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SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE

WEST JUSTICE CENTER
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Attorneys for Defendant Mohamed Zahangir Sayem 

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE, WEST JUSTICE CENTER

Case No.: 18WF1909
PEOPLE OF THE STATE OF CALIFORNIA,
NOTICE AND MOTION FOR

Plainti?f DISCOVERY OF PEACE OFFICER
PERSONNEL POINTS
vs. AND AUTHORITIES IN SUPPORT
DECLARATION OF
MOHAMED ZAHANGIR SAYEM, COUNSEL AND EXHIBITS.

Defendant.

TO: THE ORANGE COUNTY DEPARTMENT AND THE CLERK OF
THE ABOVE-EN TITLED COURT:

PLEASE TAKE NOTICE that on November 8, at 8:30 am, or as soon thereafter as
counsel may be heard in Department W-l of the above-entitled court, Defendant Mohamed
Zahangir Sayem will move this Court for an order directing the Orange County Sheriff?s
Department to disclose information from peace of?cers? personnel ?les pursuant
to Evidence Code sections 1043-1046, Pitchess v. Superior Court (1974) 11 Cal.3d 531,
Abatti v. Superior Court (2003) 112 Cal.App.4th 39, Brady v. Maryland (1963) 373 US. 83,
and in accordance with Mr. Sayem?s state and federal constitutional rights of due process,

confrontation, and cross-examination.

 

Pitchess Motion Sayem

 





 

 

SUMMARY OF MOTION

Defendant Mohamed Zahangir Sayem seeks personnel records related to three of?cers
employed by the OCSD: one who committed an unjusti?ed felony assault with force likely
to cause great bodily injury and then ?led a false police report, the second who ?led a false
police report, and a third who as a supervising sergeant aided and abetted in the ?ling of a
false police report. In sum, Of?cer Michael Devitt committed a brutal act of excessive force,
and then decided that rather than take responsibility for his actions he would collaborate with
a fellow of?cer and his sergeant to fabricate facts in hopes of securing the defendant?s
wrongful felony conviction of violating Penal Code Section 69.

On August 19, 2018, Of?cer Michael Devitt approached Sayem?s vehicle in the city
of Stanton. Sayem was passed out in the driver?s seat. Devitt approached Sayem on the
driver?s side of the vehicle, and made several attempts to wake him up before succeeding.
The car was turned off. Devitt removed the key from the ignition. Deputy Eric Ota
positioned himself on the passenger side of the Defendants vehicle. Devitt and Ota spoke
with Sayem, who appeared obviously intoxicated to the of?cers and gave a number of
partially understandable answers, statements, and insults?often chuckling and falling in the
car as he delivered them. On several instances, the of?cers asked him to repeat or clarify
what he said, as the of?cers asked that he give his identi?cation. After having not received
the identi?cation, Sayem appears to intend to walk away from the vehicle?placing his foot
outside of the vehicle. Devitt warned Sayem to stay in the vehicle. When Sayem again put
his foot outside of the vehicle, Devitt pushed back on Sayem. Sayem then said ?Don?t touch
me like that.?

Sayem then tried to pull away from Devitt, who responded by yanking Sayem by his
left arm out of the vehicle. Sayem appears to have pushed on the horn with his right hand as
he was being pulled, and then clung to the steering wheel with his right hand. Once forcibly
removed from the car and up against the side of the vehicle, Sayem?s left arm came free of

Devitt?s grasp as he clung to the steering wheel. Devitt then grabbed Sayem near his face

 

2 Pitchess Motion Sayem

 



and neck while using the car to prevent Sayem from moving. Devitt proceeded to grab Sayem
on the side of his face and then punch him repeatedly with a closed ?st. It appears that Devitt
punched Sayem approximately six times. By the third punch, Sayem appears to have lost
consciousness. At some point around the time of the third and fourth punches, Sayem?s right
hand fell from the steering wheel. After Devitt delivered the ?fth punch, Ota, who had come
around from the other side of the vehicle, forcefully yanked Sayem downward. Sayem?s right
arm collapsed onto the back of Devitt?s neck. As Sayem continued to fall toward the ground,
Devitt delivered the sixth punch and then pulled Sayem?s arm off from around his neck; and
Sayem fell onto the ground, where he was handcuffed by Devitt and Ota. Sayem suffered
injuries to his face and leg. With Sayem lying face ?rst on the ground, and barely moving
after being beaten up, Devitt said, ?Moe needs to calm down a little bit.? Later, while still
face ?rst on the ground, Sayem asked the of?cers, ?Are you going to shoot me?? Devitt
answered Ota said, ?Like to.? Sayem said, ?C?mon bro. Neither
officer responded.

While Devitt admitted in his report to punching Sayem, as described below, he
?ctionalized key details, including Sayem?s violence in order to justify his own use of force.
Sergeant Christopher Hibbs quickly arrived on scene, and received Devitt?s ?rst description
of what occurred just seven minutes after Sayem hit the ground. Hibbs took another statement
from Devitt approximately ten minutes later, and the sergeant repeated to Devitt his
understanding of what occurred. Hibbs? MV AR (?dash cam?) captured the statements made
by Devitt prior to the audio being turned off. (See footnote 2.) Hibbs later approved the
reports written by Devitt (and Ota),l even though he knew that Devitt had changed his
description of the incident in material aspects.

There were two particularly signi?cant changes to Devitt?s story?both of which

 

lHibbs? report?if written??has not been disclosed to date. Based upon Hibbs? history
discussed herein, it is certainly understandable why he would have been strongly opposed
writing a report that contradicted his fellow deputies? of?cial description of events.

 

3 Pitchess Motion Sayem

 



Hibbs undoubtedly realized. First, despite acknowledging to Hibbs that he pulled Sayem out
of the vehicle, Devitt wrote in his report that ?[Sayem] physically resisted my efforts and
pulled his left arm away [while still in the vehicle]. I maintained a grasp on his arm but he
stepped out of the vehicle and stood over me.? (emphasis added). Second, Devitt
subtracted and replaced the key act of violence that he attributed to Sayem when describing
the events to Hibbs. In the ?eld, Hibbs asked Devitt whether he was going to charge a
violation of misdemeanor (Section 148) resisting, obstructing and/or delaying of an of?cer.
Devitt responded that he planned instead to charge Sayem with felony (Section 69), which
requires a threat or violence, and would do this because ?he tried to bear hug on me.?
Although there was no effort to bear hug the of?cer, the claim was consistent with what
Devitt told Hibbs earlier in the ?eld: way taller than me, and he like just comes up
on me and essentially, he almost hugs on me. So, 1 just punch him in the face probably like
three or four times.? Likely after seeing the video or further contemplating what would be
captured on. it, Devitt (and likely Hibbs) realized the problem: Sayem did not bear hug or try
to bear hug him. In fact, Sayem?s right hand remained clinging to the steering wheel even
after the rest of his body had been pulled out of the vehicle, with the defendant only letting
go when the repeated punches knocked him unconscious. Needing a threatening act to justify
his force, and likely realizing at some point that the video would not support the claim that
there had been a bear hug, Devitt fabricated another version that he likely perceived would
be more dif?cult to disprove through the dash cam video:

I used my body weight to push Sayem against the Jeep so Dep. Ota could help

me place him in handcuffs. As I pushed him against the car, Sayem grabbed

my external vest and started pulling at it. I used my left hand and pushed

his face in an effort to create some space between usvest and continued to physically struggle. Due to his aggressive demeanor,

and the fact he was already resisting, i[sic.] believed Sayem was going to

continue to try and physically assault me. I delivered approximately four
closed ?st strikes to the right side of Sayem?s (emphasis added).

 

4 Pitchess Motion Sayem

 



reads like an unforgettable fear-inspiring moment for an of?cer left with no option
but to use defensive violence. However, Deviit was lying again. Sayem did not engage in
the above-bolded conduct, nor did Devitt forget about the conduct in two separate statements
to Hibbs about what would have been the critical act precipitating his own need for violence:
Sayem having pulled on the of?cer?s vest and refusing to release it. Moreover, it is
unreasonable that when Hibbs restated Devitt?s story back to the of?cer, that Devitt would
have again failed to remember the most dangerous aspect of Sayem?s conduct. Therefore,
while the of?cers likely either watched Devitt?s dash cam, or at a minimum rethought the
story in consideration of what they believed was needed to support Devitt?s action, they
appear to have made one major error: They failed to check Hibbs? dash cam to determine
whether there was audio of Devitt?s description of the events at the scene.2

It is noteworthy that the of?cers also tried to aggravate Sayem?s tone and words before
the violence, and that Devitt and Ota falsely portrayed themselves in their reports as having
helped soften Sayem?s fall to the ground. Additionally, both of?cers omitted from their
reports Ota?s statement that he would ?like to? shoot Sayem.

