Preview
1 NOAH G. BLECHMAN (State Bar No. 197167)
noah.blechman@mcnamaralaw.com
2 BRIANA J. WAITE (State Bar No. 327887)
briana.waite@mcnamaralaw.com
3 MCNAMARA, AMBACHER, WHEELER,
HIRSIG & GRAY LLP
4 3480 Buskirk Avenue, Suite 250
Pleasant Hill, CA 94523
5 Telephone: (925) 939-5330
Facsimile: (925) 939-0203
6
Attorneys for Defendant
7 Noah Winchester
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
9 CIVIL - UNLIMITED JURISDICTION
McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10
11 DANIELLE M., ALICIA A., and SHERRY Case No. 22-CIV-01066
C.,
12 NOAH WINCHESTER’S RESPONSE TO
TELEPHONE: (925) 939-5330
Plaintiffs, PLAINTIFFS’ MOTION FOR DISCOVERY
ATTORNEYS AT LAW
13 OF LAW ENFORCEMENT PERSONNEL
vs. RECORDS FROM SAN MATEO, LOS RIOS
14 AND SACRAMENTO POLICE
NOAH WINCHESTER, SAN MATEO DEPARTMENTS (Pitchess)
15 POLICE DEPARTMENT, CITY OF SAN
MATEO, and DOES 1 through 10,
16 inclusive, Date: June 9, 2023
Time: 9:00 a.m.
17 Defendant. Department: 21 (Hon. Robert D. Foiles)
18
19
20
21
22
23
24
25
26
27
28
WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS)
1 TABLE OF CONTENTS
2 I. INTRODUCTION ........................................................................................................................ 1
3 II. STATEMENT OF FACTS .......................................................................................................... 1
4
A. Alicia A. ................................................................................................................... 1
5
B. Danielle M. ............................................................................................................... 2
6
C. Sherry C. .................................................................................................................. 3
7
III. OPPOSITION ARGUMENTS .................................................................................................. 4
8
A. Information Contained In The Personnel Files Of Officer Winchester Is
9
McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP
Privileged And Subject To Discovery Only In Limited Circumstances. ................. 5
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10 B. The Plaintiffs’ Request Should Be Severely Limited Due To Its
11 Overbreadth. ............................................................................................................. 7
12 C. If The Court Does Find Good Cause As To Any Of The Records Sought,
TELEPHONE: (925) 939-5330
Party In Interest Requests That The Court Examine The Information
ATTORNEYS AT LAW
13 Sought By The Plaintiffs In Chambers Under Evidence Code Sections
915(D) And 1045(B). ............................................................................................... 9
14
D. Plaintiffs Are Entitled Only To Limited Information Regarding
15
Complaints. ............................................................................................................ 10
16
1.The Plaintiffs May Not Have Materials Relating to Incidents More Than
17 Five Years Old from the Time of the Incidents at Issue. ....................................... 10
18 2.The Plaintiffs May Have, at the Most, the Names and Contact
Information of the Complainant and Witnesses.. ................................................... 11
19
E. Disclosure Of Records Not Contained In Personnel Files Must Comply
20 With Penal Code Section 1054.5. .......................................................................... 12
21
F. If The Court Orders Any Information To Be Disclosed, Respondent Asks
22 The Court To Issue A Protective Order Concerning Such Information................. 12
23 IV. CONCLUSION ........................................................................................................................ 13
24
25
26
27
28
i
WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS)
1 TABLE OF AUTHORITIES
2 Cases
3 Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107 ................................................................. 5
4 California Highway Patrol v. The Superior Court of Santa Cruz County (2000) 84 Cal.App.4th
1010, 1021 ................................................................................................................................ 4, 8
5
Carruthers v. Municipal Court (1980) 110 Cal.App.3d 439 ..................................................... 5, 11
6
City and County of San Francisco v. Superior Court (1981) 125 Cal.App.3d 879, 882 ................. 5
7
City of Azusa v. Superior Court (1987) 191 Cal.App.3d 695, 696 .......................................... 10, 11
8
City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1474-76 ....................................... 6
9
McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84-86 ........................................ 4, 5, 7
10
Haggerty v. Superior Court of San Diego (2004) 117 Cal.App.4th 1079, 1085-1086 ................. 4, 5
11
Herrera v. Superior Court (1985) 172 Cal.App.3d 1159 .............................................................. 11
12
TELEPHONE: (925) 939-5330
Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-29................................................ 5, 11
