Smith v. Superior Court CA1/3

Filed 8/25/14 Smith v. Superior Court CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION 3

LAWRENCE SMITH, Petitioner, v. THE SUPERIOR COURT OF SOLANO A141668 COUNTY, (Solano County Respondent; Super. Ct. No. FCR303269) THE PEPOLE OF THE STATE OF CALIFORNIA, Real Party in Interest and Plaintiff.

Petitioner Lawrence Smith, (Petitioner) in the custody of the California Department of Corrections and Rehabilitation (CDCR) and presently charged with possession of illegal substances in a jail facility, petitions for a writ of mandate to set aside an order denying his request for discovery of CDCR Sergeant R. Durfey’s personnel records. In response to Smith’s petition, this court stayed the trial court proceedings, requested informal opposition, and advised the parties that if appropriate this court might resolve the issue without a further hearing pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d,171, 180 (Palma). Having reviewed the parties’ submissions we conclude Petitioner has established good cause for the superior court to conduct an in camera review of Sergeant Durfey’s personnel file. We therefore shall direct the Respondent superior court to vacate its order

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and conduct an in camera review to determine which documents, if any, should be provided to Petitioner. FACTUAL AND PROCEDURAL BACKGROUND On October 18, 2013 the Attorney General filed a felony complaint charging Petitioner with possession of illegal substances (marijuana and heroin) in a jail facility in violation of Penal Code section 4573.6.1 Petitioner is currently awaiting trial on this charge. The police investigation report in this matter reflects the following facts. On June 14, 2013 CDCR Officer L. Davis conducted a routine search of Petitioner’s cell as his colleague, CDCR Officer H. De La Torre, observed from several feet away. Before he searched the cell, Davis removed Petitioner from the cell and ordered him to sit on the bench in the day room. In the course of searching Petitioner’s cell Davis discovered a container of baby powder. Davis emptied the container and while doing so observed a large clear bindle. The bindle contained a leafy green substance which Davis believed was marijuana. Davis opened the large bindle and found eleven smaller bindles each of which contained a leafy green substance he believed to be marijuana. Officer De La Torre placed Petitioner in handcuffs and De La Torre and Davis escorted him to the facility program complex where De La Torre strip searched Petitioner but found no further contraband. Davis, assisted by CDCR Sergeant R. Durfey inventoried Petitioner’s personal property and placed each item into plastic bags. With respect to the container found in Petitioner’s cell, Durfey poured the baby powder back into the container. As he did so, Durfey observed a second large bindle in the powder. This second bindle was made from what appeared to be the finger of a latex glove. Durfey placed this second bindle into his pocket and continued to place Petitioner’s property into plastic bags. Later, Durfey photographed the bindle, opened it and observed four smaller bindles inside the larger bindle. Each of the smaller bindles