Judge Mary H. Strobel, Case 21STCP01515 2022-07-26 Tentative Ruling

Hon. Mary H. Strobel

The clerk for Department 82 may be reached at (213) 893-0530.

Petitioner Isaias Cervantes, by and through his legal conservator Rosa Padilla (“Petitioner”) petitions for a writ of mandate directing Respondent County of Los Angeles (“Respondent” or “County”) to produce all records responsive to multiple requests made by Petitioner pursuant to the California Public Records Act (“CPRA”).

Respondent’s Request for Judicial Notice (“RJN”) of Criminal Case Summaries in People vs. Isaias Cervantes, Los Angeles Superior Court Case No. BA499677 and People vs. Jonathan Miramontes, Los Angeles Superior Court Case No. BA498018 (AR 75-77) – Granted.

Petitioner’s CPRA requests arise from a shooting incident involving Petitioner and two deputies of the Los Angeles County Sheriff’s Department (“LASD”). Petitioner describes the shooting as follows:

On March 31, 2021, Los Angeles County Sheriff (hereinafter “LASD”) deputies JONATHAN MIRAMONTES and DAVID VEGA responded to the Cervantes home, verified no crime occurred or was ongoing, and proceeded to physically engage ISAIAS CERVANTES. The intentional conduct of the deputies resulted in the deputies pinning ISAIAS CERVANTES down and thereafter, DAVID VEGA shooting ISAIAS CERVANTES point blank in the back. The shooting of ISAIAS CERVANTES garnered significant concern and maintains a high public interest as further shown below. (Opening Brief (“OB”) 1; see also Oppo. 1:24, citing OB 1.)

On or about April 21, 2021, LASD released a “critical incident video” relating to the shooting, which was posted on YouTube. (See OB 11 and Oppo. 3; see https://www.youtube.com/watch?v=WbJ_tvMSLCs.)

Respondent submits evidence that “an active criminal investigation began after the incident occurred and has remained open to this day.” (Declaration of Detective Joe Iberri (“Iberri Decl.”) ¶ 4; AR 78-79.)

On April 4, 2021, Petitioner submitted a CPRA request to LASD seeking the following:

1. “[C]opies of any non-privileged investigation or incident reports that were generated as a result of the above referenced individuals, Rosa Padilla, individually, and as legal conservator to Isaias Cervantes, and Yajaira Cervantes.” (Administrative Record (“AR”) 1-4.)[1]

2. “[T]he names of any and all County of Los Angeles personnel that were directly involved in the shooting of Isaias Cervantes.” (Ibid.)

1. The footage of the body worn video cameras the involved deputies were using at the time of the shooting;

5. Any other video recordings capturing the incident in any manner, including, but not limited to, cell phone videos and surveillance videos.” (Ibid.)

4. “[T]he personnel records of the sheriff’s deputies involved in this incident … [including] records relating to a deputy’s use-of-force incidents, sexual assault and acts of dishonesty of the involved deputies…. Accordingly, pursuant to Penal Code Sections 832.7 and 832.8, this Public Records Acts Request also requests records relating to a deputy’s use-of-force incidents, sexual assault and acts of dishonesty of the involved deputies.” (Ibid.)

In the Analysis below, these CPRA requests shall be referred to as CPRA Requests Nos. 1-4. CPRA Requests Nos. 1 and 3 may also be referred to as “Shooting Incident Records.”

County’s CPRA Response; Criminal Charges Against Petitioner; and Ongoing Criminal Investigation

On April 6, 2021, Respondent sent a letter to Petitioner, advising that LASD was invoking the automatic 10-day extension allowed under Government Code section 6253(c). (AR 70-71.) On April 13, 2021, Respondent sent a follow-up letter seeking a second extension of 14 days, also pursuant to Government Code section 6253. (AR 5-6.) That same day, April 13, 2021, Petitioner sent a letter to Respondent reiterating requests for disclosure of the names of the deputies involved in the shooting. (AR 7-9.)

