People v. Superior Court (McKunes)

[855]

Opinion

SCOTT, J.

The People are petitioning for a writ of mandate, requesting that respondent court be directed to set aside its order granting defendant Michael McKunes’ discovery motion.

The issue presented is whether a defendant charged with a violation of Penal Code section 245, subdivision (a) (assault with a deadly weapon) can compel discovery of information in the personnel file of a police officer where the police officer was off duty at the time he was the alleged victim of the assault by the defendant. We conclude that under proper circumstances he is entitled to such discovery.

Here, the preliminary hearing transcript reveals that on June 19, 1976, the police officer, James Neal, when off duty in civilian clothes and unarmed, was socializing with fellow off-duty officers in a public restaurant. Neal had stepped outside and was talking with a young lady when defendant McKunes stepped between the two and shoved Neal, knocking him off balance. Words were exchanged and McKunes pulled out a gun, shoved it into Neal’s stomach, and threatened Neal. After Neal stated that there would not be any trouble, McKunes removed the gun, placed it in his coat pocket, and walked to a vehicle parked nearby.

Neal returned to the restaurant and consulted with several of his fellow officers. He obtained a weapon from one of them and went to the car, where he found McKunes seated. Neal identified himself, showed his badge and gun, and asked McKunes to get out of the car. McKunes was arrested and his weapon found on the floor of the car.

On July 16, 1976, defendant McKunes noticed a motion to compel disclosure of Neal’s personnel file as it pertained to “citizen complaints against such officer for alleged acts of unwarranted agressive behavior, violence, or excessive force against citizens and arrestees.” At a hearing on the motion, held July 30, 1976, McKunes argued that such information was relevant to his defense in that Officer Neal was the aggressor in the altercation.

A motion to discover evidence in a criminal proceeding is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interest of justice demands.