Full opinion text
Opinion BIRD, C. J. This is an automatic appeal from a judgment imposing a sentence of death under the 1977 death penalty legislation. (See Pen. Code, § 1239, subd. (b), former Pen. Code, § 190 et seq., repealed by initiative measure approved Nov. 7, 1978.) Of the numerous claims made on appeal, this court need consider only one—that the trial court erred in summarily denying appellant’s discovery motion. Decisions of this court, recently codified by the Legislature, require that this contention be sustained and that appellant’s convictions be reversed. I. A. Procedural History Appellant was accused by information of murdering Scott F. and Ralph C. on July 26, 1976, and Carl C., Jr. (Carl Jr.), on October 22, 1978. The prosecution also alleged a multiple murder and a felony-murder (lewd or lascivious conduct) special circumstance in connection with the 1978 murder count. (Former § 190.2, subds. (c)(3)(iv) and (c)(5).) Prior to trial, appellant moved to suppress his confessions as well as certain other evidence relating to the crimes. The motion was premised both on an asserted lack of probable cause for appellant’s arrest and on the involuntary nature of his confessions. This motion was denied. Thereafter, appellant waived his right to a jury trial on the question of guilt, and the case was transferred to a different judge for trial. In an in limine motion under Evidence Code section 405, appellant renewed his motion to suppress the confession on the ground of involuntariness. Although live testimony was presented, the motion was submitted primarily on the transcripts of the pretrial suppression motion and the preliminary examination. This motion was denied. A trial on the merits was then had based on the evidence presented at the hearing on the in limine motion. After additional testimony from the defense was presented, the court found appellant guilty of (1) first degree murder as to the Carl Jr. and Ralph C. killings and (2) second degree murder as to the Scott F. homicide. The court also found the multiple murder special circumstance allegation true and the felony-murder special circumstance allegation not true. Appellant waived his right to a jury trial on the question of penalty. At appellant’s request and because of disagreements between appellant and his counsel, counsel was relieved. A second lawyer was appointed, but was later permitted to withdraw on his own motion. The penalty phase proceedings were eventually conducted, over appellant’s objection, without the presence of an attorney for the defense. No additional evidence was presented. Thereafter, the court imposed a judgment of death for the 1978 Carl Jr. murder. Appellant was sentenced to prison for life and for the term prescribed by law for the 1976 Scott F. and Ralph C. murders, respectively. B. The Disappearance of Carl Jr. and the Arrest About 8 p.m. on Sunday, October 22, 1978, the parents of seven-year-old Carl Jr. called the South Gate Police Department to report that their son had been missing since about 6 o’clock that evening. The police quickly began searching for the boy but were unable to locate him. Detective William Sims of the South Gate Police Department was assigned to investigate the disappearance. In the course of his investigation, Sims contacted one Joan Julian, a psychic. Julian helped a police artist prepare a sketch of a person whom she visualized as having been with Carl Jr. at the time of his disappearance. On Friday, October 27, 1978, Detective Sims went to the missing boy’s parents’ house and showed them the sketch. They said it resembled “Butch,” a name commonly used for appellant. They told Sims that Carl Sr. (the missing boy’s father) occasionally repaired cars for appellant and that appellant had dropped off his Volkswagen for repair about 11 p.m. on the night their son disappeared. Having no “good information” with regard to Carl Jr.’s disappearance and wanting to check out all possible leads, Detective Sims decided to talk with appellant “as a witness.” Sims and his partner Detective Louis Gluhak drove to appellant’s apartment, which was located about one and one-half miles from Carl Jr. ’s home. Sims knocked on the door, and appellant answered. The officers identified themselves and explained that they were investigating the disappearance of Carl Jr. Appellant invited them in. When the officers requested identification, appellant produced his driver’s license. At some point, appellant said, “I knew you were coming sooner or later.” Stating that the officers were “going to find out anyway,” appellant indicated he had previously been in Atascadero State Hospital because he “went into a fit of rage and beat the shit out of a nine-year-old boy” in Huntington Park. Apparently, the officers did not inquire further into this topic. Detective Sims asked appellant if he “had seen anything unusual in the area of [Carl Jr.’s home] the night he was dropping off his vehicle for Mr. [C.] to repair.” Appellant said no. While talking to appellant, the officers noticed on the walls and shelves “literally hundreds” of photographs of clothed and partially clad young boys. They also saw numerous “magazine type” pornographic books on the floor and the furniture. The officers testified these items were plainly visible from where they sat in the living room. They denied searching the apartment during this visit. The officers then departed. Although appellant had told the officers he was going to purchase the automobile part that Carl Sr. needed to repair his Volkswagen, he remained behind in the apartment. The officers drove back to Carl Jr.’s residence and spoke again with his parents, inquiring primarily about appellant. About 15 minutes later, appellant arrived with the part for the Volkswagen. He delivered it to Carl Sr., who said he would fix the car. As appellant started walking back toward his Plymouth, the officers followed. When appellant and the officers arrived at the Plymouth, Sims asked him to explain what he had seen when he dropped off the Volkswagen on the night of Carl Jr.’s disappearance. Appellant replied, “Oh, yeah. I remember now.” He then related that about 6 p.m. on Sunday he had gone to a restaurant located near the C.’s home. The line was too long, so he decided to stop by the house to talk to Carl Sr. about working on the car. When appellant got to the back door of the house, he met Carl Jr. and asked him if he wanted to have a Coke. Appellant then took the boy to a restaurant about three or four blocks away and bought him a soft drink. Appellant indicated that the last time he saw Carl Jr., the boy was walking down the street toward his home. He denied that he had harmed the boy. After appellant made these remarks, Detective Sims arrested him for “investigation of 207,” or “suspicion of kidnaping.” Appellant was handcuffed and driven to the South Gate City jail. C. The Interrogations The record contains sharply conflicting versions of what occurred between appellant’s arrival at the South Gate City jail and his confessions some five hours later. According to the officers involved, appellant was driven to the jail by Detectives Sims and Gluhak immediately after the arrest. He was placed in an eight-by-twelve-foot interrogation room where he was joined by the two officers. At approximately 5:15 p.m., appellant was advised