For prosecutors from the of?ce of the Orange County District Attorney such
as District Attorney Tony Rackauckas, Deputy District Attorney Mike Lubinski, and District

 

2While Hibbs was still present at the scene, his dash cam records the interactions with several
of?cers at the front hood of Devitt?s car. The of?cers talked to Hibbs about two recent
??ghts? with suspects. During the conversation, one of the deputies said, ?That was a good
?ght.? Laughing, the of?cer then said, got in another good one last week.? At the time of
this dialogue, Devitt appears to be focused on typing into his mobile computer. At one point,
Hibbs?who had just unsuccessfully attempted to interview Sayem?starts checking to see if
his audio device was working and said he hopes ?this thing is on. It says on. On is on, right??
Moments later, one of the of?cers said to Hibbs, ?You?re recording this now?? Another
of?cer then stated, ?You?ve been recording this the Before that sentence was
completed, another unidenti?ed of?cer standing near Hibbs appears to ?ip off Hibbs?
recording device, with his arm falling down to his side as he did this. After this occurs,
Hibbs? audio is not turned back on during the remainder of the time that Hibbs is present at

the scene.

 

5 Pitchess Motion quem

 



Attorney Israel Claustro, Hibbs? willingness to participate in a cover up to protect a deputy
engaged in excessive force will not come as a surprise in the least. If previously unaware of
Hibbs? promotion to sergeant in approximately 2014,3 the prosecutors should be ?irious to learn
through this motion that the OCSD placed Hibbs in a role where he could use his specialized
experience and knowledge to help fellow of?cers defeat righteous excessive force claims and
keep unwanted truths behind the thin blue line.

In 2009, the OCDA prosecuted Hibbs unsuccessfully for felony assault/battery by a
public officer, and felony assault with a. taser. After arguably justi?ably using a taser to
detain Ignacio Lares, Hibbs subsequently tasered Lares twice more after he was handcuffed
in the back of the vehicle. (Moxley, A Stunner from Sheri??Hutcliens, OC Weekly (July 1,
2010); Moxley, 0C Jury Doesn ?t Quite Acquit an 0C Cap. Shocker." OC Weekly (April 16,
2009).) The incident apparently occurred near the border of Stanton. (Srisavdsi, Man in
Taser Case Claims He Was Tortured while Handcu?ed, OC Register (Aug. 1, 2009).) Hibbs
was serving as a training of?cer at the time. (Moxley, 0C Deputy Zapped in Excessive Force
Indictment, OC Weekly (Sept. 19, 2008).) ?When Hibbs? supervising sergeant arrived, Hibbs
failed to notify him of the second use of the taser [while handcuffed in the police vehicle]. . 
(Goffard, Assault Charges Against 0. C. Deputy in Use of Taser, LA Times (Apr. 8, 2009).)
Hibbs? official department report of the incident also omitted any mention of the taser attack.
(Moxley, Excessive Force Controversy Continues to Annoy 0C Deputy Union, OC Weekly
(J an. 1, 2010).) Additionally, none of the deputies at the scene reported the use of the taser
in the squad car during their initial write-ups of the incident. (Tran, Orange County D.A.
Says There Is Evidence of Deputies? ?Code of Silence LA Times (May 13, 2009).)

In DA Claustro?s closing argument, he placed before jurors a graphic of a blue brick
wall with a man putting his finger to his lips, stating: ?There is a blue wall of silence. . .I hate

to talk about a code of silence. We don?t want to believe it happens. But it does.? While

 

3 Records associated with Hibbs in Transparent California indicate that Hibbs was likely
promoted to Sergeant in 2014.

 

 

6 Pitchess Motion Sayem

 



showing a picture of three monkeys, Claustro added, ?You have borne witness by watching
officers cover their eyes. See no evil. Speak no evil. . .There was no escape attempt. . .It was
a completely manufactured justification.? Claustro added, ?Deputy Hibbs? conduct was
horrible. . .It was torture, an abuse of power and completely uncalled for.?

The case ended in a mistrial, and dismissal, with prosecutors blaming the result on a
?code of silence? among testifying deputies. (Srisavdsi, Man in aser Case Claims He Was
Tortured while Handcu?ed, OC Register (Aug. 1, 2009).) District Attorney Tony
Rackauckas said ?the deputy sheriffs in this case were not truthful.? (Tran, Orange County
DA. Says There Is Evidence ofDeputies? ?Code of Silence supra.) Sheriff Sandra Hutchens
attacked the OCDA for this presentation, and in turn was assailed for her unwavering support
of law enforcement regardless of their conduct.?4 (Greenhut, Huielzens? Absurd Denial
Encourages Deputies to Lie, OC Register (Apr. 20, 2009).) The OCDA ultimately elected
not to prosecute the alleged perjured testimony of Hibbs? fellow deputies who, per

prosecutors, had given dramatically different testimony in front of the grand jury.5

 

4 After attacking the OCDA for claiming a code of silence had contributed to the verdict, it
appears that the OCSD?either under pressure from the OCDA or because of one brave
officer?s unwillingness to whitewash?found that the code of silence was in play after all.
Former Commander Timothy Board wrote the following in 2010 about the actions of four
deputies, James Wicks, Robert Gunzel, Bryan Thomas, and Trent Hoffman, who omitted the
use of the laser from their report:

After conducting a fair, thorough and impartial review of the department?s internal-
affairs investigation, I concluded that [the deputies] had been derelict in their duties
and that discipline was necessary to address their misconduct. Speci?cally, I believe
that [the deputies] had an af?rmative responsibility to intervene, investigate, question
and ultimately report the deployment of an electronic control weapon by one of their
partners on an unarmed, handcuffed, seated arrestee during the course of a custodial

interrogation.
(Moxley, A Stunner from Sker?Hutcl?zens, OC Weekly (July 1, 2010).)

5 Notably, this is not the only allegation of misconduct the deputies confronted. Hoffman
was accused of using unreasonable force on February 12, 2010, in Stanton by Donald
Schaeffer?an incident that resulted in serious physical injury, including amputation of

7 Pitchess Motion Sayein

 






 

 

(Prosecutor Says Deputies Changed Story at Trial, Ventura County Star, AP (May 12,
2009))

If the OCDA responds as it should after studying the relevant materials, this motion
will become unnecessary. However, it is critical that if this case is not dismissed that the
relevant peace of?cer records be provided to the defense.

MOTION

Defendant Mohamed Zahangir Sayem moves this Court to order the OCSD to disclose

information from the personnel ?le of the following of?cers:
Michael Devitt. #8968, OCSD
Eric Ota. #08995, OCSD
Christopher Hibbs. #03934, OCSD

Said items are in the actual or constructive possession of the OCSD, or of its of?cers,
investigators, employees, or agents.

The defense seeks discovery of all documents concerning these officers as de?ned by
Penal Code section 832.8; records maintained pursuant to Penal Code section 832.5,
subdivision and any other records, documents, or items pertaining to the of?cers,
including but not limited to the following:

1) Lack of credibility by falsifying police reports and/or providing false testimony;
2) Acts of excessive force;

3) Prior acts involving moral turpitude;

 

Schaeffer?s leg, removal of his spleen, and removal of a lung. Schaeffer ?led suit, alleging
Hoffman discharged his ?rearm at Schaeffer, even though Schaeffer was unarmed and posed
no imminent threat. (Schae?er v. County of Orange (CD. Cal., Sept. 9, 2011, N0. SACV
11-0335) 201 WL 4020729.) In 2010, the estate of Hector Quirarte-Medrano sued several
OCSD deputies, including Bryan Thomas for several claims, including unreasonable use of
force, wrongful death, and battery. (Estate of Hector Quirarte-Mea?rano v. County of Orange
(CD. Cal., Dec. 21, 2010, No. SACV 09-01082 2010 WL 5853398.) The county
settled with Quirarte-Medrano?s estate around January 2011. (County Board of Supervisors,
Regular Meeting (Jan. 25, 201 

8 Pitc/tess Motion Sayem.

 



Any and all performance reviews, evaluations, or other documentation re?ecting
the evaluation and review of the of?cers during their employment;

Any Brady material in the of?cers? personnel ?les, including material that is more
than ?ve years old;

Any investigation into the of?cers? actions in this case conducted by any law
enforcement agency, including (but not limited to) the and

Whether discipline was imposed on the of?cers and the nature of that discipline in

any incident involving the above?mentioned conduct.

