MOISES GALINDO, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CITY OF LOS ANGELES POLICE DEPARTMENT et al., Real Parties in Interest, 50 Cal. 4th 1

Opinion KENNARD, J. Charged by felony complaint with threatening and resisting an arresting officer in the performance of his duties (Pen. Code, §§ 422, 69), petitioner Moises Galindo brought a Pitchess motion (see Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]; Evid. Code, §§ 1043-1045) for disclosure of prior citizen complaints made against the arresting officer and four other officers involved in the incident. Pitchess motions are so named after this court’s 1974 decision in Pitchess v.

Superior Court, supra, 11 Cal.3d 531, which afforded criminal defendants a judicially created right to discovery of prior citizen complaints alleging misconduct by California peace officers. In 1978, the Legislature codified the right and set forth which officer records are subject to Pitchess discovery. (Pen. Code, §§ 832.7, 832.8; Evid.

Code, §§ 1043-1045.) As relevant here, these statutes permit a criminal defendant to “ ‘compel discovery’ of certain relevant information in the personnel files of police officers by making ‘general allegations which establish some cause for discovery’ of that information and by showing how it would support a defense to the charge against him.” (Warrick v.

Superior Court (2005) 35 CalAth 1011, 1018-1019 [29 Cal.Rptr.3d 2, 112 P.3d 2].) When the trial court, in exercising its discretion, grants a defendant’s Pitchess motion, it orders disclosure of the names, addresses, and telephone numbers of individuals who have in the past witnessed alleged officer misconduct or who have complained of misconduct by the officer named in the motion. (Warrick, at p. 1019; see, e.g., People v.

Prince (2007) 40 Cal.4th 1179, 1283 [57 Cal.Rptr.3d 543, 156 P.3d 1015].) When petitioner here moved for Pitchess discovery, no preliminary hearing had yet been held to determine whether there was probable cause to conclude that he had committed the charged offenses. The magistrate denied the motion by an order that did not preclude petitioner from renewing the motion after the preliminary hearing.

The magistrate gave two reasons for the denial: Pitchess discovery was as a matter of course not available for use at the preliminary hearing; and petitioner had not shown that Pitchess discovery would yield “something that would change the outcome” of the hearing. Petitioner unsuccessfully sought a writ of mandate first in the superior court, then in the Court of Appeal. We granted petitioner’s petition for review.

Although no statute prohibits a criminal defendant from filing a Pitchess motion before a preliminary hearing is held, neither does any statute expressly grant a right to obtain Pitchess discovery for use at the preliminary hearing. Accordingly, we hold that although a defendant may file a Pitchess motion before a preliminary hearing, the pendency of that motion will not necessarily or invariably constitute good cause for postponing the preliminary hearing over the prosecution’s objection.

The purpose of the preliminary hearing is merely “to establish whether there exists probable cause to believe that the defendant has committed a felony” (Pen. Code, § 866, subd. (b)), and “[b]oth the defendant and the people have the right to a preliminary examination at the earliest possible time . . .” (id., § 859b, 2d par.). Here, petitioner sought Pitchess discovery to obtain evidence for use at the preliminary hearing, and his attorney told the trial court that petitioner would be requesting a continuance of that hearing if the Pitchess discovery revealed potential defense witnesses.

Under these circumstances, as we explain below, the magistrate’s denial of the motion was not erroneous. When this case returns to the trial court, petitioner may, however, renew his Pitchess motion for the purpose of obtaining evidence relevant to issues at trial. I The police report contains these facts: On the evening of February 29, 2008, Los Angeles Police Department Officers “S. Flores” and “J. Smith” were patrolling on foot when they saw petitioner Moisés Galindo drinking alcohol in a public place, a municipal code violation. At their approach, petitioner fled into an apartment.

Soon a crowd of petitioner’s angry relatives and neighbors gathered outside the apartment. After three more officers arrived, the officers obtained permission from petitioner’s father to enter the apartment, where they arrested petitioner. Also arrested was petitioner’s brother, whose presence in the apartment complex was prohibited by a gang injunction. As the two brothers were being taken to a police car, they made death threats against the officers escorting them. The brothers were placed in the backseat of the patrol car for transport to the police station.

