , 31 Cal.3d 424, 430 , 180 Cal.Rptr. 489 , 640 P.2d 108 [where the court sanctioned a defendant's confidential in camera showing, to avoid undue disclosure of defense strategy, in support of an application for the appointment of a second attorney]), it does not follow that the prosecutor (or interested third parties), must be precluded from effective participation in an important pretrial matter merely because the defendant asserts that the factual or legal showing made in support of a particular motion should remain confidential.

Thus, the initial inquiry to be made by the court should go to the question of how much, if any, of the matters submitted for in camera review must remain confidential. A balance must be struck between the requirement that a defendant make a plausible justification for the requested discovery and the limitations on prosecutorial discovery. It is conceivable that if too much is required of a defendant, he could be forced to reveal anticipated defense strategy. The court should resolve this question in an ex parte in camera hearing. (People v. Worthy (1980) 109 Cal.App.3d 514, 525 , fn. 3, 167 Cal.Rptr. 402 ; People v. Faxel (1979) 91 Cal.App.3d 327, 330 , fn. 1, 154 Cal.Rptr. 132 ; Pacific Lighting Leasing Co. v. Superior Court (1976) 60 Cal.App.3d 552, 559-568 , 131 Cal.Rptr. 559 .)

This issue should be resolved by the trial court's evaluation of all of the facts in light of the test set out in Prudhomme. Will disclosure to the prosecutor "conceivably" lighten the People's burden or will it serve as a "link in a chain of evidence tending to establish guilt"? Is the information which the defendant seeks to protect subject to some privilege such as attorney-client or work product? If the answer to such questions is yes then disclosure should not be made. On the other hand, if the claim of confidentiality can not be sustained as to some or all of the material submitted by the defendant then such material should be made available to the prosecutor and interested third parties so that all parties will have the fullest opportunity possible to participate in those proceedings which will determine what, if any, discovery should be ordered.

As our Supreme Court has noted, there are two very real problems with ex parte proceedings where all interested parties are not able to participate: (1) The court may well be deprived of factual and legal contentions on which to base its decision and (2) any order made in the absence of adverse parties may well sweep "more broadly than necessary." (United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 908-909 , 122 Cal.Rptr. 877 , 537 P.2d 1237 .) It occurs to us that the nature and character of the discovery sought in a case such as this one runs a particular risk of realizing on both of these concerns. For example, in a murder case where a defendant seeks information regarding [*403] "similar" crimes the trial court needs to be particularly informed on all facts relating to such questions as the existence of plausible justification, record availability, governmental burden, and possible violation of public interest (Gov.Code, 6255 ; Evid.Code, 1040 ) or third party confidentiality.

Once the court has completed this preliminary in camera inspection it can determine what portions, if any, of defendant's moving papers can be disclosed and which must remain under seal. It then should proceed to the merits of defendant's discovery motion giving every reasonable notice and opportunity to participate to any opposing party.13 That motion should be resolved in accordance with well established criminal discovery principles.

"Unlike the statutory development of civil discovery in California, the right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation. [Citations.] A defendant's motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand. [Citations.] Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. [Citations.]" (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535-536 , 113 Cal.Rptr. 897 , 522 P.2d 305 .)

"An accused, however, is not entitled to inspect material as a matter of right without regard to the adverse effects of disclosure and without a prior showing of good cause. 'In criminal cases, the trial court retains wide discretion to protect against the disclosure of information which might unduly hamper the prosecution or violate some other legitimate governmental interest. [Citations.] Additionally, the court has discretion to deny discovery in the absence of a showing which specifies the material sought and furnishes a "plausible justification" for inspection. [Citations.]'" (Hill v. Superior Court (1974) 10 Cal.3d 812, 817 , 112 Cal.Rptr. 257 , 518 P.2d 1353 .) No hard and fast rule can be laid down as to what will constitute plausible justification in every case. However, a showing "that the defendant cannot readily obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense.... [Citations.]" (Ibid .) (Emphasis supplied.) (See also, People v. Memro (1985) 38 Cal.3d 658, 677 , 214 Cal.Rptr. 832 , 700 P.2d 446 ; City of Santa Cruz v. Superior Court (1987) 190 Cal.App.3d 1669, 1673 , 236 Cal.Rptr. 155 .)

The burden of making such a showing and establishing the existence of a plausible justification for the production of the requested information or material is on the criminal defendant. (Ballard v. Superior Court (1966) 64 Cal.2d 159, 167 , 49 Cal.Rptr. 302 , 410 P.2d 838 ; Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 162 , 143 Cal.Rptr. 450 .) The key to his right to discovery is a showing that the requested information or material will facilitate the ascertainment of the facts and contribute to the fairness of his trial. (Pitchess v. Superior Court, supra , 11 Cal.3d 531, 536 , 113 Cal.Rptr. 897 , 522 P.2d 305 .) "'Although the defendant does not have to show, and indeed may be unable to show, that the evidence which he seeks to have produced would be admissible at the [*404] trial [citations], he does have to show some better cause for inspection than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.' [Citations.]" (Lemelle v. Superior Court, supra , 77 Cal.App.3d 148, 162 , 143 Cal.Rptr. 450 .) (Emphasis supplied.)