The evidence sought includes but is not limited to:

a)

13)

Copies of all reports, records, or investigative reports ?led, pending, completed or
otherwise made, and all other writings pertaining to any of the above-mentioned
conduct by the of?cers, including but not limited to documentation of any
investigation into the of?cers? conduct in the case at bar;
Copies or transcripts of any tape-recorded statements by any persons, including the
of?cers themselves, which were taken in connection with any investigation ?led,
pending, completed, or otherwise made regarding any complaints of the above-
mentioned conduct;
Names, addresses, and phone numbers of persons giving such statements;
The fact of whether discipline was imposed upon these of?cers in any incident
involving any of the above-stated types of conduct, including the arrest of Sayem;
and
Any information in connection with any internal affairs investigation into this or
any of the aforementioned incidents, including but not limited to:
i. Names and addresses of persons interviewed and contacted;
ii. Statements of persons contacted and interviewed;
Notes of internal affairs investigators;

iv. Outcomes and conclusions of any internal affairs investigations.

 

9 Pitchess Motion Sayem

 

 

 

Sayem further moves that as to all items requested, the information be furnished
regardless of the outcome, disposition, or result of the complaint, report, or investigation.

Sayem further moves that all material and documentation produced by the OC SD from
the officers? personnel ?les and reviewed by this Court in~ca1nera be copied and placed in a
sealed envelope in the court file for appellate review.

This motion is based upon the Notice of Motion, the pleadings in this case, the attached
exhibits, these Points and Authorities, and any evidence presented at the hearing on the
motion. The attached declaration demonstrates that the items sought are relevant and material
to the presentation of an effective defense. The motion is based upon state statutory grounds
as well as state and federal constitutional grounds, including due process, and confrontation
grounds as Well as Brady v. Maryland, supra, 373 U.S. 83.

STATEMENT OF THE CASE

On August 21, 2018, the OCDA ?led a felony complaint against Defendant Mohamed
Zahangir Sayem in the Orange County Superior Court, Central Justice Center. The complaint
alleged: in Count 1, a violation of Penal Code section 69 [Resisting and Deterring an
Executive Deputy] with a date of violation of August 19, 2018; and in Count 2, a violation of
Penal Code 647(f) [Public Intoxication] with a date of violation of August 19, 2018. The
case is set for pre-trial on November 8, 2018.

Sayem appeared for arraignment on the Complaint on August 21 2018, and the Public
Defender was appointed to represent him. Sayem was arraigned on the complaint and entered
a plea of not guilty to all counts.

STATEMENT OF FACTS
Deputy Devitt?s Version:

Deputy Devitt asserts in his police report that he was dispatched to the Comer Pocket
Bar in Stanton. (Declaration of Attorney Scott Sanders, attached herein as Exhibit A.) When
he arrived on scene, he observed Sayem?s vehicle, which was not parked in a designated

parking spot. He could see that the front driver?s side window of the vehicle was down and

10 Pitchess Motion Sayem

 



Sayem was asleep in the driver?s seat of the vehicle. He attempted to wake Sayem numerous
times by shining lights on the vehicle, shouting, and by shaking Sayem. He claimed that
Sayem slowly awoke after he was continuously shaken. Furthermore, he claimed that once
Sayem was awake and aware of his surroundings that Sayem then became more agitated with
Deputy Devitt, and had an increasingly aggressive demeanor during the encounter.

According to Deputy Devitt, at one point Sayem was trying to exit the vehicle, and then
Deputy Devitt placed pressure on Sayem?s shoulder to prevent Sayem from leaving. Sayem
said, ?Don?t touch me like that.? According to Devitt, the defendant ?swung his left arm
upwards toward my face breaking my grasp from his shoulder. I believed Sayem was going

to attack me so he could get away from me.? He continued,

In order overcome his resistance, I quickly grabbed his left arm and tried to
control him. He physically resisted my efforts and pulled his left arm away. I
maintained a grasp on his arm but he stepped out of the vehicle and stood over
me. He lifted his arm up in the air so I was unable to control it as he is a lot
taller than me. I used my body weight to push Sayem against the Jeep so Dep.
Ota could help me place him in handcuffs. As I pushed him against the car,
Sayem grabbed my external vest and started pulling at it. I used my left hand
and pushed his face in an effort to create some space between usvest and continued to physically struggle. Due to his aggressive
demeanor, and the fact he was already resisting, i[sic.] believed Sayem was
going to continue to try and physically assault me. I delivered approximately
four closed fist strikes to the right side of Sayemis face. He released his grip
of my vest and began to fall down to the ground. Dep. Ota had just rounded
the back of the Jeep and was able to stop Sayem from free falling to the ground.
We both guided him to ?oor and placed him in handcuffs without further

incident.
Of?cer C. Hibbs approved the report the same day it was written, August 19, 2018,

which is also the same day of the incident.
Deputy Ota?s Version:

According to Ota?s report he arrived on scene to find Devitt Speaking with Sayem. He
said that there was a strong odor of alcohol emanating from the car. Per Ota, Sayem was

refusing to hand over his license. He said that Sayem handed over a lighter instead of his

 

 

Pitchess Motion Sayem

 

 

license and began rolling up the window. According to Ota, Sayem ?would not answer basic

questions or comply with simple directions.? Ota wrote:

I saw Sayem attempt to exit his vehicle and Deputy Devitt asked him to stay in
the vehicle. Sayem again attempted to step out of the vehicle and this time he
appeared to be trying to push past Deputy Devitt. Sayem then raised his left
arm and I saw Deputy Devitt strike him in the face with his left hand. I went
around the back of the vehicle to assist Deputy Devitt. When I got to the other
side of the vehicle, I saw Deputy Devitt strike Sayem with his left hand and
then Sayem began to fall to the ground. I grabbed the back of Sayem?s shirt
with his shoulder to slow down his fall. Sayem fell to the ground in prone
position and I assisted Deputy Devitt with placing Sayem in handcuffs.
(Exhibit A.)

Of?cer C. Hibbs approved the report the same day it was written, August 19, 2018,
which is also the same day of the incident. (Exhibit A.)

Defendant?s Version

Defendant?s version is presented in Exhibit A, via the declaration of his counsel Scott
Sanders, as well as via Exhibit B, which contains several photos from the incident and
descriptions based upon information and belief. Counsel relies upon the MVAR of Devitt

and Hibbs.
POINTS AND AUTHORITIES

I. SAYEM HAS COMPLIED WITH THE STATUTORY REQUIREMENTS
TO COMPEL DISCOVERY OF THE INFORMATION SOUGHT.

Evidence Code section 1043 spells out the requirements for a criminal defendant to obtain
information in law enforcement personnel records. Subdivision requires a written motion
and notice to the governmental agency which has custody of the records sought. Subdivision
provides that the motion shall include, in part, description of the type of records
or information sought; (3) [a]f?davits showing good cause for the discovery or disclosure
sought, setting forth the materiality thereof to the subject matter involved in the pending

litigation and stating upon reasonable belief that the governmental agency identi?ed has the

 

 

12 Pitchess Motion Sayem

 



records or information from the records.? (Evid. Code 1043, subd. Through this
motion and the attached exhibits, Sayem has complied with the statutory requirements to
compel discovery of the information sought.

II. THERE IS GOOD CAUSE FOR DISCLOSURE.

Section 1043 provides that information in police personnel records may only be
disclosed upon a showing of good cause. (Evid. Code 1043, subd. Section 1043
does not require personal knowledge of material facts; declarations based on information and
belief are suf?cient to make the required showing. (City ofSama Cruz v. Municipal Court
(1989) 49 Cal.3d 74.) As will be discussed below, defense counsel?s declaration establishes
the good cause required to compel disclosure of the requested discovery.