On May 25, 2021, Respondent sent a letter to Petitioner responding to the CPRA request related to the prior incident records and enclosing “responsive, non-exempt” documents related to a 2019 use of force incident of force involving Deputy Vega. (AR 28-29.) Respondent indicated that it redacted certain information from the records pursuant to California Constitution, article 1, section 1; and Government Code sections 6254(c), (f), (k) and 6255(a). The letter also stated that Respondent was “in the process of reviewing additional records, which may be responsive to your request. You will be notified when those responsive, non-exempt records will be available.” (Ibid.)

In September 2021, the LASD Homicide Division submitted its investigative file to the Los Angeles County District Attorney’s Office (“LADA”) to determine whether criminal charges should be filed against Petitioner, as well as review by the LADA Justice Systems Integrity Division (“JSID”) to determine whether criminal charges should be filed against the involved deputies. (Iberri Decl. ¶ 5.)

On October 7, 2021, LASD sent a letter to Petitioner stating: “On May 25, 2021 a letter was emailed to you along with the responsive non-exempt records pertaining to your SB1421 request.” (AR 74.) The letter also stated that, because records sought are part of an “ongoing and active criminal investigation,” they are “therefore exempt from disclosure.” (AR 73.)

On October 14, 2021, the Los Angeles County District Attorney’s Office (“LADA”) filed criminal charges against Petitioner, including one count of violating Penal Code section 245(C) (assault with a deadly weapon on a peace officer) and two counts of violating Penal Code section 69 (resisting a peace officer by violence). (AR 75.) On January 12, 2022, the LADA dropped those charges and elected not to pursue any criminal action against Petitioner. (Ibid.)

On April 1, 2022, less than 180 days after its October 7, 2021, letter, LASD sent another letter responding to Petitioner’s CPRA requests. The letter stated that the shooting incident records “are part of an ongoing and active criminal investigation being conducted by the Los Angeles County Sheriff’s Department and corresponding review by the District Attorney’s Justice System Integrity Division . . . and therefore are exempt from disclosure . . .” (AR 31.) This letter further explained the withholding of the shooting records, as follows:

Disclosure of the requested records before JSID's review of this matter is complete would substantially interfere with the investigation and/or criminal enforcement proceeding by threatening the integrity of the evidence, endangering the safety of victims and witnesses, tainting witnesses and the jury pool, and precluding a fair trial, if an individual is charged with a crime. Under Government Code section 6255(a), the aforementioned reasons for preventing interference with this active investigation outweighs the public interest in disclosure in the requested records. (AR 31.)

We are unable to provide a firm estimate as to when the investigation will be completed because the completion of the investigation is dependent on JSID's review of the matter. However, typically, JSID completes their review of deputy-involved shootings within 12-18 months from the time when they receive the investigative materials. Therefore, we would expect JSID's review to be complete sometime between September of 2022 and March of 2023. (AR 31-32.)

On August 9, 2021, Petitioner filed a civil rights lawsuit in Los Angeles Superior Court in the case entitled Isaias Cervantes, et al. v. County of Los Angeles, et al., bearing case number 21STCV29317. (See Oppo. 3.) On April 25, 2022, Respondent produced, during discovery in the civil rights action, all of the records that Petitioner had requested under the CPRA related to the underlying incident (other than deputy interview statements) subject to a protective order. (Carpenter Decl. ¶ 7.)

On May 11, 2021, Petitioner filed his verified petition for writ of mandate and complaint for declaratory relief. Respondent answered.

On May 27, 2022, Petitioner filed his opening brief and evidence in support of the petition. The court has received Respondent’s opposition and opposing evidence, and Petitioner’s reply.

Pursuant to the CPRA (Gov. Code § 6250, et seq.), individual citizens have a right to access government records. In enacting the CPRA, the California Legislature declared that “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.” (Gov. Code, § 6250; see also County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 63.) The CPRA defines “public records” as follows:

(e) “Public records” includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code § 6252(e).)

Government Code section 6253(b) states that “each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available.” Section 6253(a) also states: “Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.”

Article 1, Section 3(b) of the Constitution affirms that “[t]he people have the right of access to information concerning the conduct of the people’s business.” The Constitution mandates that the CPRA be “broadly construed,” while any statute “that limits the right of access” must be “narrowly construed.” (See Nat’l Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, 507.) The CPRA “does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” (Gov. Code § 6257.5.)

