People v. Super. Ct. (Johnson) ( 2014 )

Filed 8/11/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Petitioner,
v.
THE SUPERIOR COURT OF SAN A140767
FRANCISCO COUNTY,
(San Francisco County
Respondent; Super. Ct. No. 12029482)
DARYL LEE JOHNSON,
Real Party in Interest.
CITY AND COUNTY OF SAN
FRANCISCO ex rel. THE SAN
FRANCISCO POLICE DEPARTMENT,
Petitioner,
A140768
v.
THE SUPERIOR COURT OF SAN (San Francisco County
FRANCISCO COUNTY, Super. Ct. No. 12029482)
Respondent;
THE PEOPLE et al.,
Real Parties in Interest.
This case presents an issue of first impression: In fulfilling its federal
constitutional duty to disclose exculpatory evidence to a criminal defendant under Brady
1
v. Maryland (1963) 373 U.S. 83 (Brady), is the prosecution entitled to direct access to
peace officer personnel files? In this consolidated writ proceeding, petitioners the San
Francisco District Attorney and the San Francisco Police Department1 argue that in this
state such access is barred by Penal Code section 832.7, subdivision (a) (“Section
832.7(a)”). Section 832.7(a) is among the statutes adopted by the Legislature to codify
the decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), regarding the
discovery in criminal cases of citizen complaints against law enforcement witnesses.
Section 832.7(a) provides, in part, that peace officer personnel records are confidential
and may be disclosed in a criminal proceeding only pursuant to a motion under Evidence
Code section 1043 (“Section 1043”). Petitioners argue that, because Section 832.7(a)
bars direct prosecutorial access to these files, the trial court is required, after a proper
showing by the prosecution, to conduct the Brady review of the files to identify materials
that must be disclosed to the defendant. Petitioners suggest the prosecution may obtain
such a review and disclosure by filing a motion under Section 1043.
Respondent superior court rejected petitioners’ contentions, concluding that
Section 1043 does not apply to motions seeking review of peace officer personnel records
under Brady, and Section 832.7(a) is unconstitutional to the extent it bars the prosecution
from obtaining access to officer personnel records in order to comply with Brady. The
court directed the SF Police Department to give the District Attorney access to the
relevant officer personnel files so that the District Attorney can comply with Brady’s
disclosure obligations.
We deny the writ petitions to the extent they challenge the respondent superior
court’s order requiring the SF Police Department to provide the prosecution access to
1
One petition (A140767) was filed in the name of the People of the State of
California, represented by the San Francisco District Attorney (hereafter referred to as the
“People,” “District Attorney,” “prosecution,” or “prosecutor”). The other petition
(A140768) was filed by the City and County of San Francisco through the San Francisco
Police Department (referred to herein as the “SF Police Department”). Defendant
Johnson is a real party in interest in both petitions, and the People are an additional real
party in interest in the SF Police Department’s petition.
2
officer personnel files to allow for identification of any Brady materials in those files.
We conclude that Section 832.7(a), properly interpreted, does not create a barrier
between the prosecution and the performance of its duty under Brady; our construction of
Section 832.7(a) makes it unnecessary to consider the constitutionality of barring
prosecutorial access to officer personnel files for the purpose of identifying Brady
materials therein.2 On the other hand, we grant the writ petitions to the extent they
challenge the respondent superior court’s refusal to consider any request for disclosure of
Brady materials pursuant to a motion under Section 1043. We conclude that, prior to
disclosure to the defendant of any Brady material identified by the District Attorney, the
prosecution must seek an order authorizing such disclosure under Section 1043.
BACKGROUND
The two petitions for writ of mandate/prohibition involved in the present
proceeding arise from a felony domestic violence case, People v. Daryl Lee Johnson (San
Francisco Superior Court No. 12029482).
On November 14, 2012, the District Attorney filed a complaint charging defendant
Johnson with one count of felony domestic violence (Pen. Code, § 273.5, subd. (a)), and
one count of misdemeanor injuring a wireless communication device (Pen. Code, §
591.5). At the December 2013 preliminary hearing, police officer Paul Dominguez
testified regarding an incident on November 11, 2012 during which he and police officer
Antonio Carrasco responded to a 911 call from a residence in San Francisco. Johnson
admitted he hit the victim, a female minor; Johnson claimed the minor had “[m]aced”
him. The victim showed Officer Dominguez a two inch lump on the back of her head
where Johnson struck her. She also told the officer Johnson had tried to prevent her from
calling 911 by grabbing her cell phone and then a cordless phone out of her hands.