Petitioner sat between his brother and Officer Flores. During the trip, both brothers “became extremely belliger[e]nt,” and petitioner told Officer Flores, “I am going to . . . kill you and your family.” Then petitioner, who was apparently handcuffed, struck his head against Officer Flores’s head. The complaint charged petitioner with resisting a police officer in the performance of his duties. (Pen.

Code, § 69.) But on March 14, 2008, an amended felony complaint added a charge of making threats to kill or cause great bodily injury to Officer Flores (id., § 422), a serious felony (id., § 1192.7, subd. (c)), and alleged that the offense was committed to benefit a criminal street gang (id., § 186.22, subd. (b)(1)(B)). Petitioner was arraigned on March 26, 2008, and a preliminary hearing was set for April 18, but on that date defendant waived time.

On or after April 24, before a preliminary hearing was held, petitioner filed a motion seeking Pitchess discovery as to the five officers who had been present at his arrest. Petitioner’s Pitchess motion sought disclosure by the Los Angeles Police Department of the names and contact information of “all persons” who had witnessed or complained of prior incidents involving excessive force, violence, false arrest, fabrication or dishonesty, and any departmental discipline imposed on Officer Flores, Smith, or any of the other three officers.

Defense counsel’s declaration in support of the motion denied that petitioner had threatened Officer Flores and accused the officer of assaulting petitioner both inside and outside the patrol car on the way to the police station. On May 16, 2008, the magistrate held a hearing on petitioner’s Pitchess motion. At the hearing, petitioner’s attorney told the magistrate that if Pitchess discovery revealed potential witnesses, petitioner would seek postponement of the preliminary hearing, which had been set for June 2.

Without precluding petitioner from renewing the motion at a later time, the magistrate denied the Pitchess motion, giving two reasons. First, the magistrate concluded that Pitchess discovery was not normally available before a preliminary hearing, because the discovery sought would be pertinent only to issues at trial, where the prosecution had to prove petitioner’s guilt of the charged offenses.

Second, the magistrate concluded that even if Pitchess discovery were permissible before the preliminary hearing, petitioner had failed to establish that the discovery sought would affect the crucial issue at the preliminary hearing of whether there was probable cause to hold petitioner to answer on the charges against him.

In the magistrate’s words: “If you make a Pitchess motion pre-prelim in addition to the ordinary Pitchess showing, you have to show ... a reasonable chance you are going to discover something that will change the outcome of the [preliminary] hearing,” such as evidence negating required elements of the offense, which would preclude finding probable cause of petitioner’s guilt. (See Pen. Code, § 866, subd. (a).) The date for petitioner’s preliminary hearing was postponed, apparently to permit preparation of a petition for a writ of mandate challenging the magistrate’s ruling on petitioner’s Pitchess motion.

On June 17, 2008, petitioner filed a mandate petition in the superior court, seeking an order directing the City of Los Angeles (City) to disclose the Pitchess information requested. When the superior court denied relief, petitioner sought a writ of mandate in the Court of Appeal. That court stayed the preliminary hearing and asked both the District Attorney of the County of Los Angeles (District Attorney) and the City to brief the issue of whether a criminal defendant has a right to obtain Pitchess discovery before a preliminary hearing is held.

After consideration of the parties’ briefs, the Court of Appeal summarily denied relief and vacated the stay. Petitioner then filed in this court a petition for review and a request to stay the proceedings, arguing that without the fruits of Pitchess discovery he could not receive effective assistance of counsel at the preliminary hearing, which he described as a “critical stage” in a criminal proceeding.

We stayed the preliminary hearing, granted the petition for review, vacated the Court of Appeal’s order denying the petition for a writ of mandate, and transferred the matter to the Court of Appeal, directing it to order the superior court to show cause why the requested relief should not be granted. After briefing and oral argument, the Court of Appeal issued its opinion rejecting “petitioner’s contention that Pitchess discovery is a precondition for effective assistance of counsel” at a preliminary hearing. n A defendant who is arrested and arraigned on a felony complaint is entitled to a preliminary hearing.

Both the defendant and the prosecution possess the right to have the hearing occur “within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later.” (Pen. Code, § 859b, 2d par.) The purpose of the preliminary hearing is to determine whether there is probable cause to conclude that the defendant has committed the offense charged. (People v. Wallace (2004) 33 Cal.4th 738, 749 [16 Cal.Rptr.3d 96, 93 P.3d 1037]; Pen.