of and voluntarily waived his constitutional rights. (See Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 1074].) He essentially reiterated what he had told the officers just prior to his arrest. Appellant returned to his cell. Thereafter, Sims directed two other officers—Detectives Lloyd Carter and Dennis Greene—to make some inquiries of people living in appellant’s neighborhood. These inquiries did not produce any new information. The officers did not search appellant’s home or his Plymouth at that time. At some point, Sims and Gluhak informed Carter that appellant “was not giving any information about the case.” They requested Carter to assist them in the interrogation. About 10 p.m., after Carter and Greene had returned to the jail, appellant was brought into the interrogation room for a second time. Appellant and the four plainclothes officers (Sims, Gluhak, Carter, and Greene) were present. To “explain [Carter and Greene’s] presence,” Carter told appellant that he (Carter) was “the boss” or “the boss man” and that “what [he] said went.” Sims again advised appellant of his Miranda rights, and appellant again waived them. Carter conducted the subsequent interrogation. Initially, appellant said he would not speak with Carter because he thought the interrogation room might be “bugged.” Appellant asked Carter to have the other officers leave the room, and he requested that Carter prove there were no hidden tape recorders or listening devices. The three officers left, and Carter and appellant inspected the room. They found nothing. Appellant also wanted to know whether Carter was going to take notes of the interrogation. Carter indicated he would do what appellant desired, and appellant responded that he did not want any notes taken. The other three officers then returned to the interrogation room, and appellant proceeded to confess to killing Carl Jr. In addition, when asked whether he was responsible for “other such incidents,” he confessed to killing two other youths in Bell Gardens in 1976. The interrogation session ended about 12:30 a.m. Thereafter, while waiting to take the officers to Carl Jr.’s body, appellant agreed to repeat his confessions and to permit Carter to take notes. At no point during the interrogations did appellant request a lawyer, nor did the officers make any express or implied promises or threats during the second interrogation. Later that night, according to the South Gate officer who transported appellant back to the jail from the area where Carl Jr.’s body was recovered, appellant remarked that Detective Carter had been “a very wonderful person” to him. Appellant further stated that the South Gate officers “had been very, very nice to him, and he couldn’t understand how [they] could be so nice to him since he had done such a terrible thing.” The following afternoon, appellant told officers from Bell Gardens that he was being treated “fine.” He also “made some comment about his admiration for Detective Carter.” The defense version of these events was quite different. According to appellant, there were four separate interrogation sessions, none of them preceded by Miranda warnings. The first two interrogations were conducted by Detectives Sims and Gluhak. At the first session, appellant repeated the story he had told the officers prior to his arrest. (See ante, fn. 6.) At the second, Sims showed appellant some boys’ clothing and asked why it had been in appellant’s apartment. Appellant denied that the clothing belonged to the missing boy, but Sims appeared to disbelieve him. Appellant then asked about the delay in setting up the lie detector test. Sims said he was not going to give the test, because he had been informed by the Huntington Park police that appellant was a “sicko.” Appellant replied that he still wanted to go home. Sims became angry and told appellant he was under arrest for kidnaping. Appellant was then taken to a small one-person jail cell. Some time thereafter, appellant was brought to the interrogation room for a third time. Detectives Sims, Gluhak, Carter, and Greene were there. Carter stated that he was the “boss man” and that he was going to get some answers. Appellant repeated the story he had told Sims and Gluhak. Carter was not satisfied with appellant’s answers. Carter then made reference to Detective Greene, a large, muscular officer who was sitting on the floor at the interrogation room door, flexing his muscles. Carter noted that Greene was a “pretty big guy” and asked appellant if he thought he could beat Greene in a fight. Appellant said no. Carter indicated that Greene knew how to fight and how to get answers. Carter directed appellant’s attention to a portion of the interrogation room wall where the plaster had been broken out. This four- or five-inch wide depression or “hole” was located to appellant’s right, about shoulder level as he sat at the table. Carter asked appellant how he thought the hole had been created. Appellant understood that Carter was “either planning on enlarging it or making another one similar with [appellant’s] head.” Appellant changed the subject. Appellant asked Carter why he had not been given his rights. Carter said that the police had “intentionally” done a number of things wrong. Carter indicated that he knew appellant was mentally ill and that he could help him return to Atascadero State Hospital if he cooperated. Appellant said he had cooperated when he agreed to take the polygraph test. The officers then directed appellant to stand up, pull up his shirt, and drop his pants to his knees. One of the officers stated that they had found some pictures, and “were just comparing what they could see against the pictures.” Appellant complied. Appellant said he wanted to talk with a lawyer, but Carter became angry and asked appellant whether he wanted to talk or fight. Carter again asked appellant how he thought the hole in the wall had been created. Appellant began to cry. Carter again said he would have appellant returned to Atascadero if he cooperated. Appellant asked permission to talk with Linda B., an acquaintance who was also a reserve deputy sheriff and lived nearby. Carter agreed, and appellant was allowed to make two telephone calls. Shortly after completing the telephone calls, appellant was brought to the interrogation room for the fourth time. The four officers were present. Appellant asked Sims where Linda B. was, and Sims indicated she was out front. Appellant said he wanted to talk with her, but Sims refused, saying appellant should have talked with her on the telephone. Detective Carter then began intensive questioning about the kidnaping. Appellant was afraid of the four officers in the room, especially Greene. He asked to speak to Carter alone, since he “figured if [he] was talking alone, [he] was less likely to get hurt.” All the officers except Carter then left the room. Appellant asked Carter if the room was “bugged.” Carter said no and offered to help check it out. Appellant declined, saying it was not possible to “check it out physically that way.” Appellant told Carter that “the reason [he] wanted to talk to him alone, other than being afraid of Greene, was that if [Carter] couldn’t, wouldn’t, or changed his mind about keeping his promise about sending [him] back to Atascadero, then [he] would deny everything that [Carter] claimed [he] said during that interrogation.” Carter agreed to this plan. Appellant then reiterated the story he had been telling throughout the evening. Carter “reminded” appellant that Greene was nearby and that “there were ways of finding out.” He said “[m]aybe [appellant] would like [his] head to make a matching hole in the wall or something.” Appellant began to cry and confessed to killing Carl Jr. Carter said this was not enough to get appellant back to Atascadero and asked if there were other incidents. Appellant said there were none. Carter said appellant would not live long in a state prison and “wondered if Greene could uncover anything else.” Appellant then confessed to the 1976 Bell Gardens killings. The other officers then returned to the room and appellant repeated his confessions. On many of the critical points, appellant’s testimony was contradicted by that of the interrogating officers. In addition to testimony previously mentioned, Detective Carter denied telling appellant he would try to have him admitted to Atascadero State Hospital. Carter and Greene also denied that there was any discussion of a hole in the interrogation room wall or that they ever used such a hole as a threat or an “interrogation tool.” Carter remembered that such a hole had existed, but he was unable to recall whether it was still there on the day of appellant’s interrogation. The defense sought to support appellant’s testimony in several ways. For example, the defense attempted to photograph the hole in the interrogation room wall. On December 14, 1978, defense counsel sought an ex parte order authorizing his investigator to photograph the hole. In a supporting affidavit, counsel articulated his fear that “if [the police are] given sufficient warning, the hole, if it exists, may be repaired.” The trial court declined to issue an ex parte order, but the following day the investigator was allowed to photograph the interrogation room. He found a fresh plaster patch, about 12 inches square, covering the area where appellant testified the hole had been. In addition, appellant moved the court for discovery of the records of complaints of excessive force and aggressive behavior on the part of the four interrogating officers, as well as twelve other South Gate officers who assertedly trained or supervised them. At the hearing on the discovery motion, defense counsel stated that despite “a limited ability to get witnesses in this regard,” he had been able to find three or four persons who had assertedly confessed after being threatened or beaten by South Gate police officers. One of these persons was a man who had allegedly confessed to a murder and led police officers to the victim’s body, but whose case was dismissed when the prosecution discovered that the man had been in jail at the time of the killing. The court summarily denied the discovery motion. Thereafter, on his own, defense counsel attempted to locate witnesses to other confessions assertedly coerced by threats or violence by South Gate officers. In the 10 months he represented appellant prior to trial, counsel came across 17 such persons, none of whom knew of appellant at the time they made their allegations of mistreatment. Only two of these persons— Angelina N. and Michael B.—implicated any of the officers who had interrogated appellant. The trial court permitted them—but none of the remaining individuals—to testify at the hearings on appellant’s motions. Both Angelina N. and Michael B. testified to having been beaten and threatened by Detective Greene. Angelina stated that during an interrogation on November 1, 1978, Greene pointed to a hole in the interrogation room wall and told her he “was going to push [her] head through that hole the same way he did to someone else’s.” Michael testified that Greene interrogated him on February 2, 1979. During the interrogation, Greene accused Bridges of lying, adding that “if [Michael] didn’t tell him what he wanted to know that he would put [his] head through the [interrogation room] wall.” Greene also mentioned “something about that they paint the room so often because they be knocking [sic] the paint off the wall.” At the hearing, Greene denied striking Angelina and said he did not interview her alone in the interrogation room as she had testified. Greene did not testify in response to Michael’s claims. n. Prior to trial, appellant moved to discover information regarding complaints against South Gate Police Department officers—including the four officers who had participated in appellant’s postarrest interrogation. His motion requested the identity of individuals who had filed complaints “relating to unnecessary acts of aggressive behavior, . . . violence, and/or attempted violence, and . . . excessive force and/or attempted excessive force” against 16 officers in the department. Appellant also sought discovery of investigative reports based on these complaints, including statements of witnesses interviewed, information concerning the officers’ use of excessive force or violence contained in personnel files, statements of psychiatrists, psychologists, or other officers contained in such files, and findings of disciplinary actions taken against any officers as a result of their use of force and violence. The purpose of such information, it was alleged, was to enable appellant to bolster his claim that his confession had been coerced. At the hearing on the motion, defense counsel furnished additional information to the court. He revealed statements by four individuals who had asserted brutality and intimidation by South Gate officers during recent interrogations. In addition, counsel presented an affidavit in which the supervising public defender in South Gate indicated the absence of any “Miranda calls” during his tenure in that office. (See ante, p. 673 & fN. 14.) Following argument by counsel and the prosecutor, the trial court denied the motion. Appellant claims error in this ruling. The Attorney General posits a number of reasons why this court should uphold the trial court’s ruling. First, he maintains that appellate review should be precluded because appellant failed to seek a pretrial writ to overturn the ruling. Second, he contends that the trial court’s denial of the discovery motion was proper because appellant failed to personally aver that his confession was the product of excessive police force. Third, even assuming the propriety of a declaration by counsel, respondent claims that the motion was deficient in that it failed to show a “plausible justification” for the desired information. Finally, he asserts that the information sought by the motion was unnecessarily broad to fulfill its intended purpose. Respondent’s first contention is that appellant’s failure to seek pretrial review of the discovery ruling precludes this court from reaching the merits of the claim. While respondent correctly notes that pretrial review is appropriate in discovery matters (see Hill v. Superior Court (1974) 10 Cal.3d 812, 816 [112 Cal.Rptr. 257, 518 P.2d 1353, 95 A.L.R.3d 820]; Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 801 [91 Cal.Rptr. 594, 478 P.2d 26]), he fails to cite any authority for the proposition that such review is a prerequisite to review of discovery error on appeal. Indeed, several courts on direct appeal have entertained claims of erroneously