In Warrick v. Superior Court (2005) 35 Cal.4th 101 1, the California Supreme Court
discussed the showing a criminal defendant must make in a Pitciicss motion to establish good
cause. In Warrick, the defendant was charged with possession of cocaine base with the intent
to sell. (1d. at p. 1017.) Police reports for the case stated the police saw the defendant holding
a clear plastic bag with ?off-white solids? in it. (Id. at p. 1016.) When the defendant saw the
of?cers, he ran and discarded the objects in the bag he was holding. (Ibid) Of?cers retrieved
42 rocks of crack cocaine from where the defendant threw them and arrested the defendant,
who was in possession of an empty plastic bag and $2.75 in cash. (1d. at pp. 1060-1017.)
The defense filed a Pitcliess motion, alleging in the declaration that the defendant was there
to buy, not sell, crack cocaine and that he never possessed crack cocaine. (1d. at p. 1017.)
The trial court found the declaration did not establish good cause because it believed the
defendant?s version of the events was implausible. (1d. at p. 1018.) The Court of Appeal
denied issuance of a writ, holding the defendant failed to establish a plausible factual
foundation to justify review of the of?cers? personnel files. (Ibid)

The California Supreme Court observed that the origin of the ?plausible factual
foundation? language used by some Courts of Appeal in describing the good cause

requirement for a Piicliess motion came from its decision in City of Santa Cruz v. Municipal

 

 

I3 Pitchers Motion Sayem



Court, supra, 49 Cal.3d 74. (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1020-1021.)
However, the court noted that interpreting City of Santa Cruz as requiring a plausible factual
foundation to establish good cause ?elevated the showing of good cause for Pitchers
discovery beyond that required by law.? (Id. at p. 1024.) The court explained that the
declaration does not need to establish a motive for the alleged of?cer misconduct. (Id. at p.
1025.) Further, the declaration need not persuade the trial court that the defense version is
?reasonably probable? or ?apparently credible.? (Id. at pp. 1025-1026.) ?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 motion is to
weigh or assess the evidence. It is not.? (Id. at p. 1026, italics omitted.)

Consequently, the court held the declaration need only present a ?plausible? factual
foundation, which it de?ned as a scenario ?that might or could have occurred.? Warriok v.
Superior Court, supra, 35 Cal.4th at p. 1026.) The court found that trial courts must

conduct the following inquiry:
Has the defense shown a logical connection between the charges and the proposed
defense? ls the defense request for Pitchess discovery factually speci?c and tailored
to support its claim of of?cer misconduct? Will the requested Pitc/iess 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 af?davit in support of the Pitchess motion
adequately responds to these questions, the defendant has shown good cause for
discovery and in-chambers review of potentially relevant personnel records of the
police of?cer accused of misconduct against the defendant.

Warrick v. Superior Court, supra, 35 Cal.4th at p. 1027.)

In Garcia v. Superior Court (2007), 42 Cal.4th 63, the California Supreme Court
further clari?ed the showing necessary to establish good cause. The court noted the
Legislature has required ?only a minimal showing? to obtain the trial court?s review of

police of?cer personnel ?les. (Id. at p. 72.) As a result, the court described the showing as

follows:
Essentially, the defendant must propose a potential defense to the pending charge,
articulate how the discovery might lead to or constitute evidence providing
impeachment or supporting the defense, and describe an internally consistent factual

 

l4 Pitchess Motion Sayem

 






 

 

scenario of claimed of?cer misconduct Depending on the circumstances of the case,
the scenario may be a simple denial of accusations in the police report or an
alternative version of what might have occurred.?

(Garcia v. Superior Court, supra, 42 Cal.4th at p. 72.)

When Warriek and Garcia are applied to the records sought in this case, it is evident
defense counsel?s declaration establishes good cause. The declaration provides speci?c facts
to establish why it is necessary for the defense to have access to the listed deputies? personnel
records during this current evidentiary hearing. Further, it demonstrates a logical connection
between the of?cers? performance evaluations and their relevance to the defense in the
current case. Thus, as in Warriolc and Garcia, the declaration establishes the good cause
required to compel disclosure.

THE REQUESTED DISCOVERY IS MATERIAL.

Section 1043 also requires the party moving for discovery of police personnel files to
submit a declaration setting forth the materiality of the requested documents. In People v.
Memro (1985) 38 Cal.3d 658, the California Supreme Court discussed the scope of
discoverable information in a Pitcliess motion. The court began by noting ?the power of a
trial court to provide for discovery in criminal cases exists ?even in the absence of
constitutional mandate or enabling legislation?? (1d. at p. 677, citing Reynolds 12. Superior
Court (1974) 12 Cal.3d 834, 837.) The court pointed out that Chief Justice Traynor once
observed, ??in the absence of a countervailing showing by the prosecution that the
information being sought may be used for an improper purpose, discovery is available not
merely in the discretion of the trial court, but as a matter of right?? (People v. Memro, supra,
38 Cal.3d at p. 677, citing Traynor, Ground Lost and Found in Criminal Discovery (1964) 39
N.Y.U. L.Rev. 228, 244.) Thus, the court concluded an accused is entitled to ??any pretrial
knowledge of any unprivileged evidence, or information that might lead to the discovery of
evidence, if it appears that such knowledge will assist him in preparing his defense?? (People

v. Memro, supra, 38 Cal.3d at p. 677, citing Ballard v. Superior Court (1966) 64 Cal.2d 159,
167.)

 

 

15 Piicliess Motion Sayem





 

 

Finally, evidence which is material or relevant includes ?evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
disprove any diSputed fact that is of consequence to the determination of the action.? (Evid.
Code 210.)

Here, Sayem seeks information regarding the character, habits, customs, and
credibility of each of the of?cers. Such information is relevant and material as it will re?ect
on the character, habit, and custom of the of?cers and will tend. to prove how the of?cers
behaved on the day of Sayem's arrest. Production of reports that demonstrate bias on the part
of all of the of?cers or provide a motive or explanation for the of?cers engaging in any
prohibited or illegal conduct, may affect each of?cer?s credibility and are thus discoverable.

A. Character, Habit, and Custom Evidence Concerning the Of?cers?
Conduct Is Discoverable.

Evidence of character, habit, or custom is admissible to prove conduct on a speci?ed
occasion in conformity with that character, habit, or custom. (Evid. Code 1105.)
Discovery of information in police of?cer personnel ?les may lead to evidence of such
character, habit, or custom. Further, habit or custom can be established by evidence of
repeated instances of police misconduct. (People v. Memro, supra, 38 Ca1.3d at p. 681.)

As demonstrated in defense counsel?s declaration, Sayem disputes the accuracy of
Of?cer Devitt?s police report regarding their actions in Sayem?s case. Consequently,
evidence of the of?cers? habit and custom of using excessive force and falsifying police
reports and/or any other written documents while employed as a peace of?cer is highly
relevant to attack their credibility as witnesses in this case. Also, evidence of the of?cers?
habit and custom of testifying falsely in any court or other proceeding while employed as a
peace of?cer is highly relevant to attack their credibility as witnesses in this case.

Thus, Sayem is entitled to any such evidence of the of?cers? habit of excessive force
and falsifying (police) reports of any kind, and/or testifying falsely for impeachment

purposes at trial.

 

l6 Pitcliess Motion Sayem

 

 

 

B. Impeachment Evidence Against the Of?cers Is Discoverable.

The credibility of a witness may be attacked or supported by any party, including the
party calling the witness. (Evid. Code 785.) Indeed, when considering the type of evidence
that can be used to impeach a witness? credibility or test his veracity, the Hustead Court
discussed the propriety of using Pitchess discovery to obtain impeachment material against
police of?cer. Speci?cally, the Court noted, ?In Memro, the Supreme Court explained that
the statutes governing discovery motions do not limit discovery of such records to cases
involving altercation between police of?cer and arrestees. Indeed, the court also noted that
one legitimate goal of discovery is to obtain information for possible use to impeach or cross?
examine an adverse witness.? (People v. Hustead, supra, 74 Cal.App.4th at p. 417.) Since
Hustead, numerous courts have unanimously af?rmed the use of Pitchess discovery to
provide a defendant with potential impeachment evidence against a police of?cer. (See, for
example, People v. Johnson (2004) l. 18 Cal.App.4th 292 [wherein the Court of Appeal held
that it is irrelevant if the defendantis description of his interaction regarding a drug sales
allegation with the of?cer was ?less believable? than the of?cer?s account.].)

In the instant case, the attached declaration sets forth a suf?cient factual foundation to
demonstrate why the evaluations of these of?cers are relevant and necessary in this case.
Accordingly, as in Hustead and Johnson, Sayem is entitled to the discovery sought to aid in
cross-examination of these of?cers at the pre-trial hearing.

