1 XXX

2
Attorney at Law [SB No. ]
3350 East Seventh Street
3 Long Beach, California 90804
Tel:
4 Fax:
5 Attorney for Defendant,
6
[ ____ ]

8 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 IN AND FOR THE COUNTY OF _________
10

11
PEOPLE OF THE STATE OF CALIFORNIA, Case No.
12
Plaintiff, NOTICE OF MOTION, MOTION
13 TO COMPEL DISCOVERY;
MEMORANDUM OF POINTS,
14
vs. AUTHORITIES & ARGUMENT IN
15 SUPPORT THEREOF;
DECLARATION OF COUNSEL
16
[ ], Date:
17
Time: 8:30 a.m.
Defendant. Dept:
18

19

20
TO: THE CLERK OF THE ABOVE-ENTITLED COURT AND THE LOS ANGELES
21 COUNTY DISTRICT ATTORNEY OR HIS REPRESENTATIVE:
22
PLEASE TAKE NOTICE that, on the ___ day of ___, 200_, at the hour of 8:30 a.m.,
23 or as soon thereafter as the matter may be heard in Department __ of the above-entitled court,
24 the defendant, by and through his counsel, will move for an order compelling the immediate
25 production of the material, documents, records and information set forth more specifically
26 below.

27
The motion is made on the grounds that the defendant is lawfully entitled to discover

28
such relevant and material evidence.

1 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 Defendant respectfully requests this court order the prosecution produce, in advance of
2 his preliminary hearing, the following material:
3

4
(1) the name and qualifications of the witness from whom the prosecution

5
intends to elicit expert testimony regarding criminal street gangs at the

6
preliminary hearing, as well as jury trial, in this matter;

7
(2) all documents and/or reports of incidents transpiring within the three-

8
year period immediately preceding the date of the offense with which

9
the herein defendant is charged and which the aforementioned witness

10
has referred, considered or relied upon in arriving at his or her opinion

11
that a group of individuals known as _________ is a criminal street

12
gang whose primary purpose is the commission of those acts

13
enumerated in Penal Code section 186.22;

14
(3) all documents, reports, publications and photographs which the

15
aforementioned witness has referred to, considered or relied upon in

16
arriving at his or her opinion that the herein defendant is a member of

17
a criminal street gang purportedly known as _________;

18
(4) all documents, reports, publications and photographs to which the

19
aforementioned witness has referred, considered or relied upon in

20
arriving at his or her opinion that ______ is a member of a criminal

21
street gang and, specifically, __________;

22
(5) all documents, reports, publications and photographs to which the

23
aforementioned witness has referred, considered or relied upon in

24
arriving at his or her opinion that ________ is a member of a criminal

25
street gang and, specifically, _____________;

26
(6) all documents, reports, publications and photographs to which the

27
aforementioned witness has referred, considered or relied upon in

28

2 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 arriving at his opinion that ____________ is, or is not, a member of
2 any criminal street gang;
3 (7) all documents and corresponding reports which the prosecution intends
4 to rely to establish a purported pattern of criminal activity in which the
5 members of _________ engage;
6 (8) all documents, reports and publications which the aforementioned
7 witness has referred to, considered or relied upon in arriving at his or
8 her opinion that the individuals who committed the crimes referred to
9 in item number (6), above, are members of a criminal street gang
10 known as _________;
11 (9) any and all rules, regulations, policies and directives used within the
12 _________Police Department, whether public or for internal use only,
13 relating to the process and standards utilized by its officers and
14 detectives to determining whether to identify and/or designate an
15 individual as a gang member and which specify the quantum and types
16 of information that may be relied upon in the identification or
17 designation of an individual as a gang member;
18 (10) any evidence of the defendant’s alleged membership in or affiliation
19 with a criminal street gang;
20 (11) any and all information regarding the aliases or monikers by which the
21 defendant is allegedly known, and the source(s) thereof;
22 (12) any and all reports, field interview cards or other information known
23 to the prosecution and/or law enforcement pertaining to ___________
24 ___________’s membership in, or affiliation with, any criminal street
25 gang; and any and all reports, field interview cards, digital records or
26 information known to the prosecution and/or law enforcement
27 relating to the defendant’s purported membership in, or affiliation
28 with, a criminal street gang.

