Sece xaanusen u 12 13 4 15 16 7 18 19 20 a 2 23 24 25 26 27 28 RAYMOND H. ALLEN SBN 208634 FILED 109 Morro Street, Ste. 207 4 San Luis Obispo, CA 93401 p (805) 541-1920 JAN 29 2015 py Atom for Defendant JUSTIN CHARLES SILVERNALE BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN LUIS OBISPO | ‘THE PEOPLE OF THE STATE CASE NO. 14C-39000 OF CALIFORNIA, NOTICE OF MOTION FOR PRETRIAL | Plaintiff, DISCOVERY; DECLARATION OF RAYMOND H. ALLEN; EXHIBITS; v. | MEMORANDUM OF POINTS AND | AUTHORITIES [Ev.C. §§1043, 1045, 101, 103 & 1105, JUSTIN|CHARLES SILVERNALE, P.C. §832.5] | Defendant. Date: February 17, 2015 Time: 8:30 j | Dept: 7 TO: TO DAN DOW, DISTRICT ATTORNEY OF SAN LUIS OBISPO COUNTY AND THE CHIEF OF POLICE OF THE CITY OF PASO ROBLES. ANDIOR THEIRREPRESENTATIVE() PLEASE TAKE NOTICE that on February 17, 2015, at the hour of 8:30 a.m. or as soon thereafiér as counsel may be heard in the courtroom of the above-entitled Court, the defendant will, and hereby does, move this Honorable Court for an Order disclosing, “(1) peace office, personnel records and @ records maintained pursuant to Section 832.5 ofthe Penal Code and (3) information from thdse records,” pursuant to Evidence Code §1043, subd. (a), and for the following, Paso Robles Police Ofticers: Officer Michael Rickerd - PRPD Employee 0890/4136 — Unit 644 | Olticer Jeffrey DePetro - PRPD Employee 1062/4176 and K9 Handler ~ Unit 697 Additionally, defendant requests the Order include records and information from the PASO ROBLES POLICE DEPARTMENT: (1) IA file; 2) Unfounded IA file; (3) Professional | 1 | | Defendant Motion for Discovery (Pitchess) Case No. 1463900010 Ml 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 Standard Unit file; (4) Personnel file; (5) Risk Management file; (6) Divisional file; (7) Human Resources file; and (8) any other files maintained by the PASO ROBLES POLICE DEPARTMENT not referenced above containing any personnel information about the officers identified above. ‘The motion will be made on the ground thatthe requested information will facilitate the sscertainpent of the facts, enable counsel to provide an intelligent defense and guarantee the defendant fir rial. The disclosure sought is required where, as her, there is “good cause forthe disclosure sought,” pursuant to Evidence Code §1043. subd. (bX3). The issues atrial wil bethe conde of engaging in aggressive behavior, excessive force and improper tactics and/or dishonesty, including in the writing of false reports, evidence tampering, and misstating information/facts by said Officers. ‘The information requested regarding said Officers is necessary for defendant to effectively prepare a defense to Penal Code §148(@), felony attempt to take the firearm from a pence officer, three counts of Penal Code §69, felony obstruction/resisting executive officer, and Penal Code $600), misdemeanor inflicting injury on police animal, y ‘The items requested relate to said officers and are listed below, and should cover the period of employment to the present and should include any records from prior employment in the custody of or under the control of the above agency: }. Any and all complaints made by any individuals; including but not limited to, other officers arrestees or their attorneys, friends, or relatives of such arrestees; alleging that any of the above listed officer(s) has/have engaged in any of the following during the period October 11,2009 through|October 11, 2014: | (a) Engaging in aggressive behavior, excessive force and improper tactics; | (&)__Actsofengaging in dishonesty, including the writing of false reports, evidence tampering, and misstating information/facts as to said officers; 2. The names, addresses and telephone numbers, or other indicia of identity, of any and all persons who initiated any such complaints about these officers. 3. The names, addresses, and telephone numbers of all persons interviewed by the | 2 Defendant Motion for Discovery (Pitchess) Case No, 1406-39000wow Aw ek wD ul 12 13 14 1S 16 7 18 19 20 21 22 2B 4 25 26 21 28 | | agency during the investigation of said complaints. 4| Any and all statements, written or oral, received by or prepared by the PASO ROBLES POLICE DEPARTMENT ot its agents or assigns, made by persons who brought said complaints. | Any and all information received by or prepared by the PASO ROBLES POLICE DEPARTMENT or their agents or assigns, made by persons interviewed during any investigations ofondudtofengegingin aggressive behavior, excessive force and improper tactics and/or engaging in dishonesty, including the writing of false reports, evidence tampering, and misstating information/facs, including but not limited to: | (a) Notes; (&) Findings; (©) Memoranda; | @ Recordings; | © Reports; () Transcripts; and, | © _ Opinions and recommendations (EXCLUDING CONCLUSIONS). 6. Any and all information received by or prepared by the PASO ROBLES POLICE DEPARIIMENT or their agents orassigns, regarding any disciplinary and/or suspension proceedings commenced or taken as a result of any and all investigations of conduct of engaging in aggressive behaviot, excessive force and improper tactics and/or engaging in dishonesty, including the waiting of false teports, evidence tampering, and misstating information/facts, including but not limited to: | (@) Notes; (b) Findings; (©) Memoranda; | @ Recordings; (©) Reports; | Transcripts, and, (2) Opinions and recommendations (EXCLUDING CONCLUSIONS). | 3 Defendant Motion for Discovery (Pitchess) Case No. 1406-39000,10 ul 12 13 14 15 16 17 18 19 20 a 2 23 4 25 26 27 28 7.| _ Alltest records, reports, and statements, including but not limited to letters, reports, | and oral conversations of psychiatrists, psycholo; and fellow officers pertaining to the officers identified above, engaging in, or their propensity to engage in aggressive behavior, excessive force and improper tactics, and/or dishonesty, including the writing of false reports, evidence tampering, j and misstating information/fats 8) Anyandall documents that record disciplinary action commenced against the officers identified above, engaging in, or their propensity to engage in aggressive behavior, excessive force and iemproper tactics, and/or engaging in dishonesty, including the writing of false reports, evidence tampering, and misstating information/facts. 9, Allrecords of any Penal Code §§69, 148 and/or 600 arrests made by these Officers, or incidents these Officers were involved in, resulting any Penal Code §69, and/or Penal Code §148, and/or Penal Code §600 charge(s), from October 11, 2009 through October 11, 2014, This motion will be based on this notice of motion, on the attached declaration and memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as may hereafter be filed with the Court or stated orally at the conclusion ofthe hearing on the motion, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented a the hearing ofthe motion Dated: january 28, 2015. ~ ‘.YMOND H. ALLEN” | Attorney for Defendant, JUSTIN CHARLES SIi.VERNALE M my M My m | MW | MW ‘Defendant Motion for Discovery (Pitchess) ‘Case No. 14C-39000aan wes 10 iL 12 13 4 15 16 17 18 19 20 21 2 2 24 25 26 27 28 DECLARATION OF RAYMOND H. ALLEN IN SUPPORT OF MOTION FOR DISCOVERY I, RAYMOND H. ALLEN, declare as follows: 1 I am the deputy public defender designated to represent JUSTIN CHARLES SILVERNALE, the defendant in this case. ‘ 2. Thecase City of Santa Cruz v. Municipal Court (Kennedy) (1989) 49 Cal 3474, 86, 90, discusses what is required for an adequate showing in a case like this. . . Tam informed and believe the Paso Robles Police Department keeps written records of complaints made by citizens and that such records are kept in the personnel files or other files maintained by said agency. 4, Lam informed and believe that on occasion arrestees, detainees, or the’attomneys, friends, or relatives of'such arrestees or detainees, make complaints to said agency concerning its law enforcement officers. These complaints allege that the deputies committed acts of the use of aggressive behavior, excessive force and improper tactics and the filing of dishonest and false reports. 5. Tam informed and believe that said agencies assign investigators or personnel to investigate these complaints. That these investigators or other personnel conduct correspondence with or interview witnesses and other persons and make notes, memoranda, and recordings of conversations in connection with their investigations, and prepare and file reports, findings, opinions, and conclusions concerning their investigations. That on occasion, disciplinary proceedings are ‘commenced or taken as a result of these investigations, ‘That the police agency keeps in its personnel record files, or other files, notes, findings, memoranda, records, reports, transcripts, opinions, and conclusions of the investigations made and of the disciplinary proceedings commenced or taken as ‘the result of such complaints. That the files contain the names, addresses, and telephone numbers ofppersons interviewed during such investigation and during the disciplinary proceedings commenced or taken as the result of such complaints. That items requested may also contain records showing disciplinary actions and suspensions of said officers following review of the complaints by superior officers and fellow officers concerning past incidents of the officer engaging in excessive force, 5 Defendant Motion for Discovery (Pitchess) ‘Case No. 14€-39000a ey Seow naw 12 13 14 15 16 7 18 19 20 a 2 2B 24 25 26 2 28 aggressive behavior and improper tactics and the filing of dishonest and false reports. 6. Thattheecords, data and materials sought arc in the exclusive possession and control of the aforementioned police ageney and/or the office of the District Attomey and are readily available to each of them. These materials are not known to either the defendant or myself and will not be made available except upon order of this Court. 7. Lam informed and believe, and thereon respectfully notify the Court, that “a likely issue at trial” will be of acts of the use of aggressive behavior, excessive force and improper tactics, and acts of dishonesty, including false statements and omissions in incident reports by the following officers: Officer Jeffrey DePetro - Employee 1062/4176 Officer Michael Rickerd — Employee 0890/4136 In defending himself against charges of Penal Code §§69 (x3) (obstructing/resisting peace officer), 148 (attempt to remove firearm from peace officer), and 600(a) (inflicting injury on police animal), it is defendant’s contention that said officers engaged in acts of the use of aggressive behavior, excessive force and improper tactics, and engaged in acts of dishonesty, including false statements and omissions in the filing of the incident report. ‘The information requested from the Officers’ personnel files may indicate a pattern of acts of the use of aggressive behavior! excessive force and improper tacties, and filing of dishonest and false reports. 8. Tam informed and believe that the incident did not occur as it is described in the police reports. The reports by and involving these Officers is attached hereto, marked as “Exhibit A,” and incorporated herein by this reference, The reports sets forth facts purportedly justifying the force used by the Officers. A history of the use of aggressive behavior, excessive force and improper tactics would be relevant to impeach the Officers and establish that the Officers acted in this case in conformity with a habit and custom to act outside the law, and outside the lawful exercise of their duties. A history of filing of dishonest and false reports would be relevant to impeach said officers and establish that these Officers acted in this case in conformity with a habit and custom to act outside the law. See e.g., City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1146. 