C. Whether the Of?cers Were Disciplined for Misconduct and the Nature
of That Discipline Is Discoverable.

In City ofSan Jose Superior Court (Michael B.) (1993) 5 Cal.4th 47, the California
Supreme Court examined whether a defendant may discover in a Pitchess motion whether an
of?cer was disciplined for misconduct and the nature of that discipline. The police
department contended such information was not discoverable, as to do so was tantamount to
disclosing the conclusions of the investigating of?cer. (Id. at pp. 54-55.) The court disagreed,

holding that although the conclusions of an of?cer who investigated the misconduct is not

 

 

 

 

 

l7 Pitchers Motion Sayem



discoverable, whether an of?cer was disciplined for a complaint and the nature of that
discipline is discoverable. (Id. at p. 55.) The court based its decision on section 1045,
subdivision which it read as permitting such discovery. (Ibid)

Thus, based on subdivision of section 1045 and Michael B., Sayem is entitled to
discover whether the of?cers have been disciplined for any misconduct related to this case
and the nature of that discipline.

Accordingly, this Court should disclose any information in these of?cers? personnel
?les that demonstrates that these of?cers were previously employed by a different law

enforcement agency.
IV. THIS COURT SHOULD DISCLOSE ANY BRADY MATERIAL IT
DISCOVERS IN THE PERSONNEL FILE-S. EVE-N IF IT IS
MORE THAN FIVE YEARS OLD.

In City @105 Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th l, the California
Supreme Court discussed a trial court?s authority to disclose information in a police of?cer?s
personnel ?les that is more than ?ve years old. The Court of Appeal had held the ?ve year
limitation on disclosure of information from police personnel ?les found in section 1045,
subdivision deprived the defendant of a fair trial. (1d. at pp. The California
Supreme Court disagreed, holding the ?ve?year limitation did not violate due process because
trial courts could disclose exculpatory information in personnel ?les even if the information
was more than ?ve years old. (Id. at p. 15.)

The court observed the ?Pitchess process? Operates in parallel with Brady and does
not prohibit disclosure of Brady material simply because the information is in a personnel
?le. (City of Los Angeles 12. Superior Court (Brandon), supra, 29 Cal.4th at p. 14.) It noted
the United States Supreme Court dealt with a similar scenario in 12. Ritchie
(1987) 480 US. 39, where the Court condoned a trial court review of otherwise con?dential
material to determine if it contained any exculpatory information to disclose to the defense.
(City of L0: Angeles 12. Superior Court (Brandon), supra, 29 Cal.4th at p. 14.) Adopting the

rationale of Ritchie, the California Supreme Court ultimately concluded that when a trial court

 

 

l8 Pitchess Motion Sayem



comes across Brady material during an in-camera review of police personnel ?les, the trial
court may disclose that information to the defense, even if it is outside the ?ve year limitation
of section 1045, subdivision (1d. at p. 15.)

Following Brandon, the Court of Appeal discussed the propriety of a trial court
conducting an in-camera review to determine if Brady material is in a police of?cer?s
personnel ?les in Abau?i v. Superior Court, supra, 112 Cal.App.4th 39. In Abatti, the
defendant was charged with assault with a deadly weapon, hit and run, and brandishing. The
state intended to call as a witness a former police of?cer, who allegedly heard the defendant
say he was at the scene of the crime. (Id. at p. 44.) The defendant ?led a Pitcliess discovery
motion, but tailored under Brady, asking the trial court to look in the former police of?cer?s
personnel ?les for exculpatory evidence, and a supporting declaration stating the former
police of?cer committed misconduct while still employed as a police of?cer. (1d. at p. 47.)

The Court of Appeal began its analysis by noting that Brady and Pitchess have
different standards of materiality for disclosure. (Abarz?i v. Superior Court, supra, 112
Ca1.App.4th at p. 54.) The court explained the different standards as follows:

Unlike the high court?s constitutional materiality standard in Brady, which tests
whether evidence is material to the fairness of a trial, a defendant seeking Pitchess
disclosure must, under statutory law make a threshold showing of materiality. Under
Pitchers, a defendant need only show that the information sought is material to the
subject matter involved in the pending litigation. Because Brady?s constitutional
materiality standard is narrower than the Pitchess requirements, any citizen complaint
or information that meets Brady ?5 test of materiality necessarily meets the relevance
standard for disclosure under Pitchess.

(Abarti v. Superior Court, supra, 112 Cal.App.4th at p. 54.)

The Court of Appeal then analyzed the declaration ?led in support of the motion and
found the defendant?s declaration met the good cause requirement under Pitchess and
established suf?cient materiality to comport with Brady. (Abarti v. Superior Court, supra,
112 Cal.App.4th at p. 5 7-60.) Accordingly, the court ordered the trial court to conduct an in-
camera review of the former of?cer?s records to determine if they contain information that

should be disclosed under Pitchess and Brady. (Id. at p. 60.)

 

 

19 Pitchess Motion Sayem



Applying Brandon and Abattz? to the instant case, defense counsel?s declaration meets
the good cause requirements of Pitchess and the materiality standards of Brady. As detailed
in defense counsel?s declaration, the listed of?cers may be the prosecution?s primary
witnesses regarding the charges in the felony complaint. As such, these of?cers? credibility
will be the main factor in determining whether there is sufficient evidence to hold Sayem to

answer at the preliminary hearing.

V. THE DECLARATION ESTABLISHES A REASONABLE BELIEF THE
OCSD POSSESSES THE REQUESTED RECORDS.

Section 1043 requires the moving party establish a reasonable belief that the
governmental agency requested to produce the documents actually possesses them. Defense
counsel?s declaration demonstrates such a belief. The language used in this declaration is
virtually identical to that used by defense counsel in Husread, where the Court of Appeal
found that this particular portion of defense counsel?s declaration demonstrated a reasonable
belief the agency has the information sought. (PeopZe v. Hustead, supra, 74 Cal.App.4th at
pp. 417-418.) Accordingly, the declaration in the instant case establishes a reasonable belief

the OCSD has the information sought.

VI. THIS COURT MUST QUESTION THE CUSTODIAN OF RECORDS
UNDER OATH ABOUT WHAT RECORDS HAVE BEEN REMOVED
FROM THE PERSONNEL FILES AND WHY, AS WELL AS
PHOTOCOPY ALL DOCUMENTS IT REVIEWS OR TAKE
OTHER STEPS TO ENSURE SAYEM HAS THE ABILITY TO RECEIVE
MEANINGFUL APPELLATE REVIEW.

In People v. Mooc (2001) 26 Cal.4th 1216, 1220-1221, the Califomia Supreme Court
discussed a trial court?s obligations during the in?camera review of personnel ?les for a
Pitchers motion. At the trial level, Mooc made a Pitchess motion. The court granted the
motion and went in-camera to review the police officers? ?les provided by the custodian of
records for Santa Ana. After the in-camera. review, the court determined there was nothing
in the documents it reviewed that should be disclosed to the defense. However, the court did
not make any record of what it reviewed during the in?camera hearing. Mooc was convicted

and appealed.

 

 

 

20 Pitchess Motion Sayem






 

 

The Court of Appeal augmented the record to include the of?cers? personnel ?les in
order to determine the propriety of the trial court?s decision not to disclose any information
from the of?cers? ?les to the defense. (Peeple v. Mooc, supra, 26 Cal.4th at p. 1224.) The
court noted a discrepancy in what the Santa Ana City Attorney?s Of?ce provided to it
compared with what the trial court reviewed. At oral argument, the Court of Appeal
explained it was informed that the Santa Ana City Attorney?s Of?ce ?regularly,
systematically, and secretly censored all. personnel ?les. . before providing them to the trial
court for in-camera review.

The California Supreme Court found the trial court?s failure to make an adequate
record of what it reviewed in-camera denied Mooc meaningful appellate review. (People v.
Mooc, supra, 26 Cal.4th at pp. 1227?1228.) The court stated a trial court should make a
record of everything it examines before ruling on whether anything should be
disclosed. The court went on to state that trial courts, in making such a record, should if the
documents produced by the custodian are not voluminous, photoc0py them and place them
in a con?dential ?le. Alternatively, the court can prepare a list of documents it considered,
or simply state for the record what documents it examined.

Finally, Mooc held the trial court has an obligation to question the custodian of records,
under oath, about what documents, if any, he or she removed from the of?cers? ?les before
bringing them in-camera and why those documents were removed. (PeOpZe v. Mooc, supra,
26 Cal.4th at pp. 1229?1230.) A court reporter should be present to document the custodian?s
statements in this regard and for any other questions the court might have about the
completeness of the of?cers? ?les. Finally, if there is any doubt about whether a particular
document should be presented to the trial court for in-camera review, the custodian must
present it to the court.