As the party seeking a writ directing compliance with the CPRA, Petitioner has the burden to show that County did not produce responsive records within its possession or control or did not provide a response that complies with the CPRA. (See generally California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154 [petitioner has burden of proof under CCP section 1085].) However, to the extent County has withheld responsive records, County has the burden to justify the withholdings based on a CPRA exemption or on the grounds that the withheld records are not “public records” within the meaning of the CPRA. (Sacramento County Employees’ Retirement System v. Superior Court (2013) 195 Cal.App.4th 440, 453; ACLU of Northern Cal. v. Sup.Ct. (2011) 202 Cal.App.4th 55, 83-86.)

Legal Standard – Public Records Act Requests Related to Law Enforcement Investigatory Files

Government Code section 6254(f) generally exempts “records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of … any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”

Subject to this general rule of exemption, section 6254(f) also requires law enforcement agencies to disclose certain information from investigatory records “except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.” (See § 6254(f)(1)-(4).))

“In summary, subdivision (f) … (1) articulates a broad exemption from disclosure for law enforcement investigatory records, (2) requires law enforcement agencies to provide certain information derived from the records about the incidents under investigation, and (3) permits the withholding of information that (a) would endanger the safety of a witness or other person, (b) would endanger the successful completion of an investigation, or (c) reflects the analysis or conclusions of investigating officers.” (Williams v. Sup.Ct. (1993) 5 Cal.4th 337, 349; see also American Civil Liberty Union v. Superior Court (2017) 3 Cal.5th 1032, 1041.)

In 2018, the California Legislature enacted S.B. 1421, which amended the CPRA to require disclosure of records related to police uses of force and misconduct. In passing S.B. 1421, the Legislature declared: “The public has a right to know all about serious police misconduct, as well as about officer-involved shootings and other serious uses of force. Concealing crucial public safety matters such as officer violations of civilians' rights, or inquiries into deadly use of force incidents, undercuts the public's faith in the legitimacy of law enforcement, makes it harder for tens of thousands of hardworking peace officers to do their jobs, and endangers public safety.” (See 2018 Cal. Legis. Serv. Ch. 988 (S.B. 1421), § 1(b).)

(b)(1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by a state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act ….

(A) A record relating to the report, investigation, or findings of any of the following:

(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.

(ii) An incident involving the use of force against a person by a peace officer or custodial officer that resulted in death or in great bodily injury.

(iii) A sustained finding involving a complaint that alleges unreasonable or excessive force.

(iv) A sustained finding that an officer failed to intervene against another officer using force that is clearly unreasonable or excessive.

(B)(i) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.

(C) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversight agency involving dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any false statements, filing false reports, destruction, falsifying, or concealing of evidence, or perjury.

(3) Records that shall be released pursuant to this subdivision include all investigative reports; photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the district attorney or to any person or body charged with determining whether to file criminal charges against an officer in connection with an incident, whether the officer's action was consistent with law and agency policy for purposes of discipline or administrative action, or what discipline to impose or corrective action to take; documents setting forth findings or recommended findings; and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documents reflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of discipline or other documentation reflecting implementation of corrective action.

Exemptions to disclosure are found in Penal Code section 832.7(b)(8), which provides in relevant part:

(8) An agency may withhold a record of an incident described in paragraph (1) that is the subject of an active criminal or administrative investigation, in accordance with any of the following:

(A)(i) During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the misconduct or use of force occurred or until the district attorney determines whether to file criminal charges related to the misconduct or use of force, whichever occurs sooner. If an agency delays disclosure pursuant to this clause, the agency shall provide, in writing, the specific basis for the agency's determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writing shall include the estimated date for disclosure of the withheld information.

(ii) After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who engaged in misconduct or used the force. If an agency delays disclosure pursuant to this clause, the agency shall, at 180-day intervals as necessary, provide, in writing, the specific basis for the agency's determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information. Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner.