denied discovery motions of the type involved in this case. (See, e.g., People v. Castain (1981) 122 Cal.App.3d 138, 144-145 [175 Cal.Rptr. 651]; People v. Matos (1979) 92 Cal.App.3d 862, 867-868 [155 Cal.Rptr. 293]; In re Valerie E. (1975) 50 Cal.App.3d 213, 217-219 [123 Cal.Rptr. 242, 86 A.L.R.3d 1163]; People v. Woolman (1974) 40 Cal.App.3d 652, 654 [115 Cal.Rptr. 324].) Respondent’s argument also fails to recognize the unwarranted consequences which might result from a pretrial writ requirement. In addition to unnecessary delay and added expense (cf. People v. Freeman (1977) 76 Cal.App.3d 302, 310-311 [142 Cal.Rptr. 806]), such a requirement would limit the exercise of this court’s appellate jurisdiction, particularly in death penalty cases. (See Cal. Const., art. VI, § 11.) This court’s constitutional responsibility in such cases should not be so easily circumscribed by procedural barriers, especially where the people of this state have not clearly spoken on the issue. It is also noteworthy that in analogous contexts California courts have declined to impose barriers to appellate review where important rights are involved. For example, the courts have sanctioned review on appeal of speedy trial rulings (People v. Wilson (1963) 60 Cal.2d 139, 150 [32 Cal.Rptr. 44, 383 P.2d 452]), have held that no certificate of probable cause is required in juvenile appeals (In re Joseph B. (1983) 34 Cal.3d 952, 959-960 [196 Cal.Rptr. 348, 671 P.2d 852]), and have rejected a pretrial writ requirement as a condition to review of an unsuccessful pro se motion on appeal (People v. Freeman, supra, 76 Cal.App.3d at pp. 310-311). Since discovery rights are equally important, this court declines to impose a pretrial writ requirement as a condition to review on appeal. Respondent next asserts that the trial court properly denied appellant’s discovery motion since the declaration accompanying the motion was executed by counsel and did not contain appellant’s personal averment that his confession was the product of excessive police force. Respondent argues that a rule recognizing counsel’s “mere assertions” as sufficient to obtain discovery “would tend to condone and to foster abuse of the discovery procedure.” This argument is without merit. Evidence Code section 1043, subdivision (b)(3), which governs discovery of peace officer personnel records, contains no requirement of a “personal” affidavit on the part of the accused. (See post, fn. 19.) That statute, in effect when the trial judge ruled on appellant’s motion, controls the present case. It is noteworthy that an overwhelming majority of the Courts of Appeal, even before the enactment of Evidence Code section 1043, subdivision (b)(3), dealt with the merits of discovery errors where the averments in support of discovery were made only by counsel. (E.g., Cadena v. Superior Court (1978) 79 Cal.App.3d 212, 215 [146 Cal.Rptr. 390]; Dell M. v. Superior Court (1977) 70 Cal.App.3d 782, 787 [144 Cal.Rptr. 418]; Caldwell v. Municipal Court (1976) 58 Cal.App.3d 377, 379-380 [129 Cal.Rptr. 834]; In re Valerie E., supra, 50 Cal.App.3d at p. 217.) Respondent’s next contention in favor of the trial court’s ruling is that appellant demonstrated no “plausible justification” for the information requested. A brief review of the law of discovery in criminal cases is helpful in resolving this claim. The power of a trial court to provide for discovery in criminal cases exists “even in the absence of constitutional mandate or enabling legislation.” (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 837 [117 Cal.Rptr. 437, 528 P.2d 45].) Such power is among those inherent in “every court to develop rules of procedure aimed at facilitating the administration of criminal justice and promoting the orderly ascertainment of the truth.” (Joe Z. v. Superior Court, supra, 3 Cal.3d at pp. 801-802.) The exercise of these powers is consistent with “the fundamental proposition that [the accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535 [113 Cal.Rptr. 897, 522 P.2d 305].) As Chief Justice Traynor once noted, “in the absence of a countervailing showing by the prosecution that the information 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.” (Traynor, Ground Lost and Found in Criminal Discovery (1964) 39 N.Y.U. L.Rev. 228, 244 [hereafter Traynor].) Thus, it is established that 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 reasonable that such knowledge will assist him in preparing his defense. . . (Ballard v. Superior Court (1966) 64 Cal.2d 159, 167 [49 Cal.Rptr. 302, 410 P.2d 838] quoting Traynor, op. cit. supra, 39 N.Y.U. L.Rev. at p. 244.) Finally, it is noteworthy that one legitimate goal of discovery is to obtain information “for possible use to impeach or cross-examine an adverse witness . . . .” (Foster v. Superior Court (1980) 107 Cal.App.3d 218, 227 [165 Cal.Rptr. 701].) As this court observed almost 30 years ago, “[a]bsent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and in particular it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits.” (People v. Riser (1956) 47 Cal.2d 566, 586 [305 P.2d 1].) In 1974, these principles were applied to permit discovery of police personnel records. In Pitchess v. Superior Court, supra, 11 Cal.3d 531, this court enunciated several rules to guide practitioners and trial courts in this area. Pitchess made it clear that “an accused . . . may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial. . . . The requisite showing may be satisfied by general allegations which establish some cause for discovery other than ‘a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.’ ...” (Id., at pp. 536-537, citations omitted.) Pitchess involved an arrestee who asserted self-defense to a charge of battery on a police officer. (§ 243.) The accused sought discovery of statements by complainants against the officers and disciplinary records in the police department’s possession concerning the officers’ propensity to commit acts of violence. (11 Cal.3d at p. 537.) This court held both types of information discoverable. The statements were held necessary to effectively cross-examine the officers at trial and to refresh the complainants’ recollection of events which had transpired “some time ago.” The disciplinary records were held “unquestionably relevant and admissible” as character evidence of the deputies’ tendency to engage in violence. (Ibid.; see Evid. Code, § 1103.) Pitchess also held the accused’s request sufficient on the ground that the information sought was relevant to his defense and was “not ‘readily obtainable] . . . through his own efforts.’” (Id., at p. 537.) The documents had been requested “with adequate specificity to preclude the possibility that defendant [was] engaging in a ‘fishing expedition.’ ” (Id., at p. 538.) These guidelines were enunciated “ ‘in the absence of legislation’ ” (id., at pp. 535-536), and for several years guided the Courts of Appeal in passing upon similar issues. Four years after Pitchess, the Legislature spoke in the area. Effective January 1, 1979—just eight days before the hearing on appellant’s discovery motion—provisions were added to our law which guarantee the confidentiality and nondisclosure of peace officer personnel records and records of citizens’ complaints “except by discovery pursuant to Section 1043 of the Evidence Code.” (§ 832.7.) Evidence Code section 1043 outlines the procedure for requesting discovery of peace officer personnel records. That statute requires a “good cause” showing by affidavit setting forth the materiality of such information, and an allegation that the governmental agency identified in the request “has such records or information . . . .” Once this procedure has been complied with and notice has been provided to the agency having custody of the records, the trial court conducts an in camera examination of the material to determine its relevance to the case at hand. Certain information is immune from disclosure, while other information may be released according to the guidelines provided in Evidence Code section 1045. (See generally Review of Selected 1978 California Legislation (1979) 10 Pacific L.J. 431 [hereafter Selected Legislation].) It is significant that these statutes do not limit discovery of such records to cases involving altercations between police oflicers and arrestees, the context in which Pitchess arose. It is also noteworthy that the Legislature saw fit to ensure that “[n]othing in this article [Evid. Code, § 1040 et seq.] shall be construed to affect the right of access to records of complaints, or investigations of complaints, or discipline imposed as a result of such investigations, concerning an event or transaction in which the peace officer participated, or which he perceived, and pertaining to the manner in which he performed his duties, provided that such information is relevant to the subject matter involved in the pending litigation.” (Evid. Code, § 1045, subd. (a).) If anything, then, the principles of Pitchess were not only reaffirmed but expanded by the 1978 legislation. It is against this decisional and statutory backdrop that the trial court’s summary denial of appellant’s motion must be evaluated. In his motion, appellant sought to discover nine categories of information relating to conduct on the part of sixteen named South Gate police officers. In the accompanying declaration, counsel alleged that four of the named officers had been present during appellant’s confession, which appellant asserted “came after an illegal arrest, promises of leniency, and threats of violence by the officers present.” All 16 officers were alleged to have been trained by each other and to “follow the same general interrogation routine.” Counsel also alleged that the information “would be used to show a continuing course of conduct by the South Gate Police Department which includes extraction of involuntary confessions or the attempt to extract involuntary confessions from citizens being detained or under arrest by the use of violence or attempted violence or force or threats of force, or unlawful aggressive behavior.” In addition appellant hoped that such information would lead to evidence showing that it was the “habit and custom” of the officers to engage in violent behavior. He also sought to use the information to “effectively cross-examine said officers at trial, and for impeachment purposes where appropriate.” The declaration further alleged that the South Gate Police Department was in possession of such information, and that the information was “not known to defendant or his counsel . . . .” The Evidence Code clearly supported appellant’s theory of discovery. Discovery might lead to evidence of habit or custom admissible to show that a person acted in conformity with that habit or custom on a given occasion. (Evid. Code, § 1105.) “Habit” or “custom” is often established by evidence of repeated instances of similar conduct. (See, e.g., Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 793-796 [182 Cal.Rptr. 855].) Plainly, evidence that the interrogating officers had a custom or habit of obtaining confessions by violence, force, threat, or unlawful aggressive behavior would have been admissible on the issue of whether the confession had been coerced. Furthermore, evidence of reputation, opinion, and specific instances of conduct is admissible to show, inter alia, motive, intent, or plan. (Evid. Code, § 1101, subd. (b).) Evidence that the interrogating officers had acted according to a plan or with a motive to coerce appellant’s confession, or had intended to do so, would have been relevant to appellant’s claim of involuntariness. Reputation or opinion evidence would also have been relevant on this issue. (3 Hogan, Modern Cal. Discovery (1981) § 20.03, p. 147; see par. 8 of appellant’s request, ante, fn. 21.) People v. Navarro, supra, 84 Cal.App.3d 355 does not hold to the contrary. There, the trial court granted the accused Pitchess discovery on coun- sel’s declaration that “ ‘the defense may contend that the defendant did not voluntarily agree to provide a urine sample, but rather was coerced into providing [one] as a result of unlawful tactics and excessive force’ . . . .” (Id., at p. 357, italics omitted.) The Court of Appeal reversed, holding the justification for the discovery insufficient. (Id., at pp. 359-360.) Navarro is not authority for the proposition that a claim of coercion can never be grounds for discovery of police personnel records. Even that court observed that “[i]n a proper case and on a proper and substantial showing by way of detailed affidavit ... it is conceivable the material sought might be discoverable.” (84 Cal.App.3d at p. 359.) Moreover, counsel’s declaration satisfied Pitchess and Evidence Code section 1043. The declaration asserted that the confession had been coerced by promises of leniency and threats of violence. Evidence of coercion is relevant both to the admissibility of a confession and the weight it is to be given by the trier of fact. (People v. Jimenez (1978) 21 Cal.3d 595, 607 [147 Cal.Rptr. 172, 580 P.2d 672]; see Evid. Code, § 607; Jackson v. Denno (1964) 378 U.S. 368, 386, fn. 13 [12 L.Ed.2d 908, 921, 84 S.Ct. 1774, 1 A.L.R.3d 1205].) Since evidence concerning complaints of prior violence by the interrogating officers might have been admissible or might have led to other admissible evidence on that question, counsel’s allegations sufficiently “set forth the materiality” of the requested information. (Evid. Code, § 1043, subd. (b)(3).) Counsel’s allegations were sufficient to put the court on notice that the voluntariness of the confession would be in issue. The declaration articulated a theory as to how the information would be used in litigating that question. While undoubtedly the factual allegations could have been more specific, they went far beyond expressing “a mere desire for the benefit of all information” which was in the prosecution’s hands. (See People v. Cooper (1960) 53 Cal.2d 755, 770 [3 Cal.Rptr. 148, 349 P.2d 964]; Joe Z. v. Superior Court, supra, 3 Cal.3d at p. 805.) Since counsel demonstrated good cause for the information regarding the interrogating officers, the trial court erred in summarily denying the motion. Respondent relies on Tyler v. Superior Court, supra, 102 Cal.App.3d 82, for the conclusion that appellant was not entitled to discover evidence pertaining to his coerced confession claim. That decision is neither persuasive nor on point. In Tyler, the accused sought discovery of information regarding the officers’ involvement in false arrests or illegal searches. (Id., at p. 84.) He alleged “substantial inaccuracies” in the officers’ preliminary