The opinion
BROWN, J.,
Dissenting.—Defendant’s arrest took place in a location known for “blatant use and sales of narcotics.” Police arrived on the scene. They targeted defendant, and defendant began to run, the police in close pursuit. Then, according to defendant’s Pitchess 1 affidavit, some unknown person spilled 42 rocks of cocaine at defendant’s feet as he ran past. Defendant was arrested in possession of an empty baggie and $2.75. Nevertheless, his affidavit asserted he was in the area to purchase, not to sell, narcotics. Both the trial court and the Court of Appeal found defendant’s story that someone else spilled the cocaine utterly unconvincing. And no wonder. When the lion culls the slowest, weakest, or unluckiest from the herd, the other gazelles run a safe distance and then return to grazing. No gazelle commits suicide by flinging itself in the lion’s path. These behaviors are instinctive, and we encounter them in our everyday experiences. When freeway commuters who are traveling faster than the posted speed limit spot a police cruiser in their rearview mirrors, they slow inconspicuously, avoiding any sudden changes that might draw police attention. When the police flashers are activated and one commuter is pulled over, the others breathe a sigh of relief and gradually return to cruising speed. People no more than animals invite calamity when fate has already selected another victim.
The majority concedes that a defendant must set forth a “plausible factual foundation” (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 86 [ 260 Cal.Rptr. 520 , 776 P.2d 222 ] (City of Santa Cruz)) to support a discovery motion under Evidence Code section 1043, subdivision (a), but the majority then deprives the term “plausible” of any substantive content by holding that a defendant satisfies this requirement so long as his version of the facts “could have occurred” and is “internally consistent.” (Maj. opn., ante, at p. 1026.) “Plausible,” however, implies something more than mere *1029 internal consistency. (See, e.g., People v. Hernandez (2003) 30 Cal.4th 835, 869-870 [ 134 Cal.Rptr.2d 602 , 69 P.3d 446 ] [using “plausible” to mean believable]; People v. Cash (2002) 28 Cal.4th 703, 724 [ 122 Cal.Rptr.2d 545 , 50 P.3d 332 ] [using “plausible” to mean reasonably believable]; People v. Kipp (2001) 26 Cal.4th 1100, 1123-1124 [ 113 Cal.Rptr.2d 27 , 33 P.3d 450 ] [using “plausible” to mean believable]; People v. Trevino (2001) 26 Cal.4th 237, 244 [ 109 Cal.Rptr.2d 567 , 27 P.3d 283 ] [using “plausible” to mean persuasive]; In re Cudjo (1999) 20 Cal.4th 673, 695-696 [ 85 Cal.Rptr.2d 436 , 977 P.2d 66 ] [using “plausible” to mean believable]; People v. Wader (1993) 5 Cal.4th 610, 645 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ] [using “plausible” to mean reasonably believable]; People v. Jones (1991) 53 Cal.3d 1115, 1138 [ 282 Cal.Rptr. 465 , 811 P.2d 757 ] [same].) I admit that plausibility in the Pitchess context might mean something less than believable or persuasive. It certainly does not require circumstances that are probable or likely, and a trial judge ruling on a discovery motion should not predetermine issues that are ultimately for the trier of fact. The judge nevertheless must exercise some discretionary judgment, especially when, as here, the defendant’s factual assertions are highly unlikely and, though related to matters within the personal knowledge of the defendant, they are made by his attorney on information and belief, rather than by the defendant directly, thereby shielding the defendant from perjury. At the very least, an assertion that runs counter to experience, nature, logic, and reason should be rejected—even if it is technically possible.
Defendant’s affidavit claimed he was at the location to purchase narcotics. That claim is patently absurd. The majority concedes that 42 rocks of cocaine were strewn on the ground near where defendant had been running and that defendant was arrested holding an empty plastic baggie. Nevertheless, the majority credits defendant’s unlikely assertion that someone else—the real seller—spilled the cocaine just as defendant happened to run past. (Maj. opn., ante, at p. 1024.) The majority also admits defendant had only $2.75 with which he could make his narcotics purchase. (Ibid.) More precisely, defendant had a $1 bill and seven quarters, and he possessed no paraphernalia for consuming narcotics. In the course of many years of studying criminal records, I have never encountered a case in which (a) a drug purchaser brought his own baggie, and (b) narcotics were sold on the street in $1 or $2 increments, making defendant’s story very doubtful. The majority responds that defendant’s lack of money just as readily undermines the conclusion that he was selling narcotics because, with so little money, he could not make change for his customers. (Ibid.) Anyone, however, who has walked around the neighborhood in which this court has its San Francisco office knows that narcotics are sold with a simple hand-off: narcotics for cash.
*1030 The majority’s credulity with respect to defendant’s unlikely assertions completely shifts the careful balance the Legislature struck between the rights of defendants to reasonable discovery and the privacy interests of police officers. I would hold that, because defendant failed to establish a “plausible factual foundation” for his discovery motion (City of Santa Cruz, supra, 49 Cal.3d at p. 86 ), the trial court was correct to deny the motion, and the Court of Appeal was also correct to deny the petition for a writ of mandate.
Accordingly, I dissent.
Baxter, J., concurred.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ].