RANDY MIZE
Chief Deputy
Office of the Public Defender
County of San Diego
JULIANA B. HUMPHREY
Deputy Public Defender
State Bar No. 132966
DALEN T. DUONG
Deputy Public Defender
State Bar No. 193069
303 H. Street Suite 400
Chula Vista, California 91910
Telephone: (619) 498-2022
Attorneys for Defendant
LUIS RUIZ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN DIEGO
SOUTH COUNTY DIVISION
THE PEOPLE OF THE STATE OF CALIFORNIA,Plaintiff,
v.
LUIS RUIZ,
Defendant. / )
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D.A. No.: BBW823
REPLY TO PROSECUTION’S OPPOSITION TO DEFENSE MOTION FOR ORDER TO PRODUCE DISCOVERY REGARDING CONFIDENTIAL INFORMANTS
I.
IF THE CONFIDENTIAL INFORMANTS DO NOT QUALIFY
UNDER EC§1070 OR PC§1054.7, THE REQUESTED DISCOVERY
SHOULD BE ORDERED
If there is no legitimate justification for denial of discovery regarding the Confidential Informants in this matter, the court should order the production of discovery necessary for the adequate and thorough defense investigation of important constitutional issues arising from the jailhouse statements taken from Luis Ruiz. Under the relevant statutes, the burden rests upon the prosecution to justify its demand for continued secrecy.
II.
PROSECUTION’S BRIEF DOES NOT ADDRESS
DEFENSE POINTS AND AUTHORITIES
The issue raised by the defense in its Motion for Order to Produce Discovery Regarding Confidential Informants can be summarized as follows: May the prosecution shield all information regarding the engagement and preparation of jailhouse informants so long as it provides the audio-recordings of any statements that are ultimately taken?
The defense argued several different avenues of relevance for receipt of this critical information, including further investigation of and argument of motions on constitutional issues which require the court to analyze the “totality of circumstances” surrounding these statements. The prosecution’s process and procedure in obtaining its statements from Luis Ruiz is what the defense seeks to challenge in the several ways outlined in its motion.
The prosecution’s refusal to supply the requested discovery can be broken down into the following elements: (1) it need not provide pre-preliminary hearing discovery; (2) it does not “intend to call” the CI’s to testify at any time; (3) the CI’s do not provide “exculpatory information” as the prosecution interprets Brady v. Maryland(i.e., they are not “percipient witnesses to the crime”); and (4) the defense must be restricted to the audio-recorded statement to litigate its constitutional claims. Each erroneous claim is addressed below.
(1) Pre-Preliminary Hearing Discovery is Authorized Under Pen. Code §1054 and Luis Ruiz’s Constitutional Due Process Rights
“The right to effective assistance of counsel, as guaranteed by the Sixth Amendment to the federal Constitution, applies not only to trial but also to the preliminary examination…” (Galindo v. Superior Court (2010) 50 Cal.4th 1, 9.) The post-Prop 115 preliminary hearing is not simply a probable cause determination as averred by the prosecution, but a critical stage of the trial process which serves “to protect both the liberty interest of the accused and the judicial system’s and society’s interest in fairness,” and the prudent and efficient use of “scarce public resources.” (Bridgeforth v. Superior Court (2013) 214 Cal.App.4th 1074, 1087.) The Bridgeforth court addressed the issue of Brady materials. Before Bridgeforth a similar result was achieved in People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403. The court held that while not specifically enumerated in §1054, grand jury transcripts are properly provided to the defense prior to preliminary hearing to protect the defendant’s due process rights at the hearing: §1054 includes provision of information under “other express provisions” which include Penal Code §995. (People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 418.)
The Mouchaourab Court’s rationale for providing the complete grand jury transcript to the defense includes an additional point relevant to the instant case. “An indicted defendant is entitled to enforce this right through means of a challenge under section 995 to the probable cause determination underlying the indictment, based on the nature and extent of the evidence and the manner in which the proceedings were conducted by the district attorney.” (Emphasis added.) (People v. Superior Court (Mouchaourab) 78 Cal.App.4th 403, 424-25.) Luis Ruiz is seeking precisely the kind of evidence permitted by Mouchaourab, that is, discovery of information regarding the process used by the prosecution team to develop key evidence against him in order to investigate a motion to suppress the evidence at the preliminary hearing or dismiss the case thereafter.
Moreover, the consistent reasoning of ourappellate courts support the proposition that provision of pre-preliminary hearing discovery is not simply permitted under the statutes, but desirable. In Magallan v. Superior Court, the defense sought discovery relevant to a pre-trial motion, akin to Luis Ruiz’s request in this case. (Magallan v. Superior Court (2011) 192 Cal.App. 4th 1444.) Arnulfo Magallan sought discovery to permit him to file and litigate a motion to suppress pursuant to Penal Code §1538.5. Following the precedent articulated in People v. Superior Court (Mouchaourab), the Magallan court held that the magistrate is in fact empowered to grant the defense’s motion for discovery in support of a pre-trial suppression motion. (Magallan v. Superior Court, supra,192 Cal.App. 4th 1444, 1449-1450.)
The Magallancourt first rejected the prosecution’s argument that the magistrate lacked the authority to order discovery regarding Magallan’s motion prior to 30 days before trial under Penal Code §1054. The court explained that the 30-day rule was the “outer limit” of the prosecutor’s discovery obligation and that the statute does not preclude granting a motion to compel discovery before that time: “such an interpretation would be completely at odds with the express statutory purposes” to promote timely discovery and avoid unnecessary delays. (Magallan v. Superior Court, supra,192 Cal.App. 4th 1444, 1460.) The court also rejected the argument that the discovery statute was limited to trial, not pre-trial proceedings. (Id. at p. 1458.)