9.. The “plausible factual foundation for [the] allegation” is the Officers’ use of 6 Defendant Motion for Discovery (Pitchess) Case No. 1406-39000Ce a aA A wD 10 u 12 13 14 15 16 7 18 19 20 21 23 24 25 26 7 28 aggressive behavior, excessive force and improper tactics, and filing of false reports. AL According to the, Incident Report prepared by Paso Robles Palle Officer Michael Riekerd, on October 22, 2014, at approximately 6:20 p.m., he was dispatched to the 800 block of 24th Street in the City of Paso Robles, regarding two males physically fighting. He was the first officer to arrive at the location and observed two males arguing but did not observe any evidence of physical fighting. He also noticed a black Chrysler 300M parked near the two males with the passenger door open. i Officer Rickerd exited his vehicle and advised the younger male, Mr. Silvernale, the defendant herein, to walk towards him and away from second male, 66-year old William May, hereinafter“May.” Officer Rickerd allegedly heard Mr. Silvernale say something about May having his wife and kids, but was looking at what appeared to be a laundry detergent bottle in his hand. Officer Rickerd again asked Mr. Silvernale to walk towards him so that they could discuss the events, Mr. Silvernale told Officer Rickerd that he did not feel comfortable discussing it and Officer Rickerd was interrupting their discussion. Officer Rickerd explained he “was notasking him to walk away and come closer to [Officer Rickerd] but ordering him to.” Mr. Silvemale told Officer Rickerd “he had rights and felt that [Officer Rickerd] was interfering with those rights.” Silvemale eventually walked towards Officer Rickerd slowly at the same time making comments about his wife and kids and pointing to May. Officer Rickerd “noticed [Mr. Silvernale] was extremely sweaty” and his eyes were wide open as if he was very excited. The high temperature in Paso Robles on October 11, 2014, was 92 degrees around 5:00 p.m., approximately 89.1 degrees at 6:00 p.m; it was still daylight at the time Officer Rickerd made contact with Mr. Silvernale.' | Mr, Silvernale told Officer Rickerd that “May was his wife and they were just having @ discussion.” Officer Rickerd told Silvernale Officer Rickerd understood this, but Officer Rickerd had received a report of them physically fighting and wanted to separate them until Officer Rickerd determined “what was going on.” Officer Rickerd then asked Mr. Silvernale to walk towards his ' See Weather Historv for Paso Robles, California, marked as “Exhibit B,” attached hereto and incorporated herein by this reference. Said history can also be located at: http://www.wunderground.convhistory/airport/KPRB/2014/10/1 1/DailyHistory.html, See also Exhibits CC and D, referenced herein, for proof of daylight. 7 Defendant Motion for Discovery (Pitchess) ‘Case No. 14C-39000nb aw Sc we aanu 12 13 14 15 16 7 18 19 20 a 22 23 24 25 26 27 28 patrol vehicle, and Mr. Silvernale told Officer Rickerd he did not feel comfortable to do so. Officer Rickerd explained to Mr. Silvernale that “if he did not cooperate with [his] orders that [Officer Rickerd] would have to detain him” for Officer Rickerd’s safety. Mr. Silvernale denied doing anything wrong and wanted Officer Rickerd to leave. Officer Rickerd again told Mr. Silvernale to walk back towards his patrol vehicle to which Mr. Silvernale stated he did not want to and would walk away, but not toward the patrol vehicle. Mr. Silvernale then walked away from Officer Rickerd and May, towards a fence to the north, He walked past the patrol vehicle, and then past the Chrysler 300M, stopped. and turned around to faced Officer Rickerd. Officer Rickerd then contacted May who said he was homeless and living near the tracks. He was approximately 20 yards away near a fence and on a path towards the railroad tracks when ‘Mr. Silvernale pulled up in the Chrysler 300M. He said he was braiding fishing net when Mr. Silvemnale approached him. While Officer Rickerd was speaking with May, and when Mr. Silvemale ‘was complying with Officer Rickerd’s demand, Paso Robles Police Officer DePetro arrived and began speaking with Mr. Silvernale? According to Officer Rickerd’s report, when Officer DePetro arrived on the scene, he ran the license plate number of the Chrysler 300M. Further, according to Officer Rickerd’s report, Officer Rickerd also allegedly heard Officer Depetro ask Silvernale to show some type of identification, and was allegedly able to hear Mr. Silvernale tell Officer Depetro that his ID was in his vehicle, despite the distance between the men and the fact that he was speaking with May. Officer Rickerd stated in his report that Mr. Silvernale then walked over to the open passenger door and removed a driver’s license from a wallet, and then Officer Depetro and Mr. Silvernale then again walked to the left rear of the vehicle, further away from Office Depetro. Also according to Officer Rickerd’s report, after Officer DePetro made contact with Mr. Silvemale and presumably after Mr. Silvernale provided identification: “Officer DePetro] began to check for any wants or warrants. While Officer Depetro was furnishing Silvernale’s information to PRPD dispatch, PRPD Dispatch advised him that the black Chrysler 300M had been reported stolen from northern California, Officer Depetro and [Officer Rickerd] recognized that Silvernale was in possession of the stolen vehicle, and [Officer Rickerd] noticed Officer Depetro tell Silvernale See Subparagraph (B) below for Officer DePetro’s report. g Defendant Motion for Discovery (Pitchess) Case No, 14-3900Cw aan nae n 10 ul 12 B 14 15 16 7 18 19 20 21 22 23 25 26 27 28 that he needed to place his hands behind his back and that he was going to put him in handeuffs, [Officer Rickerd} could tell by Silvenale’s reaction that he was not going to cooperate and [Officer Rickerd] immediately walked over to assist Officer Depetro. “As soon as Officer Depetro and [Officer Rickerd] placed hands on Silvernale, he began to resist trying to pull away. [Officer Rickerd] attempted to take Silvernale down to the ground, but he would not go to the ground and continued to resist. [Officer Rickerd] struck Silvernale in the stomach area several times with knee strikes attempting to cause Silvernale to bend over or crouch down to assist [Officer Rickerd] with taking him to the ground. The knee strikes had no effect so [Officer Rickerd] struck Silvernale with [his] fist in his face several times again trying to stop his resistance and take him to the ground. It appeared that these strikes worked and [Officer Rickerd] was able to throw Silvernale to the ground and stay on top of him. ‘While on the ground, [Officer Rickerd] explained to Silvernale several times that he ‘was under arrest and that he needed to roll over onto his stomach. Silvernale told [Officer Rickerd] that he was not going to roll over and that he was not “a dog.” ‘While on the ground, Officer Rickerd attempted to roll Silvemale over onto his stomach, but he continued to place his arm out to block the roll. One of [Offi¢er Rickerd’s] attempts of rolling Silvernale over, Oflicer Rickerd released his left arm and attempt to pull his right arm so [Officer Rickerd] could roll him over. Silvernale, with his left arm, reached around and grabbed my gun attempting to pull it out of its holster. [Officer Rickerd] struck Silvernale two or three times with [his] elbow and fist into his face to get him to release [the] gun, The elbow strikes worked and Silvernale released my weapon and brought his arm back up to his face to protect it. [Officer Rickerd] then reached down with [his] hand and noticed that [Mr. Silvemale] had undone one safety strap over [the] gun. [Officer Rickerd] re-secured ‘that safety strap and then continued to hold Silvernale on the ground and control both of his arms. [Officer Rickerd] stayed on top of Silvernale and attempted to control his hands to make sure that he would not escape or attempt to grab any other of my ‘weapons on my belt. “While holding Silvernale, Officer Depetro got up and started running towards his vehicle. Officer Depetro yelled to [Officer Rickerd] that he was going to get his canine to assist with controlling Silvernale. While Officer {sic] Depetro was getting his canine, Silvernale was ablc to deliver three or four knee strikes to the side of my head, jaw, and side. [Officer Rickerd] was able to adjust [his] position and move out, of the range of his knee strikes. Officer Depetro was able to retrieve his canine from his unit and ordered his dog to engage onto Silvernale. While Officer Depetro’s canine was attempting to engage with Silvernale, the canine latched onto [Officer Rickerd’s} arm causing two puncture wounds to [Officer Rickerd’s] arm. Officer Depetro was able to remove his canine from my arm and place him back ointo Silvernale, [Officer Rickerd] continued to control Silvernale’s arms while he continued to kick and resist.” According to Officer Rickerd’s report, other PRPD units arrived the officers were able to roll ‘Mr. Silvernale over to his stomach and place him into handcuffs. Officer Rickerd noticed “that [his] left arm was bleeding profusely and the two puncture wounds were deep and significant.” Medical personnel arrived and advised Officer Rickerd that he go to the hospital for potential stitches. Officer Rickerd was transported to the Twin Cities Hospital where his wounds were treated and 9 Defendant Motion for Discovery (Pitchess) Case Ne. 140-3900Aw oN ee aan 10 sa 12 13 4 15 16 7 18 19 20 21 2 2B 24 25 26 27 28 Officer Rickerd was released. The knee strikes Officer Rickerd had received from Mr. Silvernale to the side of his head caused bruising to his jaw and tomple area. The Twin Cities Doctor advised him the blows did not cause any major injuries besides bruising. The Doctor did not believe he had suffered a concussion or any trauma to the brain, | B, Paso Robles Police Officer Jeffrey DePetro was the second officer to| arrive on scene and was in a marked Paso Robles Police Department K9 unit, in full uniform. Upon arrival he observed Officer Rickerd talking with William Everet May (66yrs.) to the right of a black 2014 Chrysler 300. Officer DePetro also observed a white male. Mr. Silvernale, wearing a black t-shirt and blue shorts walking away from Officer Rickerd and then standing to the left of the car‘as Officer DePetro approached, Mr. Silvernale spoke to Officer DePetro and said Officer Rickerd had just separated him and May. | “{Officer DePetro) asked [Mr. Silvernale] if he had any ID on him so (Offiver DePetro] could know whom [he] was talking too [sic] and he reached into his pockets and acted like he could not find it, then said he needed to get his wallet in his car. He raised his hands as he walked and said he was not grabbing a gun and was grabbing his wallet and asked [Officer DePetro] not to pull [his] gun on him. [Officer ‘DePetroj thought that was a very odd statement to make and followed him over to the car. [Mr. Silvernale] reached in the car and grabbed something then pulled back away from the car and handed [Officer DePetro] an Arizona driver's license.” | I Afier Mr, Silvemale pulled the ID out ofthe car he used the keys to lock the vehicle, The Arizona driver's license had the name “Edward Joseph Hidder,” and provided the date of birth as January 30, 1960. The picture looked similar to Mr. Silvernale, but Officer DePetro did not believe Mr. Silvernale to be as old as the man in the picture or the date of birth on the license. According to his police report, | “At this point PRPD Dispatch advised the vehicle was stolen® and [Officer DePetro] had Dispatch repeat the information and the make and model of the car so [Officer DePetro] could visually verify this car matched the stolen car in CLETS. [Officer ‘DePetro and Mr, Silvernale] then walked back to the left of the car and [Officer | ‘No such statement from Dispatch can be heard on the videos for either Officer’s patrol units, even though other radio communications with Dispatch can be clearly heard. See the video of PRPD Unit 644, attached hereto marked as “Exhibit C,” and incorporated herein by this reference, which does not activate until after the officers have beaun forcing Mr. Silvernale to the eround: and see video of PRPD Unit 697. attached hereto marked as “Exhibit D,” and incorporated herein by this reference, wherein Officer DePetro can be heard asking Mr. Silvernale if he has any weapons or drugs and then telling him to put his hands behind his back [time stamp beginning 18:11:04]. 