2
In City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1(Brandon), the California Supreme Court reserved “the question of whether Penal Code
section 832.7, which precludes disclosure of officer records ‘except by discovery
pursuant to Sections 1043 and 1046 of the Evidence Code,’ would be constitutional if it
were applied to defeat the right of the prosecutor to obtain access to officer personnel
records in order to comply with Brady.” (Brandon, at p. 12, fn. 2.)
3
The District Attorney’s Motion for In Camera Brady Review
In December 2013, the prosecution filed a “Notice of Motion for Discovery of San
Francisco Police Department Peace Officer Personnel Records Under Brady and
Evidence Code Sections 1043 and 1045(e).” The motion requested that the court conduct
an in camera review of personnel records of Officers Dominguez and Carrasco to
determine whether any items in their files were material under Brady and therefore
subject to disclosure.3 It also requested that the court “disclose to the District Attorney’s
Office and the defense any Brady material located in the personnel files, and . . . issue a
protective order to protect the officers’ statutory right of privacy in their personnel files.”
The December 2013 motion was supported by a declaration from the assistant
district attorney prosecuting the case. The declaration averred that Officers Dominguez
and Carrasco “are necessary and essential witnesses for the prosecution in this case on
virtually all the issues and each of the counts charged.” The SF Police Department had
informed the prosecution that each of the officers had “material in his . . . personnel file
that may be subject to disclosure under” Brady. (Italics added.) The declaration did not
state that the prosecutor had viewed the potential Brady material. Instead, it stated the
records were in the “exclusive possession and control” of the SF Police Department and
the District Attorney did not have “actual” or “constructive” possession of the records.
Nevertheless, the prosecutor averred that, based on the representation from the SF Police
Department that the files contained potential Brady material, she “believe[s]” the
officers’ personnel files contain “sustained allegations of specific Brady misconduct,
reflective of dishonesty, bias, or evidence of moral turpitude. I believe on these case
facts, and given the officers’ roles, that such misconduct would be constitutionally
material to the instant case in the Brady sense.” The declaration further explained that
the records “are material to the pending litigation in that they pertain to the credibility of
3
The trial court previously denied a similar prosecutorial motion with respect to
Officer Carrasco only. The trial court’s order following the December 2013 motion is the
order at issue in this proceeding.
4
a necessary and material prosecution witness, and could either impeach said witness or
lead to evidence exonerating the defendant.”
Bureau Order No. 2010-01
The prosecution’s December 2013 motion was in accordance with the SF Police
Department’s Bureau Order No. 2010-01 (“Bureau Order”), which established the
department’s procedures for Brady disclosure of materials in employee personnel files.4
A premise underlying the Bureau Order is that the District Attorney cannot legally access
confidential officer personnel files absent a trial court order obtained pursuant to a
motion under Section 1043. The Bureau Order explains its purpose as follows: Because
“[r]epetitive requests by the District Attorney that the [SF Police] Department check
employee personnel files of Department employees who may be witnesses create
unnecessary paperwork and personnel costs . . . the Department is adopting a procedure
under which the Department advises the District Attorney’s Office of the names of
employees who have information in their personnel files that may require disclosure
under Brady. The District Attorney’s Office then makes a motion under Evidence Code
1043 and 1045 for in camera review of the records by the court.”
The Bureau Order includes examples and definitions of evidence that may
constitute “potential ‘Brady material.’ ” The Bureau Order contemplates that potential
Brady material will be identified on an ongoing basis and that the District Attorney’s
office will be notified on an ongoing basis that the personnel files for particular officers
may contain Brady material. When the SF Police Department becomes aware of
potential Brady material regarding an officer, a synopsis is created identifying the
employee, the conduct at issue, and the documents and information for potential
disclosure. Thereafter, a departmental “ ‘Brady Committee’ ” meets to review the
synopsis and recommend to the Chief of Police whether the employee’s name should be
4
The Bureau Order relates to both police officer and civilian personnel records, but
we refer herein only to officer personnel records.
5
disclosed to the District Attorney.5 The Chief of Police approves or disapproves the
committee’s recommendation. If disclosure of an officer’s name is approved, the District
Attorney is notified only that the officer “has material in his or her personnel file that
may be subject to disclosure under” Brady.
The Bureau Order contemplates that the District Attorney “will create a list of
Department employees who have potential Brady material in their personnel files.” It
further contemplates that, “When the District Attorney’s office deems that a law
enforcement officer, identified by the Department as having possible Brady material in
their personnel file, is a material witness in a pending criminal case . . . the District
Attorney shall make a ‘Brady’ motion under Evidence Code Sections 1043 and 1045(e)
to the court for in-camera review of the records.” The SF Police Department will not
disclose material from officer personnel files to any party absent a trial court order for
disclosure. In its conclusion, the Bureau Order explains, “The purpose of this procedure
is to ensure that prosecutors and the defense receive sufficient information to comply
with the constitutional requirements of Brady while protecting the legitimate privacy
rights of law enforcement witnesses.”