examination testimony regarding the search and seizure in the case, as well as a “substantial likelihood” of such unlawful conduct in the past. (Id., at p. 85.) The Court of Appeal upheld the trial court’s order denying discovery. First, the court held specific acts would not be admissible to attack the arresting officers’ credibility. (Evid. Code, §§ 787, 1101, subd. (a).) Second, assuming the evidence would have been offered to prove a “common scheme or plan” or “habit or custom” on the officers’ part, the accused failed to allege sufficient facts about the incident or its relation to other such incidents to establish a “plausible justification” for the discovery. (Tyler v. Superior Court, supra, 102 Cal.App.3d at pp. 88-90.) Tyler's “credibility” rationale is unconvincing. It is true that in a voluntariness hearing “the trial court will often have to decide which one of two self-serving accounts to believe, as the testimony presented at [such a] hearing ordinarily consists of conflicting versions by the defendant and law enforcement officers as to what occurred during the interrogation of the defendant . . . .” (People v. Jimenez, supra, 21 Cal.3d at p. 606.) However, where self-defense is asserted to a charge of battery on a police officer or resisting arrest, a similar task is performed by the trier of fact. Such cases might also be viewed as credibility contests between the officer and the arrestee. However, Pitchess makes it clear that specific acts of conduct are admissible. Thus, to deny an accused Pitchess-type discovery on the assumption that its fruits would be used for impeachment fails to acknowledge the existence of other admissible grounds for the use of such evidence. On this point, Tyler fundamentally misreads the purpose of Pitchess discovery. To adhere to its premise would contravene well-settled law. Tyler's second rationale is inapposite here and misconstrues the “good cause showing” requirement in discovery cases. As counsel’s declaration in this case alleged, the information was sought to establish the officers’ habit and custom for obtaining confessions by the use of force, violence or threats. This was sufficient. Appellant was not required to specify further the details of his claim of coercion in order to obtain the requested information. (See ante, at pp. 682-683.) Appellant was also not required to furnish additional “foundational facts” about the information he sought in his motion. (Tyler v. Superior Court, supra, 102 Cal.App.3d at p. 89.) Since appellant did not have access to prior complaints about the officers, he was not in a position to know whether the complaints in fact established the custom, habit, intent, motive or plan which he alleged. (Cf. Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 537-538.) To require specificity in this regard would place an accused in the Catch-22 position of having to allege with particularity the very information he is seeking. Neither the Evidence Code nor Pitchess was intended to be applied in this manner. In sum, under Pitchess and the Evidence Code, appellant demonstrated good cause for the requested discovery. The trial court abused its discretion , when it summarily denied his motion. III. This court must next determine the consequences of the trial court’s ruling. It is settled that an accused must demonstrate that prejudice resulted from a trial court’s error in denying discovery. (People v. Sewell (1978) 20 Cal.3d 639, 646 [143 Cal.Rptr. 879, 574 P.2d 1231]; People v. Coyer (1983) 142 Cal.App.3d 839, 843 [191 Cal.Rptr. 376].) It is clear that prejudice exists in this case. The trial court was required to determine from the evidence presented at the hearing on appellant’s motion to exclude the confession whether it was voluntary beyond a reasonable doubt. (People v. Jimenez, supra, 21 Cal.3d at p. 608.) Since the denial of discovery deprived appellant of the possibility of presenting evidence on that issue, the trial court did not make as informed a determination as it might have if discovery had been granted. Moreover, “ ‘ “[a]s a reviewing court it is our duty to examine the uncontradicted facts to determine independently whether the trial court’s conclusion of voluntariness was properly found.” ’ ” (People v. Jimenez, supra, 21 Cal.3d at p. 609.) Under the facts of this case, it is reasonably probable that discovery would have led to admissible evidence of sufficient weight to affect the trial court’s determination on the voluntariness of the confession. Thus, reversal of the judgment is required. The two courts which have found error on appeal in denying an accused Pitchess discovery have deemed reversal the appropriate remedy. (People v. Matos, supra, 92 Cal.App.3d at p. 869; In re Valerie E., supra, 50 Cal.App.3d at p. 220.) Therefore, to simply remand for a renewed determination of appellant’s discovery motion and the effect, if any, of discovered evidence on the admissibility and weight of the confession would be improper. Although a remand procedure was employed by the Court of Appeal in People v. Coyer, supra, 142 Cal.App.3d 839, 843-845, that case involved neither Pitchess discovery nor discovery relevant to both the admissibility and weight of a confession. Finally, this court addresses respondent’s claim that appellant’s discovery request was too broad. In so doing, guidance is given to the trial court for retrial. As will be seen, there is some merit to respondent’s claim. As Pitchess makes clear, “the right of an accused to obtain discovery is not absolute.” (11 Cal.3d at p. 538.) On its face, appellant’s request for the identities of all complainants of excessive force was overly broad. Since appellant sought the information to bolster his claim of involuntariness in the interrogation setting, only complaints by persons who alleged coercive techniques in questioning were relevant. In addition, it is necessary to determine whether appellant was entitled to discover information about the 12 officers who were not directly involved in the interrogation. Some Courts of Appeal have restricted discovery to information about the incident which gave rise to the criminal charge. (See, e.g., Reyes v. Municipal Court, supra, 117 Cal.App.3d 771 [entrapment defense in solicitation for prostitution charge; discovery of identities of individuals arrested by officer on same occasion denied].) In the Pitchess context, a few Courts of Appeal have limited discovery to information about the officers directly “involved in the fracas . . . .” (Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 697 [127 Cal.Rptr. 664]; see also Craig v. Municipal Court (1979) 100 Cal.App.3d 69 [161 Cal.Rptr. 19] [self-defense in resisting arrest and battery case; discovery of identities of all persons arrested by officers on similar charges during preceding two years denied].) Other Courts of Appeal have not read Pitchess so restrictively. (Cadena v. Superior Court, supra, 79 Cal.App.3d at pp. 218-221 [complaints against “all the named participating officers” discoverable]; Dell M. v. Superior Court, supra, 70 Cal.App.3d at p. 787 [complaints against officer who acted in concert with arresting officer discoverable]; Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-829 [133 Cal.Rptr. 325] [complaints against one of detaining officers not involved in altercation discoverable].) In