(iii) After 60 days from the misconduct or use of force, the agency may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who engaged in the misconduct or used the force…. [Similar notice procedure as in subdivision (ii)].)

(B) If criminal charges are filed related to the incident in which misconduct occurred or force was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018.

In the opening brief, Petitioner contends that Respondent “never formally disclosed the full names of the subject deputies.” (OB 12.) However, Petitioner also states in the opening brief that Deputies Jonathan Miramontes and David Vega were the deputies involved in the shooting. (OB 1.) In opposition, Respondent states that the critical incident video released on April 21, 2021, “disclosed the names of the involved deputies, Deputies Vega and Miramontes, and it included relevant portions of the dispatch audio and body worn camera recordings from the incident.” (Oppo. 2-3; see https://www.youtube.com/watch?v=WbJ_tvMSLCs&t=706s.) The court has reviewed the portion of the critical incident video cited in Respondent’s brief. The court has not located a statement of the deputies’ names.

Even if Petitioner has the names of the officers from another source, the CPRA obligates the agency to provide this information in response to a Public Records request.

Respondent withheld records related to the March 31, 2021, shooting incident pursuant to exemptions in Penal Code section 832.7, Government Code section 6255(a), and the official information privilege. (See AR 31-32, 73-74.) Because the incident involved “the discharge of a firearm at a person by a peace officer or custodial officer,” the Shooting Incident Records must be produced unless a statutory exemption applies. (See Penal Code § 832.7(b)(1)(A)(i).) Respondent has the burden to justify the withholdings based on these CPRA exemptions. (Sacramento County Employees’ Retirement System, supra, 195 Cal.App.4th at 453.)

Respondent Properly Delayed Disclosure of the Shooting Incident Records During the Initial Criminal Investigation and While Criminal Charges Were Pending Against Petitioner

Respondent submits evidence that “an active criminal investigation began after the incident occurred and has remained open to this day.” The criminal investigation considered possible crimes of Petitioner and the involved deputies. (Iberri Decl. ¶¶ 4-9; AR 73-79.)

Arguably, Respondent properly withheld the Shooting Incident Records from public disclosure during the criminal investigation that commenced on March 31, 2021, through the filing of criminal charges against Petitioner in October 2021. (See AR 73-77; § 832.7(b)(8)(A)(i) and (ii).) Given that criminal charges were filed against Petitioner, Detective Iberri’s declaration is probably sufficient to show that disclosure of the records during the pendency of the criminal proceedings “could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than the officer who engaged in the misconduct or used the force.” (§ 832.7(b)(A)(iii); see Iberri Decl. ¶¶ 4-10, AR 73-77.) However, these charges were dismissed on January 12, 2022. (§ 832.7(b)(8)(B).) A criminal investigation or criminal proceeding against Petitioner is no longer any basis to withhold the records.

Has Respondent Properly Delayed Disclosure of the Shooting Incident Records During the Ongoing Criminal Investigation into the Involved Deputies?

Respondent contends that it has properly delayed disclosure of the Shooting Incident Records since January 12, 2022, due to an active criminal investigation into whether criminal charges should be brought against Deputies Miramontes and Vega. (Oppo. 7-9.)

Since more than 60 days have passed since the use of force, Respondent “may continue to delay the disclosure of records or information if the disclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who engaged in misconduct or used the force.” (Penal Code § 832.7(b)(8)(A)(ii).) Respondent must provide “the specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding.” (Id.; emphasis added.)

Respondent relies on the declaration of Detective Iberri, a detective in LASD’s Homicide Unit. Iberri has “been involved in the [criminal] investigation since the incident occurred.” (Iberri Decl. ¶ 4.) He declares that in September 2021 the investigation was “referred to LADA’s Justice System Integrity Division (‘JSID’) for their review and determination as to whether criminal charges should be brought against the deputies involved in the shooting.” (Id. ¶ 5.) He declares that the JSID review of the shooting “has remained active and ongoing.” (Id. ¶ 6.) Iberri also explains, in largely generic terms, the harm to criminal enforcement proceedings that could result if the Shooting Incident Records are disclosed prematurely. (Id. ¶¶ 7-10.) A similar explanation of the reasons for non-disclosure of the Shooting Incident Records was provided in Respondent’s April 1, 2022, CPRA correspondence. (See OB 10-11; AR 30-31.)