Consistent with the holding in Mouchaourab, the Magallan court held that discovery was mandated under the discovery scheme that requires discovery under “other express provisions” which included 1538.5(f). . (Magallan v. Superior Court, supra, at p. 1461-62.) The court held that the “defendant’s procedural due process right” to a full and fair hearing of his suppression motion at the preliminary hearing “entitle[d] the defense to the discovery necessary” to support his motion. (Id. at p. 1463.)
(2)The Defendant’s Discovery Rights are Not Narrowly Limited to Only Those Witnesses the Prosecution “Intends to Call at Trial.”
As set forth in the points and authorities above, the defendant is indeed entitled to discovery beyond merely those witnesses the prosecution intends to call at trial. The prosecution’s citation of People v. Tillisto the contrary is inapposite. Tillis involved a scenario where the prosecutor surprised a defense witness on cross-examination with information it had not provided in discovery. (People v. Tillis (1998) 18 Cal.4th 956.) The appellant argued, inter alia, that it was clear the prosecution was prepared in advance to call witnesses to support its line of questioning and thus discovery of such witnesses (and the impeachment) was mandated. (People v. Tillis, supra, at p. 291.) The Supreme Court held, as it did in Izazaga seven years earlier, that except for witnesses that support or rebut an alibi, neither counsel is compelled to reveal information it intends to use on cross-examination. (People v. Tillis, supra, at p. 295-296; citing Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377.) This is not the situation at bar.
(3)“Exculpatory” or “Favorable” Information for the Defense as Set Forth in Brady v. Maryland and its Progeny is Not Limited to “Percipient Witnesses to the Crime.”
Over half a century ago, the United States Supreme Court in Brady v. Maryland articulated the Due Process requirement of the prosecution to disclose exculpatory evidence to the defense. (Brady v. Maryland (1963) 373. U. S. 83.) “Exculpatory evidence” may relate to guilt or punishment. (Brady v. Maryland, supra, 373. U. S. at 87.) “Evidence is ‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one of its witnesses.” (In re Sassounian (1995) 9 Cal.4th 535, 544.) The evidence need not be admissible itself to be provided in discovery.
Of particular concern is the prosecution’s unsworn statement that it is “in possession of limited materials pertaining to the Informants biographical information, criminal histories, benefits conferred in this case, etc.” (Emphasis added.) (Prosecution Opposition Motion at p. 13.) Certainly the prosecution should be keenly aware of benefits conferred to any participant acting on its behalf in the prosecution in a criminal matter. Further, it seems inconceivable that the prosecution in a potential death penalty case would not thoroughly research informants it prepared for and deployed in a jailhouse interrogation scheme.[1]
Where, as here, the prosecution seeks to block the defense examination of its investigation, the defense is nonetheless obligated to doggedly seek it out in order to litigate potentially meritorious constitutional issues. If it does not, the defense risks being found at fault on appeal for not seeking evidence at the earliest time in the process. (People v. Jenkins (2000) 22 Cal.4th 900 is instructive on this point.)
In Jenkins, a lengthy death penalty affirmance, the appellant argued, inter alia, that his due process rights were violated by the prosecutions failure to provide timely discovery of “police procedures” relating to the investigation of his case. (People v. Jenkins (2000) 22 Cal.4th 900, 953.) Specifically he complained that the trial court refused to grant discovery of “photographs of police officers” who conducted surveillance of him. (People v. Jenkins, supra, (2000) 22 Cal.4th 900, 954.)
The Supreme Court found that the appellant in fact received this discovery information in order to prepare its case from the prosecution when it agreed to make the “surveillance officers available so that witnesses could view them in person.” (People v. Jenkins, supra, at p. 954.) It held that the trial court did not abuse its discretion is denying further discovery of photographs of the same police officers the prosecution produced pre-trial for the appellant’s investigation of law enforcement’s procedure in preparation of his defense. (Ibid.) This is all that is being sought by Luis Ruiz: an opportunity to investigate the fairness of law enforcement’s actions against him.
(4)The Prosecution is Premature in Arguing to Restrict the Defense’s Motion Presentation to the Audio-Recorded Statement.
The prosecution opines that all serious constitutional claims may be decided by this court based upon “the information/discovery that has already been provided.” The prosecution’s argument is premature. This is the discovery stage of this serious case. The court may or may not choose to hear evidence from the Confidential Informants themselves, but it has not been asked to decide this question yet. What the prosecution is attempting is to prevent the defense from pulling back the curtain on its “Perkins Operation” scheme in order to present the court with the “totality of circumstances” surrounding the statements of Luis Ruiz – something the defense not only seeks but is mandated to try to do under Perkins and its progeny.
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III.
CONCLUSION
Based upon this Reply and the original Points and Authorities, Luis Ruiz respectfully requests that this court order the production of the described discovery so that he may complete the investigation of his constitutional claims. As previously stated, the defense has no opposition to the court receiving information in camera before reaching its decision and will abide by any protective order issued by this court.
Dated: ______Respectfully Submitted,
RANDY MIZE
Chief Deputy
Office of the Public Defender
______
JULIANA B. HUMPHREY
DALEN T. DUONG
Deputy Public Defenders
Attorneys for Defendant
LUIS RUIZ
-1-
Defense Reply to Opposition to Motion to Produce CI Discovery
[1]Should this court find that the prosecution in fact does not have relevant information about the CI’s in this matter after it takes evidence under oathin camera, the defense will thereafter request discovery regarding the entity who does have this information so that it may issue a timely subpoena duces tecum.