these cases, the courts have reasoned that even though evidence of prior misconduct may not turn out to be admissible, the accused is entitled to any information which may lead to relevant evidence on an issue raised by the facts of the case. (Id., at p. 828.) Appellant’s discovery claim was more akin to those advanced in Cadena, Dell M., and Kelvin L., since it alleged both direct and indirect involvement by all the officers in the South Gate Police Department. Moreover, Evidence Code section 1045, subdivision (c) also supported appellant’s request for information about the noninterrogating officers. That statute expressly recognizes that “the policies or pattern of conduct of [an] employing agency” may be relevant to “the issue in litigation.” (See ante, fn. 20.) Counsel’s declaration alleged “a continuing course of conduct by the South Gate Police Department which includes extraction of involuntary confessions.” Clearly, appellant’s purpose in obtaining discovery was to show a “pattern” or “policy” within the department to obtain confessions by unlawful methods. Such a showing could properly be made by evidence of custom or habit (see 2 Jefferson, Cal. Evidence Benchbook, op. cit. supra, § 33.8, p. 1267), or by evidence that the officers were engaged in a plan to obtain confessions by such means. (Evid. Code, § 1101, subd. (b).) However legally sound appellant’s theory of discovery of complaints against the 12 noninterrogating officers may have been, there was no foundation to grant it on the evidence before the trial court. Absent a link between any of the noninterrogating and interrogating officers, the relevance of the “policy” or “pattern of conduct” sought to be proven was slight. Therefore, without some showing that any of the noninterrogating officers trained or otherwise had substantial contacts with any of the four interrogating officers, complaints about the former group were not discoverable. Should appellant renew his request for such information, he is required to make such a showing. If evidence of this “link” is not “‘readily obtain[able] . . . through his own efforts’ ” (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 537), appellant is entitled to enlist the trial court’s aid through a separate motion for discovery. Several restrictions on discovery—which appear in Evidence Code section 1045—were also applicable. For example, although reports of internal investigations were “once generally permitted under established Pitchess principles,” their disclosure “is now circumscribed under the statutory scheme.” (Arcelona v. Municipal Court, supra, 113 Cal.App.3d at pp. 530-531.) As Evidence Code section 1045, subdivision (b)(2) now provides, the conclusions resulting from internal investigations of citizens’ complaints are excluded from disclosure. (See ante, fh. 20.) Thus, appellant was not entitled to such information. A similar conclusion holds for complaints concerning conduct which occurred more than five years before the interrogation in this case (Evid. Code, § 1045, subd. (b)(1)), or for “[f]acts sought to be disclosed which are so remote as to make disclosure of little or no practical benefit.” {Id., subd. (b)(3).) However, complaints regarding conduct which occurred after the interrogation in this case may be relevant to coercion. In the event the motion is renewed below, the trial court should exercise its discretion in this regard. (Dincau v. Tamayose, supra, 131 Cal.App.3d at pp. 795-796; People v. Shoemaker (1982) 135 Cal.App.3d 442, 447-449 [185 Cal.Rptr. 370].) This court must also determine whether discovery of statements of psychiatrists or psychologists contained in the officers’ personnel files was proper. (See par. 8, ante, fn. 21.) At first blush, this information appears to be protected by the psychotherapist-patient privilege. (Evid. Code, § 1014.) However, no privilege applies “if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.” (Evid. Code, § 1024.) Two Courts of Appeal have dealt with similar discovery requests in the Pitchess context. In Lemelle v. Superior Court (1978) 77 Cal.App.3d 148 [143 Cal.Rptr. 450], a two-justice majority held that the trial court did not abuse its discretion in refusing discovery of records of psychiatric or psychological opinions regarding a propensity for the officers’ violence. (Id., at pp. 157-162.) However, the court noted that the accused was “not precluded from presenting to the trial court hereafter any appropriate motion ... to test the applicability of Evidence Code section 1024 and for an in camera inspection of these records if they exist.” (Id., at p. 160.) In Arcelona v. Municipal Court, supra, 113 Cal.App.3d 523, several individuals were accused of felony offenses in connection with a civil disturbance following the verdicts in the homicide trial of former San Francisco Supervisor Dan White. They sought discovery of psychological test results and performance evaluations which showed the officers’ tendency to use excessive force or a tendency toward homosexual bias. (Id., at p. 528, fn. 2.) The court held that the potential probative value of this information for the purpose of demonstrating bias by the officers and self-defense by the accused was “remote and purely speculative.” (Id., at p. 531.) The court further held that the privacy rights of the officers outweighed the value of this information to the accused. (Id., at pp. 531-532.) Beyond appellant’s allegations that the records sought would possibly demonstrate the officers’ custom for unlawfully extracting confessions, his motion did not specify why the mental health records in particular should have been disclosed. Nevertheless, the position of the petitioners in Lemelle and Arcelona is a sound one. In an appropriate case, an individual officer’s interest in privacy must give way to the accused’s need for information relevant to an issue in his case. As the late Justice Tamura wrote in dissent in Lemelle, “the peril to which the public is exposed by a police officer who is suffering from a mental or emotional condition which renders him violence prone or causes him to demonstrate racial bias is a danger of sufficient gravity to justify the invocation of the exception provided by Evidence Code section 1024.” (Lemelle v. Superior Court, supra, 77 Cal.App.3d at p. 168 (dis. opn.).) This statement applies with equal force to officers who allegedly obtain confessions by unlawful methods. As Justice Tamura suggested in Lemelle, the trial court here should order production of the mental health records of the four interrogating officers. As with any of the information which the prosecution is ordered to produce, these records should be examined in camera. If the court concludes that the records are not protected by the psychotherapist-patient privilege, they may be disclosed to appellant in the interests of justice. (Evid. Code, § 1045, subds. (b)(3), (d).) As with any of the information produced under appellant’s motion, if the court deems it necessary to protect the officers from “unnecessary annoyance, embarrassment, or oppression” associated with the disclosure of such records, it may fashion an order appropriately directed toward that end. (Id., subd. (d).) One additional point must be made. Evidence Code section 1040 gives the agency in possession of the requested information a “formal privilege