A trial court?s obligations with respect to the in?camera hearing was further clari?ed
in People v. Guevara (2007) 148 Cal.App.4th 62. In Guevara, the trial court found no

discoverable information in the of?cers? personnel ?les. On appeal, defendant asked the

 

 

21 Pitchess Motion Sayem

 

 

Court of Appeal to review the transcript of the in-camera hearing to determine if the trial
court?s order was correct. In its original unpublished opinion, the Court of Appeal indicated
it reviewed the transcript of the in?camera hearing and determined the trial court did not abuse
its discretion in denying the defendant discovery. The defendant petitioned for rehearing,
contending the opinion did not state the Court of Appeal actually reviewed the documents the
trial court reviewed in-camera. At the in-camera hearing, the custodian stated under oath that
none of the officers? personnel files contained any information that was potentially responsive
to defendantis discovery request. Consequently, no documents were submitted to the trial
court for review. Instead, the city attorney stated there was a list of what the custodian
reviewed for the four officers, but the record did not indicate the trial court actually reviewed
the list and the list was not part of the record on appeal. Based on this inadequate record, the
Court of Appeal remanded the matter back to the trial court for a new hearing on the Pitchess
motion.
The Court of Appeal described a trial court?s obligations as follows:

In cases such as this where the custodian of records does not produce the entire personnel
?le for the court?s review, he or she must establish on the record what documents or
category of documents were included in the complete personnel ?le. In addition, if it is
not readily apparent from the nature of the documents that they are nonresponsive or
irrelevant to the discovery request, the custodian must explain his or her decision to
withhold them. Absent this information, the trial court cannot adequately assess the
completeness of the custodian?s review of the personnel files, nor can it establish the
legitimacy of the custodian?s decision to withhold documents contained therein. Such a
procedure is necessary to satisfy the Supreme Court?s pronouncement that ?the locus of
decision making? at a Pitchess hearing ?is to be the trial court, not the prosecution or the
custodian of records.? (People v. M006, supra, 26 Cal.4th at p. 1229.) It is for the court to
make not only the ?nal evaluation but to make a record that can be reviewed on appeal.

(People v. Guevara, supra, 148 Cal.App.4th at p. 69.)

Accordingly, this Court must begin the in-camera hearing by placing the custodian
under oath and questioning him about what documents have been removed from the officers?
personnel ?le and why such action was taken to provide Defendant the opportunity for

meaningful appellate review.

22 Pitchess Motion Sayem

 

 



CONCLUSION

criminal defendant?s right to discovery is based on the ?fundamental proposition
that an accused is entitled to a fair trial and an intelligent defense in light of all relevant and
reasonably accessible information?? (City ofSauta Cruz 12. Municzpal Court, 49 Cal.3d at p.
84, citing Pitchess v. Superior Court, supra, 11 Cal.3d at p. 535.) For the reasons set forth
above and in the attached declaration, Defendant Mohamed Zahangir Sayem respectfully
requests this Court order disclosure of the requested items.

Date: October 17, 2018
Respectfully submitted,
SHARON PETROSINO

Orange County lic Defender
a 


Assistant Public Defender

 

23 Pitchers Motion Sayem

 



EXHIBIT A

(Declaration of Counsel)

 



 

24 Pitchess Motion Sayem

 

 

 

SHARON PETROSINO Dept: W-l

Public Defender Date: 11/8/2018
Oran Count Est. Time: 1 hour
SCO SAN ERS

Assistant Public Defender

State Bar No. 159406

14120 Beach Blvd, Suite 200

Westminster, California 92683

Telephone: (714? 896-7281
Fax: (714) 896- 368

Attorneysfor Defendant Mohamed Zaiiangir Sayem
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE, WEST JUSTICE CENTER

Case No.: 18WF1909
PEOPLE OF THE STATE OF CALIFORNIA,

. DECLARATION OF DEFENSE
Plamtzf? COUNSEL IN SUPPORT OF
MOTION FOR DISCOVERY OF
vs. PEACE OFFICER PERSONNEL
RECORDS.
MOHAMED ZAHANGIR SAYEM,
Defendant.

 

1, Scott Sanders, declare as follows:

1) I am an attorney licensed to practice law in the State of California and I am an
Assistant Public Defender assigned to represent Sayem in this matter.

2) I am informed and believe that the OCSD maintains written personnel records and
records of complaints pertaining to their of?cers, and these are reasonably necessary for the
preparation of our defense in this action.

3) It is my experience that when investigating internal complaints, the statements of
witnesses and other persons are maintained, and the investigating of?cers make notes,
memoranda, and records of conversations in connection with their investigations, as well as
prepare and ?le reports, ?ndings, opinions, and conclusions concerning their investigations.

Also, on occasion, disciplinary proceedings are commenced as a result of these investigations.

25 Pitchess Motion Sayem

 





 

 

4) It is my understanding that police agencies including the OCSD keep employee
evaluations and reviews in the employees? personnel record ?les. It is also my understanding
that the personnel ?les also contain notes, ?ndings, memoranda, recordings, reports,
transcripts, opinions, and conclusions of the investigations made and of the disciplinary
proceedings commenced as the result of such complaints. I believe said ?les will contain the
names, addresses, and telephone numbers of witnesses interviewed during such investigations
and of persons who initiated complaints.

5) I further understand that the records, data, and materials requested herein are in the
exclusive possession and control of the police agency and are readily available, and that said
records, data, reports, evaluations, and materials are not known to either defendant or counsel
and, without this motion, will not be made available to this defendant or his counsel.

6) Defense counsel also understands that there are various levels of discipline within
many departments and by this motion requests records of all levels of discipline whether such
level be a formal internal affairs ?nding, oral reprimand, informal counseling or other method
of discipline (to the extent that such informal counseling or discipline is covered by the
Pitc/zess progeny of cases). Therefore, this request is not limited to such materials as may
exist in formal internal affairs ?les. It is directed to the material itself, however stored,
categorized or otherwise maintained. It also includes informal ?write-ups? kept by
supervisors and not formally entered into the internal affairs system.

7) That my intention in making this request is to obtain all relevant and material
evidence regardless of its age and regardless of the ?box? or in which it is stored. I am
informed and believe that the various levels of ?storage? of information as requested herein
exist at the OCSD. I am further informed and believe that much relevant material is contained
in multiple ?les, which may be secreted or segregated by the department and not produced
during this ?Pitchess" motion. This motion seeks to put all relevant information under the
control of this Superior Court. As such, the defense is requesting that this Court order the

custodian of records to bring all the boxes, ?les, and documents relating to the named of?cers,

 

26 Pitc/iess Motion Sayem

 





 

 

regardless of whether that information is stored in a ?personnel? ?le or a ?disciplinary? ?le
or under any other category and regardless of whether any of?cer, supervisor, or County
Counsel attorney deems the information con?dential or secret. Any necessary determinations
as to the documents' relevance and admissibility should therefore be made by this Court and
not the OCSD, whose conduct in this case is being questioned.
8) The above-listed materials are necessary for the proper preparation of this case for

this motion, as well as the pre?trial and trial. The materials will be used as follows:

a) To locate and investigate witnesses or other evidence of the untruthfulness

and unreliability of the police of?cers involved in the incident re?ected in

the attached reports. In addition, these records will be used to Show that the

of?cers acted in conformity with that character at the time of this incident;

b) To refresh the recollection of witnesses to other incidents involving the

untruthfulness of the of?cers and in ascertaining the facts and circumstances

of those incidents;

c) To properly prepare for cross?examination and impeachment of the of?cers

when called by the prosecution;

d) To properly assess the perceived credibility of the defendant and defense

witnesses; and

e) To present evidence of lack of credibility, excessive force, false arrest,

of?cer acting outside sc0pe of duties by the involved of?cers and to provide

any possible af?rmative defenses.

9) The following excerpt from Devitt?s report contains the description of Devitt?s

contact with Sayem, which is relevant to whether the of?cer used excessive force and whether

he was truthful in his description of the events and his experiences:

27 Pile/1653 Motion Sayer}?

 






 

 

went back to the driver door and attemdtod to wake Sayam up by shooting "Sir" and announcing lwas tram
the sheriffs department. Sayam made no. movement and had no idea was there. I attempted to shake 

him to wake up.

