Defense Accuses Deputy DA Ryan Couzens of Relying On Confidential Juvenile Records For Gang Charges

Judge Stephen Mock allowed gang charges to stand for Jose Duran, despite the prosecutor’s violation of juvenile confidentiality provisions and the testimony of a detective about a juvenile case that should not have been permitted.

On April 19, 2010, Officer Mark Marquez of the West Sacramento Police Department responded to a report of an assault and robbery.  The victim was contacted in a parking lot and told the officer that three people approached him while he was in his car, grabbed his iPod and punched him through the open window.

The victim told Officer Marquez that one of the subjects then demanded his car keys and one demanded his wallet.

Jose Duran is one of three defendants in the case facing serious prison time on fifteen criminal counts, including conspiracy to commit a felony, attempted carjacking, robbery, battery, dissuading a witness and criminal street gang activity with enhancements for great bodily injury and gang activity.

A preliminary hearing would hold the defendants, Mr. Duran along with Salvador Vazquez and Joseph Sisneros, to the counts in this case.

At issue at this time was the motion, brought forth by Public Defender Charles Butler, to set aside two of the counts along with the Gang Enhancements.

During the preliminary hearing, Detective John Sample testified as a gang expert. Writes Mr. Butler, “Over the objection of defense counsel, Detective Sample testified about a police investigation for a crime involving Mr. Duran that occurred on March 19, 2006, when Mr. Duran was fourteen years old.”

He continued, “Detective Sample did not participate in the 2006 investigation, but reviewed police reports about the case in the Versadex department  reporting system.”

“Over renewed objection, Detective Sample testified about the information contained in the police report, including the weapons involved, the presence of ‘several other codefendants who were Norteno gang members,’ the location of the crime, the details of the crime, some ‘graffiti at the residence,’ the color of Mr. Duran’s clothing, Mr. Duran’s statements during the investigation, and the ultimate disposition of the case.”

The key dispute is whether the gang expert relied upon inadmissible testimony, which relied almost exclusively on confidential juvenile records, as the basis of the opinion that Mr. Duran is a gang member.

Mr. Butler argued, “Welfare and Institutions Code section 827 states that a juvenile case file may be inspected only by a specific list of individuals. The list includes police officers, but it does not include the general public; the preliminary hearing was conducted in open court and the officer testified regarding the content of the police reports from Mr. Duran’s juvenile case file.”

According to California Welfare and Institutions Code section 300.2, “The provisions of this chapter ensuring the confidentiality of proceedings and records are intended to protect the privacy rights of the child.”

Under California law, juvenile case files are only “released to the public pursuant to an order by the juvenile court after a petition has been filed and interested parties have been afford[ed] an opportunity to file and object.”

Mr. Butler fundamentally argued, “Because the police reports in the file are confidential, it was improper for an officer to testify to their content in open court.”

He argues, “California case law is clear that a testifying officer is not entitled ‘to relate the contents of [a different investigating officer’s] investigative report because [the testifying officer] was not involved in the investigation of the case and had no personal knowledge of the circumstances under which the [investigating officer’s] report was prepared.’ “

Mr. Butler continued that hearsay evidence was admitted as expert testimony, but the contents of the police report goes well beyond this kind of hearsay that courts have found admissible.

Instead he argues, “In People v. Duran, for example, the expert witness ‘personally knew [the defendant], had seen [the defendant’s] records and rap sheet, and had reviewed the certified minute order. [The officer’s] expert testimony was based upon his field of experience, his conversations with the defendant], and the information contained in the minute order.’ “

Mr. Butler argues, “Without this inadmissible testimony, the evidence is insufficient to support a finding of probable cause.”

Mr. Couzens argued that Detective Sample was not going into confidential files, but rather he reported on what he knows, which is allowable.

In his opposition, Mr. Couzens argued, “Section 827 is a simple rule of 20 discovery that prevents review of certain material in a juvenile file by outside persons.”

Instead he argues, “Case law actually says that 827 does not preclude testimony regarding juvenile matters.”

In support he cites People v. Espinoza, which he claims “held that nothing about 827 prohibited a witness from testifying because ‘testimony’ was neither the ‘case file’ or ‘information relating to the content of the file,’ e.g., ‘the juvenile file contains [x].’ “

“Police reports are just police reports, they are not integrally a part of the juvenile file, they are just a person’s observations, which are not cloaked in privilege just because they go into the juvenile file,” Mr. Couzens added.

According to Mr. Couzens, then, officers were not allowed to delve into a juvenile file for information about a juvenile case, however, they are allowed to testify about their own knowledge and they are allowed to refer to police reports.

In the course of their arguments, Mr. Couzens continued to reference material from Mr. Duran’s juvenile file.

When Mr. Butler objected that Mr. Couzens was violating 827.1 of the code, Mr. Couzens responded mockingly that, “yes I technically committed a violation of 827.1 in my argument,” and requested that Mr. Butler or the court report him to the Attorney General for so doing.

Mr. Butler responded that Mr. Couzens has repeatedly violated Welfare and Institutions Code (WIC) Section 827.1, a juvenile’s right to confidentiality and that the “most appalling part” is that “he just doesn’t care.”

He continued, that you “cannot get in the back door, what you can’t get in the front door.”

Judge Mock, listening to this interchange, said that trying to fit juvenile records and rules into a public court is an impossible task.

He said it was clear that testimony came from police reports regarding a 2006 robbery.

He asked, are police reports themselves confidential?

WIC 827(E) does not exclude police reports, Judge Mock said.  He cited a Supreme Court case that ruled that police reports are covered by WIC 827.

Judge Mock said that there is no evidence that would permit the discovery of this information under present California Law.  He therefore ruled that Judge Fall erred in allowing Detective Sample to testify.

Judge Mock further ruled that the Espinoza ruling does not help the prosecution in this context.  In Espinoza, the officer relied on police reports, but the officer testifying was in fact the investigator in the case that wrote the police report in the first place and, therefore, the police report was simply a means by which to refresh his personal knowledge about a crime.

In this case, Detective Sample had to speak to another officer and read another officer’s report.

Nevertheless, the standard for a preliminary hearing is probable cause.  “A court must set aside an information upon defendant’s motion if the defendant has been committed without reasonable or probable cause.”

That means that any assertion or inference that a charge had validity is sufficient to uphold a charge and compel a defendant to answer to the charge.

Judge Mock ruled that while Detective Sample should not have been allowed to testify on confidential juvenile matters that he had no direct personal knowledge of, there was nothing that would preclude Detective Sample from saying that Mr. Duran was a gang member.

This sets up an interesting scenario that, while it is true that Detective Sample can state his opinion as an expert that Mr. Duran is a gang member, he would not be able to provide the basis for that opinion.

That means, in an actual trial, the defense could ask him the basis for his opinion and he would have no answer for that question, rendering the opinion itself somewhat questionable.

—David M. Greenwald reporting

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