3 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 (13) the names, whereabouts and statements of individuals who have
2 provided information to the Office of the District Attorney, the ____
3 Police Department and its Communications Division, including 911
4 operators, or any other law enforcement agency regarding criminal
5 activities in which members of the criminal street gang known as
6 ____________ allegedly engage, and
7 (14) all records of any convictions which purportedly establish a pattern of
8 criminal activity among the purported members of the criminal street
9 gang known as _____________ and all corresponding crime reports.
10

11 The defendant further requests that the court order the immediate production and
12 disclosure of the following material and information:
13

14 (15) all photographs shown any witness or prospective witness for the
15 purpose of ascertaining the identity of ___________’s assailant or
16 assailants, including 19 photographs shown Mr. ________on
17 ________, 20__, and 6 photographs shown him on _______, 20__;
18 (16) any and all police reports or other documentation pertaining to any
19 report of shots having been fired at ___________ on or about
20 ________, 20_ _ (DR No. _________);
21 (17) any and all written reports, notations or memoranda prepared by Los
22 Angeles Police Officer ______ (No. ______) regarding his telephonic
23 contact with “_____” (aka _________), identified by _______as a
24 potential witness to the charged offenses’ commission;
25 (18) all reports pertaining to the detentions and/or arrests of ______,
26 _________ and the defendant on________, 20, and referenced in the
27 report entitled, “Follow Up Investigation,” under the
28

4 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 subheading, “___________, 20__”;
2 (19) all reports and recordings of ______________’s interview by any
3 member of the ___________County Sheriff’s Department following
4 his ___________, 2007, arrest, referenced above;
5 (20) all reports relating to the detentions and arrests of __________ and
6 _________ on or about _____________, 20__, referenced in the report
7 entitled, “Follow Up Investigation,” and noted under the subheading,
8 “____________, 20__;”
9 (21) complete criminal and juvenile court histories of __________,
10 ___________ and ___________, and
11 (22) the terms of any offer or agreement relating to the disposition of any
12 pending or prospective prosecution, or offers of immunity, leniency,
13 financial compensation or other consideration, between any member of
14 the District Attorney’s Office or any law enforcement agency and any
15 prospective witness, including ________and ____________, in
16 connection with the herein prosecution.
17

18 The herein motion will be withdrawn to the extent that the prosecution may produce or
19 disclose the aforementioned material or information on, or before, the date of its hearing.
20 This motion is based on the attached Memorandum of Points, Authorities and
21 Argument, the Declaration of Counsel filed and served herewith, the records on file herein
22 and any further argument as may be made at the hearing on the motion.
23 DATED:
24 Respectfully Submitted,
25

26
___________________________________
27
Attorney at Law
28

5 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 STATEMENT OF FACTS
2 In the sole count of the complaint filed in the herein action, the defendant is charged with
3 the attempted premeditated murder of _______________, a violation of Penal Code §§
4 664/187(a).
5 The aforementioned offense is alleged to have been committed willfully, deliberately and
6 with premeditation within the meaning of Penal Code section 664, subd. (a), thereby constituting
7 a serious felony, as defined by Penal Code section 1192.7, subd. (c).
8 It is further alleged that the defendant committed the substantive offense with which he is
9 charged for the benefit of, at the direction of and in association with a criminal street gang and
10 with the specific intent to promote, further and assist in criminal conduct of its members, within
11 the meaning of Penal Code section 186.22(b)(1)(C), and thereby causing the aforementioned
12 offense to become a serious felony, within the meaning of Penal Code section 1192.7(c)(8).
13 Additionally, the defendant’s alleged personal use and intentional discharge of a handgun
14 in the commission of the underlying offense is specially alleged to have caused great bodily
15 injury to ________within the meaning of Penal Code section 12022.53(d), thereby causing the
16 offense to become a serious felony pursuant to Penal Code section 1192.7(c)(8) and a violent
17 felony within the meaning of Penal Code section 667.6(c )(8).
18 The defendant is alleged to have personally used and intentionally discharged a handgun,
19 within the meaning of Penal Code section 12022.53(c), thereby causing the underlying crime to
20 become a serious felony pursuant to Penal Code section 1192.7(c)(8) and a violent felony within
21 the meaning of Penal Code section 667.6(c)(8).
22 Finally, it is alleged that the defendant personally used a handgun in the commission of
23 the substantive offense within the meaning of Penal Code section 12022.53(b), thereby causing
24 the underlying crime to become a serious felony pursuant to Penal Code section 1192.7(c)(8) and
25 a violent felony within the meaning of Penal Code section 667.6(c)(8).
26 In compliance with relevant statutory law, the defendant, by and through his counsel,
27 informally requested production and disclosure of material and information relevant to the herein
28