Defendant Johnson’s and the SF Police Department’s Responses
Defendant Johnson responded to the prosecutor’s December 2013 motion with his
own “Motion for Brady discovery.” Johnson requested that the trial court either conduct
the requested in camera Brady review; declare Section 832.7(a) unconstitutional and
direct the SF Police Department to allow the prosecutor to access the officer personnel
files to perform a Brady materiality review; or dismiss the case due to the prosecution’s
failure to comply with Brady. Johnson indicated his belief that he could not himself
obtain disclosure of the material in the personnel files, stating, “defendant knows only
that those files contain potential Brady material, but cannot move for it specifically
because . . . he does not know what it is, or how it might impact his defense.”
5
This committee consists of the Assistant Chief of the Office of Chief of Staff, the
Director of Risk Management, the head of the Legal Division, the Director of Staff
Services, the author of the synopsis, and a retired judge with criminal law experience.
6
The SF Police Department responded to the prosecutor’s motion, generally
expressing agreement with the positions taken by the prosecutor and urging the trial court
to perform the in camera review contemplated by the Bureau Order’s Brady disclosure
protocol.
The Trial Court’s Ruling
On January 7, 2014, following a hearing, the superior court issued a lengthy
“Order Re Brady Motions.” The court concluded the prosecution had not made a
sufficient showing of Brady materiality to justify court review of the records.6 The court
also concluded that the Pitchess motion procedures (§ 1043 et seq.) do not apply to
motions seeking review of police officer personnel records under Brady, and Section
832.7(a) is unconstitutional to the extent it bars the prosecution from obtaining access to
officer personnel records in order to comply with Brady.
The trial court denied the prosecution’s Section 1043 motion for in camera Brady
review and directed the SF Police Department “to give the District Attorney access to the
personnel files of officers Dominguez and Carrasco ‘so the prosecution can comply with
its Brady mandate[.]’ ” The order continued, “Once the District Attorney has reviewed
the personnel records, he will be able to fulfill his constitutional obligation to disclose to
the Public Defender any information that is material under Brady. If a close question
nonetheless remains as to whether information in a specific document or documents
should be disclosed under Brady, the District Attorney will be able to make the
threshold” materiality showing necessary to justify review of the documents by the trial
court.
The Present Writ Proceeding
Petitioners filed the present petitions on January 17, 2014. Petitioners seek
issuance of a writ of mandate and/or prohibition ordering respondent superior court to
6
The prosecution argued it only needed to make “ ‘some plausible showing’ ” the
personnel files contain Brady material and the showing could be made by informing the
trial court that the officers were critical witnesses and the SF Police Department had
indicated the files had potential Brady material.
7
vacate its January 2014 order denying the prosecution’s Section 1043 motion, directing
the SF Police Department to give the prosecution access to officer personnel files, and
declaring Section 832.7(a) unconstitutional. Petitioners request that this court direct
respondent court to accept the officer personnel records proffered by the SF Police
Department and to review the records in camera and disclose all Brady materials to both
the prosecution and defense counsel, subject to a protective order.7
This court stayed the January 2014 order and trial in defendant Johnson’s criminal
case, consolidated the two writ proceedings, and directed the respondent court to show
cause why the relief requested in the petitions should not be granted. This court also
granted applications for leave to file amicus curiae briefs supporting petitioners by the
Appellate Committee of the California District Attorneys Association, the Ventura
County District Attorney, the Santa Clara County District Attorney, and the Police
Officers’ Research Association of California et al. This court also granted the respondent
superior court’s request to file a response to the petitions, and the Attorney General filed
an amicus curiae brief.8
DISCUSSION
This case is the latest in a body of case law considering the “interplay” between
the United States Supreme Court’s 1963 decision in Brady, supra, 373 U.S. 83, and the
statutory discovery procedures enacted by the California Legislature after the California
Supreme Court’s decision in Pitchess, supra, 11 Cal.3d 531. (Brandon, supra, 29 Cal.4th
at p. 7.) “In Brady, the high court announced a rule, founded on the due process
guarantee of the federal Constitution, that requires the prosecution to disclose evidence
that is favorable and ‘material’ to the defense.” (Ibid.) The Pitchess procedures include,
7
In his briefing in this writ proceeding, defendant and real party in interest Johnson
does not object to the relief sought by petitioners, involving in camera Brady review by
the trial court.
8
On April 21, 2014, respondent superior court filed a motion for judicial notice of
the “Budget Snapshot” for the court’s 2014-2015 fiscal year. Because the budgetary
constraints faced by the court are not relevant to the issues of law we decide in this writ
proceeding, the motion for judicial notice is denied.