to refuse to divulge official information when the need to maintain its secrecy is greater than the need for disclosure in the interests of justice.” (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 538, fn. omitted.) No such privilege was claimed here since the trial court denied appellant’s motion. Therefore, upon appellant’s renewed discovery motion, the South Gate Police Department may seek to establish the applicability of the conditional privilege provided for in Evidence Code section 1040. However, as in Pitchess, “the decision on the propriety of such a motion and its possible attendant consequences under Evidence Code section 1042, subdivision (a),[] will remain in the sound discretion of the trial court . . . .” (Pitchess v. Superior Court, supra, 11 Cal.3d at p. 540; see also Kelvin L. v. Superior Court, supra, 62 Cal.App.3d at pp. 830-831; In re Valerie E., supra, 50 Cal.App.3d at pp. 219-220.) IV. At the hearing to determine the admissibility of the confession, appellant offered the testimony of 17 witnesses who alleged improper interrogation practices in the South Gate Police Department. Some of the proffered testimony was in specific reference to the use of the interrogation room “hole” as a coercive technique. (See ante, pp. 671-673.) In addition, appellant offered the testimony of three deputy public defenders who would have testified that during the two and one-half years preceding appellant’s arrest, the public defender’s office had not received any “Miranda calls” (see ante, fn. 14) from the South Gate Police Department. Since the admissibility of such testimony is likely to be an issue in the event of a retrial, it is appropriate to guide the trial court in ruling on this motion. As to the testimony of witnesses interrogated by the four officers who also participated in appellant’s interrogation, the trial court should, as it did below, permit such testimony. However, whether the testimony from witnesses interrogated by the 12 “noninterrogating” officers is admissible will depend on whether appellant has demonstrated a link between any of those officers and the 4 “interrogating” officers. (See ante, at pp. 686-687.) Once such a link is established, the testimony should be admitted, since neither Evidence Code section 352 nor any other provision of law would prohibit it. (See People v. Castain, supra, 122 Cal.App.3d at pp. 142-143.) Such evidence may be presented on the question of whether the confession is admissible as well as on what weight the trier of fact should give it. (People v. Jimenez, supra, 21 Cal.3d at p. 607.) V. Appellant also contends that the prosecution failed to prove (1) premeditation and deliberation as to the Carl Jr. homicide and (2) malice as to all three of the homicides. These omissions, it is argued, require reduction of the court’s murder verdicts to voluntary manslaughter and reversal of the associated sentences. In view of the judgment of reversal on other grounds, it is unnecessary to determine whether reduction of the verdicts is required. However, double jeopardy principles require this court to address appellant’s sufficiency claim to determine the propriety of murder charges in the event of a retrial. (Burks v. United States (1978) 437 U.S. 1, 16-18 [57 L.Ed.2d 1, 12-14, 98 S.Ct. 2141]; cf. People v. Green, supra, 27 Cal.3d 1, 62.) In his confession, appellant explained that at approximately 6:30 p.m. on Sunday, October 22, 1978, he had gone to a restaurant for supper but found the line too long. Since the restaurant was near Carl Sr.’s home, he decided to stop in and ask Carl Sr. to do some repair work on his car. Appellant drove to Carl Sr.’s home and parked. As he was leaving the car, Carl Jr. rode up on his bicycle. The boy told appellant not to tell his father that he (Carl Jr.) was home because his father would make him go inside. Carl Jr. said that “he would like to have a Coke or that he was going for a Coke.” Appellant offered to take him, and they both got into appellant’s car. Appellant drove directly to his residence. Appellant “had it in the back of his mind he was going to try to take some pictures of [Carl Jr.] in the nude because that is how he got his sexual satisfaction, photographying [sic] young boys in the nude.” Appellant took the boy into his bedroom and turned on some fancy strobe lights. The lights seemed to fascinate the boy, who stood watching them for five or ten minutes. Suddenly, Carl Jr. said he had to return home as it was getting late and his father would be worried. This “sort of pissed [appellant] off,” for “he hadn’t even offered [Carl Jr.] a Coke or he hadn’t even asked for one.” Appellant told Detective Carter that “the next thing he knew he grabbed this clothesline he had on the nightstand adjacent to his bed, put it around [Carl Jr.’s] neck and strangled him.” Appellant remembered tying a square knot in the line, and taping the boy’s hands behind his back with masking tape. However, he did not indicate at what point he tied the knot and could not recall when he taped Carl Jr.’s hands. Appellant suddenly “realized that [Carl Jr.] was dead.” Appellant then disrobed, removed all of Carl Jr.’s clothes except for his T-shirt, and placed the body on the bed. He attempted anal intercourse but was unable to achieve an erection. Appellant got dressed and went into the front room. He then “became quite concerned over what had happened” and thought he needed an alibi so he decided to take his car to be repaired by Carl Sr. He telephoned Helen J. and asked her to follow him to Carl Sr.’s home and to drive him back. She agreed to help appellant at the conclusion of a television show she was watching. A short while later, 15-year-old Andreas G. dropped by. Appellant showed him slides of naked women in the living room until Andreas’ brother and sister arrived to bring him home. Before leaving, Andreas helped appellant start his car. Appellant then waited by his car for Helen J. for he did not want her to go up to the apartment. Helen J. arrived shortly after 10 p.m. and followed appellant to Carl Sr.’s residence where appellant left his car. She then dropped appellant at his apartment and drove home. Appellant did not know what to do with Carl Jr.’s body. He recalled that he had once taken cars to an auto auction in the San Gabriel area where he might be able to dispose of the body. Appellant cut the extra clothesline from the loop that was around the boy’s neck, wrapped the body and most of the boy’s clothing in a blanket, and placed the body in the rear of his Plymouth. Appellant drove around until he found a dark area and dumped the body and clothing over an embankment. He then returned home, “got real sick” and “threw up.” The following day appellant realized he still had the boy’s shoes and socks, so he put them in a suitcase in the garage. Appellant told Detective Carter that these items, as well as the remaining clothesline, the masking tape, and the blanket, were still at his apartment. Appellant later led the officers to the location of the body. An autopsy was performed on Carl Jr.’s body by Dr. Joseph Choi, a deputy medical examiner from the coroner’s office. The cause of death was strangulation. Because death had occurred five days prior to recovery of the body, it was markedly decomposed. As a result, it was “difficult to tell” whether there had