Code, § 872.) Probable cause exists if a person “ ‘ “ ‘of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion’ ” ’ ” that the defendant committed the crime. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 251 [127 Cal.Rptr.2d 177, 57 P.3d 654]; see People v.

Slaughter (1984) 35 Cal.3d 629, 636 [200 Cal.Rptr. 448, 677 P.2d 854].) Petitioner here argues that his right to the effective assistance of counsel as guaranteed by the Sixth Amendment to the federal Constitution will be impaired if he cannot obtain, for use at his preliminary hearing, Pitchess discovery of prior citizen complaints against all five officers present at his arrest. He asserts that because “all the witnesses are police officers,” Pitchess discovery is necessary to enable his counsel to impeach the officers’ credibility.

Particularly, petitioner seeks to undermine the credibility of Officer Flores, who prepared the police report and whom petitioner allegedly assaulted and threatened with death. We agree with petitioner that the right to effective assistance of counsel, as guaranteed by the Sixth Amendment to the federal Constitution, applies not only to trial but also to the preliminary hearing, which the high court has described as a “critical stage” in a criminal proceeding (Coleman v. Alabama (1970) 399 U.S. 1, 9-10 [26 L.Ed.2d 387, 90 S.Ct. 1999]; see People v.

Cudjo (1993) 6 Cal.4th 585, 615 [25 Cal.Rptr.2d 390, 863 P.2d 635]). But we disagree that this right is violated if defense counsel lacks Pitchess discovery for use at the preliminary hearing. Our conclusion rests not only on the nature of the preliminary hearing itself but also on the type of evidence obtained through Pitchess motions, as we explain below. At a preliminary hearing, the defendant may offer evidence that is “reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony” of the arresting officers. (Pen.

Code, § 866, subd. (a).) Petitioner here contends that “Pitchess witnesses could testify that the arresting officers had used excessive force” against them and that the officers “then lied about” doing so. Thus, petitioner argues, the testimony of witnesses obtained through Pitchess discovery could support a claim by him of self-defense or the defense of others to the charge against him of resisting an officer (Pen. Code, § 69), or such testimony could negate an element of that crime.

The availability of such witnesses to testify at the preliminary hearing, petitioner claims, would make it more likely that the magistrate would exercise discretion (id., § 866, subd. (b)) to admit their testimony at the hearing. But the magistrate could also refuse to admit the testimony of these witnesses if strong and credible evidence of defendant’s guilt exists apart from the testimony provided by the arresting officers. (See Evid. Code, § 352; see also People v.

Slaughter, supra, 35 Cal.3d at p. 637.) When there is such evidence, “the magistrate may reasonably assume the possibility of [the defendant’s] guilt” and find probable cause without resolving “all conflicts in the evidence.” (Slaughter, at p. 637.) In this case, various relatives and neighbors of petitioner were present at his arrest and witnessed some, if not all, of the officers’ conduct. Petitioner knew the identity of these eyewitnesses to his arrest.

Through Pitchess discovery, petitioner sought to learn the identity of individuals who in the past had filed misconduct complaints, alleging that these same officers used excessive force or were untruthful. It is highly unlikely that the testimony of Pitchess witnesses at the preliminary hearing would defeat a finding that there was probable cause to believe that the defendant “committed a felony and should be held for trial.” (Correa v. Superior Court (2002) 27 Cal.4th 444, 452 [117 Cal.Rptr.2d 27, 40 P.3d 739]; see Pen.

Code, § 872, subd. (a).) Given this low standard of proof governing preliminary hearings, we conclude that here the denial of petitioner’s Pitchess discovery motion, made before the holding of a preliminary hearing, would not prevent defense counsel from providing effective representation at the preliminary hearing.

Ill The parties dispute the impact in this case of the voters’ June 1990 passage of Proposition 115, the Crime Victims Justice Reform Act, a broad anticrime initiative measure that, as relevant here, (1) adopted a new scheme of reciprocal discovery in criminal cases; (2) limited criminal discovery to that scheme or to “other express statutory provisions” for discovery (Pen. Code, § 1054, subd. (e)); and (3) acknowledged the people’s right in a criminal case to due process of law and a speedy trial.

Our focus is on the measure’s second and third components in determining, first, whether Pitchess motions may be made before a preliminary hearing has been held, and second, whether the preliminary hearing must be delayed until evidence obtained through Pitchess discovery can be used at the preliminary hearing. The answer to the first question is “yes,” and the answer to the second question is “no,” as explained below.