6 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 prosecution. Photocopies of the aforementioned requests, dated May 15, 2009, and May 30,
2 2009, are attached hereto and incorporated by reference herein.
3 To date, counsel for the defendant has not received the aforementioned materials and has
4 been unable to prepare for the defendant’s effective representation during his anticipated
5 preliminary hearing.
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7 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 POINTS, AUTHORITIES AND ARGUMENT
2
I.
3
INTRODUCTION
4 What transpired midday on December 17, 2009, is indisputable: ___________, while
5
riding a bicycle in the vicinity of ______Avenue and ___ Street, was the victim of a violent
6 crime involving a firearm.
7 Three witnesses to the assault were immediately interviewed by officers with the
8 ________ Police Department. One witness spoke of seeing shots fired from within a white
9 Pontiac with tinted windows as it drove alongside __________ and his bicycle. Another told of
10 initially seeing a white Chevy Monte Carlo with tinted windows parked along the east curb
11 ________ Avenue, just north of __ Street, and a black male seated in its driver’s seat. The
12
witness then heard several gunshots and saw the aforementioned vehicle travel at a high rate of
13 speed northbound n _________ Avenue, turning eastbound on __ Street. A third individual told
14 officers that she had been on the front porch of her residence, located on the northwest corner of
15 _____ and ___, when she heard five or six gunshots and observed ______ fall from his bicycle.
16 She then observed a vehicle, possibly a white Pontiac, driving slowly northbound through the
17
intersection of _____ and ________. She also saw another vehicle, which she described as a
18 two-door, black Mitsubishi, approach northbound on _________ Avenue from south of its
19 intersection with ___ Street. The latter vehicle turned left, or westbound, onto ____ Street, as
20 the white Pontiac continued northbound on ________ Avenue.
21 Responding officers observed _____________ lying on his back in the middle of
22 _______ Avenue, north of ____ Street. He was surrounded by a crowd of people who appeared
23 to be praying and attempting to render aid. Mr. ________’s mother was among the crowd and,
24
when interviewed later that day, she informed officers that her son had told her someone in a
25 white car had shot at him.
26 Mr. _______ sustained two gunshot wounds to his back, two to his front torso and four
27 to his left leg. He was transported to _______ Hospital, where he was listed in critical condition
28 and remained unconscious following surgery.

8 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 Mr. ______ was seriously hurt and, as a result of his injuries, was unable to speak about
2 the incident until investigators returned to California Hospital on January 4, 2008. He was, by
3 then, conscious, but still unable to speak. When investigators learned that Mr. ________ could
4 communicate with the use of his eyes and hands, they brought him 19 individual photographs
5 and asked whether he recognized any one depicted therein as his assailant. Mr._________
6 reportedly looked at, then grabbed, photograph number 2 and became upset. In his report, the
7 interviewing officer stated that Mr. __________’s eye and hand movements suggested that the
8 individual depicted in the aforementioned photograph was the same person who had shot him.
9 Mr.________reportedly also pointed at photographs numbered 7 and 8.
10 Mr. ___________ remained in the hospital approximately 10 months before returning to
11 his home. On October 23, 2008, officers contacted him there. Since Mr. ___________ had
12 regained his ability to speak, he was again shown photographs previously identified as numbers
13 2, 7 and 8. Mr. ___________ told officers that the person depicted in number 2 was the person
14 who had shot him on December 17, 2007. The person depicted therein was the defendant.
15 Mr. ___________ told officers that he did not know of any reason why the defendant
16 would have shot him. He was then shown photographs numbered 7 and 8. He told officers that
17 the person depicted in number 7 was not present on the date he was shot. When he was shown
18 photograph number 8, he told officers that he knew the person depicted therein as
19 “__________.” He also stated that “__________” was “the one that started it” and “always
20 used to get into it with him.” Mr. ___________ further confirmed that, prior to December 17,
21 2007, he had been in physical altercations with __________, as well. He said that __________
22 was “from __________,” referring to a local gang. When asked whether __________ was
23 present when he was shot, Mr. ___________ said either he had, or that “somebody that looks
24 like him” had been. He again said that it had been __________ who had “started the whole
25 thing.”
26 Finally, Mr. ___________ told officers that he was riding his bicycle on December 17,
27 2007, when he saw a white car parked on the wrong side of the street and the defendant
28