8
among others, the key statutory provisions at issue in the present case, Section 832.7(a),
Section 1043, and Evidence Code section 1045 (“Section 1045”).9 Section 832.7(a)
declares that peace officer personnel records “are confidential and shall not be disclosed
in any criminal or civil proceeding except by discovery pursuant” to Section 1043.10
Section 1043 sets forth requirements for a motion seeking “discovery or disclosure” of
peace officer personnel records, and Section 1045 contains “protective provisions”
related to officer privacy interests. (City of Santa Cruz v. Municipal Court (1989) 49
Cal.3d 74, 83 (City of Santa Cruz).)
At issue in this case is whether the prosecution may routinely require the trial
court to conduct the initial Brady materiality review of documents from officer personnel
files identified by the SF Police Department as containing potential Brady material.11
Petitioners argue Section 832.7(a) prohibits the prosecution from accessing officer
personnel files absent a motion under Section 1043. They contend the trial court erred in
denying the prosecution’s request under Section 1043 that the court perform an in camera
Brady review of the documents identified by the SF Police Department and that the court
authorize the disclosure to the parties of any evidence the court deemed material under
Brady. They further contend the trial court erred in concluding that Section 832.7(a) is
9
Unless otherwise indicated, all further undesignated statutory references are to the
Evidence Code.
10
Section 832.7(a) also references section 1046, but that provision is not relevant in
the present case. Section 1046 contains special requirements applicable to requests for
disclosure involving allegations of excessive force.
11
Petitioners may take issue with our suggestion that they seek to “routinely” shift
review to the trial court. However, their position essentially would shift the
responsibility for identifying Brady material in officer personnel files to the trial court;
such a categorical change is properly characterized as mandating routine trial court
review for those materials. The prosecution informed the trial court that the District
Attorney’s office would be making approximately 250 requests for such reviews each
year. Petitioners may also take issue with our characterization of the requested trial court
review as the “initial” Brady materiality review, because they seek for the court to review
a pool of potential exculpatory materials identified by the SF Police Department. But the
SF Police Department review is not a review for Brady materiality in the context of a
particular case, so the requested trial court review would be the first true Brady review.
9
unconstitutional to the extent it denies prosecutorial access to officer personnel files for
Brady purposes, and in directing the SF Police Department to give the prosecution access
to the personnel files of two officer witnesses, so that the prosecution could identify any
materials required to be disclosed under Brady.
We conclude that, properly construed, Section 832.7(a) does not preclude
prosecutorial access to officer personnel files for Brady purposes. Thus, we need not
reach the constitutionality issue addressed by the trial court and reserved in Brandon,
supra, 29 Cal.4th at page 12, footnote 2. At various places in our opinion we refer to the
initial review and identification of Brady materials by the prosecution as the “first stage”
of the Brady disclosure process. We further conclude that, prior to disclosing the
identified Brady material to the defendant, the prosecution must file a motion for such
disclosure under Section 1043. We refer to this request for disclosure as the “second
stage” of the Brady disclosure process. This resolution is consistent with the statutory
language, the Legislature’s intent for a judicial role in disclosure to protect officer
privacy, and the prosecution’s federal constitutional obligations under Brady.
I. Standard of Review and Statutory Interpretation Principles
Resolution of the issues in this writ proceeding turns on the interpretation of
statutes, primarily Section 832.7(a) and Section 1043. Our review is de novo. (Ceja v.
Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1119.)
“ ‘As in any case involving statutory interpretation, our fundamental task here is to
determine the Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.] The
well-established rules for performing this task require us to begin by examining the
statutory language, giving it a plain and commonsense meaning. [Citation.] We do not,
however, consider the statutory language in isolation; rather, we look to the statute’s
entire substance in order to determine its scope and purposes. [Citation.] That is, we
construe the words in question in context, keeping in mind the statute’s nature and
obvious purposes. [Citation.] We must harmonize the statute’s various parts by
considering it in the context of the statutory framework as a whole. [Citation.] If the
statutory language is unambiguous, then its plain meaning controls. If, however, the
10
language supports more than one reasonable construction, then we may look to extrinsic
aids, including the ostensible objects to be achieved and the legislative history.
[Citation.]” (Los Angeles County Metropolitan Transportation Authority v. Alameda
Produce Market, LLC (2011) 52 Cal.4th 1100, 1106-1107.)
II. The Prosecution’s Disclosure Obligations Under Brady
“In Brady, the United States Supreme Court held ‘that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.’ [Citation.] The high court has since held that the duty to
disclose such evidence exists even though there has been no request by the accused
[citation], that the duty encompasses impeachment evidence as well as exculpatory
evidence [citation], and that the duty extends even to evidence known only to police
investigators and not to the prosecutor [citation]. Such evidence is material ‘ “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” ’ [Citation.]” (People v. Salazar (2005) 35
Cal.4th 1031, 1042.)
“Responsibility for Brady compliance lies exclusively with the prosecution[.]” (In
re Brown (1998) 17 Cal.4th 873, 878 (Brown).) “The scope of this disclosure obligation
extends beyond the contents of the prosecutor’s case file and encompasses the duty to
ascertain as well as divulge ‘any favorable evidence known to the others acting on the
government’s behalf. . . .’ [Citation.] Courts have thus consistently ‘decline[d] “to draw
a distinction between different agencies under the same government, focusing instead
upon the ‘prosecution team’ which includes both investigative and prosecutorial
personnel.” ’ [Citation.]” (Id. at p. 879; see also Brandon, supra, 29 Cal.4th at p. 8 [the
Brady disclosure requirement “encompasses evidence ‘known only to police investigators
and not to the prosecutor’ ”].) Thus, “the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government’s behalf in the case,
including the police.” (Kyles v. Whitley (1995) 514 U.S. 419, 437 (Kyles); accord
Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870; People v. Whalen (2013) 56
11
Cal.4th 1, 64; Brandon, supra, 29 Cal.4th at p. 8.) This is because Brady places on the
prosecution an “affirmative duty to disclose evidence favorable to a defendant” (Kyles, at
p. 432), and “ ‘procedures and regulations can be established to carry [the prosecutor’s]
burden and to insure communication of all relevant information on each case to every
lawyer who deals with it.’ [Citation.]” (Id. at p. 438.) Kyles continued, “Since, then, the
prosecutor has the means to discharge the government’s Brady responsibility if he will,
any argument for excusing a prosecutor from disclosing what he does not happen to know
about boils down to a plea to substitute the police for the prosecutor, and even for the
courts themselves, as the final arbiters of the government’s obligation to ensure fair
trials.” (Kyles, at p. 438; accord Brown, at p. 881.)
As the California Supreme Court emphasized in Brown, “the Supreme Court has
unambiguously assigned the duty to disclose solely and exclusively to the prosecution;
those assisting the government’s case are no more than its agents. [Citations.] By
necessary implication, the duty is nondelegable at least to the extent the prosecution
remains responsible for any lapse in compliance. Since the prosecution must bear the
consequences of its own failure to disclose [citations], a fortiori, it must be charged with
any negligence on the part of other agencies acting in its behalf [citations].” (Brown,
supra, 17 Cal.4th at p. 881.)
III. The Pitchess Decision and Its Codification in Statutory Law
In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court held criminal
defendants have a right to discover citizen complaints of misconduct found in peace
officer personnel files. Specifically, the court permitted the defendant, charged with
battery on sheriff’s deputies, to discover any complaints of excessive force in the
deputies’ personnel files. (Id. at p. 534.) The holding was an extension of “judicially
created doctrine evolving in the absence of guiding legislation . . . based on 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.” (Id. at p. 535.)
The court explained that a defendant “may compel discovery by demonstrating that the
requested information will facilitate the ascertainment of the facts and a fair trial.” (Id. at
12
p. 536.) “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.’ [Citations.]”
(Id. at p. 537.) Although the Pitchess procedures “must be viewed against the larger
background of the prosecution’s constitutional obligation to disclose to a defendant
material exculpatory evidence so as not to infringe the defendant’s right to a fair trial,”
(People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc)), the Pitchess decision itself did
not actually rely on the prosecutor’s obligations under Brady as a basis for its holding.
In 1978, the California Legislature “codified the privileges and procedures
surrounding what had come to be known as ‘Pitchess motions’ . . . through the enactment
of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.”
(City of Santa Cruz, supra, 49 Cal.3d at p. 81, fn. omitted.) City of Santa Cruz described
the statutory scheme as follows: “The Penal Code provisions define ‘personnel records’
(Pen. Code, § 832.8) and provide that such records are ‘confidential’ and subject to
discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, §
832.7.) [S]ections 1043 and 1045 set out the procedures for discovery in detail. As here
pertinent, section 1043, subdivision (a) requires a written motion and notice to the
governmental agency which has custody of the records sought, and subdivision (b)
provides that such motion shall include, inter alia, ‘(2) A description of the type of
records or information sought; and [¶] (3) Affidavits showing good cause for the
discovery or disclosure sought, setting forth the materiality thereof to the subject matter
involved in the pending litigation and stating upon reasonable belief that such
governmental agency identified has such records or information from such records.’ ”
(City of Santa Cruz, at pp. 81-83.)