As Sayem started to become more aware

of his surroundings, he became agitated that was there apaa king

with hlm. He called me an? ?Asshote.? I told Sayam there was no need to be aggressive and

roaohod over to the passenger door We Bop. 013 was standing. Sayem opened the tr nt passenger door
from the inside. Ha continuously displayed signs of aggression to Bap. ?ts and myself and started ta tumble

for the ignition where he believed his trays
Sayem started calling my ?Cub? which is a

slang term commonly used by Grip gang members. I told Sayem not

to call me that but he continuously" did so. 33me Dayan to turn toward me and appeared to be to exit
the vehtde. He told me he wanted to leave out I requested he stay in the vehicle until we could Hen?ty him.
Saydm temporarily sat bard: in the seat. Moments later he tried to get out of the vehicle agatn by swinging his
legs outslde- I used my right hand and pat pressure on his left shoulder and directed him to remain in the

 

28 Pitchess Motion Sayem

 

 

 

10) The following excerpt from Ota?s report contains the description of the contact
between Devitt, Ota, and Sayem, which is relevant to whether the of?cer used excessive force

and whether he was truthful in his description of the events and his experiences:

 

ll) The facts alleged in support of this motion are based upon this Declarant?s
information and belief following a review of court records and prosecutor discovery,
including the MVARs of both Devitt and Hibbs. Still photographs of the MVARs are
included in Exhibit B, and the statements describing said images are based on information
and belief, and upon my review of the MVARS from both of?cers. On August 19, 2018,
Devitt approached Sayem?s vehicle in the city of Stanton. Sayem was passed out in the
driver?s seat. Devitt approached Sayem on the driver?s side of the vehicle, and made several
attempts to wake him up before succeeding. The car was turned off (although Devitt?s report
stated that the vehicle was running). Devitt removed the key from the ignition. Ota
positioned himself on the passenger side of the Defendant?s vehicle. Devitt and Ota spoke
with Sayem, who appeared obviously intoxicated to the of?cers and gave a number of
partially understandable answers, statements, and insults?often chuckling and falling in the
car as he delivered them. On several instances, the of?cers asked him to repeat or clarify
what he said, as the of?cers asked that he give his identi?cation. After having not received
the identi?cation, Sayem appears to intend to walk away from the vehicle?~placing his foot

outside of the vehicle. Devitt warned Sayem to stay in the vehicle. When Sayem again put

am
29 Pitchess Motion Sayem

 

 

 

his foot outside of the vehicle, Devitt pushed back on Sayem. Sayem then said ?Don?t touch
me like that.?

12) Sayem then tried to pull away from Devitt, who responded by yanking Sayem by
his left arm out of the vehicle. Sayem appears to have pushed on the horn with his right hand
as he was being pulled, and then clung to the steering wheel with his right hand. Once forcibly
removed from the car and up against the side of the vehicle, Sayem?s left arm came free of
Devitt?s grasp as he clung to the steering wheel. Devitt then grabbed Sayem near his face
and neck while using the car to prevent Sayem from moving. Devitt proceeded to grab Sayem
on the side of his face and then punch him repeatedly with a closed ?st. It appears that Devitt
punched Sayem approximately six times. By the third punch, Sayem appears to have lost
consciousness. At some point around the time of the third and fourth punches, Sayem?s right
hand fell from the steering wheel. After Devitt delivered the ?fth punch, Ota, who had come
around from the other side of the vehicle, forcefully yanked Sayem downward. Sayem?s right
arm collapsed onto the back of Devitt?s neck. As Sayem continued to fall toward the ground,
Devitt delivered the sixth punch and then pulled Sayem?s arm off from around his neck, and
Sayem fell onto the ground, where he was handcuffed by Devitt and Ota. Sayem suffered
injuries to his face and leg. With Sayem lying face first on the ground, and barely moving
after being beaten up, Devitt said, ?Moe needs to calm down a little bit.? Later, while still
face ?rst on the ground, Sayem asked the of?cers, ?Are you going to shoot me?? Devitt
answered Ota said, ?Like to.? Sayem said, ?C?mon bro. Neither
of?cer responded. It should be noted that Sayem?s height is approximately 5? 1 

13) While Devitt admitted in his report to punching Sayem, he ?ctionalized key
details, including Sayem?s violence, in order to justify his use of force. Both of?cers omitted
from their reports Ota?s statement that he would ?like to? shoot Sayem, which was captured
on video. Both Devitt and Ota falsely portrayed themselves in their reports as having helped
soften Sayem?s crash to the ground. The dash cam video does not support this depiction by

either of?cer. While talking in the ?eld to Sergeant Hibbs, Devitt falsely claimed what

30 Pitchess Motion Sayer}:

 

 

 

occurred was an ?assisted fall.? Ota wrote in his report grabbed the back of Sayem?s shirt
with his shoulder to slow down his fall.? Ota also told Hibbs at the scene, helped him crash
to the ground basically.? Both engaged in violent acts, that were without consideration of
how Sayem fell to or landed on the ground.

14) Sergeant Christopher Hibbs arrived on scene as the supervising of?cer. Later that
same day, Hibbs approved the reports written by Devitt and Ota.6 At the moment he read
Devittis report, and likely far sooner, Hibbs knew that Devitt had changed his story
signi?cantly. The fact that Hibbs approved Devitt?s report, and did so presumably without
disclosing Devittis dishonesty to the OCDA or to his department?s internal affairs unit,
compellingly establishes Hibbs as a co-conspirator in the effort to mislead. Hibbs Spoke to
Devitt about what occurred at the scene, and would have immediately recognized that
Devittis report was materially different from what Devitt told him in the ?eld, as recorded on
Hibbs? dash cam. There are two changes in Devitt?s story that are particularly egregious.
First, despite acknowledging to Hibbs that he pulled Sayem out of the vehicle, Devitt wrote
in this report that ?[Sayem] physically resisted my efforts and pulled his left arm away [while
still in the vehicle]. I maintained a grasp on his arm but he stepped out of the vehicle and
stood over me.? (emphasis added). Second, Devitt subtracted out and replaced the key act
of violence that he attributed to Sayem when describing the events to Hibbs. In the ?eld,
Hibbs asked Devitt whether he was going to charge a violation of misdemeanor (Section 148)
resisting, obstructing and/or delaying an of?cer. Devitt responded that he planned to charge
Sayem with felony (Section 69), which requires a threat or violence, because ?he tried to bear
hug on me.? Although there was no effort to bear hug the of?cer, the claim was consistent
with the falsehood Devitt told Hibbs earlier in the ?eld: .. [H]e?s way taller than me, and
he like just comes up on me and essentially, he almost hugs on me. So, I just punch him in

the face probably like three or four times.? It is reasonable to conclude that after either seeing

 

 

6 Hibbs? report?if written?has not been disclosed to date.

 

 

31 Pz'tcltess Motion Sayem

 

 

the video or further contemplating what would likely be captured on it, Devitt (and likely
Hibbs) realized the problem: Sayem did not bear bug or try to bear hug him. In fact, Sayem?s
right hand remained clinging to the steering wheel even after the rest of his body was pulled
out of the vehicle, with the defendant only letting go after the blows knocked him
unconscious. It appears that Devitt fabricated a new version that he likely perceived would
appear more dangerous and more dif?cult to disprove based upon what he saw in his dash
cam or what he believed the dash cam likely captured. Devitt wrote:

I used my body weight to push Sayem against the Jeep so Dep. Ota could help

me place him in handcuffs. As I pushed him against the car, Sayem grabbed

my external vest and started pulling at it. I used my left hand and pushed

his face in an effort to create some space between usvest and continued to physically struggle. Due to his aggressive demeanor,

and the fact he was already resisting, i[sic.] believed Sayem was going to

continue to try and physically assault me. I delivered approximately four
closed ?st strikes to the right side of Sayem?s face. . .(emphasis added).

15) The bolded sections are untruthful based upon a review of the video and Devittis
inconsistent statements to Hibbs. Moreover, it is not reasonable that Devitt forgot in two
separate statements to Hibbs that Sayem pulled on his vest and would not release it. Nor is
it reasonable that when Hibbs restated Devitt?s story back to the of?cer, Devitt would have
failed to again remember the most dangerous aspect of Sayem?s conduct. In actuality, the
three of?cers almost certainly reviewed Devitt?s dash cam, or at a minimum rethought the
story in consideration of what they believed the dash cam would reasonably capture, and re?
created the narrative to present an improved version aimed at securing a felony for Sayem
and impunity for Devitt. However, it appears they failed to check Hibbs? dash cam to
determine whether there was audio of Devitt?s description of the events at the scene.