10 | Defendant Motion for Discovery (Pitchess) ‘Case No. 1406-39000wb wane DePetro] observed Silvernale pull his shirt down to cover the top of his shorts which made [Officer DePetro] concerned he might have a weapon‘. As [Officer DePetro and Mr. Silvernale] walked [Officer DePetro] looked oyer at Officer Rickerd to confirm he had heard the information from Dispatch’. [Officer DePetro] then asked Silvera if he had any guns, knives or drugs on him and he suid he di Hot have those items. [Officer DePetro] then asked him to place his hand behind his back so [Officer DePetro] could search him and [Mr. Silvernale] took one step back then raised his hands in an effort to keep them out of [Officer DePetro’s] reach‘. His demeanor changed as he became confrontational and he raised his voice asking why he was being detained. He said “what is this about” and “what is this for” and “why am I being detained.” At this point [Officer DePetto] felt he was going to possibly fight [the Officers] and/or run.” Officer DePetro’s police report goes on to say: | “[Officer DePetro] walked to [Mr. Silvernale’s] side and grabbed his right arm|to secure it and he immediately started resisting by pulling away and then by turing into [Officer DePetro] where he punched (Officer DePetro] in the side with his left fist as [Officer DePetro and Mr. Silvernale] spun around and then grabbed a hold of [Officer DePetro]. Officer Rickerd ran over to assist [Officer DePetro] with detaining Silvernale. Silvernale continued resisting and wrestling with {the Officers] a§ [they] tried to get him to the ground. Silvernale was using his legs to pivot around and Keep his balance so [they] could not force him to the ground’. [Officer DePetro] used my body weight as leverage and started pushing him towards the car because [they] were unable to unable to force him to the ground. [Officer DePetro] tried using the car for leverage to try and force him down but was unable to and he continually pused yp ayainst (Offver DePetr] in an atempt to throw [Oller DePetto] off balance lice DePetro] continued holding ont his right arm soe could not strike [the Officers} with it as [they] struggled. He continued to struggle and was grabbing onto [Officer DePetro's] right arm to loosen [Officer DePetro's} grip, trying to free right. i ‘arm with his left arm which he still had use of. [Officers Officer DePetro and Officer Rickerd] then pulled him away from the car and him to the ground as he continued resisting by grabbing [the Officers] with his free arm and his right hand even though [Officer DePetro] had control of the arm. As [they] spun [they] all fell to the ground. | * Ibid: No such *look’ can be seen.on the above referenced videos. Ibid: No such action by defendant can be seen on the above referenced videos. | 6 See Exhibit D, video of PRPD Unit 697, DePetro, Jeffery, time stamp beginning 18:42:06 through 18:42:19, wherein Officer DePetro explains to Sgt. Wenter the reason for taking Mr. Silvernale down, “I asked [Silvernale] ifhe had any guns, knives, or drugs, or anythin’ like that, he, he said [illegible] started goin’ like this [demonstrates raising both hands in air}, and then I'm like, ‘oh-oh,” so I just went in and like grabbed his arm... an that’s when he started fightin’. and [illegible] grabhed the other side... The video clearly shows Mr. Silvernale raised his hands after Officer DePetro and grabbed him, not before. 7 bid. hhands off the ground, See Exhibit D, time stamp 18:11:19. Ibid, H " Defendant Motion for Discovery (Pitchess) Case No, 14C-39000u 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 “At this point based on the level of resistance, the fact that he was still unsearched, was actively fighting and resisting arrest, The fact that [Officer DePetro] believed he may have given [Officer DePetro] a false ID, the fact that he was in possession of a stolen vehicle which based on my training and experience [Officer DePetro] know can lead to more violent crimes when those suspects are contacted, and the fact that {they] were having a difficult time detaining him, [Officer DePetro] quickly evaltiated the options available to [Officer DePetro] to take the suspect into custody: ... Handgunf, ... ] O/C and impact weaponf, ... ] TASER, ... ] Police Service Dog “Iy*, Based on the suspect's actions by actively resisting arrest and by fighting (as described above) the Officers attempting to detained him, the fact that the two [Officers] were not able to overcome his strength, the possibility of escape from Officers as [Mr. Silvernale] had multiple areas to hide in if he were allowed to flee, the close proximity of other residential houses nearby and businesses, and the fact that he was unsearched at this time and could be armed, the fact that he was acting strange combined with his level of resistance led [Officer DePetro] to believe that there could be a more serious crime of which {the Officers] were not yet aware off, {Officer DePetro] determined [he] would use [his] PSD “Ir” to assist in taking the suspect into custody as my PSD was the most reasonable option. [Mr. Silvernale] ‘was within the deployment range of the dog and the dog’s use allowed [Officer DePetro] to have more pain compliance control and would also allow [Officer DePetro} to chase after the suspect safely ifhe were to flee. [Officer DePetro] would also be able to reduce the use of force if the suspect surrendered by calling the PSD off.” Despite the fact that he was running away from Mr. Silvernale and Officer Rickerd, Officer DePetto allegedly observed Mr. Silvernale strike Officer Rickerd in the head approximately 7-8 times and connected on 2-3 of those attempts, and also allegedly observed Mr. Silvernale try to punch Officer Rickerd in the face 2-3 times with his right fist and connected once. ‘The K9 bit Mr. Silvernale on the legs, feet and thighs, and as observed in the Video, Mr. Silvemale screamed in pain and fear, and continued to struggle and kick in an attempt to prevent the K9 from biting him. Ultimately, after biting Mr. Silvernale and Officer DePetro, the K9 showed little interest in Mr. Silvernale and Officer Rickerd was able to detain Mr. Silvernale. Officer DePetro alleged in his report that he “heard Officer Rickerd yell that Silvernale was trying to get his gun as [they] continued to try and detain him while he actively fought us.” Officer Rickerd further claimed that: “[[]n the video from [his] patrol vehicle [Officer DePetro] saw that Silvernale used his left arm to reach around and grab onto Officer Rickerd’s gun and starts manipulating the safety hood on the holster. After a little more of a struggle Silvemnale suddenly stopped struggling but only appeared to be resting and Officer DePetro held my PSD back from him. Even when he appeared to be stopping he was still trying to grab at Officer Rickerd with his hands. Officer Rickerd again ordered him to roll over and Officer DePetro ordered him to stop resisting. Silvernale soon began to struggle and fight again by trying to kick Officer DePetro and my PSD. Officer DePetro then ordered my PSD to bite Silvemnale again as he continued to 12 Defendant Motion for Discovery (Pitchess) ‘Case No. 1406-39000a 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 O struggle and fight us, Silvernale started kicking at Officer DePetro and my PSD and actually kicked Officer DePetro in the leg and kicked my PSD in the face again. Silvemale again uses his free leg to try and push my PSD off of his other leg during the struggle and kicks my PSD approximately 6-8 more times. Officer DePetro then get on top of Silvernale and strike him in the stomach one time. Silvernale ap to start getting tired and his kicking and grabbing start to slow as [they] hear the Police sirens in the distance Silvernale is still trying to kick and grab as Officer Rickerd holds his left arm and using his body weight to control the movements of Silvernale’s right arm while Officer DePetro use my body weight to keep Silvernale’s legs from kicking us. Officers Petlachi, Officer Chubbuck, and Officer Ramirez soon arrived on scene and they were able to handcuff Mr. Silvernale, and place him ina Hobble leg restraint by Officer Rogers who also arrived on scene. ' Despite no mention in Officer Rickerd’s report, Officer DePetro stated in his report that “Officer Rickerd later advised while Silvemale had attempted to get his gun during the struggle Silvernale had actually unlocked the safety hood.” i 10. The Defense believes the evidence, including patrol unit DVDs, show that Mr. Silvernale was non-combative until excessive and unnecessary force was applied to his person. A review of all available videos demonstrate he was physically cooperative until Officer Rickerd grabbed for him without cause or explanation and attempted to throw him on the ground, He became further and exceedingly fearful when the K9 was released and encouraged repeatedly to bite him, kicking out to defend himself as would any sane individual faced with an animal with large, sharp teeth, Mr. Silvernale’s reacted to the environment with reasonable and all too human responses that were foreseeable and, thus, used to the officers’ advantage for explaining their gross over reactions. Officer Rickerd claimed in his report that both he and officer Officer DePetrd knew the vehicle was stolen at the time they attempted to arrest Mr. Silvernale and wrestled him to the ground. However, there is no recording of dispatch ~ on either Officer Rickerd or Officer DePetro’s patrol unit’s videos ~ to corroborate this before or at the time Mr. Silvernale was wrestled to the ground 1 and restrained, nor was there any statement by either officer to Mr. Silvernale that he was under arrest until well after Mr. Silvernale was being physically attacked, let alone any statement to Mr. Silvernale as to why he was being initially physically, and aggressively, detained. In fact, on the video from Unit 697, attached hereto, marked as “Exhibit D,” and incorporated herein by this B Defendant Motion for Discovery (Pirchess) ‘Case No. 14C-39000ws on Sc we aa il 13 14 15 16 7 18 19 20 21 2 B 4 25 26 a 28 reference, when Officer Rickerd is explaining to another officer what happened, he states that “he raised his arms and I thought, “oh-ob,” and I just grabbed him and took him down..." ‘The Defense believes that Officers Rickerd and DePetro’s actions constituted the use of aggressive behavior, excessive force and improper tactics. The Defense believes the false statements and omissions in the reports of said officers about the events of Mr. Silvernale’s detention and arrest, as well as Officer statements ahout Mr. Silvernale attempting to take Officer Rickérd’s gun, constitute the filing of false reports. Any resistance the defendant may have shown was exhibited only to the extent necessary for self-defense given the Officers’ immediate and excessively forceful contact with him. The Defense also believes the evidence will show the Officers were not in the lawful exercise of their duties. 11. Ibelieve that other si ilar orrelevant complaints or internal investigations may have been filed against aforesaid Officers whose records I am seeking. 