ATTORNEYS AT LAW
13
Long v. Municipal Court (1976) 58 Cal.App.3d 382 ..................................................................... 10
14
People v. Castain (1981) 122 Cal.App.3d 138 ........................................................................ 10, 11
15
People v. Jackson (1996) 13 Cal.4th 1164 ........................................................................................ 8
16
People v. Matos (1979) 92 Cal.App.3d 862 ................................................................................... 10
17
People v. Memro, (1985) 38 Cal.3d 658, 685 .................................................................................. 8
18
People v. Serrata (1976) 62 Cal.App.3d 9, 15 ................................................................................. 7
19
People v. Woolman (1974) 40 Cal.App.3d 952 ............................................................................. 10
20
Pitchess v. Superior Court (1974) 11 Cal.3d 537, 538 ........................................................... passim
21
Statutes
22
Civil Code § 1798 ............................................................................................................................ 5
23
Evidence Code § 915 ................................................................................................................. 9, 11
24
Evidence Code § 915 (d) .................................................................................................................. 9
25
Evidence Code § 1040 ..................................................................................................................... 1
26
Evidence Code § 1043 ................................................................................................... 4, 6, 7, 9, 12
27
Evidence Code § 1043(b) ................................................................................................................. 7
28
Evidence Code § 1043(b)(3) ............................................................................................................ 4
ii
WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS)
1 Evidence Code § 1044 ..................................................................................................................... 9
2 Evidence Code § 1045 ................................................................................................. 6, 7, 9, 10, 11
3 Evidence Code § 1045(a) ............................................................................................................. 6, 7
4 Evidence Code § 1045(b) ................................................................................................. 6, 9, 10, 11
5 Evidence Code § 1045(b)(1) .................................................................................................... 10, 11
6 Evidence Code § 1045(d) ............................................................................................................... 12
7 Evidence Code § 1045(e) ............................................................................................................... 12
8 Evidence Code § 1046 ..................................................................................................................... 4
9 Penal Code § 832.5 .................................................................................................................... 5, 11
McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10 Penal Code § 832.7 ...................................................................................................................... 5, 9
11 Penal Code § 1054.5 ...................................................................................................................... 12
12
TELEPHONE: (925) 939-5330
ATTORNEYS AT LAW
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iii
WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS)
1 Defendant NOAH WINCHESTER hereby oppose Plaintiffs’ motion for pretrial discovery
2 (Pitchess1.) Plaintiffs have failed to provide sufficient evidence to prove good cause and materiality
3 for the discovery of the requested information. First, the supporting declaration of Plaintiffs’
4 counsel, Mr. Todd P. Emmanuel, does not suffice for such good cause showing. Second, even if
5 the Court should find Mr. Emmanuel’s declaration sufficient, an in camera review should only be
6 granted for a portion of the requested information. Any disclosure following an in camera review
7 should be limited and subject to a stringent and case specific protective order. As to the remaining
8 information, Plaintiffs have not satisfied the good cause requirement for the remaining requests
9 which are overbroad and encompass much more than allowed under the Pitchess process.
McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10 Plaintiffs’ motion is more akin to a discovery request directed to Defendants, which is improper
11 via the Pitchess process and per Evidence Code § 1040 et seq. As such, the scope of Plaintiffs’-
12 request should and must be narrowed to comply with this process.