9 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 standing next to a tree. He claimed that the defendant jumped out and started shooting at him.
2 He denied seeing the defendant get into the white car.
3 Mr. ___________ was then shown all of the 19 photographs that had shown to him on
4 October 23, 2008, as well as six more that he had not previously seen.
5 Counsel for the defendant has been informed of the prosecutor’s intention to call Mr.
6 ___________ as a witness at the defendant’s preliminary hearing.
7 Counsel further anticipates that the prosecution will argue that the opinion of a
8 witness’ unique and specialized knowledge of gang culture should be admitted as evidence
9 that the defendant’s committed the substantive offense with which he is charged for the
10 benefit of, at the direction of, and in association with a criminal street gang and with the
11 specific intent to promote, further and assist in criminal conduct of the members thereof,
12 within the meaning of Penal Code section 186.22(b)(1)(C).
13 Mere membership, however, in a gang is not proscribed by Penal Code section
14 186.22(b) and evidence thereof would not, alone, support a commitment order. People v.
15 Rodriguez (1993) 21 Cal.App.4th 232, 239, fn.2.
16 Moreover, a gang member whose commission of a crime is determined to have been
17 personally motivated does not fall within the purview of section 186.22 (b). People v. Green
18 (1991) 227 Cal.App.3d 692, 702.
19 As his preliminary hearing nears, the defendant remains utterly uninformed of the
20 alleged activities of individuals purportedly associated with __________, or how those
21 activities are relevant to the herein prosecution.
22

23 II.
24 THE DEFENDANT IS STATUTORILY ENTITLED TO PRODUCTION
25
OF THE MATERIALS SOUGHT

26 The prosecution is under a statutory duty of disclosure.

27 Penal Code section 1054.1 provides, in relevant part, that “[t]he prosecuting attorney
28 shall disclose to the defendant or his or her attorney all of the following materials and

10 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 information, if it is in the possession of the prosecuting attorney, or if the prosecuting attorney
2 knows it to be in the possession of the investigating agencies: (a) the names and addresses of
3 persons the prosecutor intends to call as witnesses at trial; (b) statements of all defendants; (c)
4 all relevant real evidence seized or obtained as a part of the investigation of the offenses
5 charged; (d) the existence of a felony conviction of any material witness whose credibility is
6 likely to be critical to the outcome of the trial; (e) any exculpatory evidence; and (f) relevant
7 written or recorded statements of witnesses whom the prosecutor intends to call at trial
8 including any reports or statements of experts made in conjunction with the case, including the
9 results of physical or mental examinations, scientific tests, experiments or comparisons which
10 the prosecutor intends to offer in evidence at trial.”
11 A party may seek court enforcement of the disclosure requirements of section 1054.1
12 provided he has served the prosecution with an informal request and fifteen days have elapsed
13 without compliance with the request. Pen. Code § 1954.5 (b).
14 Moreover, “upon a showing that the moving party complied with the informal discovery
15 procedure provided in this subdivision, a court may make any order necessary to enforce the
16 provisions of this chapter, including, but not limited to, immediate disclosure, contempt
17 proceedings, delaying or prohibiting the testimony of a witness or the presentation of real
18 evidence, continuance of the matter, or any other lawful order.” Ibid.
19 Counsel for the defendant has complied with the procedures set forth in section 1054.1,
20 as evidenced by the informal discovery requests, dated May 15, 2009, and May 30, 2009, that
21 are attached hereto and incorporated by reference herein.
22

23 III.
24 DUE PROCESS COMPELS DISCLOSURE OF THE
25
MATERIALS SOUGHT

26
In Brady v. Maryland (1963) 373 U.S. 83, 87, the United States Supreme Court held that
27
the denial of material evidence favorable to the defendant violates the Fourteenth Amendment’s
28

11 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 guarantee of Due Process, irrespective of the good or bad faith of the prosecution.
2 Evidence that affects the credibility of a witness whose testimony might impact upon the
3 defendant's guilt or innocence falls within the Brady rule of compelled disclosure. Giglio v.
4 United States (1972) 405 U.S. 150, 154.
5 In United States v. Bagley (1985) 473 U.S. 667, the Supreme Court high court held that
6 impeachment evidence, no less than exculpatory evidence, is subject to the Brady rule for the
7 reason that both are “favorable to an accused.” Ibid, at 676.
8 The California Supreme Court has also come to recognize the constitutional implications
9 of the prosecution’s duty to disclose evidence. In People v. Hayes (1990) 52 Cal.3d 571, the
10 court held that, “[u]nder the Due Process Clause of the Fourteenth Amendment … the
11 prosecution has a duty to disclose all substantial material evidence favorable to an accused,
12 including evidence bearing on the credibility of a prosecution witness; the duty exists whether
13 or not the evidence has been requested, and it is violated whether or not the failure to disclose is
14 intentional.” People v. Hayes, supra, 52 Cal.3d at 611; see also People v. Seaton (2001) 26
15 Cal.4th 598, 648; People v. Pensinger (1991) 52 Cal. 3d 1210, 1272; In re Sodersten (2007) 146
16 Cal.App.4th 1163; People v. Filson (1994) 22 Cal. App. 4th 1841.
17 In Izazaga v. Superior Court (1991) 54 Cal.3d 356, the California Supreme Court stated
18 that the defense is entitled to a broader range of discovery than that specifically provided for by
19 relevant statute.
20 The prosecutor’s duties of disclosure under the due process clause
21
are wholly independent of any statutory scheme of reciprocal
discovery. The due process requirements are self-executing and
22 need no statutory support to be effective. Such obligations exist
whether or not the state has adopted a reciprocal discovery statute.
23 Furthermore, if a statutory discovery scheme exists, these due
24 process requirements operate outside such a scheme. The
prosecutor is obligated to disclose such evidence voluntarily,
25 whether or not the defendant makes a request for discovery.
Izazaga v. Superior Court, supra, 54 Cal.3d at 378.
26