Neither party cites a case discussing the exemption in section 832.7(b)(8)(A)(ii) and the legal standard a reviewing court should apply in determining whether disclosure “could reasonably be expected to interfere with a criminal enforcement proceeding.” Respondent cites County of Orange v. Sup. Ct. (2000) 79 Cal.App.4th 759, and Haynie v. Sup.Ct. (2001) 26 Cal.4th 1061. The relevance of both County of Orange and Haynie is questionable given those cases pre-date the relevant amendment to section 832.7. Section 832.7(b)(1) states that the new disclosure provisions apply “notwithstanding” section 6254(f). Further, section 832.7(b)(8)(A)(ii) requires that the agency provide in writing “the specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding.”

Respondent presents the declaration of Detective Iberri to support its conclusion that disclosure of the Shooting Incident Records at this time “could reasonably be expected to interfere with a criminal enforcement proceeding” against the involved deputies. Given that the statute calls for a writing regarding the “specific” basis for that conclusion, an explanation which either merely repeats the conclusion, or provides an explanation of why, in general, disclosure of investigative material could interfere with a criminal enforcement proceeding would appear to be insufficient.

Iberri, who is knowledgeable about the ongoing criminal investigation, declares that JSID is currently reviewing whether criminal charges should be brought against the involved deputies. (Iberri Decl. ¶ 5.) He also declares that “when the LADA’s office is reviewing an investigation to determine whether criminal charges should be filed, it will reach out to the investigating agency (in this case, the LASD) to request that additional investigation be done.” (Id. ¶ 7.)

In his declaration, Iberri provides some explanation of the potential harm to criminal enforcement proceedings that could result if the Shooting Incident Records are disclosed before JSID makes a charging decision. Iberri states, “Disclosure of investigative reports and information … while my investigation is open raises the risk of compromising the criminal investigation and any potential prosecution. For instance, witnesses are generally reluctant to participate in investigations for fear of retaliation. That problem will be compounded if witnesses are contacted by private investigators, lawyers, press, or members of the public.” (Iberri Decl. ¶ 8.)

Iberri further states: “In addition, there may be additional / potential percipient and non-percipient witnesses who are not identified in the homicide investigation reports who would need to be interviewed by law enforcement. If those witnesses are contacted by private investigators and/or lawyers, their statements may be tainted and/or they may be reluctant to cooperate with law enforcement. Public disclosure of investigative records could also lead to affecting the public’s perception of an incident and taint a potential jury pool.” (Id. ¶ 9.)

Iberri does not link these generalized concerns to the facts of this investigation. For example, given that the incident occurred within Petitioner’s home and the portions of the body camera footing which were released appear to show the witnesses included Petitioner’s family members, the two involved officers, and possibly an aid worker, the generalized statement that there may be additional/potential percipient and non-percipient witnesses appears speculative.

Iberri provides only one statement specific to this case. He states: “In fact, there are two witnesses in this case who we have tried to interview, but who have declined to cooperate, apparently on advice of the attorneys in this lawsuit.” (Ibid.) It is unclear how this fact supports a conclusion that release of the investigative materials could interfere with any criminal proceedings against the involved officers.

Petitioner argues that “[i]t is hypocritical to state[] that the body worn video is exempt from disclosure, yet produce a highly misleading critical incident video using such body worn video.” (OB 11.) The court recognizes that Petitioner’s CPRA requests seek many other parts of the investigatory file, including investigation and incident reports; all witness statements; all audio tapes of radio communications; all audio tapes of witness interviews; and any other video recordings of the incident, including surveillance videos. Nonetheless, at least with respect to the body cam footage, Respondent has failed to address this issue. Given that Respondent has released this material in its critical incident report, how does it support withholding body cam footage as an interference with any potential criminal proceeding against the officers. It should do so at the hearing.[2]

While not raised by either party, the court notes that the exemption in 832.7(b)(8)(A)(ii) ends “when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner.” (bold italics added.)