TELEPHONE: (925) 939-5330
ATTORNEYS AT LAW
13
I.INTRODUCTION
14
15 This suit arises out of three separate alleged incidents: the alleged sexual assault of Danielle
16 M. on September 15, 2015, the alleged assault of Sherry C. on October 19, 2015, and the alleged
17 sexual assault of Alicia A. on September 2, 2015. All three of these assaults allegedly occurred
18 during Officer Winchester’s time as a San Mateo Police Officer. Plaintiffs are seeking to expand
19 beyond Officer Winchester’s San Mateo records and are seeking records outside of the allegations
20 made in by the current Plaintiffs, specifically from Los Rios Police Department and Sacramento
21 Police Department. Any alleged incidents that may have occurred within other jurisdictions are not
22 related to the current suit.
23 II.STATEMENT OF FACTS
24 A. Alicia A.
25 Alicia A. alleges as follows. She and a male friend, Allan Booze, checked into the Avalon
26 Motel in San Mateo on September 22nd in the early morning. Officer Winchester stopped the
27 vehicle they were traveling in and learned that Alicia was on probation. Allan, who was driving the
28 1
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
1
WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS)
1 car, was told to leave as Officer Winchester grabbed a bottle of alcohol that was inside their vehicle.
2 Officer Winchester told Allan he would be arrested if he did not leave. This bottle of alcohol he
3 grabbed was an open bottle of Hennessey and Alicia had been concerned that Allan would get in
4 trouble for a DUI.
5 Alicia was escorted into the motel room. The officer conducted a search of Alicia that
6 involved touching her breasts, buttocks and vagina over her clothing without gloves. She was then
7 instructed by Officer Winchester to strip off her clothing and bend over the bed. She initially
8 resisted, but relented when he threatened her with arrest and so took off some of her clothes. At this
9 point, she began “crying loudly,” causing Officer Winchester to leave the motel room. Other than
McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
10 this search over her clothing, Officer Winchester did not make physical contact with Alicia A.
11 (Exh. A.)
12 B. Danielle M.
TELEPHONE: (925) 939-5330
ATTORNEYS AT LAW
13 Danielle M. alleges as follows. On September 15, 2015, Danielle M. and her boyfriend,
14 Felipe Chavez, were walking towards her home around 3 am, cutting through a shopping center,
15 when they were contacted by Officer Pedreira, who was apparently familiar with, Mr. Chavez.
16 (Exh. A.) Officer Pedreira was speaking with Mr. Chavez when Officer Winchester arrived on
17 scene as Danielle’s boyfriend is sent on his way. Officer Winchester went as far to tell him to leave
18 the scene or he would be arrested. (Exh. C.) Officer Winchester asked for consent to search her
19 purse and finds a pill of Oxycodone. Chavez stuck around by hiding nearby to watch the remainder
20 of the interaction. (Exh. C.)
21 Officer Winchester sends Officer Pedreira to find the boyfriend. He begins to stick his
22 fingers into the waistband area of Danielle’s leggings and running his fingers around that area. He
23 then fully pushes his hand into her leggings while asking if she had anything illegal on her. She
24 denied it, and he pushed his hand fully into her leggings and pulls back her underwear and leggings
25 – exposing her vagina. The leggings and underwear were pulled around 4 – 5 inches horizontally
26 away from her body. He was “flicking it” or “snapping it” and she could feel his hand on her vagina.
27 Chavez described Officer Winchester using his pointer finger and middle finger inside Danielle’s
28
2
WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS)
1 pants, but then clarified he led with those two fingers and stuck most of his hand into Danielle’s
2 pants. (Exh. C.)