27
The material sought by the defendant consists of materials which will either bear upon
28
the credibility of the prosecution’s witnesses or the qualifications of its proposed expert. He

12 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 maintains, therefore, that the prosecution has an affirmative duty to disclose the requested
2
information, and should do so in advance of the defendant’s preliminary hearing. Failure to
3
disclose material information favorable to the defense before a preliminary hearing constitutes a
4
denial of a substantial right and is sufficient to either set aside an information pursuant to a
5
motion under Penal Code section 995, or by way of a non-statutory motion to dismiss. Merrill
6
v. Superior Court (1994) 27 Cal.App.4th 1586, 1595-1596.
7
Identity of Expert Witnesses and the Basis of Their Opinions
8
By way of informal discovery requests dated May 15 and May 30, 2009, the defendant
9
has sought material likely to assist with his intended impeachment of the prosecution’s
10
“expert” witness.
11
The defendant acknowledges that the testimony of a witness with expertise in gang
12
culture often can be used by prosecutors to establish both the existence of a criminal street gang
13
and that the activities of its members are gang-related. People v. Gardeley (1996) 14 Cal.4th
14
605, 619. He therefore anticipates the prosecutor’s use of a purportedly expert witness at his
15
preliminary hearing, as well as subsequent trial.
16
Indisputably, expert witnesses frequently have a significant impact on juries. The
17
California Supreme Court has observed that “[J]uries tend to give considerable weight to
18 ‘scientific’ evidence when presented by ‘experts’ with impressive credentials.” People v. Kelly
19 (1976) 17 Cal.3d 24, 31. Moreover, experts can, in some instances, “assume a posture of mystic
20 infallibility …” Ibid, at 32.
21 The defendant is entitled, by virtue of statutory law, as well as the broader requirements
22 of the federal and state constitutions, to disclosure of all material upon which the prosecution’s
23 expert relied relied in forming the opinions that the prosecutor intends to offer in evidence.
24 Hines v. Superior Court of Los Angeles County (1993) 20 Cal.App.4th 1818.
25 The defendant believes that the prosecutor intends to elicit expert testimony regarding
26 the alleged existence of a criminal street gang named __________, the extent to which the
27 purported members of __________ act in accordance with previously observed and documented
28 gang behaviors and the relationship between the gang and its purported members’ alleged

13 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 criminal activities. In so doing, the prosecutor will attempt to attribute characteristics of gang
2 culture to the defendant’s alleged commission of the crime he is alleged herein to have
3 committed.
4 By implication, Penal Code section 1054.1(f) provides for the defendant’s discovery of
5 the identity of the prosecution’s anticipated expert witness. “Where it is appropriate, the
6 defendant may discovery the reports of the state’s experts concerning their examination of real
7 evidence; discovery of the identity of state experts is analogous.” People v. Johnson (1974) 38
8 Cal.App.3d 228, 235.
9 The defendant expects the witness’ opinion will be based, in significant part, upon his or
10 her review of an untold number of law arrest, incident, supplemental and other law enforcement
11 reports, field identification notations, information compiled and maintained in databases and
12 other documentation.
13 Evidence Code section 721, subdivision (b), provides that “a witness testifying as an
14 expert may be cross-examined to the same extent as any other witness and, in addition, may be
15 fully cross-examined as to (1) his or her qualifications, (2) the subject to which his or her expert
16 testimony relates, and (3) the matter upon which his or her opinion is based and reasons for his
17 or her opinion.”
18 Disclosure of information relied upon by an expert ensures counsel’s reasonable access to
19 information necessary to prepare his or her client’s case, reduce the chance of surprise at trial,
20 further the attainment of truth and lessens the risk of judgment based on incomplete testimony.
21 It is critical that a defendant be permitted a full and fair opportunity to develop
22 impeachment evidence to either challenge the witness’s expert designation or confront the
23 witness with the weaknesses in the foundation of his expert opinion.
24 Production of Real Evidence
25 Penal Code section 1054.1(c), which provides for disclosure to the defense of all real
26 evidence obtained as part of the investigation of the offense charged, support the defendant’s
27 contention that he is entitled to the prosecution’s production of each of at least 25 photographs
28 shown to Mr. ___________ for purposes of his assailant’s identification.