The shooting incident occurred on March 31, 2021. The 18-month statutory deadline for disclosure ends on or about September 30, 2022. In the April 1, 2022, letter, LASD stated that “we would expect JSID's review to be complete sometime between September of 2022 and March of 2023.” (AR 31-32 [bold italics added].) Thus, despite its statutory duty, LASD stated that it may not produce the Shooting Incident Records until after the 18-month period specified in section 832.7(b)(8)(A)(ii). It appears that the disclosure obligation in 832.7(b) controls over any other statutory exemptions, including those in section 6254(f), 6255(a), and the official information privilege. Respondent develops no persuasive argument to the contrary. The court also is not persuaded from Respondent’s briefing, which focuses on section 832.7(b)(8)(A)(ii), that withholding of the Shooting Incident Records after the 18-month period would be proper under any other exemption.

At the hearing, Counsel should address whether the court should issue a writ directing Respondent to produce the Shooting Incident Records by the end of the 18-month period, on or about September 30, 2022.

The parties should address at the hearing whether Iberri’s declaration provides a sufficiently specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. Further, Respondent should address why the full body cam footage should not be released given its prior release in the critical incident report. Finally, the parties should address the 18 month deadline for release of all material.

In CPRA Request No. 4, Petitioner requested “the personnel records of the sheriff’s deputies involved in [the March 31, 2021 shooting] incident … [including] records relating to a deputy’s use-of-force incidents, sexual assault and acts of dishonesty of the involved deputies.” (bold italics added.)

Petitioner contends that the May 25, 2021, Respondent was deficient as to Deputy Vega because: (1) Respondent “failed to affirmatively state whether additional documents responsive to the PRAR exists for VEGA”; and (2) Respondent “failed to produce other documents such as audio, video, and actual statements relative to the June 21, 2019 incident.” (OB 16-19.)

In CPRA Request No. 4, Petitioner sought the “personnel records” of Vega. Petitioner concedes that Respondent produced responsive records. In its May 25, 2021, letter, Respondent stated that it was “reviewing additional records” that “may” be responsive. (AR 28-29.) Given that the statement was made over a year ago, and apparently has not been supplemented, Respondent’s response appears incomplete. Respondent should affirmatively state whether additional documents responsive to the request exist.

Petitioner has failed to how, however, that “audio, video, and actual statements relative to the June 21, 2019 incident” constitute personnel records of Vega. The issue is not whether those records could be disclosable under SB 1421, but whether the records were actually requested in CPRA Request No. 4. (see OB 15:9-21 and 18, citing § 832.7(b)(3).)

In CPRA Request No 4, Petitioner did not expressly request all investigatory records related to the June 21, 2019, incident. Rather, he requested “personnel records” of the deputies involved in the March 31, 2021 shooting. However, as part of this same request, Petitioner also stated the following: “Accordingly, pursuant to Penal Code Sections 832.7 and 832.8, this Public Records Acts Request also requests records relating to a deputy’s use-of-force incidents, sexual assault and acts of dishonesty of the involved deputies.” (AR 3-4.) Counsel do not sufficiently address this part of the request in their legal briefs. Subject to argument at the hearing, the court is inclined to interpret this part of the request in context of the request for “the personnel records of the sheriff’s deputies involved in” the March 31, 2021, shooting incident. Such interpretation is supported by Petitioner’s counsel’s use of the word “accordingly,” which signaled that the final statement was part of the request for personnel records.

If CPRA Request No. 4 did encompass all investigatory records related to any prior incidents that are subject to disclosure under SB 1421, then Petitioner appears correct that Respondent would be required to produce audio, video, and actual statements relative to the June 21, 2019 incident.” The definition of disclosable records in SB 1421 is broad and includes “photographic, audio, and video evidence” and “transcripts or recordings of interviews.” (See § 832.7(b)(3).) The investigative report of the June 21, 2019, incident suggests that at least some additional investigative materials, such as interview statements, should be exist. (AR 33-69.) Respondent fails to address this issue in opposition. (Oppo. 10.)