3 C. Sherry C.
4
5 Sherry alleges as follows. On October 19, 2015, Sherry C. had a disagreement with the
6 clerk at Avalon Motel when the clerk refused to let her rent another room. It was stemming from
7 this confrontation that Officer Noah Winchester arrives on scene at the motel sometime in the late
8 afternoon. Sherry left the property as instructed by him, but falls asleep in her car at another nearby
9
McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP
3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523
motel. Officer Winchester, apparently having followed her, contacts her again. She is unsure of the
10
time, but it was now dark outside. She does not have enough cash for the hotel room, so Officer
11
Winchester has her follow him to find an ATM. They end up near a park which turned out to be
12
TELEPHONE: (925) 939-5330
ATTORNEYS AT LAW
13 Coyote Point. She claims she was taken to an alleyway to be “searched.” He had her remove her
14 sweater and pulled out her bra to look into it. Then he has her put her hands on the wall, after taking
15 her pants off, and bend over to search her body cavities.
16
When they return to her vehicle, Sherry claims, in her first interview, that Officer
17
Winchester gave her “ten choices.” Then she clarified it was only three choices. (Exh. A.) Officer
18
Winchester told her she had “three options,” which she felt were (1) engage in oral sex, (2) engage
19
in vaginal sex and (3) she did not know. (Exh. A.) (Sherry was the first one to raise any sexual
20
21 interaction with Officer Winchester).
22 Officer Winchester instructs her to take “three swallows” from her vodka pint. (Exh. A.)
23 Officer Winchester had her bend over the trunk portion of his patrol vehicle where he proceeded to
24
have sexual relations with her in a couple different positions. (Exh. A.) His penis kept “slipping
25
out” during the assault and she was aggravated that she kept having to assist him to get it back
26
inside of her. She reported that he did not fully undress for the assault, but he had her in a position
27
28
3
WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS)
1 on her stomach and he then just unzipped his pants. Officer Winchester asked “You’re not going
2 to get me into any trouble now, are you?” to which Sherry C replied “No.” (Exh. A.)
3
4 Sherry C. was discovered by a street sweeper on t
Preview
1 NOAH G. BLECHMAN (State Bar No. 197167) noah.blechman@mcnamaralaw.com 2 BRIANA J. WAITE (State Bar No. 327887) briana.waite@mcnamaralaw.com 3 MCNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP 4 3480 Buskirk Avenue, Suite 250 Pleasant Hill, CA 94523 5 Telephone: (925) 939-5330 Facsimile: (925) 939-0203 6 Attorneys for Defendant 7 Noah Winchester 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO 9 CIVIL - UNLIMITED JURISDICTION McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 11 DANIELLE M., ALICIA A., and SHERRY Case No. 22-CIV-01066 C., 12 NOAH WINCHESTER’S RESPONSE TO TELEPHONE: (925) 939-5330 Plaintiffs, PLAINTIFFS’ MOTION FOR DISCOVERY ATTORNEYS AT LAW 13 OF LAW ENFORCEMENT PERSONNEL vs. RECORDS FROM SAN MATEO, LOS RIOS 14 AND SACRAMENTO POLICE NOAH WINCHESTER, SAN MATEO DEPARTMENTS (Pitchess) 15 POLICE DEPARTMENT, CITY OF SAN MATEO, and DOES 1 through 10, 16 inclusive, Date: June 9, 2023 Time: 9:00 a.m. 17 Defendant. Department: 21 (Hon. Robert D. Foiles) 18 19 20 21 22 23 24 25 26 27 28 WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS) 1 TABLE OF CONTENTS 2 I. INTRODUCTION ........................................................................................................................ 1 3 II. STATEMENT OF FACTS .......................................................................................................... 1 4 A. Alicia A. ................................................................................................................... 1 5 B. Danielle M. ............................................................................................................... 2 6 C. Sherry C. .................................................................................................................. 3 7 III. OPPOSITION ARGUMENTS .................................................................................................. 4 8 A. Information Contained In The Personnel Files Of Officer Winchester Is 9 McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP Privileged And Subject To Discovery Only In Limited Circumstances. ................. 5 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 B. The Plaintiffs’ Request Should Be Severely Limited Due To Its 11 Overbreadth. ............................................................................................................. 