12, I believe that information in the records sought is essential to the defense of obstructing/ resisting executive officer, infliction of an injury on a police animal, attempts to take a firearm from a peace officer, battery (on an officer) and false personation. I believe that the full facts of this case cannot be fully ascertained without them. I believe that the defendant will not receive a fair trial, or due process of law, unless the records sought are provided to me. The materials may be used as follows: (® To locate and investigate witnesses or other evidence of the aggressive and dishonest character of the Officers involved to show that the Officers acted in conformity with that character at the time of this incident. (b) To refresh the recollection of witnesses to incidents of aggressive | behavior, excessive force and improper tactics and dishonesty by these Officers so that defense may accurately ascertain the facts and circumstances of those incidents; (©) To properly prepare for cross-examination and impeachment of witnesses to be called by the prosecution: (@ Tove the trier of fact properly assess the credibility of the defendant and defense witnesses; and, ut © See Exhibit D, beginning at time stamp 18:42. 14 ‘Defendant Motion for Discovery (Pitchess) ‘Case No. 14C-39000Sex a aun wrn u 12 13 4 15 16 7 18 19 20 21 2B 24 25 26 27 28 (© Toimpeach the testimony of the Officers involved with acts showing amorally lax character and hence, a readiness to lie, I declare under penalty of perjury pursuant to California law, that the foregoing is true and correct, except as to matters I allege based on information and belief, and as to those matters, I believe them to be true. This declaratiori was executed at San Luis Obispo, California, on this 26. day of January 2015. -YMOND H. ALLEN 15 Defendant Motion for Discovery (Pitchess) ‘Case No. 14C-39000Cerra aw 10 u 12 13 14 15 16 7 18 19 20 a 2 23 4 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION I AUTHORITY FOR RECORDS OR INFORMATION SOUGHT 1 Complaints, or investigation of complaints. concerning any event or tratisaction in which any of the officer listed participated or perceived and pertaining to the manner in which a listed officer performed the officer's duty. Penal Code §832.8(¢): Evidence Code §1045(a). These records are sought tothe extent that they show, or tend to show, orallege, a concemn thatthe officer would engage in acts of aggressive behavior, excessive force and improper tactics. | They are maintained pursuant to Penal Code §832.8(e). 2. Discipline imposed as a result of the investigations listed above. Evidence Code §1045(a). ‘These records are maintained pursuant to Penal Code §832.8(4). 3. The name and address of any law enforcement agency that employed any officer whose records are sought. This is sought because the Paso Robles Police Department may not maintain in its own files discoverable records from the officer’s prior peace officer eniployment. ‘The defendant will seek relevant records from any prior employers. 4. In addition to records pre-dating this incident, defendant also seeks records that are subsequent to this incident, including any still pending matters. See, e.g., People v. Memro (1985) 38 Cal.3d 658, 687. “[C]omplaints regarding conduct which occurred after the [incident] in this case may be relevant to [the issues raised].” 5. By statute, two personnel files are kept. Both are discoverable under Evidence Code §1043, Penal Code §832.5, subd. (c), states that complaints that are determined to be “frivolous shall not be maintained in that officer’s general personnel file. However, these complaints shal! be retained in other files that shall be deemed personnel records for purposes of Section 1043 of the Evidence Code.” The reason that complaints once determined frivolous are still kept and still disclosed is obvious. A complaint that was determined to be frivolous might no longer appear frivolous in light of subsequent information, such as that coming to light in our case. 16 Defendant Motion for Discovery (Pitchess) ‘Case No. 14C-39000ee aan wae ny 10 ul 12 13, 4 15 16 7 18 19 20 21 2 23 24 25 26 27 28 6. The five year period in Evidence Code §1045, subd, (b)(1) is “five years before the event which is the subject of the litigation.” That subsection states that the Court shall exclude from. disclosure complaints more than five years old, as defined. The subject ofthe litigation occurred on October 11, 2014. Five years prior to that was October 11, 2009. 7. Inasking for “investigations of complaints,” what is sought are the facts of the officer.” Evidence Code §1045(b)(2) exempts from disclosure those conclusions. At the same time, Evidence Code §1045. subd. (a) states that this article “shall (not] be construed to affect the right of accessto investigations of complaints.” In distinguishing “conclusions” from “discipline imposed,” the California Supreme Court stated: “The term ‘conclusions of any officer’ denotes the thought processes of, and factital inferences and deductions drawn by, an officer investigating a complaint, concerning such matters as the credibility of witnesses or the significance, strength, or lack of evidence.”" Thus, the distinction is plain between the “conclusions” which are not disclosed and the “investigations,” which are to be disclosed. 8. The five-vear period in Evidence Code §1 concerns onl ‘information consisting of complaints.” Accordingly that limitation does not apply to discipline im th In other words, that five-year limitation does not prevent this Court from disclosing any discipline imposed at any time whatsoever. Cal. Const, Article I §28, subd. (d) “relevant evidence shall not be excluded in any criminal proceeding.” Moreover, by excluding only “information consisting of complaints,” (Evidence Code §1045, subd. (b)(1) emphasis added), but not “investigations of complaints,” the legislature has permitted investigations older than five years old to also be disclosed. 9. Complaints older than five years ola also sought. Defendant acknowiedges that Evidence Code §1045, subd. (b)(1), purports to exclude the disclosure of [information consisting of complaints” more than five years before the current event. However, defendant points out that "City of San Jose v. Superior Court (Michael B.) (1993) 5 Cal.Ath 47, 55. 7 Defendant Motion for Discovery (Pirchess) Case No, 14C-39000this limitation is abrogated by the subsequently enacted Cal. Const. art. I, sec. 28, subd. (d), (Proposition 8's “Truth-In-Evidenee” provision) stating that “relevant evidence shall not bé excluded inany criminal proceeding,” The California Supreme Court has held that destruction of such records after five years (without knowledge of its exculpatory nature) does not violate defendant's due process rights". However, the California Supreme Court also recognized the prosecutor's duty to seek, assess and disclose such evidence if exculpatory under Brady.? 0 THERE IS GOOD CAUSE FOR THIS DISCLOSURE A. — Factual Showing As required by Evidence Code §1046 (applicable in cases of excessive police force by a peace officer in connection with a party’ arrest), the defendant is attaching, marked as “Exhibits A,” copies of the relevant police reports setting forth the Officers’ versions of the detention and arrest, Asset forth above, copies of DVD’ received in discovery are also attached are Exhibit “C” and“D”, Reference is also made to the declaration of defense counsel, herein. The Supreme Courtin Kennedy state as follows: 1, Theplausible factual foundation for an allegation of” the use of aggressive behavior, excessive force and improper tactics is the officers’ use of aggressive behavior, excessive force and improper tactics and writing of dishonest and false reports. 2. “[T]he Court [is respectfully put] on notice that ... excessive force will likely be an issue at trial.” 3. __ [T]he information sought might be admissible. (See [Evidence Code sections] 1103, 1105" because it may show the Officers’ characters for use of acts of aggressive behavior, excessive force and improper tactics and dishonest and false reports."* wt "City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 11-12. Id, p.12, See also Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 54-55. City of Santa Cruz v. Municipal Court (Kennedy) (1989) 49 Cal.3d 74, 86. 18 Defendant Motion for Discovery (Pitchess) ‘Case No. 140-3900a aus on © & 10 u 12 3 14 15 16 17 18 19 20 21 23 24 25 26 27 28 This Showing Satisfies the Statute as to “Good Cause” and “Materiality” ‘A showing of good cause for this disclosure is required by Evidence Code §1043, subd. (0)(3). The California Supreme Courtihas said that there isa “relatively low threshold for [ths] discovery.” Repeating this, the Court said there are “relatively relaxed standards for a showing of good cause [for this discovery]. In City of Santa Cruz v. Municipal Court (Kennedy), supra, the California Supreme Court reaffirmed the rule announced inthe seminal ease of Pitches v. Superior Court (a974)11 Cala 531, that the requisite showing in a criminal matter may be satisfied by general allegations which establish some cause for discovery other than a mere desire forall nformation in the possession of the prosecution. The information sought must, however, be requested with adequate specificity to preclude the possibility that defendant is engaging in a fishing expedition." | Pitchess itself considered whether the allegations be set forth with the “specificity as required by [civil discovery sections such as] Code of Civil Procedure sections 1985 and 2036.” {The Court rejected that, in favor of general allegations because “[w]ere a Court to require strict adherence to the provisions of Code of Civil Procedure sections 1985 and 2036, subd. (a), it is likely that Fifth ‘Amendment problems would develop in many instances.”"” In the more recent California Supreme Court case Warrick v. Superior Court, the high Court made it clear that the Trial Court is not to judge whether defendant's version is persuasive, or even credible or believable: “The question remaining is this: What degree or quantity of justification must the moving party offer to establish a plausible factual foundation forthe claim of ofier misconduct? Here, the Court of Appeal concluded that to be plausible a factual foundation must be reasonably probable or apparently eredible and not merely possible. In so doing, the Court of Appeal imposed a greater burden on the party seeking Pitchess discovery than required by our prior cases or the statutory scheme. To require a criminal defendant to present a credible or believable factual account of, or a motive for, police misconduct suggests that the trial court’s task in assessing a Pitchess motion is to weigh or assess the evidence. It is not. A trial court hearing a Pitchess motion normally has before it © Kennedy, supra, 49 Cal.3d at 83-84. % [d, 49 Cal.3d at 85. Quotation marks and citations to Pitchess omitted. ; 17 Pitchess v. Superior Court (1974) 11 Cal.3d 531. 535. 536. See also People v. Memro (1985) 38 Cal.3d 658, 682 where the Court found the materiality component satisfied where the evidence sought might have been admissible or might have led to other admissible evidence on that question.” Memro overruled ‘on other grounds in People v. Gaines (2009) 46 Cal.4th 172. 19 Defendant Motion for Discovery (Pitchess) ‘Case No. 140-3900aan sewn 10 ul 12 3 4 15 16 17 18 19 20 21 23 24 25 26 27 28 only those documents submitted by the parties, plus whatever factual representations counsel may make in arguing the motion. The trial court does not determine whether a defendant's version of events, with or without corroborating collateral evidence, is persuasive~a task that in many cases would be tantamount to determining whether the defendant is probably innocent or probably guilty. (See People v. Johnson, supra, 118 Cal.App.4th at p. 304.) “Moreover, a credibility or persuasiveness standard at the Pitchess discovery stage would be inconsistent with the statutory language and with our previous decisions requiring only that defense counsel’s affidavit or declaration supporting adefendant’s Pitchess motion be made on information and belief. ($1043, subd. (b)(3); People v. Mooe, supra, 26 Cal.4th at p. 1226; Santa Cruz, supra, 49 Cal. 3d at pp. 86-89; Fletcher v. Superior Court (2002) 100 Cal. App 4th 386, 395 [123 Cal.Rptr.24 99).) ‘As we have previously noted, the legislative history of section 1043 shows that the “ egislature expressly considered and rejected a requirement” that counsel’ saffidavit bemade on personal knowledge, (Santa Cruz, supra, 49 Cal.3d at pp. 88-89, original italics.) Because defense counsel would only rarely be present when the alleged officer misconduct occurred, counsel has little information to offer based ‘on counsel’s personal knowledge. i (Emphasis added.)""