waiver voluntary when defendant was in pain from recent 2 surgery
How later courts described this case
- waiver voluntary when defendant was in pain from recent 2 surgery
- “it is axiomatic that argument is not evidence”
Written by the judges who cited it.
The opinion
I concur in the judgment. After review, I have found no error warranting reversal.
I write separately to address a single issue of substantial importance.
Peace officer records are generally discoverable, provided that the information they contain is "relevant." (Evid. Code, § 1045 , subd. (a).) The adjective is defined as "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." ( Id., § 210.) It is manifest that information may be relevant, whether it relates to an incident that precedes or succeeds the event subject to litigation.
By way of illustration: O arrests A for battering a police officer; he arrests B the next day for the same offense; and he arrests C the day following, again for the same offense. In the ensuing prosecution, B intends to rely on self-defense. Information about O's arrest of A has a strong tendency to prove directly whether O used excessive force in that incident. It also has at least some tendency to prove circumstantially — through habit or custom — whether O used excessive force against B the following day. Similarly, information about O's arrest of C has a strong tendency to prove directly whether he used excessive force in that incident. It also has at least some tendency to prove circumstantially — through habit or custom — whether O used excessive force against B the day earlier.
The majority imply, correctly, that a trial court may order discovery of peace officer records relating to incidents that succeed the event in question. *Page 323
But they also imply, incorrectly, that it may do so only if the incidents precede any conviction the event may yield. In support of this qualification, they cite Evidence Code sections 1043 and 1045 . But to no avail. True, the statutory provisions bar disclosure of various categories of information. But clearly, they do not purport to affect information on incidents that succeed the event. And more clearly still, they do not purport to draw any line at the time of conviction therefor.
In conclusion, because I have found no error warranting reversal, I concur in the judgment.
Kennard, J., concurred.
Appellant's petition for a rehearing was denied February 26, 1992. *Page 324