7 12 C. If The Court Does Find Good Cause As To Any Of The Records Sought, TELEPHONE: (925) 939-5330 Party In Interest Requests That The Court Examine The Information ATTORNEYS AT LAW 13 Sought By The Plaintiffs In Chambers Under Evidence Code Sections 915(D) And 1045(B). ............................................................................................... 9 14 D. Plaintiffs Are Entitled Only To Limited Information Regarding 15 Complaints. ............................................................................................................ 10 16 1.The Plaintiffs May Not Have Materials Relating to Incidents More Than 17 Five Years Old from the Time of the Incidents at Issue. ....................................... 10 18 2.The Plaintiffs May Have, at the Most, the Names and Contact Information of the Complainant and Witnesses.. ................................................... 11 19 E. Disclosure Of Records Not Contained In Personnel Files Must Comply 20 With Penal Code Section 1054.5. .......................................................................... 12 21 F. If The Court Orders Any Information To Be Disclosed, Respondent Asks 22 The Court To Issue A Protective Order Concerning Such Information................. 12 23 IV. CONCLUSION ........................................................................................................................ 13 24 25 26 27 28 i WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS) 1 TABLE OF AUTHORITIES 2 Cases 3 Alvarez v. Superior Court (2004) 117 Cal.App.4th 1107 ................................................................. 5 4 California Highway Patrol v. The Superior Court of Santa Cruz County (2000) 84 Cal.App.4th 1010, 1021 ................................................................................................................................ 4, 8 5 Carruthers v. Municipal Court (1980) 110 Cal.App.3d 439 ..................................................... 5, 11 6 City and County of San Francisco v. Superior Court (1981) 125 Cal.App.3d 879, 882 ................. 5 7 City of Azusa v. Superior Court (1987) 191 Cal.App.3d 695, 696 .......................................... 10, 11 8 City of Fresno v. Superior Court (1988) 205 Cal.App.3d 1459, 1474-76 ....................................... 6 9 McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84-86 ........................................ 4, 5, 7 10 Haggerty v. Superior Court of San Diego (2004) 117 Cal.App.4th 1079, 1085-1086 ................. 4, 5 11 Herrera v. Superior Court (1985) 172 Cal.App.3d 1159 .............................................................. 11 12 TELEPHONE: (925) 939-5330 Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 828-29................................................ 5, 11 ATTORNEYS AT LAW 13 Long v. Municipal Court (1976) 58 Cal.App.3d 382 ..................................................................... 10 14 People v. Castain (1981) 122 Cal.App.3d 138 ........................................................................ 10, 11 15 People v. Jackson (1996) 13 Cal.4th 1164 ........................................................................................ 8 16 People v. Matos (1979) 92 Cal.App.3d 862 ................................................................................... 10 17 People v. Memro, (1985) 38 Cal.3d 658, 685 .................................................................................. 8 18 People v. Serrata (1976) 62 Cal.App.3d 9, 15 ................................................................................. 7 19 People v. Woolman (1974) 40 Cal.App.3d 952 ............................................................................. 10 20 Pitchess v. Superior Court (1974) 11 Cal.3d 537, 538 ........................................................... passim 21 Statutes 22 Civil Code § 1798 ............................................................................................................................ 5 23 Evidence Code § 915 ................................................................................................................. 9, 11 24 Evidence Code § 915 (d) .................................................................................................................. 9 25 Evidence Code § 1040 ..................................................................................................................... 1 26 Evidence Code § 1043 ................................................................................................... 4, 6, 7, 9, 12 27 Evidence Code § 1043(b) ................................................................................................................. 