* | The Court also described the standard a moving party must meet to show a “plausible” factual foundation: What standard must a moving party meet to show a “plausible” factual foundation for the Pitchess discovery requested? We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial, Such a showing “put[s] the court on notice” that the specified officer misconduct “will likely be an issue at trial.” (Santa Cruz, supra, 49 Cal.3d at p. 86.) Once that burden is met, the defendant has shown materiality under section 1043. To determine whether the defendant has established good cause for in-chambers review of an officer’s personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsel’s affidavit in support of the Pitchess motion adequately responds to these questions, and states “upon reasonable belief that the governmental agency identified has the records or information from the records” (§1043, subd. (b)(3)), then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant.” 8 Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025-1026. Emphasis added, © Id, at pp. 1026-1027. Emphasis added. 20 Defendant Motion for Discovery (Pitchess) ‘Case No. 140-3900See a au sewn u 12 13 14 15 16 7 18 19 20 2 2 23 24 25 26 27 28 ) O The Court in Warrick also indicated that “that factual scenario, depending on the circumstances of the case, may consist ofa denial of the facts asserted in the police report The defendant is not required to commit to a specific defense. In order td discover information from a police officer's personnel file a defendant need only demonstrate possible defenses to the charges which render the information relevant.” | ‘The Court will note that the declaration herein is by defense counsel only. The cases are clear that the defendant’s personal averments are not required: ; “[T he ‘materiality’ component of [Evidence Code] section 1043. subdivision (b) ‘may be satisfied by [defense counsel's] affidavits based on information and belief.” City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at 89. “Buidence Cade section 1043, subdivision (3), which governs discovery of peace a officer records, contains no requirement of a ‘personal’ affidavit on the part of the accused.” People v. Memro, supra, 38 Cal.3d at 676. ‘ | C. Reasonable Belief That the Agency Has this Material The declaration of defense counsel sets forth defense counsel’s “‘belie[f]’ that other complaints of excessive force ‘may have been filed." That allegation was sufficient in City of ‘Santa Cruz vy, Municipal Court (Kennedy), supra. mm ‘THE PROCEDURE AFTER THE COURT FINDS THAT DEFENDANT HAS SHOWN GOOD CAUSE AND MATERIALITY If the Court finds thatthe defendant has made the requisite showing of good eause and materiality, the Court then examines the records to determine which are relevant. As.a practical matter, this is usually done in chambers and the only individuals present are usually the Judge, the Reporter, perhaps a Clerk and Bailiff, and, of course, the attomey or other authorized representative 2 jd, at p. 1025, relying in part on People v. Hustead (1999) 74 Cal.App.4th 410. 2% rceiona v. iviunicipat Court ( CaiAy Letvin ba. Suyrerion Covré Cal.App.3d 823. 2 City of Santa Cruz v. Municipal Court (Kennedy), supra, 49 Cal.3d at 90. 21 | Defendant Motion for Discovery (Pitchess) ‘Case No. 140-3900Aw oD u 12 13 14 15 16 7 18 19 20 21 2 23 24 25 26 27 28 for the law enforcement agency”, ‘This procedure is in accordance with the following statutes. Evidence Code §1045, subd. (b) provides that “[i]n determining relevance the Court shall examine the information in chambers in conformity with [Bvidence Code] Section 915.” Evidénce Code §915, in turn, provides, at subdivision (b), «When a Courts ruling on a claim of privilege under [Evidence Code] Section 1040 [to 1047] and is unable to do so without requiring disclosure of the information claimed to he privileged, the Court may require the person authorized to claim the privilege to disclose the information in chambers out of the presence [of others].” Any relevant records are then ordered disclosed to the defense. Pursuant to Bvidence Code §1045, subd. (©), the Court: “shall ... order that the records disclosed ... may not be used for any purpose other than a court proceeding pursuant to applicable law.” The Court can also enter other protective orders “to protect the officer or agency from unnecessary annoyance, embarrassment or oppression” if the agency asks for one, and shows good cause that the order is “necess[ary].”™* | Iv RELEVANT RECORDS INCLUDE MORE THAN MERE CONTACT INFORMATION ON COMPLAINANTS AND WITNESSES Relevant records also include (1) discipline imposed, (2) complaints, and (3) investigations of complaints. A. Case Law Explicitly Requires Disclosure of Discipline Imposed “Imposed discipline” is maintained in the officer’s “general personnel file” pursuant to Penal Code §832.5, subd. (d), Relevant imposed discipline was specifically required to be disclosed by City of San Jose v. Superior Court, supra. The Court pointed out that “Evidence Code section 1045, subd. (a) provides that ‘[nJothing in this article shall be construed to affect the right of access to records of complaints, investigations of complaints, or discipline imposed. On its face, the % City of San Jose v. Superior Court, supra, 5 Cal.Ath at 52; City of Santa Cruz v. Municipal Court, (K supra, 49 Cal.3d at 83. Evidence Code §1045(4), % City of San Jose v. Superior Court, supra, § Cal.tth at 54-55, Emphasis in original. 22 | Defendant Motion for Discovery (Pitchess) Case No, 14C-39000highlighted language clearly suppors the order for disclosure of discipline imposed on the aresting officer. | ‘The Court went on to reject the City’s contention that discipline imposed could not be revealed, B, — TheReasoning of The City of Santa Cruz Court Requires That Complaints Be Disclosed ‘Traditionally, many Courts disclose only names, addresses and phone numbers of complainants and witnesses. That tradition should not be followed in this case. Instead, the Court should order, along with disclosure of witness contact information, disclosure of any relevant complaints themselves. ‘The reasoning of the Court in City of San Jose v, Superior Court, supra, discussed in subpart A, immediately above, should apply with equal force both to discipline imposed, and also to the complaints. Just as the San Jose Court found that Evidence Code §1045(a), by its statement that “nothing in this article shall be construed to affect the right of access to records of complaints or discipline imposed,” supports disclosure of discipline imposed. Therefore, that section must also support disclosure ofthe original complaints. Indeed, the statutory lamguageis the only support that the City of San Jose Court needed for its holding, that discipline imposed is discoverable. The tadion of disclosing only witness contact information, and not the complaints themselyes, arose before the 1978 statutory codification of Pitchess motions. See, e.g., Kevin L. v. Superior Court (1976) 62.Cal.App.34 823, 828- 829. That tradition grew as a safeguard against unwarranted intrusions on peace officer privacy, and was noted in the post-codification case of City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at 84. This tradition is not compatible with the reasoning of City of San Jose v. Superior Court, supra, § Cal.4th 47, 54-57. Evidence Code §1045, subd. (a), speaks of disclosing “complaints.” It does sek speak of disclosing only witness contact information. The tradition of revealing only witness contact information is also unnecessary. Evidence Code §1045, subdivisions (d) and (¢) provide this Court with complete authority to totally protect peace officer privacy. Subdivision (8) provides that on a showing of good cause, the Court may “make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.” In | 23 t ‘Defendant Motion for Discovery (Pitchess) ‘Case No. 146-3900b addition, Evidence Code §1043, subd. (e), provides that the Court “shall order that the records disclosed may not be used for any purpose other than a court proceeding pursuant to applicable law.” ‘The traditional imitation of disclosing complaints-only actually impedes the ascertainment of the relevant facts. The pre-statutory cases that fashioned the limitation said that the defendant could rear to Court if the original limited disclosure proved inadequate’. Inadequacies may include ihability to locate complainants or witnesses (in which case the complaint itself can still be used in eross-examination) or inability ofthe complainants or witnesses to recall, in which case the complaint is useful to refresh memory. | i However, plainly, it cannot be told if a complainant or witness does recall the event unless theoriginal complaint is available to compare, Therefore, obviously, any competent deferise counsel vill ned to return to Court to get those complaints. From a prosecution point of view, if the complaihts are not revealed and the witnesses do recell inaccurately, the prosecution cannot impeach ‘hem, Other examples of why the original complaint is needed can be multiplied. Another point in favor of disclosure of complaints is: “(T]he legislature, in adopting te statutory scheme in question, ‘not only reaffirmed but expanded” the principles of criminal discovery articulated by ... Pitches v. Superior Court, supra, \\ Cal,3d 531. (People v. Memro (1985) 38 Cal 34.658, 679, fin. 19, 680 [214 Cal.Rptr. 832, 700 P.2d 446].)"”” Ifthis Court does determine to reveal only complainant and witness contact information, then the Couit should set an early date now forall parties to return to Court to avoid unnecessary delay. The Court should do that because, on the one hand, the statutory mechanism for a Pitchess motion is cumbersome, requiring at least 21 days (16 Court days plus 5 days for service by mail within the same state) notice, and on the other hand, the time frame for trials, particularly misdemeanors, is short. Accordingly, setting a return date to Court now is needed to avo‘d unnecessary lay. c te Facts of Investigations Should Also Be Revealed ‘The same reasoning as in subpart “B,” above, also supports revealing the facts of the investigations. The facts of the investigation are easly distinguishable, and separable from, the % See, e.g., Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828- 829. 2 City of Santa Cruz, supra, 49 Cal 3d at 84, 24 i Defendant Motion for Discovery (Pitchess) ‘Case No. 140-3900vb ee 10 u 12 13 14 15 16 7 18 19 20 a 22 23 24 25 26 20 28 “conclusions” of the investigator. The Court in City of San Jose v. Superior Court, supra, 5 Cal.4th 47, $5, said that “The term ‘conclusions of any officer’ denotes the thought processes of, and factual inferences and deductions drawn by, an officer investigating acomplaint, concerning such matters as the credibility of witnesses or the significance, strength, or lack of evidence.” Acordinay, the Court can, and should, order disclosure of the results of investigations, redacting the conclusions of the investigator. ! | j | CONCLUSION 3ased on the foregoing, defendant requests that his motion to discover the requested records and information from the Paso Robles Police Department's (1) IA file; (2) Unfounded IA file; (3) Professignal Standards Unit file; (4) Personnel file; (5) Risk Management file; (6) Divisional file; (7) Human Resources file; and (8) any other file maintained by the agency not referenced above | containing any personnel information about the officers in question be granted. Dated: January 28, 2015. Qa | RAYMOND IL. ALLEN — Attomey for Defendant, JUSTIN CHARLES SILVERNALE, 25 I Defendant Motion for Discovery (Pitchess) ‘Case No, 140-3900Sew raa 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE ! {CCP 1011) 1 declare that: Tn employed inthe County of San Lls Obispo, Califoin. Tam over the age of eighteen years and nota party tothe within cause; my business address i 991 Osos Street, Suite A, San Luis Obispo, California 93401. s On January 29, 2015, I served a the within NOTICE OF MOTION FOR PRETRIAL DISCOVERY; DECLARATION OF RAYMOND H. ALLE! OF POINTS AND AUTHORITIES on the interested parties in said cause, addressed as follows: XHIBITS; MEMORANDUM Dan Dow Copy to San Luis Obispo County District Attorney Honorable Judge Rita B. Federman. County Government Center San Luis Obispo Superior Court, Dept. 7 via Rm. 220 1050 Monterey Street San Luig Obispo, CA 93408 Jon S. Seitz Shipsey & Seitz City Counsel for City of Paso Robles 1066 Palm Street San Luis Obispo, CA 93401 ‘The following is the procedure in which service of this document was effected: By Mail [CCP §1013a]. am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be sealed and deposited with the U'S, Postal Service on that same day with postage thereon fully prepaid at San Luis Obispo, California, in the ordinary course of business. I am aware that on motion of the party served, service shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit. Federal Express Express Mail FAX X__ Personal Service , I declare, under penalty of perjury, that the foregoing is true and correct, and that this declaration was executed on January 29, 2015, at San Luis Opisoy. California, | 1 | —~ Melissa A. Stever > 26 ‘Defendant Motion for Discovery (Pitchess) ‘Case No. 14C-39000PROOF OF SERVICE {CCP 1011] i declare that: 1am employed in the County of San Luis Obispo, California. Tam over the age of eighteen years and not a party to the within cause; my business address is 991 Osos Street, Suite A, San Luis Obispo, California 93401. |, BEST ENOL pT a Gpustex12PS ng Sue DE WCA, De Talis On January 29, 2015, Terved a copy the within NOTICE OF MOTION FOR PRETRIAL DISCOVERY; DECLARATION OF RAYMOND H. ALLEN; EXHIBIT; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in said cause, addressed as follows: Robert Burton, Chief of Police Paso Robles Police Department 900 Park Street Paso Robles, CA 93446 ‘The following is the procedure in which service of this document was etfected: _— By Mail [CCP §1013a]. Lam readily familiar with the firm’s practice of collection and processing correspondence formailing. Under that practice, it would be sealed and deposited ye the U.S, Postal Service on that same day with postage thereon fully prepaid at San Luis bispo, California, in the ordinary course of business. I am aware that on motion of the party served, service shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing ‘contained in the affidavit. Federal Express Express Mail FAX Personal Service I declare, under penalty of perjury, that the foregoing is true and correct, and that this l declaration was executed on January 29, 2015, at San Luis Obispo, California, fe | Wels Seve | 27 | Defendant Motion for Discovery (Pitchess) ‘Case No. 140-3900PASO ROBLE. bh IDENT REPORT POLICE DEPARTMENT Peal —! sc Paar atte area PASO ROBLES, CA 93446 ase Bear heron (es) 237-5486 rooaeire-oererdy,serrney [roots INcIDENT | nee 5 eRe Toe eT Peon hn [ONOR FROM |rorna0%4 [16:03 [SAT um sro oa TO. romiavta hres [sar low L|wicHr REPORTED [10/14/2014 [18:03 '] SAT TF 1 Ty con een snore 1 wwrevons TD son 1 onowne (J ewonaaceo orecenassant [ave naates Dy oomrrc vee ne H ST — 1 SYNOPSIS | | [RODITIOWAL WFORWATION Dvor [Grursut [Cterroristact | waruuana [LJ GANG RELATED [srecacoore SENT ‘TA Iq + eae 0c’ 201! | "Sh, stars lecosen_[yansszore] fameest[ronaors losea/cto4- ROUFFARD,oavio | RATE tar 193404 AML BY: 1x2INCIDENT REPORT I *: PASO ROBLES POLICE DEPARTMENT ee OFFENSES | ecco preter T” [esta Take VENICLE W/o OWNERS CONSENT Pca Cag Ica cicacia cca reo ear Pl a : fro Isooxeo oastaNve fram st peeve aT T [woDreRS TRS - , (PP lieanipe | Tresewnercovceauna s1ouew pnorenryeve in Fe Fi 530 [MORREY CCRSSIMETION LOCATION BOOKED. lseaie art sr Samer We: ois | na SERN —— Ps Telere | [rmexremomesistno exeounve orpcen Sr ea een a et ese oan ee f sas _leooxeo fost ree isee | paras See emer 7 aT bear bare Er js maar Pe [lease Fause Fo orriccr BE ae ISS fro pera pereer——yoasro iesemoe im Hi lose [pooKeD be sscramtn : gape sora st a est poser Boer = = bee pranslramarrame—~ unc "lars [ium 2 Peace orncens: pons, coos a | Iso (scons cone HST [ sprfanirennie — cc eR 3 lowe Bursie WARROWT. ONY a soso In Fo a los [BOOKED oe oer: para sr ee T [OnE PROTED: fore yo3u06 AM BY: 1012[NCIDENTREPORT | PASO ROBLES POLIGE DEPARTMENT ERRATA 7 lowe | _ Joursioe Warman. FeLony N F Fi oss BOOKED lower | sar 2474 st vicrms | rs ET TET ELE 7 Ww DEPETRO, JEFFREY [pao s00 PARK St KS OFFICER 1082 a a Ta RREe— Ts = io eR ETRE TRESS TET ow [ENTERPRISE CAR RENTAL [780 X MCOONNELL RO SAN FRANCISCO, CA ance t ae OOS ST | iso, 657.220 a RIGKERD, MICHAEL pao EMPLOYEE 0880 cae T SUSPECTS 2 fae SiuveRwiave, JUSTIN 580 HAYES SAN FRANCISCO, CA 94117 pane ; Stor ‘eal r i oT Yara se acnonsee a0 fw IN Is02 Ir70 lero leno us rus. vise PRINTED, tftro%4 163104 AM BY: For2INCIDENT REPORT PASO ROBLES POLICE DEPARTMENT mane Cs ea rae TES = suze its-oo1v194 PRINTED: aaoy4 103-08 At BY 012 FORDE RII IRE OMY eeINCIDENT REPORT PASO ROBLES POLICE DEPARTMENT PSone ‘42000 [ARREST - 2 AR SILVERNALE, JUSTIN C 142968 fioviiota rete [toszistreoepetno.serrney _|ez7 24TH ST. t (CHARGES ey? [raeare FALSE 0 TO OFFICE hy 1096 |148.0P¢ Res rar ary ran | =r [ear cs | paar ears ra SER TROT] alae 7 Log espe \TENING/RESISTING EXECUTIVE OFFICER | e—= wr reer ar | fer sare oe ao rT RESIS RSS RE] SRA —REOTETRE L — [Pry Fressteave TAKE VEHICLE W/O OWNER'S CONSENT | a fi 570. i learn ba | 1 RTS OTR TSE OTN SETS ‘¢ [aasialec, REGEIVINGICONGEALING STOLEN PROPERTY.ETC a fF fn ___|s30 | rn ears reo rea | 5.” [eooaype INJURING, ETC, PEACE OFFICERS’ HORSES, 00GS ee A | fame roe hor ruseotvi3t —revTEDtflaot soaton a Ys 1012 FOROFHCALLREOMY PARE katINCIDENT REPORT : PASO ROBLES POLICE DEPARTMENT frees | lower OUTSIDE WARRANT. FELONY ee kk oss ow. i reer pare TE | 753505, $10,000.00 71 lowe OUTSIDE WARRANT. FELONY Ts reMeTES EVE SEGRE Teun | x CoD] Be ODE CENT CORTPENTST KN Hi oss aT aE SIRENS TA STAT RSET | [eens j fewer oTHeRs: | 3 |W MAY, WILLIAM EVERET TREKS TOO 1406 VINE ST APT 1/2 PASO ROBLES, CA s34d6 j nT ra OER TE gos) rrz-esez er BEE FRET RTS RS REST STTPET lovers [es {nw n_|st1__[17s__|ero_|eno_lor_lus | 109001166 [ca | 3 low | SULLIVAN, TODD aN FRANCISCO AIRPORT PO - 5 POLICE OFFICER j ee eee eer | aT ro m : : | 40 |ow WARD, ANDREW. STE CRE TORS BIR OTR STI A A lperecrive perme Se jem ore eee ar PIER REE RE ET [rR = ra saree" to to Sao v13¢ —pROTED: 14014 asi aM BY 1612 Faw neriisi ce nury oan «at[INCIDENT REPORT | Krrcermad (EANONEHISIER SIS iS ess 4 |Recovereo | auro. so. [ex [ete (N fez iut — TENET Ee enero aa eogosr {cA |pc_|2006 sarsraoe pReo zr 2078 ST. DEPETRO, JEFFREY BRT i ea ne [orra0%4 08:10. [INCIDENT Bs i : 4 | qe | Tee a | Picse farian0v 05:10 [INCIDENT 5 | Mrics: | onzreota os:t0_|INCIOENT | | \ Pose [sosar20%6 03:10 [INCIDENT | piesz torar0t4 03:40 |iwcioeNt 'f pics7 [104212044 03-10 _}INCINENT_ Pt [ronareets oa:t0_fincioeNT Ms-o1 vid PRIVTED: ervun0N4 1031-04 AMY: TO12 com neni ROMY bn 7 aeINCIDENT REPORT | | PASO ROBLES POLICE DEPARTMENT raner 01122018 03-10_|INGIDENT 1011272014 03:10 [INCIDENT [ror2iante 02:66 |wwcioeNT. oriz0t4 02:56 [INCIDENT torzrectao2:s6_|iNcIOENT ! |sorzraos¢o2:s6. |nciDENT [noriz2014 02:56 _| INCIDENT. i ovr2r2014 02:66. |INcIOgNT rovizots ose. [INCIDENT i , RUS-OO1¥194° PRINTED vluzONe tost04 AM OF: 012 FORDER IRFAMY PARE kw aI PASO ROBLES POLICE DEPARTMENT Eee [INCIDENT REPORT me eae ort2r2014 02:66 _|inciENT _lsor2veot4'02:66_lnvcipent sort2/20%4.02:66_|incibENT sorizizot4 02:56. |INCIOENT. I oa RTE sort2/a014 02:68 |INGIOENT. sorrzrota.o2.66_ [INCIDENT aE Tara ort272014 02:56 {INCIDENT } Em are T tortzreota 02:56. INCIDENT I ozota 02:66 [CIOENT i uso vise PRINTED: Yasue ioawo4 AML Oy: 102 FOROFFCIALUSE ONLY PAGE 8 a atSRST ‘PASO ROBLES POLICE DEPARTMENT brig [INCIDENT REPORT onai20%4 02:86. [INCIDENT 071272614 02:86- | CIENT Horz/2014 03:40 JnvcioeNr. | a ear ort272014 03:10 [INCIDENT i or272016 03:10_[INCIENT wortarao14 03:10 _|iNcIDENT. ae aT sort22016 08:40_ | NCIOENT. i orramot4 o3:10_|NCIOENT G-OF v1.94 PRINTED: ovata roSH-br AM By: 1012 FOR OFRIOM UISFOMY PARE In ae a8PASO ROBLES POLICE DEPARTMENT ERE Rae [INCIDENT REPORT rare earear so/s212044 03:40 | INCIDENT. yorrzmots 03:10 [wctoenr — -ors22018 o3:t0_|iNciDeNT {srt2/2014 03:10. |incIOENT. orzeot4 03:10 [INCIDENT sorrz20%8 03:10_ [INCIDENT fuszaure os:tu [INCIDENT 1122014 03:10 | NCIOENT orzov4 03:10 |INCIOENT. USoo1v14 PRINTED: iotaOi4 rostOK AM ay: 032 FOROFFICALUSE ONLY PAGE 11 of31[RewenTREroRT PASO ROBLES POLICE DEPARTMENT aa i ae rT pics| roraaore este [weioeNr | ! | \ j fuscot et PRINTED: vnezor soak A 112 FOROFFICALUSE ONLY PARE I a mealINCIDENT REPORT | PASO ROBLES POLICE DEPARTMENT vase 142066 NARRATIVE ' SOURCE OF AGTINITY: On 10/11/14-at approximately 1816 hours, PRPD units were dispatched to 827 24" St. on the call of a peace disturbance which was initially verbal but started getting physical. INVESTIGATION: Officer Rickerd arrived on scene first in a marked PRPD unit and in full uniform and contacted the two subjects who were arguing. \artived on scene fa marked PRPD 9 unit and in full uniform and observed Officer Rickerd talking with IN1/ Wiliam Everet May (68yrs.) to the right of a black 2014 Chrysler 300 (CA 7E0G097). | also observed a white male subject wearing a black t-shirt and blue shorts walking away from Officer Rickerd and to the left of the car as | walked up. When that subject saw me he spoke to me and said Officer Rickerd had just separated him and May. | asked him if he had any ID on him so | could know whom I was talking io and he reached into his pockets and acted like he could not find it, then said he needed to get his wallet in his car. He ralsed his hands as he walked and sald he was not grabbing a gun and was grabbing his wallet and asked me not to pull my gun on him. | thought that was a very odd statement to make and followed him over to the car. He reached in the car and grabbed something {hen pulled back away from the car and handed me an Arizona driver's license. ‘The Arizona driver'slicense had the name Edward Joseph Hidder and the date of birth 01/30/60 on it. The picture looked similar to the subject | was talking to but the photo appeared to be of an older subject. | looked at it and observed the birthdate year was 1960. I did not think he was 54 years old and thought he looked like he was in his 30's. After he pulled the ID out of the car he used the keys to lock it. | i "Widder" was later positively identified as a wanted parolee AR1/ Justin C. Silvernale (30yrs.) by follow up conducted |by Officer Rogers and | will now refer to him as Silvernale. At this point PRPD Dispatch advised the vehicle was stolen and | had Dispatch repeat the, information and the make and model af the ear so | could visually verify this car matched the stolen car in CLETS. We then walked back to the left of the car and I observed Silvernale pull his shir! down to cover the top of his shorts which made me concerned he might have a weapon. As we walked | looked over at Officer Rickerd to confirm he had heard the information from Dispatch, | then asked Silvernale if he had any guns, knives or drugs on him and he said he did not have those items. | then asked him to place his hand behind his back so | could search him and he took one step back then raised his hands in an