Judge David Reed set the Paul Fullerton matter for preliminary hearing, as requested by Deputy District Attorney Kyle Hasapes, for July 21 following this week’s denial of an appeal of the trial court’s decision to deny a Pitchess motion to see police records.
Mr. Fullerton faces multiple felonies on accusations he sold marijuana out of his Woodland store, Lil Shop of Growers. There is also an enhancement for possession of a firearm during the commission of a felony and a charge of child abuse.
A raid was conducted February 29, 2016, following an extensive undercover criminal investigation by the Yolo Narcotic Enforcement Team, or YONET. The YONET team had received information that Mr. Fullerton was allegedly selling marijuana out of his Woodland, CA, business, and then arranged for an undercover YONET informant to purchase marijuana from Mr. Fullerton.
Mr. Fullerton told the Vanguard that, from the start, “They were overly aggressive pursuing this case.”
According to an affidavit previously acquired by the Vanguard, during the months of January and February Mr. Fullerton allegedly sold marijuana to an undercover YONET agent, but that information was sealed to “protect the identity of any confidential informant(s), undercover police officer,” etc.
The motion to seal the affidavit and quash the search warrant argued that the affidavit of the undercover officer contained “no particular information relating to the investigation of Mr. Fullerton other than a description of his home and business.”
The already lengthy case took another bizarre turn when Judge Timothy Fall at a May hearing denied the Pitchess motion, which included the sealed affidavit.
According to transcripts obtained by the Vanguard at the May 10 hearing, Judge Fall told defense attorney Joseph Tully, “I went through your paperwork, not the part that was filed under seal, of course, yet, but I did read through the rest of it.”
At this point, Mr. Tully told the judge he was prepared to submit on the pleadings.
Judge Fall then ruled, “The Court finds there is inadequate cause to go to an in-camera hearing on the… the Pitchess Motion in the Fullerton cases. And that is because even — as far as the unredacted portion goes, none of the officers are identified as having performed a specific act, except one who was mentioned in reference to a document.”
Judge Fall continued, “And without there being some notice of an act that is at issue , an officer did acts according to the report, type of thing, there’s absolutely no notice to anyone as to what is being sought, so – – or why it would be relevant.”
He said, “So the Pitchess Motion in the Fullerton cases, those are denied for inadequate basis to proceed.”
That material was contained in the portion of the motion filed under seal. Of course the reason the defense filed it under seal was to preserve their evidence from the prosecution, not to prevent the judge from reading the material.
Mr. Tully attempted to object, but Judge Fall shut him down saying that “you submitted the matter for decision.”
The Court explained that there was no procedural basis for stating an objection. That the step here is to take a writ and file an appeal.
In the writ, Mr. Tully argued that “(Judge) Timothy Fall, he did not read the unredacted declaration that was filed under seal, nor address the Application to Seal filed with the Pitchess Motion. Instead, he based his denial of the Pitchess Motion on only the redacted declaration and alleged a failure to provide an adequate basis to proceed.”
He argued, “This denial constitutes an abuse of discretion because the unread unredacted declaration contained the information necessary to find an adequate basis to proceed.”
Mr. Tully adds, “If Judge Fall had read the unredacted declaration, he would have found that officers are identified as having performed specifics acts that provide a basis to proceed.
“A trial court has inherent discretion to allow documents to be filed under seal in order to protect against revelation of privileged information,” Mr. Tully noted. However, on May 10, “Judge Fall did not address the Application to Seal and instead elect(ed) to ignore the unredacted Declaration of Counsel. Judge Fall, only considering the redacted Declaration, cited a lack of alleged specific behavior by a specific officer in choosing to deny Mr. Fullerton’s Pitchess motion.”
This week, however, the appellate court denied the writ, stating, “Given the urgency date specified, the petition for writ of mandate and request for immediate stay is denied because, inter alia, petitioner has failed to provide this court with an adequate record to review, i.e., the unredacted declaration filed under seal in respondent court, which the record suggests the court did in fact consider in ruling on the Pitchess motion.”
As Mr. Tully explained to the Vanguard, there is no way to file an appeal under seal through the mandatory electronic filing system. So filing the unredacted motion would have disclosed the motion to the prosecution, thus defeating the entire purpose of filing it under seal in the first place.
He told the Vanguard that he will keep fighting to get the Pitchess motion in.
The defense hoped to be able to guard information that they believe that they are entitled to in order to present a strong defense of the Mr. Fullerton and his wife.
Under California law, a Pitchess motion is a discovery request made by the defense to access personnel information about a law enforcement officer when the defense alleges that the officer either used excessive force or lied about information regarding the defendant’s arrest or investigation.
The motion does not give the defense access to the personnel file, but directs the judge to inspect it in camera and provide relevant information about its contents regarding incidents of use of force, allegations of excessive force, citizen complaints, and information gathered during the officer’s pre-employment background investigation.
The preliminary hearing is now set for July 21 in front of Judge David Reed.
—David M. Greenwald reporting