7 28 Evidence Code § 1043(b)(3) ............................................................................................................ 4 ii WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS) 1 Evidence Code § 1044 ..................................................................................................................... 9 2 Evidence Code § 1045 ................................................................................................. 6, 7, 9, 10, 11 3 Evidence Code § 1045(a) ............................................................................................................. 6, 7 4 Evidence Code § 1045(b) ................................................................................................. 6, 9, 10, 11 5 Evidence Code § 1045(b)(1) .................................................................................................... 10, 11 6 Evidence Code § 1045(d) ............................................................................................................... 12 7 Evidence Code § 1045(e) ............................................................................................................... 12 8 Evidence Code § 1046 ..................................................................................................................... 4 9 Penal Code § 832.5 .................................................................................................................... 5, 11 McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 Penal Code § 832.7 ...................................................................................................................... 5, 9 11 Penal Code § 1054.5 ...................................................................................................................... 12 12 TELEPHONE: (925) 939-5330 ATTORNEYS AT LAW 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS) 1 Defendant NOAH WINCHESTER hereby oppose Plaintiffs’ motion for pretrial discovery 2 (Pitchess1.) Plaintiffs have failed to provide sufficient evidence to prove good cause and materiality 3 for the discovery of the requested information. First, the supporting declaration of Plaintiffs’ 4 counsel, Mr. Todd P. Emmanuel, does not suffice for such good cause showing. Second, even if 5 the Court should find Mr. Emmanuel’s declaration sufficient, an in camera review should only be 6 granted for a portion of the requested information. Any disclosure following an in camera review 7 should be limited and subject to a stringent and case specific protective order. As to the remaining 8 information, Plaintiffs have not satisfied the good cause requirement for the remaining requests 9 which are overbroad and encompass much more than allowed under the Pitchess process. McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 Plaintiffs’ motion is more akin to a discovery request directed to Defendants, which is improper 11 via the Pitchess process and per Evidence Code § 1040 et seq. As such, the scope of Plaintiffs’- 12 request should and must be narrowed to comply with this process. TELEPHONE: (925) 939-5330 ATTORNEYS AT LAW 13 I.INTRODUCTION 14 15 This suit arises out of three separate alleged incidents: the alleged sexual assault of Danielle 16 M. on September 15, 2015, the alleged assault of Sherry C. on October 19, 2015, and the alleged 17 sexual assault of Alicia A. on September 2, 2015. All three of these assaults allegedly occurred 18 during Officer Winchester’s time as a San Mateo Police Officer. Plaintiffs are seeking to expand 19 beyond Officer Winchester’s San Mateo records and are seeking records outside of the allegations 20 made in by the current Plaintiffs, specifically from Los Rios Police Department and Sacramento 21 Police Department. Any alleged incidents that may have occurred within other jurisdictions are not 22 related to the current suit. 23 II.STATEMENT OF FACTS 24 A. Alicia A. 25 Alicia A. alleges as follows. She and a male friend, Allan Booze, checked into the Avalon 26 Motel in San Mateo on September 22nd in the early morning. Officer Winchester stopped the 27 vehicle they were traveling in and learned that Alicia was on probation. Allan, who was driving the 28 1 Pitchess v. Superior Court (1974) 11 Cal.3d 531. 1 WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS) 1 car, was told to leave as Officer Winchester grabbed a bottle of alcohol that was inside their vehicle. 