Petitioner asserts that Respondent has not produced personnel records related to Deputy Miramontes – particularly, records related to pending criminal charges filed against Deputy Miramontes for filing a false report. (OB 19.) In his legal brief, Petitioner states the following: “Petitioner is absolutely certain that additional information exists for two reasons. First, JONATHAN MIRAMONTES was recently charged with a felony for filing a false report. MIRAMONTES is presently facing felony incarceration for violating one count of Penal Code Section 118.1 in the currently pending and active criminal case, People of the State of California v. Jonathan Miramontes, Case No. BA498018. Respondent COUNTY failed to produce any documents relative to the facts and circumstances which form the basis of the criminal complaint against JONATHAN MIRAMONTES.” (OB 19.)

As discussed above, “[i]f criminal charges are filed related to the incident in which misconduct occurred or force was used, the agency may delay the disclosure of records or information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018.” (Penal Code § 832.7(b)(8)(B).) Petitioner concedes that criminal charges are pending against Deputy Miramontes in connection with the incident of misconduct for which he seeks personnel records of Miramontes. Respondent also submits evidence that the criminal charges are pending against Miramontes related to this incident. (AR 76-77.) Because criminal charges were filed against Deputy Miramontes, and the related criminal proceedings are still pending in state court, Respondent was justified in withholding records “relative to the facts and circumstances which form the basis of the criminal complaint” against Deputy Miramontes. (OB 19.) Respondent has satisfied its burden to justify the withholding of the records pursuant to section 832.7(b)(8)(B).

In reply, Petitioner states that the criminal charges against Miramontes “relate to misconduct of dishonesty,” but do not relate to whether Miramontes used excessive force in the 2018 incident. (Reply 5.) Petitioner fails to support the argument with citation to evidence. Moreover, criminal charges for filing a false report could relate to an underlying shooting incident. Petitioner’s argument is unsupported and unpersuasive.

To the extent Petitioner contends that Respondent has other, responsive personnel records of Miramontes, Petitioner fails to prove that claim by citation to evidence.

Based on the foregoing, Respondent provided an adequate response to CPRA Request No. 4 with respect to Miramontes.

For the first time in reply, Petitioner argues that “Respondent County has failed to produce other documents including a May 10, 2019 shooting of Dylan Andres Lindsey” in which Deputy Vega was allegedly involved. (Reply 4.) This claim was not pleaded in the petition or raised in the opening brief. “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; see also Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333.) Petitioner does not explain when he learned of the facts underlying this new claim. Petitioner does not show good cause to raise this argument for the first time in reply. The court denies this argument on procedural grounds because it was not properly raised in the petition or opening brief.

Petitioner’s causes of action for declaratory and injunctive relief are derivative of the arguments discussed above. Petitioner presents no other basis for granting declaratory or injunctive relief. It appears that the court’s ruling on the mandate claims will resolve the declaratory and injunctive relief claims. The court finds that a writ compelling disclosure would be a sufficient remedy in this case.

Shooting Incident Reports - The court requires further argument as to whether Iberri’s declaration provides a sufficiently specific basis for the agency’s determination that disclosure could reasonably be expected to interfere with a criminal enforcement proceeding. Further, Respondent should address why the full body cam footage should not be released given its prior release in the critical incident report. Finally, the parties should address

whether Respondent should be ordered to produce the Shooting Incident Records by the end of the 18-month period set forth in section 832.7(b)(8)(A)(ii).

Personnel records - The court also requires further argument regarding the scope of CPRA Request No. 4 and whether it: (1) seeks only “personnel records” of the involved deputies for prior SB 1421 incidents or, alternatively; (2) seeks all parts of the disclosable investigatory files for prior SB 1421 incidents of the involved deputies, including any audio, video, and actual statements related to the incident.

The second and third causes of action for declaratory and injunctive relief are DENIED.

[1] Administrative record refers to the indices of evidence filed by Petitioner and Respondent, which are Bates-stamped 1-82.

[2] Petitioner points out that Respondent has produced all the Shooting Incident Records in Petitioner’s civil action subject to a protective order. There is a substantial and material difference between private disclosure of records pursuant to a protective order and public disclosure under the CPRA.