effort to keep them out of my reach. His demeanor changed as he became confrontational and he raised his voice asking why he was being detained. He said “what is this about" and "what is this for" and "why am | being detained”. At this point | felt he was going to possibly fight us andfor run | walked to his side bea grabbed his right arm to secure it and he immediately started resisting by pulling away and then by turning into to me where he punched me in the side with his left fist as we spun around and then grabbed a hold of me. Officer Rickerd ran over to assist me with detaining Silvernale. Sivamale continued resisting and wrestling with us as we tried to get him to the ground. ground. | used my Body weight as leverage and starled pushing him towards the car because we Were unable to unable to force him to the ground. | tried using the car for leverage to try and force AMS-001v1.34 PRINTED: 1oharz0¥4 1031.04 AM BY: 1012 Faw orpicit Remy anew a; PASO ROBLES POLICE DEPARTMENT Foal {INCIDENT REPORT 42086 him down but was unable to and he continually pushed up against me in an attempt to throw me off balance. | continued holding onto his right arm so he could not strike us with it as we struggled. He continued to struggle and was grabbing onto my right arm to loosen my grip, trying to free right his arm with his left arm which he still had use of. We then pulled him away from the car and spun him to the ground as he continued resisting by grabbing us with his free arm.and his right hand even though | had control of the arm. As we spun we all fell to the ground. At this point based dn the level of resistance, the fact that he was still unsearched, was actively fighting and resisting arrest, The fact that | believed he may have given me a false ID, the fact that he was in possession of a stolen vehicle which based on my training and experience | know can lead to more violent crimes when those suspects are contacted, and the fact that we were having a difficult time detaining him, | quickly evaluated the options available to me to take the suspect into custody: *Handgun: Even though the suspect was unsearched and was actively fighting and resisting us | did not feel it was necessary for me to escalate to this type of force at this time. *OIC and impact weapon: Due to the fact that both Ofe. Rickerd and | were physically trying to detain the suspect and wei holding onto the suspect and in close proximity to each other, | determined we would also be subject to potential contamination from OC or injury from an impact weapon and decided not to use these tools. “TASER: Due to thel fact the suspect was still unsearched and was actively resisting us and did not appear to be responding to any commands and the fact that we were all in close proximity to each other which would hamper the effectiveness of the Taser's darts as there was no distance to allow them to spread and the likely hood of one of use being affected by the Taser’s lines, and the fact that the suspect was continually moving made it difficult to get a target for a drive stun made me decide not to use this tool. *Police Service Dog/"Ir’: Based on the suspect's actions by actively resisting arrest and by fighting (as described above) the Officers attempting to detained him, the fact that the two of us were not able to overcome his strength, the possibility of escape from Officers as the subject had multiple areas to ide in if he were allowed to flee, the close proximity of other residential houses nearby and; businesses, and thelfact that he was unsearched at this time and could be armed, the fact that he strange combined with his level of resistance led me to believe that there could be a more serious crime of which we were not yet aware off, | determined | would use my PSD "Ir" to assist in taking the suspect into custody as my PSD was the most reasonable option. The suspact was within the deployment range of the dog and the dog's use allowed me to have more pain compliance control and would also allow me to chase after the suspect safely if he were to flee. | would also be able to reduce the use of force if the suspect surrendered by calling the PSD off. | initially tried to deploy my PSD by using the door remote but after several tries it would not open the door. | then ran to my patrol unit to physically retrieve my PSD and advised Officer Rickerd that | was ‘going to deploy my PSD. While getting my PSD | observed the suspect punch and knee Officer Rickerd in the face and head several times. After reviewing the video it appeared Silvernale had tried to knee Officer Rickerd in the head approximately 7-8 times and connected on 2-3 of those attempts. Silvemnale also tried to punch Officer Rickerd in the face 2-3 times with his right fist and connected on one. i | ‘When | got back to Officer Rickerd and Silvernale | jumped on Silvernale's legs as he was stil trying fusooive3¢ PRINTED. 1142014 103106 AM BY: r012 Wee OMNY pane aeINCIDENT REPORT PASO ROBLES POLICE DEPARTMENT =a ] to kick Officer Ricketd. Silvernale was stil using his right hand to try and grab at Officer Rickerd at this time as well and Officer Rickerd had to grab that arm to try and immobilize it. | then ordered Silvernale to quite resisting and told him my PSD: would bite him if he did not stop resisting. | Silvernale stopped moving around for a few moments when Officer Rickerd gained some control over his right arm and because | was-trying to control his legs but Silvernale just appeared to be resting Officer Rickerd began ordering him to turn around so we could handcuff him and told him he was under arrest. Silvernale did not comply, stayed on his back, and soon began struggling again. He started kicking and was using his right arm to grab at Officer Rickerd. | then gave my PSD the commang to bite Silvernale and apprehend him, My PSD bit Silvernale on the legs, feet and thighs. Silvernale continued to struggle and kick at us and kicked my PSD several times during, | later reviewed my video arid he kicks at my PSD approximately 16 times and actually kicks my PSD in the face 2-3 times as he attempts to prevent my PSD from biting andjapprehending him, Silvernale is alsa using the oppasite leg my PSD does not have to try and push my PSD’s mouth off of his other leg. During the struggle Officer Rickerd was also accidentally bit by my PSD when his arm moved next to where my PSD had a hald of Silvernale Silvernale continued to struggle and fight us by kicking and punching while myself, Officer Rickerd and my PSD continued (o try and detain him. { heard Officer Rickerd yell thal Silvernale was trying to get his gun as we continued to try and detain him while he actively fought us. In the video from my patrol vehicle | saw that Silvernale used his left arm to reach around and grab onto Officer Rickerd's gun and starts manipulating the safety hood on the holster. After a little more of a struggle Silvernale suddenly stopped struggling but only appeared to be resting and | held my PSD back from him, Even when he appeared to be stopping he was still trying to grab at Officer Rickerd with his hands. Officer Rickerd again ordered him to roll over and | ordered him to stop resisting. Silvernale soon began to struggle and fight again by trying to kick me and my PSD. | then ordered my PSD to bite Silvernale again as he continued to struggle and fight us. Siivernale started kicking at me and my PSD and actually kicked me in the leg and kicked my PSD in the face again. Silvernale again uses his free leg to try and push my PSD off of his other leg during the struggle and kicks my PSD approximately 6-8 ‘more times. | then get on top of Silvernale and strike him in the stomach one time, Silvernale appears to start getting tired and his kicking and grabbing start to slow as we hear the Police sirens in the distance Silvernale ig still trying to kick and grab as Officer Rickerd holds his left arm and using his body weight fo control the movements of Silvernale's right arm while | use my body weight to keep Silvernale's legs from kicking us. Officer Petlachi, Officer Chubbuck, and Officer Ramirez soon arrived on scene and we were finally able to get Siivernale into handcuffs. Once Silvernale was placed in handcuffs | placed my PSD back into my patrol vehicle. Silvernale continued to struggle while in handcuffs and had to be placed ina Hobble leg restraint by Officer Rogers who also arrived on scene Officer Rickerd later advised while Silvernale had attempted to get his gun during the struggle Silvernale had actually unlocked the safety hood, After Silvernale had been detained | checked him for injuries. Silvernale had several scrapes alllover his body from the asphalt. | observed he had a small puncture wound and scrapes from my PSD to his left ankle. | observed he had what appeared to be another small puncture and scrapes on his right shin from my PSD. | observed he had what appeared to be two small punctures on the outside right thigh and come bruising on his inner right thigh fram my PSD. | took digital phatas of the injuries to his lower legs in the field and downloaded them to the PRED computer database for safekeeping (see digital media attachments). | was not able to get a photo of his thigh.as he Ausoni vit PRINTED: 1rjaaove 1oato4 AM BY: 102 FOROFFIOMI USE AMY PARE M8[INCIDENT REPORT PASO ROBLES POLICE DEPARTMENT eee continued to move. Siivernale continued to struggle against the handcuffs and Hobble. He also started saying he we pregnant and not to hurt his baby. | looked at Officer Rickerd's left forearm and observed he had two puncture wounds from my PSD and took digital photos of those injuries and downloaded them to the PRPD computer database for safekeeping (see digital media attachments). | ; |had scrapes to my left palm-and both knees. Sgt. Wenter later took digital photos of my injuries and |.downloaded them e the PRPD computer database for safekeeping (see digital media attachments). the Department of Emergency Services and Medics arrived on scene and tended to the injuries of Silvernale and Officer Rickerd. Officer Rickerd was later transported to TCH for treatment. Silvernale was later transported to TCH for treatment and a medical clearance. |later contacted Sar{ Francisco Airport Police Department to get more information regarding the stolen vehicle. | spoke with Officer Todd Sullivan who said he was the reporting Officer. He said the vehicle was stolen from the San Francisco International Airport car rental parking structure where several rental car colnpanies have their rental vehicles stored for rental. These vehicles are typically stored ready to be rented out and with the keys in them. There is also usually a rental check out station with a gate which is manned by an attendant. Officer Sullivan said the suspect who had stolen the Chrysler 300 had taken from the Enterprise car rental section and had driven down a few levels before trying to leave,. He said the suspect waited for another car to leave and followed that vehicle out when the gate opened. Officer Sullivan said there was some confusion at the car rental garage as to whose vehicle had been stolen and he said it took the rental car companies a few hours to figure out the stolen vehicle was an Enterprise car. He said the vehicle was stolen around 1500 hours on 10/10/14, He also said his Department takes the initial crime reports at the airport but then send them over to the San Matéo Sheriff Office where the cases are taken over and investigated by that Department. He said his two case numbers were 14-28450 and 14-28457. He said Detective Andrew Ward would be investigating this case for the SMSO. He also said he spoke with Detective Ward and gave him the same information he had given me and gave me contact information for Detective’ Ward. He also said the SMSO would not have the report until Monday of next week as they do not have an automated report system at the airport \ ARREST AND BOOKING: | arrested Silvernale for 