The City and the District Attorney argue that the use of Pitchess discovery at a preliminary hearing would be inconsistent with both the intent underlying Proposition 115 and the express statutory changes it made. Petitioner, on the other hand, argues that Proposition 115 did not amend the Pitchess statutory discovery scheme, thus leaving intact the preexisting practice of allowing Pitchess discovery motions to be made before the holding of a preliminary hearing and allowing testimony or evidence obtained through Pitchess discovery to be used at the hearing.

The arguments of both sides have some merit, as we explain below. As relevant here, Proposition 115 amended the California Constitution (Cal. Const., art. I, § 30, subd. (c)) and enacted a statutory scheme to provide in criminal cases for reciprocal discovery between the prosecution and the defense (see Izazaga v. Superior Court (1991) 54 Cal.3d 356, 364-365 [285 Cal.Rptr. 231, 815 P.2d 304]). We discuss first the statutory and then the constitutional changes, and their effect on the issue in this case. Proposition 115 added

chapter 10 to

part 2, title 6 of the Penal Code. That

chapter begins with

section 1054, which defines the purpose of pretrial discovery, and limits it to aiding the trial process. That statute’s subdivision (

e) states that “no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.” (Pen. Code, § 1054, subd. (e), italics added.) Predating this new statutory provision by 12 years are the Pitchess discovery statutes, which therefore are within subdivision (e)’s category of “other express statutory provisions” that survived the voters’ June 1990 passage of Proposition 115. The Pitchess discovery statutes (Evid. Code, §§ 1043-1045; Pen.

Code, §§ 832.7-832.8) do not restrict the use of evidence obtained through such discovery to any particular proceeding. As there is no legislative prohibition against the filing of a Pitchess discovery motion before a preliminary hearing is held, we conclude that such a filing is permissible. That conclusion, however, does not mean that over the prosecution’s objection the defense is invariably entitled to have the preliminary hearing postponed until the defense has, through Pitchess discovery, obtained evidence and witnesses for presentation at the prehminary hearing.

In this context, repeated postponements of the preliminary hearing would, as discussed below, defeat a goal of Proposition 115: to reduce delays in criminal cases. Before the voters’ June 1990 passage of Proposition 115, courts would “routinely” and repeatedly grant continuances to accommodate a criminal defendant’s request for “pretrial discovery to prepare for a preliminary examination.” (Pipes & Gagen, Cal. Criminal Discovery (4th ed. 2007) Preliminary Examinations, § 2:12, pp. 329-330; see, e.g., Saulter v.

Municipal Court (1977) 75 Cal.App.3d 231, 247 [142 Cal.Rptr. 266].) In their ballot argument, the proponents of Proposition 115 stressed their goal of reducing unnecessary delays in criminal proceedings.

According to the measure’s proponents, criminal “defense lawyers love delays” because it is in their client’s interest when “[witnesses die or their memories fade,” but Proposition 115 would end the “useless delays that frustrate criminal justice in California.” (Ballot Pamp., Primary Elec. (June 5, 1990) argument in favor of Prop. 115, p. 34.) The voters’ passage of Proposition 115 codified that goal in Penal Code

section 1054, which stresses avoidance of “undue delay” in criminal proceedings. (Pen. Code, § 1054, subd. (d).) That goal would be frustrated if we were to uphold the pre-Proposition 115 practice of routinely and repeatedly granting postponements of a preliminary hearing to accommodate a defendant’s efforts to obtain Pitchess discovery for use at the preliminary hearing. Support for that conclusion is also found in Proposition 115’s amendment of our state Constitution by adding a new

section declaring that “[i]n a criminal case, the people of the State of California have the right to due process of law and to a speedy and public trial.” (Cal. Const., art. I, § 29.) By so amending our state Constitution, the voters expressly acknowledged that not just the criminal defendant but also the people, represented in a criminal case by the prosecutor, are constitutionally entitled to due process and to a speedy trial. The people’s constitutional right to a speedy trial would be violated if, as petitioner urges us to do, we were to uphold the preProposition 115 practice in question.

Below, we provide a glimpse of the delays inherent in obtaining and using Pitchess discovery. Turning Pitchess discovery into evidence admissible at trial is not a rapid process.