City of Santa Cruz continued: “A finding of ‘good cause’ under section 1043,
subdivision (b) is only the first hurdle in the discovery process. Once good cause for
discovery has been established, section 1045 provides that the court shall then examine
the information ‘in chambers’ in conformity with section 915 (i.e., out of the presence of
all persons except the person authorized to claim the privilege and such other persons as
13
he or she is willing to have present), and shall exclude from disclosure several
enumerated categories of information, including: (1) complaints more than five years old,
(2) the ‘conclusions of any officer investigating a complaint . . .’ and (3) facts which are
‘so remote as to make disclosure of little or no practical benefit.’ (§ 1045, subd. (b).)”
(City of Santa Cruz, supra, 49 Cal.3d at p. 83; accord Alford v. Superior Court (2003) 29
Cal.4th 1033, 1039 (Alford).) “The statutory scheme thus carefully balances two directly
conflicting interests: the peace officer’s just claim to confidentiality, and the criminal
defendant’s equally compelling interest in all information pertinent to his defense. The
relatively relaxed standards for a showing of good cause under section 1043, subdivision
(b)—‘materiality’ to the subject matter of the pending litigation and a ‘reasonable belief’
that the agency has the type of information sought—insure the production for inspection
of all potentially relevant documents. The in camera review procedure and disclosure
guidelines set forth in section 1045 guarantee, in turn, a balancing of the officer’s privacy
interests against the defendant’s need for disclosure. As a further safeguard, moreover,
the courts have generally refused to disclose verbatim reports or records of any kind from
peace officer personnel files, ordering instead . . . that the agency reveal only the name,
address and phone number of any prior complainants and witnesses and the dates of the
incidents in question. [Citations.]” (City of Santa Cruz, at p. 84, fns. omitted; see also
Mooc, supra, 26 Cal.4th at p. 1227.) 12
IV. Section 832.7(a) Does Not Preclude Prosecutorial Access to Officer Personnel
Files for Brady Purposes
Section 832.7(a) provides: “Peace officer or custodial officer personnel records
and records maintained by any state or local agency pursuant to Section 832.5, or
information obtained from these records, are confidential and shall not be disclosed in
any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046
12
Due to this limitation on discovery under Pitchess, the potential material for
disclosure under Brady may be much more extensive than the potential material for
disclosure under Pitchess. In the present case, for example, the prosecution indicated that
a previous Pitchess motion resulted in the disclosure of six pages; in contrast, there were
505 pages of potential Brady material.
14
of the Evidence Code. This section shall not apply to investigations or proceedings
concerning the conduct of peace officers or custodial officers, or an agency or department
that employs those officers, conducted by a grand jury, a district attorney’s office, or the
Attorney General’s office.” As noted previously, Section 832.7(a) was adopted by the
Legislature as part of the codification of the Pitchess decision. The stated purpose of the
bill that resulted in the enactment of Section 832.7(a) and Sections 1043 and 1045 was “
‘to give the peace officer and his or her employing agency the right to refuse to disclose
any information concerning the officer or complaints or investigations of the officer in
both criminal and civil proceedings. . . . Personnel files of peace officers . . . are deemed
confidential and not subject to disclosure or discovery except as provided in this bill.’ ”
(Assem. Com. on Crim. J., Bill Analysis on Sen. Bill No. 1436 (as amended Aug. 7,
1978); see also County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605,
1609.)
In complying with Brady with respect to materials in peace officer personnel files,
there are two analytically distinct stages, identification and disclosure. The first requires
access to officer personnel files to identify materials that must be disclosed under Brady.
The second stage is disclosure of Brady materials to the defendant in a criminal
proceeding. Petitioners contend that Section 832.7(a), by effectively precluding
prosecutorial access to the personnel files, requires, at the first stage, that the trial court
make the decision as to what must be disclosed under Brady without identification by the
prosecutor of the materials that should be disclosed. As explained below, we disagree
that Section 832.7(a) eliminates prosecutorial access; although the statute specifies
procedures for the second stage disclosure of Brady materials in criminal proceedings
(see Part VII., post), it does not prohibit the prosecutor, as the head of the prosecution
team, from performing the constitutionally mandated role of identifying Brady materials
in the personnel files. In particular, when a prosecutor acting as the head of a prosecution
team inspects officer personnel files, or portions thereof, for Brady purposes, that
inspection does not constitute disclosure of the files in a criminal proceeding, or
otherwise breach the confidentiality of the files.