14 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 Material Witnesses’ Criminal Histories
2
Pursuant to Penal Code section 1054.1, the defendant is further entitled to disclosure of
3
“felony convictions of material witnesses whose credibility is likely to be critical to the outcome
4
of the trial.”
5
Moreover, a witness may be impeached by way of any prior felony conviction involving
6
moral turpitude. Evid. Code § 780; People v. Castro (1985) 35 Cal.3d 301; People v. Wheeler
7
(1992) 4 Cal.4th 284. Accordingly, records of arrests and convictions of witnesses are
8 discoverable, at least to the extent that such conduct involved moral turpitude.
9 In Hill v. Superior Court of Los Angeles, supra, 10 Cal.3d 812, 817, the California
10 Supreme Court held that the felony conviction records and detentions of prospective witnesses
11 are discoverable by the defense, upon a showing of good cause, for purposes of impeachment.
12 In In re B. (1978) 82 Cal.App.3d 114, the Court of Appeal held that the defendant’s right
13 to discovery “has been held to encompass rap sheets.”
14 Finally, cross-examination concerning any criminal charges pending against a witness is
15 guaranteed by Due Process Clause of the federal Constitution. Delaware v. Van Arsdall (1986)
16 475 U.S. 673. In People v. Coyer (1983) 142 Cal.App.3d 839, the appellate court stated that a
17 “defendant is entitled to discovery of criminal charges currently pending against prosecutions
18 witnesses anywhere in the state.”
19 Offers of Leniency
20 The credibility of a witness may be impeached by evidence of his expectation of
21 leniency. Alford v. United States (1931) 282 U.S. 687. In holding that a trial court erred by
22 precluding cross-examination concerning a witness’ expectation of leniency with respect to
23 pending charges, an appellate court determined that “a party can offer evidence, by proffered
24 extrinsic evidence or by cross examination of a witness, to attack the credibility of a witness, if
25 such evidence tends reasonably to establish that the witness has a motive to fabricate, or some

26 other motive, that tends to cause the giving of untruthful testimony, even though there may be

27 no reasonable basis for the existence of such a motive.” People v. Allen (1978) 77 Cal.App.3d

28 924, 931.

15 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 ___________ is reported to have reacted to three of the first 19 photographs shown him.
2 Reports provided to the defendant at the outset of the herein prosecution indicate the individuals
3 depicted in photographs numbered 7 and 8 were arrested by members of the ________ County
4 Sheriff’s Department and, while in custody, subjected to questioning about the defendant and
5 the identify of Mr. ___________’s assailant. In addition to the specific content of those
6 statements, the defendant is entitled information regarding any promises of leniency that may
7 have been conveyed to the aforementioned individuals in exchange for statements that they
8 made in connection with the defendant or the assault upon Mr. ___________.
9 Credibility of Witnesses
10 In the instant matter, the prosecutor has informed defense counsel of his intention to
11 elicit testimony from ______________ ___________ at the preliminary hearing. Mr.
12 ___________’s description of the events surrounding his _________, 20__, assault is starkly
13 different that those of three eyewitnesses. Accordingly, material has been requested that may
14 bear upon Mr. ___________’s credibility.
15 Identities and Whereabouts of Percipient Witnesses
16 Percipient witnesses may undermine the testimony of other witness from whom the
17 prosecution intends to elicit testimony. Accordingly, the prosecution must disclose their

18 identities and current whereabouts. In Norton v. Superior Court of San Diego County (1959)

19 173 Cal.App.2d 133, 136, the appellate court ruled that a defendant is entitled to discover the

20 identities of all eyewitnesses to an offense’s commission, regardless of whether the prosecution

21
intends to call them as witnesses.