16) At one point, while Hibbs was still present at the scene, his dash cam records
interactions with several of?cers at the front hood of Devitt?s car. The of?cers talked to

Hibbs about two recent ??ghts? with suspects. During the conversation, one of the deputies

 

 

E,

32 Pitchess Motion Sayem

 





 

 

said, ?That was a good ?ght.? Laughing, the of?cer then said, got in another good one last
week.? At the time of this dialogue, Devitt appears to have been focused on typing into his
mobile computer. At one point, Hibbs?who had just unsuccessfully attempted to interview
Sayem?starts checking to see if his audio device was working and said he hopes ?this thing
is on. It says on. On is on, right?? Moments later, one of the of?cers said to Hibbs, ?You?re
recording this now?? Another of?cer then added, ?You?ve been recording this the 
Before that sentence was completed, another unidenti?ed of?cer standing near Hibbs appears
to ?ip off Hibbs? recording device, with his arm falling down to his side as he did this. After
this occurs, Hibbs did not turn back on his audio during the remainder of the time that Hibbs
is present at the scene.

17) In 2009, the OCDA prosecuted Hibbs unsuccessfully for felony assault/battery by
a public of?cer, and felony assault with a taser. After arguably justi?ably using a taser to
detain Ignacio Lares, Hibbs subsequently tasered Lares twice more after he was handcuffed
in the back of the vehicle. (Moxley, 0C Jury Doesn ?t Quite A equit an 0C Cop. Shocker! OC
Weekly (April 16, 2009).) The incident apparently occurred near the border of Stanton.
(Srisavdsi, Man in Taser Case Claims He Was Tortured while Handcu?ed, OC Register
(Aug. 1, 2009).) Hibbs was serving as a training of?cer at the time. (Moxley, 0C Deputy
Zapped in Excessive Force Indictment, OC Weekly (Sept. 19, 2008).) ?When Hibbs?
supervising sergeant arrived, Hibbs failed to notify him of the second use of the taser [while
handcuffed in the police vehicle]. . (Goffard, Assault Charges Against 0. C. Deputy in Use
of Taser, LA Times (Apr. 8, 2009).) Hibbs? of?cial department report of the incident also
omitted any mention of the taser attack. (Moxley, Excessive Force Controversy Continues
to Annoy 0C Deputy Union, OC Weekly (Jan. 1, 2010).) Additionally, none of the deputies
at the scene reported the use of the taser in the squad car during their initial write-ups of the
incident. (Tran, Orange County DA. Says There Is Evidence of Deputies? ?Code of Silence 
LA. Times (May 13, 2009).)

18) In DA Claustro?s closing argument, he placed before jurors a graphic of a blue

 

33 Pitcitess Motion Sayem

 



brick wall with a man putting his ?nger to his lips, stating: ?There is a blue wall of silence. . .I
hate to talk about a code of silence. We don?t want to believe it happens. But it does.? While
showing a picture of three monkeys, Claustro added, ?You have borne witness by watching
of?cers cover their eyes. See no evil. Speak no evil. . .There was no escape attempt. . .It was
a completely manufactured justi?cation.? Claustro added, ?Deputy Hibbs? conduct was
horrible. . .It was torture, an abuse of power and completely uncalled for.?

19) The case ended in a mistrial, and dismissal, with prosecutors blaming the result on
a ?code of silence? among testifying deputies. (Srisavdsi, Man in aser Case Claims He Was
Tortured while Handca?ed, OC Register (Aug. 1, 2009).) District Attorney Tony
Rackauckas said, ?the deputy sheriffs in this case were not truthful.? (Tran, Orange County
DA. Says There Is Evidence of Deputies ?Code of fleece, supra.)

I declare under penalty of perjury that the foregoing is true and correct except as to
those matters stated on information and belief. As to those matters, I believe them to be true
based on the aforementioned sources.

CONCLUSION

For the aforementioned reasons it is respectfully submitted that Defendant Sayem?s

921$?

SCOTT SANDERS
Assistant Public Defender

motion should be granted.

Date: October 17, 2018

 

34 Pitchess Motion Sayem

 

\ooqu?xm-h-mm?



 

 

EXHIBIT 

(Various Photos of the Incident)

35

 

Pitchess Motion Sayer}?

 






 

 

Sayem?s arm is being pushed back. Sayem?s palm is in a defensive position as the of?cer

pushes Sayem in the vehicle.

 

 

 

36 Pitchess Motion Sayem

 






 

 

The Of?cer reaches up and grabs Sayem?s left hand to pull him out of the vehicle.

unnuu?n

37

 

 

Pitchess Motion Sayem

 

 






 

 

Devitt begins pulling Sayem out of the vehicle.



38

 

 

Pitchess Motion Sayem

 






 

 

Devitt pulls at Sayem?s left hand causing Sayem?s left elbow to move upward.



39

 

 

Pitchess Motion Sayem

 






 

 

Devitt?s stance shows a pulling movement, with the of?cer shifting his body weight to obtain

leverage. Sayem is holding on to the steering Wheel with his right hand while being pulled from the

vehicle.

 

 

40 Pitchess Motion Sayem

 

 

p?A



 

 

Devitt steps out, places his hand on Sayem?s face. Sayem?s right hand remains on the steering

wheel.



 

 

41 Pitchess Motion Sayem

 

p?a



 

 

Devitt then pushes Sayem?s head to the right. Sayem?s right hand remains on the steering wheel.



42

 

 

Pitchess Motion Sayem

 






 

 

Devitt grabs Sayem under the chin. Sayem?s right hand remains on the steering wheel.


. Myan-

11'?1~ 
. 

t'r 

     

 



 

43 Pitchess Motion Sayem

 

h?d




 

 

First punch. Sayem?s right hand remains on the steering Wheel.

Sim

unn?n?n

 

 

44

Pitchess Motion Sayem

 

 

p?a




 

 

Second punch. Sayem?s right hand remains on the steering wheel.

3:22:23



45

 

 

Pitchess Motion Sayem

 

 





 

 

Third punch. Sayem?s right hand remains on the steering wheel.

Em

unnun?n

46

 

 

 

Pitchess Motion Sayem

 





 

 

Fourth punch. Sayem?s right hand remains on the steering wheel.

mm



47

 

 

Pitchess Motion Sayem

 

 



 

 

Fifth punch. Sayem?s right hand had released from the steering wheel.





48

 

 

Pitchess Motion Sayem

 

 





 

 

Ota quickly yanks Sayem downward.

Em



49

 

 

Pitchess Motion Sayem

 

 





11

 

 

Sixth punch.



munnu@u

 

 

50 Pitchess Motion Sayem

 

y?a

oomuampww

 

 

Sayem?s right arm falls to the back of Devitt?s neck. Devitt throws Sayem?s arm off of him.

22m



51

 

 

Pitchess Motion Sayem

 

 

p?a



 

 

Sayem hitting the ground.

Iii:



 

 

 

52 Pitchess Motion Sayem

 





 

 

Sayem being handcuffed.

nunnu@u

53

?v - 
,f?x-v 

7 



 

 

Pitchess Motion Sayem

 






 

 

After Sayem is arrested he is moved to Devitt?s police car.

mama-{em ?at.

54

 

 

Pitchess Motion Sayem

 






 

 

Hibbs arrives and begins to talk with Devitt at 

nunn?au

 

 

55

Pitchess Motion Sayem

 






 

 

 

Second conversation begins with Devitt telling Hibbs that he would charge Sayem with
felony PC 69 and not misdemeanor PC 148, because Sayem tried to bear hug him. Hibbs is
the of?cer furthest to the right.



 

56 Pitchess Motion Sayem

 

p?L

Devitt describing the incident to Hibbs. He sayslike, stands up, and
he. . then Devitt demonstrates what appears to be an offensive motion by Sayem?s right hand;

however, Sayem?s right hand was holding onto the steering wheel until he was punched to the point






 

 

of unconsciousness.




57

 

 

Pitchess Motion Sayem

 






 

 

After unsuccessfully attempting to interview Sayern, Hibbs starts checking to see if his audio
device was working and said he hopes ?this thing is on. It says on. On is on, right?? Moments
later, one of the of?cers says to Hibbs, ?You?re recording this now?? Another of?cer then quickly
states, ?You?ve been recording this the It appears that the of?cer directly to the left of

Hibbs then ?ips off Hibbs? audio.



null-IEH

 

 

58 Pitchess Motion Sayem

 






 

 

The arm on the deputy to the immediate left of Hibbs quickly moves downward toward his side

after apparently turning off Hibbs? audio. The audio remains off.

:1

Elana-tam

 

 

59

Pitchess Motion Sayem