2 Officer Winchester told Allan he would be arrested if he did not leave. This bottle of alcohol he 3 grabbed was an open bottle of Hennessey and Alicia had been concerned that Allan would get in 4 trouble for a DUI. 5 Alicia was escorted into the motel room. The officer conducted a search of Alicia that 6 involved touching her breasts, buttocks and vagina over her clothing without gloves. She was then 7 instructed by Officer Winchester to strip off her clothing and bend over the bed. She initially 8 resisted, but relented when he threatened her with arrest and so took off some of her clothes. At this 9 point, she began “crying loudly,” causing Officer Winchester to leave the motel room. Other than McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 10 this search over her clothing, Officer Winchester did not make physical contact with Alicia A. 11 (Exh. A.) 12 B. Danielle M. TELEPHONE: (925) 939-5330 ATTORNEYS AT LAW 13 Danielle M. alleges as follows. On September 15, 2015, Danielle M. and her boyfriend, 14 Felipe Chavez, were walking towards her home around 3 am, cutting through a shopping center, 15 when they were contacted by Officer Pedreira, who was apparently familiar with, Mr. Chavez. 16 (Exh. A.) Officer Pedreira was speaking with Mr. Chavez when Officer Winchester arrived on 17 scene as Danielle’s boyfriend is sent on his way. Officer Winchester went as far to tell him to leave 18 the scene or he would be arrested. (Exh. C.) Officer Winchester asked for consent to search her 19 purse and finds a pill of Oxycodone. Chavez stuck around by hiding nearby to watch the remainder 20 of the interaction. (Exh. C.) 21 Officer Winchester sends Officer Pedreira to find the boyfriend. He begins to stick his 22 fingers into the waistband area of Danielle’s leggings and running his fingers around that area. He 23 then fully pushes his hand into her leggings while asking if she had anything illegal on her. She 24 denied it, and he pushed his hand fully into her leggings and pulls back her underwear and leggings 25 – exposing her vagina. The leggings and underwear were pulled around 4 – 5 inches horizontally 26 away from her body. He was “flicking it” or “snapping it” and she could feel his hand on her vagina. 27 Chavez described Officer Winchester using his pointer finger and middle finger inside Danielle’s 28 2 WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS) 1 pants, but then clarified he led with those two fingers and stuck most of his hand into Danielle’s 2 pants. (Exh. C.) 3 C. Sherry C. 4 5 Sherry alleges as follows. On October 19, 2015, Sherry C. had a disagreement with the 6 clerk at Avalon Motel when the clerk refused to let her rent another room. It was stemming from 7 this confrontation that Officer Noah Winchester arrives on scene at the motel sometime in the late 8 afternoon. Sherry left the property as instructed by him, but falls asleep in her car at another nearby 9 McNAMARA, AMBACHER, WHEELER, HIRSIG & GRAY LLP 3480 BUSKIRK AVENUE, SUITE 250, PLEASANT HILL, CA 94523 motel. Officer Winchester, apparently having followed her, contacts her again. She is unsure of the 10 time, but it was now dark outside. She does not have enough cash for the hotel room, so Officer 11 Winchester has her follow him to find an ATM. They end up near a park which turned out to be 12 TELEPHONE: (925) 939-5330 ATTORNEYS AT LAW 13 Coyote Point. She claims she was taken to an alleyway to be “searched.” He had her remove her 14 sweater and pulled out her bra to look into it. Then he has her put her hands on the wall, after taking 15 her pants off, and bend over to search her body cavities. 16 When they return to her vehicle, Sherry claims, in her first interview, that Officer 17 Winchester gave her “ten choices.” Then she clarified it was only three choices. (Exh. A.) Officer 18 Winchester told her she had “three options,” which she felt were (1) engage in oral sex, (2) engage 19 in vaginal sex and (3) she did not know. (Exh. A.) (Sherry was the first one to raise any sexual 20 21 interaction with Officer Winchester). 22 Officer Winchester instructs her to take “three swallows” from her vodka pint. (Exh. A.) 23 Officer Winchester had her bend over the trunk portion of his patrol vehicle where he proceeded to 24 have sexual relations with her in a couple different positions. (Exh. A.) His penis kept “slipping 25 out” during the assault and she was aggravated that she kept having to assist him to get it back 26 inside of her. She reported that he did not fully undress for the assault, but he had her in a position 27 28 3 WINCHESTER’S RESPONSE TO PLTFS’ MTN FOR DISCOVERY OF PERSONNEL RECORDS (PITCHESS) 1 on her stomach and he then just unzipped his pants. Officer Winchester asked “You’re not going 2 to get me into any trouble now, are you?” to which Sherry C replied “No.” (Exh. A.) 3 4 Sherry C. was discovered by a street sweeper on t