Brady Error in an Infraction Case

By Robert Phillips, Deputy District Attorney (Ret). 

Brady Error in an Infraction Case:  Some time ago, the San Diego City Attorney’s Office quit sending its deputies into court to answer up “For the People” in the prosecution of infractions, leaving the in-court trial procedures to the judge, defendant and his or her defense counsel (if any), and the prosecution’s witnesses (usually the citing law enforcement officer).  It was an issue of “resource allocation pressures;” certainly understandable in today’s tight budgets and limited personnel.  The City Attorney’s Office continued to issue subpoenas and handle appeals, but that was basically it.  Since late 2017, the San Diego City Attorney took it a step further in infraction prosecutions and relinquished its discovery duties as well to the citing law enforcement agency.  Taking itself out of the middle, the City Attorney merely referred anyone making a discovery request in an infraction case to the law enforcement agency that issued the citation being contested.  In the recent case of People v. Houser (Apr. 13, 2022) 78 Cal.App.5th Supp 1, the Fourth District Court of Appeal (Div. 1) addressed the issue of what happens when the concerned law enforcement agency fails to provide the defendant in an infraction prosecution with the requested discovery.  In this case, Mr. Houser was cited by a San Diego police officer for illegally camping overnight in Balboa Park; an infraction under San Diego Municipal Code § 63.0102(b)(12).  Houser hired an attorney who made the typical fishing expedition discovery request, seeking access to any and all possible prior citizen complaints against the officer, body worn camera footage, any exculpatory evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83, and a complete witness list.  Ignoring the standard statutory discovery procedures as set out in Pen. Code §§ 1054 et seq., the City Attorney, pursuant to its policy, merely referred Houser’s attorney to the San Diego Police Department.  Making a long story short, SDPD responded to ....

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