To obtain Pitchess discovery of a particular peace officer’s personnel records, a criminal defendant must provide not only “a written motion and notice to the governmental agency which has custody of the records” but also a “ ‘description of the type of records or information sought,’ ” as well as affidavits “ ‘showing good cause for the discovery or disclosure’ and the defendant must set forth the materiality of the information sought to the pending litigation. (City of Santa Cruz v.

Municipal Court (1989) 49 Cal.3d 74, 82 [260 Cal.Rptr. 520, 776 P.2d 222].) If the defendant shows good cause, the trial court directs the custodian of the records to produce all potentially relevant documents (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 [114 Cal.Rptr.2d 482, 36 P.3d 21]) for its examination in chambers, that is, in a nonpublic proceeding designed to protect the officer’s privacy (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038-1039 [130 Cal.Rptr.2d 672, 63 P.3d 228]).

If, after reviewing the officer’s personnel records, the trial court concludes that they do not contain information that is statutorily excluded from disclosure (see Evid. Code, § 1045, subd. (b)), then disclosure is called for. (Alford v.

Superior Court, supra, 29 Cal.4th at p. 1039.) But the information disclosed to the defense will be limited to names and contact information for persons who have on prior occasions either witnessed or filed complaints of misconduct by the officer who is the subject of the Pitchess discovery motion. (Ibid.) The defense then needs time to locate, interview, and obtain the in-court presence of those individuals. Long before the voters’ June 1990 passage of Proposition 115, Penal Code

section 859b provided: “Both the defendant and the people have the right to a preliminary examination at the earliest possible time, and unless both waive that right or good cause for a continuance is found,” the “preliminary examination shall be held within 10 court days of the date” on which the defendant “is arraigned or pleads.” (Italics added.) To postpone a preliminary hearing over the prosecutor’s objection beyond the statutory 10-court-day period for the sole purpose of allowing a defense motion for Pitchess discovery, which may or may not yield a witness whose testimony will be relevant to the issues at the preliminary hearing, would deny the People their state constitutional rights to procedural due process and to a speedy trial, in addition to, as discussed earlier, their statutory right under Penal Code

section 859b to a prompt preliminary hearing. Here, the magistrate heard petitioner’s Pitchess discovery motion on May 16, 2008. At that time, petitioner’s preliminary hearing was scheduled for June 2. Such a short time, as the magistrate noted at the hearing on the Pitchess motion, would not enable defense counsel “to look into” any Pitchess disclosures received before the holding of the preliminary hearing. And defense counsel specifically informed the magistrate that if Pitchess discovery revealed potential witnesses, petitioner would seek postponement of the preliminary hearing.

For the reasons discussed above, such delay would have been contrary to one of Proposition 115’s goals: to avoid “undue delay” in criminal proceedings. (See p. 11, ante.) After the magistrate concluded that petitioner’s purpose in bringing the Pitchess motion was to develop evidence for use at the preliminary hearing, that this objective could be realized only by postponing the preliminary hearing, and that the possibility of discovering evidence favorable to the defense did not justify delaying the preliminary hearing, the magistrate denied petitioner’s Pitchess motion.

We hold that this ruling was not an abuse of the magistrate’s discretion. The ruling does not preclude petitioner from bringing a renewed Pitchess motion, when this matter returns to the magistrate, for the purpose of obtaining evidence for use at trial. Although we agree with the District Attorney, and with the Court of Appeal, that the magistrate did not err in denying the Pitchess motion, we do not agree with the District Attorney that the amendment of Penal Code

section 866 by Proposition 115 has impliedly repealed what was, until its passage, an informal practice of granting Pitchess discovery motions before the holding of a preliminary hearing and permitting the fruits of such discovery to be used at the preliminary hearing. Although one statute may impliedly repeal another statute if the two statutes are entirely irreconcilable and incapable of operating concurrently (Western Oil & Gas Assn. v.

Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419 [261 Cal.Rptr. 384, 777 P.2d 157]), no statute has ever authorized Pitchess discovery for use at a preliminary hearing, and thus the rules concerning implied repeals are not helpful in this context. Disposition Our previously ordered stay is vacated, and the Court of Appeal’s judgment denying the petition for writ of mandate is affirmed. George, C. J., Baxter, 1, Chin, J., Moreno, J., and Corrigan, J., concurred.