White v. Superior Court

126 Cal.Rptr.2d 207 (2002) 102 Cal.App.4th Supp. 1 Steve WHITE, as Inspector General, etc., Petitioner,

v.

The SUPERIOR COURT of San Luis Obispo, County, Respondent;

Robert Ortega, Real Party in Interest.

No. M314780A. Appellate Division, Superior Court, San Luis Obispo County.

August 9, 2002. [208] Bill Lockyer, Attorney General, Miguel A. Neri, Fiel D. Tigno and David A. Carrillo, Deputy Attorneys General, for Petitioner.

Jim Lindholm, County Counsel, for Respondent.

Jeffrey R. Stein, San Luis Obispo, for Real Party in Interest.

HILTON, J.

INTRODUCTION

Defendant and real party in interest, Robert Ortega (Ortega), served a subpoena duces tecum on petitioner, the Office of the Inspector General (Inspector General), for the production of certain documents and reports prepared by the Inspector General. The Inspector General filed a motion to quash, which was denied by the trial court. However, the court did not order the records described in the subpoena to be turned over directly to Ortega. Instead, the court ordered the Inspector General to submit the records to the court for an in camera review to determine what, if any, information contained in the records should be disclosed to Ortega. Petitioner asserts that its records are protected against all discovery and seeks a writ of mandate directing the trial court to vacate its order and grant petitioner's motion to quash. We conclude that the records in issue are confidential but not privileged, and therefore the petition should be denied.

FACTUAL AND PROCEDURAL BACKGROUND

Ortega is being prosecuted for a violation of Penal Code § 149 (assault and battery by a public officer). The allegations against Ortega are that when he was a peace officer at the El Paso de Robles Youth Correctional Facility he assaulted a ward of the California Youth Authority. In preparation of his defense, Ortega caused a subpoena duces tecum to be served on the Inspector General. Among the items sought by Ortega was a report prepared by the Inspector General in a separate investigation unrelated to Ortega, but which addressed the truthfulness and honesty of a peace officer (Kenneth Slonski) who investigated the Ortega matter. Ortega asserts that the report contains substantial, material and credible evidence that Officer Slonski made intentional misrepresentations in the other case, and that the Inspector General's report will undermine Officer Slonski's credibility as an adverse investigative witness in the Ortega case.