Avelar

In this original proceeding we are asked to determine whether the Ontario Police Department, and its representative as custodian of the Department’s records, may exercise a peremptory challenge under Code of Civil Procedure section 170.6 to disqualify a judge assigned to hear a defendant’s motion for disclosure of a peace officer’s personal or otherwise confidential records and other information in the possession of the Department. We hold that the Department has no right or standing to exercise such a challenge, and issue the writ as prayed.

Petitioner Jaime Avelar is charged with battery on a peace officer and assault with a deadly weapon on a peace officer. (Pen. Code, §§ 243, subd. (c); 245, subd. (c).) His defense will be that the officers, perhaps spurred by racial prejudice, used excessive force against him.

In conjunction with the preparation of his defense, Avelar moved for discovery of several categories of records alleged to be within the possession and control of the Department, the employer of the officers involved. Some of these items fell within the purview of Evidence Code section 1043 et seq., while others did not. After an in camera review of materials…