22
The defendant has been provided with both the initial incident and communication
reports relevant to the assault upon Mr. ___________. In the former, reference is made to three
23
witnesses to the attack and, in the latter, reference is made to additional individuals who
24
witnessed both the attack and its immediate aftermath. The names and contact information of
25
the latter have been redacted from the documents provided to defense counsel.
26
Witness identity is an essential element in the protection of a defendant’s right to a fair
27
trial. People v. Brandow (1970) 12 Cal. App. 3d 749, 755.
28

16 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 The prosecution cannot, on its own initiative, assume the duties of the judiciary and
2 execute its own protective order. To withhold discoverable information, the prosecution, as the
3 defense, must seek a protective order from the court or magistrate. The decision to restrict
4 defense’s access to discoverable material is not for the prosecution to make.
5 To seek to deny defense access to complete reports and other material the District
6 Attorney must request an in camera hearing in order to show good cause why the prosecution
7 should not be required to provide complete and unredacted reports and other material to the
8 defense. Pen. Code § 1054.7.
9 If the prosecution believes there exists demonstrable evidence that the witnesses or
10 victims in the present case have been threatened, harassed, or are in danger, the prosecution
11 should have requested an in camera hearing pursuant to section 1054.7 at the outset of the
12 herein proceedings and requested the magistrate issue orders either denying or restricting
13 disclosure of the witnesses’ contact information. Section 1054.7 places the burden of showing
14 good cause on the party attempting to avoid disclosure, which in the herein matter, is the
15 prosecutor.
16 Furthermore, the prosecution must show, in camera, evidence of threats or possible
17 danger to the safety of a victim or witness, possible loss or destruction of evidence or possible
18 compromise of other investigations by law enforcement. Penal Code § 1054.7; Reid v. Superior
19 Court (1997) 55 Cal.App.4th 1326. The prosecution bears the burden of showing any threat to
20 the safety of witnesses by competent evidence. Montez v. Superior Court, supra, 5 Cal.App.4th
21 at 770.
22 “The right of a criminal defendant to present a defense and witnesses on his or her behalf
23 is a fundamental element of due process guaranteed under the Fourteenth Amendment to the
24 United States Constitution.” Reid v. Superior Court, supra, 55 Cal.App.4th at 1332.
25 Consequently, “a defendant's due process right to access to witnesses cannot be interfered with in
26 the absence of proven compelling circumstances.” Id., at 1335. Demonstrable evidence of
27 harassment, threats or danger to the safety of a victim or witness is required before defense
28 counsel may be barred or restricted from directly contacting the victims. Id., at 1339.

17 COMPEL DISCOVERY
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 1

2
“[T]he state's legitimate interest in protecting individuals who, by
chance or otherwise, happen to become witnesses to a criminal
3 offense cannot justify depriving the defendant of a fair trial. Thus,
when nondisclosure of the identity of a crucial witness will
4 preclude effective investigation and cross-examination of that
5 witness, the confrontation clause does not permit the prosecution to
rely upon the testimony of that witness at trial while refusing to
6 disclose his or her identity. Alvarado v. Superior Court (2000) 23
Cal. 4th 1121, 1151.
7

8
In short, the defendant must have an opportunity to contest or litigate that evidence.
9
Alvarado v. Superior Court (2000) 23 Cal. 4th 1121, 1149, fn.13. A defendant’s alleged
10 membership in a gang is not enough. Ibid.
11 Evidence of Third-Party Culpability
12 Although the “admissibility [of evidence] is not a prerequisite to discovery” [Davies v.
13 Superior Court (1984) 36 Cal.3d 291, 301], evidence that someone other than the defendant may
14 have committed the offense with which he is charged is admissible. People v. Hall (1986) 41
15 Cal.3d 826; People v. Guillebeau (1980) 107Cal.App.3d 53, 549.
16 The Supreme Court has held that “direct or circumstantial evidence linking the third
17 person to the actual perpetration of the crime” is admissible if it is “capable of raising a
18 reasonable doubt of defendant's guilt.” People v. Hall, supra, 41 Cal.3d at 833. Accordingly,
19 “[t]he lowered evidentiary threshold set forth in Hall has an obvious impact on the scope of
20 discovery available to the criminal defendant.” City of Alhambra v. Superior Court, supra, 205
21 Cal.App.3d at 1134.
22 In City of Alhambra v. Superior Court, supra, the Court of Appeal found defendant had
23 plausible justification for discovery of twelve homicide reports relevant to possible third-party
24 culpability. This case provides a checklist of factors the trial court should balance in ruling on a
25 request for third party suspect materials. Specifically, “the court should review (1) whether the
26 material... is adequately described, (2) whether the ... material is reasonably available to the
27 governmental entity from which it is sought (and not readily available to the defendant from
28 other sources), (3) whether production of the records containing the requested information

18 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 would violate (i) third party confidentiality or privacy rights or (ii) any protected governmental
2 interest, (4) whether the defendant has acted in a timely manner, (5) whether the time required
3 to produce the requested information will necessitate an unreasonable delay in defendant's trial,
4 (6) whether the production of the records containing the requested information would place an
5 unreasonable burden on the governmental entity involved and (7) whether the defendant has ...
6 sufficient plausible justification for the information sought.” Id., at 1134.
7