Finally, the evaluation of a claim of plausible justification, in a case such as this one where the defendant seeks evidence of third party culpability, should be made in light of the broad rule announced by the Supreme Court in People v. Hall (1986) 41 Cal.3d 826, 829 , 226 Cal.Rptr. 112 , 718 P.2d 99 . There the court (at pp. 829, 833, 226 Cal.Rptr. 112 , 718 P.2d 99 ) held that any relevant evidence is admissible at trial if it "raises a reasonable doubt as to a defendant's guilt, including evidence tending to show that a party other than the defendant committed the offense charged.... To be admissible, the third-party evidence need not show 'substantial proof of a probability' that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant's guilt.... [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime."

The trial court, in deciding whether the defendant shall be permitted to obtain discovery of the requested material, must consider and balance a number of factors. Specifically, the court should review (1) whether the material requested is adequately described,14 (2) whether the requested material is reasonably available to the governmental entity from which it is sought (and not readily available to the defendant from other sources), (3) whether production of the records containing the requested information would violate (i) third party confidentiality or privacy rights or (ii) any protected governmental interest, (4) whether the defendant has acted in a timely manner, (5) whether the time required to produce the requested information will necessitate an unreasonable delay of defendant's trial,15 (6) whether the production of the records containing the requested information would place an unreasonable burden on the governmental entity involved and (7) whether the defendant has shown a sufficient plausible justification, in light of Hall, for the information sought.16

[*405] With those general principles in mind, we turn to the People's objections to the subject order. First, the People argue that the filing of defense counsel's declaration under seal for in camera inspection and review denied them a fair hearing. In this case that is not an argument which need detain us long. The People made no objection to this procedure in the trial court. It cannot now be raised for the first time in a petition for an extraordinary writ. (Lemelle v. Superior Court, supra , 77 Cal.App.3d at p. 159 , 143 Cal.Rptr. 450 .) Further, from the record it appears that the People were in fact afforded a fair hearing. The deputy district attorney was well prepared and argued the motion at length, surmising that defendant was contending that there may be similar modus operandi in the crimes for which the reports were sought and thus should be allowed to inspect those reports.

With respect to the People's objections to the discovery order itself, it is clear that the court did not abuse its discretion in granting defendant's motion for discovery. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 , 86 Cal.Rptr. 65 , 468 P.2d 193 .) In making his order, Judge Tso stated, "I don't think timeliness is a proper objection here and then I am bound by People v. Hall, supra , [41 Cal.3d 826 , 226 Cal.Rptr. 112 , 718 P.2d 99 ] ... [which] permits discovery of police case reports or crime reports ... [since] they may be capable of raising a reasonable doubt with regards to the defendant's guilt. Also I believe [defendant's attorneys] have raised and satisfied plausible justification for the particular items sought...."

Contrary to the People's argument, it appears that the requested reports were described with sufficient specificity. The twelve reports were referred to by investigating law enforcement agency name, DR numbers, victim's names and date of attack/death. There would be no significant burden placed upon any governmental entity in order to locate or produce the requested information. Moreover, as the motion was not dilatory, no continuance of the trial was requested and the prosecution would not have been required to copy one page of the ordered documents. As the trial court noted, timeliness was not a "proper objection." Further, no serious question has been raised that the release of this information would have violated any protected governmental interests or any third party confidentiality or privacy rights.

The twelve reports which were requested involved crimes which bore some similarities to the crimes with which the defendant was charged, i.e., the victims were lone females, the attacks were associated with stabbing/bludgeoning/sex, and took place in a relevant time period in the same geographic area. According to the defense attorney, the information was requested to determine the type of murder involved, the description of the victim, the location, the time, and other sufficient indicia to allow a comparison to be made between the facts of defendant's case and of the different cases. Plausible justification was established by this showing which was sufficient to demonstrate a "reasonable likelihood" that the requested reports might lead to circumstantial evidence that a third person was implicated in one or more of the crimes with which the defendant was charged. Thus, the trial court could reasonably conclude that the specifically designated reports of crimes similar to those with which defendant had been charged could help him in preparing his defense. Balancing all of the relevant factors we perceive of no substantial reason why the reports should not be made available to the defendant. There was no error.

DISPOSITION

1. City of Alhambra Petition (Case No. B031755)

A peremptory writ of mandate shall issue to the Superior Court of Los Angeles County directing it to vacate its orders of December 1, 1987 and December 10, 1987, [*406] granting the defendant's ex parte motion to produce and to instead enter a different order denying such motion without prejudice to renewal before the trial judge for resolution in accordance with the principles set forth herein.

Further, a peremptory writ of mandate shall issue to the Superior Court of Los Angeles County directing it to vacate its order of January 6, 1988, denying City's motion to quash the subpoena issued by the district attorney compelling the deposition of Officer Varga and to instead enter a different order granting such motion without prejudice to renewal before the trial judge for resolution in accordance with the principles set forth herein.

2. People's Petition (Case No. B032779)

The petition for writ of mandate filed February 18, 1988, is denied. The alternative writ heretofore issued on February 18, 1988, is discharged.

KLEIN, P.J., and DANIELSON, J., concur.