10851(a)VC- Felony auto theft, 496(a)PC- Felony possession of stolen property, 69PC- Felony obstruction/resisting arrest with violence, 148(c)PC- Remove firearm from Police Officer, and 600(a)PC- Willfully harm peace officer dog ater determined the 148(c)PC charge should be changed to 148(d)PC. After Officer Rogera termined Silvernale’s true identity | added the additional charges of 148(a)(1) PC- False ID to Police Officer and his two outstanding felony warrants (753585 and 1405110558) | was not able to interview Silvernale due to his uncooperative and combative nature. Silvernale was not physically booked at our Department and no booking photo was taken at PRPD, RUS-9O1¥14 PRINTED: tltwaor4 at04 AM BY: tore FoR ORICA REAM F[INCIDENT REPORT | PASO ROBLES POLICE DEPARTMENT 42006 T Due to his continued combative nature we had both Officer Chubbuck and Officer Ramirez transported Silvernale to TCH for medical treatment and for a jail medical clearance. ‘While at TCH Silvernale continued fighting and assaulted Officer Ramirez by kicking him in the chest. ‘See his supplemental report for more details regarding Silvernale's actions at TCH and the additional 69PC count. AUDIOIVIDEO: Unit #697, RECOMMENDATIO} Process a copy of this report to the appropriate agency for filing of charges against Edward Joseph Silvernale for violation of 10851(a)VC- Felony auto theft, 496(a)PC- Felony possession of stolen property, 69PC- Felony obstruction/resisting arrest with violence (x2 counts), 148(d)PC- Attempt to remove firearm from Police Officer, and 600(a)PC- Willfully harm peace officer dog. Also process a copy) of this report to the appropriate agency for filing the advitional charges against Justin C. Silvernale by complaint for violation of 148(a)(1)PC- False ID to a Police Officer and for processing of his two outstanding felony warrants (753585 and 1405110558). Attachments. ruc. v1.24 PRINTED: lro14 sa AM BF: 1012 FOR OFAC IRF AMY PAGEPASO ROBLE_ SUPPLEmENTAL INCIDENT REPORT POLICE DEPARTMENT fazs66 Filia 00 PARK ST See Samaria PASO ROBLES, CA 83446 rooms Be amar (805) 23/-0408 lscoits6 -RicKeRD, wncuaer [ronvaots INCIDENT, jpRARRAQBLES. ca sn448 San Luus-onisro fromuaosa — [ao:00 | ot 13 DAY pe Teer status _ [neproven. _| osrawtee-orHem, ovo [rarazose NARRATIVE 1 ‘ SOURCE OF ACTIVITY: On 10/11/2014 at approximately 1820 hours, | was dispatched to the 800 block of 24th Street regarding two males| physically fighting. INVESTIGATION: | | arrived at the location and located two males who were arguing with one another. | also noticed a black Chrysler 300M parked near the two males with the passenger door open. | got out of my vehicle and advised one of the younger males, later identified as Justin C. Silvernale, to walk towards me and away from May. | heard Silvernale say something about May having his wife and kids, but was jooking at what appeared to be a laundry detergent bottle in his hand. | again asked Sitvernale to walk towards me éo that | could speak with him further about what was going on. Silvernale told me that he did not fdel comfortable with it and | was interrupting their discussion. | explained to: Silvernale that | was|not asking him to walk away and come closer to me but ordering him to. | Silvernale told me that he had rights and felt that | was interfering with those rights. Silvernale eventually walked towards me slowly at the same time making comments about his wife and kids and pointing to May. | noticed Silvernale was extremely sweaty and his eyes were wide open as if he was very excited. Silvernale told me older male, later identified as William May, was. wife and that they were just having a discussion. | told Silvernale | understood this, but ! had received a report of them physically fighting and wanted to separate them until find out what was going on. | then asked Silvernale to walk towards my vehicle which he told me he did not feel comfortable to do so. | explained to Slivernale that if he did not cooperate with my orders that | would have to detain him for my safety. Silvernale told me that he was not doing anything wrong and just wanted me to leave. | again told Silvernale|to walk back towards my vehicle which he told me he did not want to and would walk away, but not toward my vehicle. Silvernale then walked away from me and May towards a fence north of us. | contacted May and|asked him what had occurred. May told me that he was approximately 20 yards away near a fence and on a path towards the railroad tracks when Silvernale pulled up in the Chrysler 300M. Maylsaid he was homeless and living near the tracks. He said he was braiding fishing net when Silvemnale approached him. May told me that he had never seen Silvernale before and gid not know who he was. May told me he was trying to be cordial wth Siivernale and talked to thought he could leave it there fora while May told me he told 'Silvernale that he was not from the area, but did not think this.was a bad area to leave his vehicle. May told me that he spoke with eeeSilvernale for a shott period an. ...en Silvernale left. May told me tha, approximately an hour leter Sivernale came back and began saying odd and strange things to him that did not make sense, May told me that he was actually weaving some rope for a fish net when Silvernale came up to him and started untying the braiding that he had already done. May told me that Silvernale then began picking up May's items and talking to about random and bizarre stuff. May told me that he attempted to pick up his items and leave the area away from Silvernale, but Silvernale would not leave him alone and continued to take items away from him, While | was speaking with May PRPD Officer Depetro arrived on scene and began speaking with Silvernale. When Officer Depetro arrived on scene, he ran the license plate number of the Chrysler 300M. | heard Officer Depetro ask Silvernale to show some type of identification. Silvernale advised Officer Depetro that his ID was in his vehicle. Silvernale then walked over to the open passenger | door and removed @ driver's license from a wallet.. Officer Depetro and Silvernale then walked to the rear of the vehicle where Office Depetro began to check for any wants or warrants. While Officer Depetro was furnishing Silvernale's information to PRPD dispatch, PRPD Dispatch advised himithat the black Chrysler 300M had been reported stolen from northem California. Officer Depetro and | recognized that Silvernale was in possession of the stolen vehicle, and | noticed Officer Depetra tell Silvernale that he needed to place his hands behind his back and that he was going to put him in handcuffs. | could tell by Silvernale's reaction that he was not going to cooperate and | immediately walked over to assist Officer Depetro. ! ‘As soon as Officer Depetro and | placed hands on Silvernale, he began to resist trying to pull away. | altempted to take Silvernale down to the ground, but he would not go to the ground and continued to resist. | struck Silvernale in the stomach area several times with knee strikes attempting to cause Silvernale to bend over or crouch down to assist me with taking him to the ground, The knee stfikes had no effect so | struck Silvernale with my fist in his face several times again trying to stop his resistance and take him to the ground. It appeared that these strikes worked and | was able to throw Silvernale to the ground and stay on top of him. While on the ground, | explained to Silvernale | several times that h¢ was under arrest and that he needed to roll over onto his stomach. Sivernale {old me that he was hot going to roll over and that he was not “a dog”. While on the ground, |; attempted to roll Sitvernale over onto his stomach, but he continued to place his arm out to block the roll. One of my attempts of roling Silvernale over, | released his left arm and attempt to pull his right, atm so | could roll himn over. Silvernale, with his left arm, reached around and grabbed my gun attempting to pull it dut of its holster, | struck Silvernale two or three times with my elbow and fist into his face to get him td release my gun. The elbow strikes worked and Silvernale released my weapon and brought his arm|back up to his face to protect it, | then reached down with my hand and noticed that he had undone one safety strap over my gun. | re-secured that safety strap and then continued to hold Silvernale onthe ground and control both of his arms. | stayed on top of Silvernale and | attempted to control his hands to make sure that he would not escape or attempt to grab any other of my weapons on my belt t White holding Siverfale, Officer Depetro got up and started running towards his vehicle. Otficer Depetro yelled to me that he was going to get his canine to assist with controlling Silvernale. While Offcier Depetro was getting his canine, Silvernale was able to deliver three or four knee strikes to the side of my head, jaw) and side. | was able to adjust my position and move out of the range of his knee strikes. Officer| Depetro was able to retrieve his canine from his unit and ordered his dog to engage onto Silvernale. While Officer Depetro's canine was attempting to engage with Silvernale, the canine latched ohto my arm causing two puncture wounds to my arm. Officer Depetro was able to remove his canine from my arm and piace him back onto Silvernale. | continued to control Silvernale’s arms while he continued to kick and resist. Rus-001v43¢ PRINTED IoHuzat ynaveT AML RY: seee After approximately a minute {¢ .ainute and a half of trying to place —..vernale into custody, other PRPD units arrived and we were able to roll Silvernale over to his stomach and place him into handcuffs. Once Silverale was in handcutts, | immediately notified PRPD dispatch to send medical personnel for myself and Silvernale. | noticed that my left arm was bleeding profusely and the two puncture wounds were deep and significant. Once medical personnel arrived, they attended to my arm and advise me that | needed to go to the hospital for potential stitches. EMS personnel attempted to attend to Silvernale’s medical needs, but he refused and would not allow them to evaluate him.| EMS personnel transported me to the Twin Cities Hospital where my wounds were treated and | was. released. | noticed the knee strikes that | had received from Silvernale to the side of my head caused bruising to my jaw and temple area. ‘The Twin Cities Doctor advised me that he did not believe the blows to my head did not cause any major injuries besides bruising. The Doctor did not believe | had suffered a concussion or any trauma to the brain, AUDIONIDEO DVR644 | RECOMMENDATIONS: Attach to original report. i : ene nenrm ieee mane us.convis4 PRINTED: shane soater au RY 10:9Weather History for ce Rob’ CA CC View Current Weather in Pago Robles, CA I/egl-bin/findweather/aetForecast?query=35.67277908.-120.62694560] Change the Weather History Date: october : 1 i 2014 View | ‘Saturday, October 1, 2014 ' « Previous Day (/history/airport/KPRB/2014/10/10/DailyHistory-html) Next Day » (/history/airport/KPR8/2014/10/12/DailyHistory.html) : Dally 0. | Weekly /history/sirport/KPRB/2014/10/i1/Week\yHstory htm ! ‘heat rage "Record - ' Temperature ! Moan Temperature nee ar | Max Temperature (sare are 98+ (1992) ; sn Temperature aoe 46% °F 2008) Degree Days i Heating Dogroe Days ° 3 H oceans eS ‘Snce uy hentng degree days | 1 o Coating Degree Days 6 1 | ‘Year to date cooling degree days} 1340 316, | rowing Decree Dave 20 ease so ; Moisture | Dew Point are erage Hursley 8 i ‘Maximum Humidity 00 | Simm Humic % 7 Precipitation | | recitation 000! atin oaainttosr) ont to date precptation 0.00 om ‘Year to date precipitation | 4.46 926 i seaLovel Pressure seaLovel pressure 20.0010 EXHIBIT. R i Wing| ant ome oe 5 We Sed ax Wind Spon | 15mm ax ut Seed | 19h evens fe Trace of Precisitation, MM = Missing Value Source: NWS Dally Summary Daily Weather History Graph Nome Hage a

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