8 IV.
9 DEFENDANT IS ENTITLED TO THE REQUESTED MATERIALS
10
IN ADVANCE OF HIS PRELIMINARY EXAMINATION

11 Although a prosecutor is not generally obligated to provide discovery until 15 days after
12 his receipt of an informal request therefor. Pen. Code § 1054.5(b); see also People v. Superior
13 Court (Sturm) (1992) 9 Cal.App.4th 172.
14 In the instant matter, informal requests for discovery were made well over three months
15 ago.
16 The prosecution is also constitutionally obligated to provide the defendant all
17 exculpatory evidence relevant to the question of his guilt and potential punishment, and without
18 necessity of demand. Brady v. Maryland, supra 373 U.S. 83; U.S. v. Bagley (1985) 473 U.S.
19 667; In re Brown (1998) 17 Cal.4th 873, 879; Izazaga v. Superior Court, supra, 54 Cal.3d 356.
20 The Sixth and Fourteenth Amendments to the federal Constitution guarantee the
21 effective assistance of counsel. Powell v. Alabama (1932) 287 U.S. 45. The effective assistance
22 of counsel is also guaranteed by the California Constitution. People v. Pope (1979) 23 Cal.3d
23 412.
24 The right to the effective aid of one’s counsel extends to every critical stage of a
25 criminal proceeding, including the preliminary examination. Coleman v. Alabama (1970) 399
26 U.S. 1. The denial of a substantial right at the preliminary examination renders the ensuing
27 commitment illegal and entitles a defendant to dismissal of the information on timely motion.
28 People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 523; Jennings v. Superior Court (1967) 66

19 COMPEL DISCOVERY
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 1 Cal.2d 867.
2 In Izazaga v. Superior Court, supra, 54 Cal.3d at 378, the California Supreme Court
3 found a prosecutor’s constitutional duties with regard to disclosure to be “wholly independent
4 of any statutory scheme of reciprocal discovery.”
5 The duty to disclose evidence favorable to the accused extends to evidence that may
6 reflect on the credibility of a material witness. People v. Rutherford (1975) 14 Cal.3d 399, 406.
7 In People v. Garcia (1993) 17 Cal.App.4th 1169, the court found prejudicial error when
8 the prosecution withheld impeachment evidence relating to its expert witness.
9 This duty of disclosure applies not only to evidence that is actually in the prosecutor’s
10 possession, but also to evidence possessed by investigative agencies to which the prosecution
11 has reasonable access. People v. Robinson (1995) 31 Cal.App.4th 494; In re Littlefield (1993) 5
12 Cal.4th 122.
13 Discovery of evidence favorable to the defense is, therefore, constitutionally compelled
14 and must be provided to the defense for prior to the preliminary hearing. Currie v. Superior
15 Court (1991) 230 Cal.App.3d 83.
16 Additionally, a defendant’s right to cross-examine at the preliminary hearing has not
17 been abrogated by statute, and its denial constitutes a deprivation of a substantial right. Stanton
18 v. Superior Court (1987) 193 Cal.App.3d 265, 271. The “[n]ondisclosure of evidence
19 impeaching eyewitnesses on material issues is the deprivation of a substantial right…” Id. at
20 272.
21 CONCLUSION
22
For the foregoing reasons, an order compelling the prosecution’s production of the
23
specified material should be issued.
24
DATED: _______, 20__
25
Respectfully Submitted,
26

27
__________________________________
28 Attorney at Law

20 COMPEL DISCOVERY
MOTION FOR ORDER TO
 1 DECLARATION OF COUNSEL
2

3
I, _____________, declare as follows:

4
1. I am an attorney licensed to practice law before the courts of the State of California. I

5
represent the defendant in the herein matter.

6
2. In correspondence dated _______, and directed to Deputy District Attorney

7
______________ by first class mail, I informally requested production of material relevant to

8
the herein action and which I deemed necessary for the effective representation of the

9
defendant at the preliminary hearing and subsequent trial. A copy of the aforementioned

10
request is attached hereto and incorporated by reference herein.

11
3. In a subsequent letter, dated May 30, 2009, and also directed to Mr. ____, I requested

12
the production of several crime scene photographs. A copy of the aforementioned letter is also

13
attached hereto and incorporated by reference herein.

14
4. At the time of this declaration’s execution, I have not received the materials specified in

15
the Notice of Motion filed herewith.

16

17
I declare under penalty of perjury that the foregoing is true and correct. Executed this __th day
of _______, 20__, at ___________, California.
18
_________________________________
19

20 Declarant

21

22

23

24

25

26

27

28

21 COMPEL DISCOVERY
MOTION FOR ORDER TO