15
A. Prosecutorial Access to Personnel Records for Brady Purposes Does Not
Constitute Disclosure of the Files in a Criminal Proceeding
In determining whether prosecutorial access to officer personnel files constitutes a
disclosure prohibited by Section 832.7(a), the decision in Michael v. Gates (1995) 38
Cal.App.4th 737 (Gates), provides guidance. There, in an earlier proceeding, a police
department permitted a deputy city attorney to review the personnel records of a former
police officer, in order to identify impeachment evidence for use in a lawsuit against the
department, in which the former officer was an expert witness for the plaintiff. (Id. at p.
740.) No evidence from the personnel records was actually introduced in the case.
(Ibid.) Subsequently, the former officer sued members of the police department and city
attorney’s office, alleging, among other things, invasion of his right to privacy and
violation of Section 832.7(a) and Section 1043. (Gates, at p. 741.) As petitioners argue
in the present case, the former officer in Gates argued the deputy city attorney was
prohibited from reviewing the personnel files without a noticed motion under Section
1043 “and, presumably, without obtaining a court order after the in camera hearing
prescribed in Evidence Code section 1045.” (Gates, at p. 743.)
In holding that the officer’s claims failed, Gates focused on the language in
Section 832.7(a) directing that officer personnel records “shall not be disclosed in any
criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of
the Evidence Code.” Gates concluded there was no “ ‘discovery or disclosure’ of [the
officer’s] records within the meaning of the statutes.” (Gates, supra, 38 Cal.App.4th at p.
743.) The court reasoned: “[Section 1043] applies to ‘any case in which discovery or
disclosure’ of peace officer personnel records is sought. The statutes thus protect
[officer] privacy rights by requiring a noticed motion, in camera hearing, and court order
before [officer] records could be introduced or otherwise used in any litigation.” (Gates,
at p. 743.) But the legislative intent “to balance a litigant’s need to present a case and a
peace officer’s right to privacy . . . would not be advanced by extending the procedural
requirements to a preliminary review of peace officer records, where there is no
disclosure in litigation, and no ‘discovery.’ In ordinary legal usage, ‘discovery’ refers to
16
the inspection of documents and other materials in the possession or control of an adverse
party in litigation, a process which has as its principle purpose the elimination of the
‘game’ element of litigation. [Citation.] There is no suggestion that the Legislature
intended any other meaning here. An agency which reviews its own records with its
attorney has not engaged in discovery.” (Id. at p. 744.)
Gates stated its holding as follows: “Thus, we hold that where, as here, a
governmental agency and its attorney conduct a contained and limited review of peace
officer personnel files within the custody and control of the agency, for some relevant
purpose, there is no disclosure under the statutes. The statutory scheme is designed to
protect peace officers’ ‘just claim to confidentiality’ and to regulate the use of peace
officer personnel records in civil and criminal proceedings. [Citation.] It was not
intended to, and does not, create substantive or procedural obstacles to a police agency’s
review of its own files.” (Gates, supra, 38 Cal.App.4th at p. 745.)
The present case is not materially distinguishable. Under Government Code
section 26500, the District Attorney is the public prosecutor in a criminal prosecution,
representing the People of the State of California. (Dix v. Superior Court (1991) 53
Cal.3d 442, 451.) As noted previously, the District Attorney leads a “ ‘ “ ‘prosecution
team’ ” which includes both investigative and prosecutorial personnel.’ [Citation.]”
(Brown, supra, 17 Cal.4th at p. 879, fn. omitted.) Due to the “ ‘close working
relationship’ ” between the police and prosecutors (id. at p. 879, fn. 3, quoting U.S. v.
Brooks (D.C. Cir. 1992) 966 F.2d 1500, 1503 (Brooks)), courts in the Brady context have
“consistently” declined to distinguish between separate agencies of the same government
that are part of the prosecution team (Brown, at p. 879; see also id. at p. 881 [“those
assisting the government’s case are no more than its agents”]). Even though the District
Attorney in a criminal prosecution is not the attorney for the SF Police Department in the
same sense as in Gates, the joint operation of the agencies as a prosecution team is a
sufficiently analogous relationship, justifying the same result under Section 832.7(a).
17
We therefore conclude the reasoning of Gates is applicable in the present case.13
In particular, a prosecutorial inspection of an officer’s personnel file for Brady purposes
is not a disclosure of the file within the criminal proceeding.
B. Prosecutorial Access to Personnel Records for Brady Purposes Would Not
Breach the Confidentiality of the Files
A separate issue not directly addressed in Gates is the significance of Section
832.7(a)’s designation of officer personnel files as “confidential.” (§ 832.7(a) [records
are “confidential and shall not be disclosed in any criminal or civil proceeding except by
discovery pursuant to Sections 1043 and 1046 of the Evidence Code”].)
In Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1279 (Copley),
the California Supreme Court held that the word “confidential” in Section 832.7(a) has
independent significance. There, the court considered a newspaper publisher’s request
under the California Public Records Act for records relating to a peace officer’s
administrative appeal of a disciplinary matter. The publisher argued Section 832.7(a) did
not apply because it was not seeking disclosure in a criminal or civil proceeding.
(Copley, at p. 1284.) Copley concluded the records were nonetheless confidential and not
subject to disclosure under the Public Records Act, reasoning, “If, in passing section
832.7, the Legislature had intended ‘only to define procedures for disclosure in criminal
and civil proceedings, it could have done so by stating that the records “shall not be
disclosed in any criminal or civil proceeding except by discovery pursuant to Sections
1043 and 1046 of the Evidence Code . . . ,” without also designating the information
“confidential.” [Citation.]’ [Citations.] Thus, by interpreting the word ‘confidential’
13
The authors of the treatise California Criminal Discovery reach the same
conclusion, stating: “When the district attorney (or Attorney General) prosecutes a
criminal case arising out of an investigation by a law enforcement agency, the
investigating law enforcement agency is part of the ‘prosecution team,’ the district
attorney is the attorney for the ‘prosecution team,’ and the disclosure to the district
attorney of the contents of the personnel records of a police officer employed by that
investigating law enforcement agency does not constitute ‘disclosure’ of the personnel
records within the meaning of Penal Code section 832.7(a).” (Pipes & Gagen, Cal.
Criminal Discovery (4th ed. 2008) § 10:20.3.1, p. 964.)
18
[citation] as ‘establish[ing] a general condition of confidentiality’ [citation], and
interpreting the phrase ‘shall not be disclosed in any criminal or civil proceeding except
by discovery pursuant to Sections 1043 and 1046 of the Evidence Code’ [citation] as
‘creat[ing] a limited exception to the general principle of confidentiality,’ we ‘give[ ]
meaning to both clauses’ of the provision in question. [Citation.]” (Copley, at p. 1285.)
Because the personnel files were “confidential,” they were exempt from disclosure under
the Public Records Act (Gov. Code, § 6254, subd. (k)).14 (Copley, at p. 1283; see also
Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 67; City of
Richmond v. Superior Court (1995) 32 Cal.App.4th 1430, 1440.)
Although the officer personnel files within the scope of Section 832.7(a) are
confidential and may not be disclosed publicly pursuant to the Public Records Act,
neither Copley, nor the Court of Appeal decisions Copley cites (Copley, supra, 39 Cal.4th
at pp. 1284-1285 & fn. 5), address whether permitting a prosecutor to inspect officer
personnel files in the possession of another member of the prosecution team would
constitute a breach of confidentiality. The term “confidential” is undefined in the statute
and ambiguous. The dictionary defines “confidential” as “communicated, conveyed,
acted on, or practiced in confidence : known only to a limited few : not publicly
disseminated : PRIVATE, SECRET.” (Webster’s 3d New Internat. Dict. (2002) p. 476.)
Clearly the term prohibits public disclosure of information from officer personnel files,
but it is otherwise unclear what limits it sets on access. It does not create an absolute bar
to access, because presumably members of a police department that have legitimate
reasons for accessing officer personnel files do not thereby breach the confidentiality of
the files. It also seems safe to assume that designating the files as confidential means that
government employees both inside and outside the police department that do not have a
legitimate basis for accessing officer personnel files cannot do so. However, the scope of
the confidentiality is otherwise unclear.
14
Government Code section 6254, subdivision (k) exempts from disclosure “[r]ecords,
the disclosure of which is exempted or prohibited pursuant to federal or state law,
including, but not limited to, provisions of the Evidence Code relating to privilege.”
19
Where a “statute is ambiguous, we may consider a variety of extrinsic aids,
including legislative history, the statute’s purpose, and public policy. [Citation.]”
(People v. Gonzalez (2008) 43 Cal.4th 1118, 1126.) “ ‘We must select the construction
that comports most closely with the apparent intent of the Legislature, with a view to
promoting rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.’ [Citation.]” (People v.
Coronado (1995) 12 Cal.4th 145, 151.) The Legislature’s intent in enacting the statutory
Pitchess procedures has been summarized as follows: “The report by the Senate
Committee on the Judiciary indicates that the main purpose of the 1978 legislation (Sen.
Bill No. 1436) was to curtail the practice of record shredding and discovery abuses which
allegedly occurred in the wake of the [Pitchess] decision. [¶] The analysis of Senate Bill
No. 1436 prepared for the Assembly Committee on Criminal Justice notes that ‘[t]he
thrust of this bill is to give the peace officer and . . . employing agency the right to refuse
to disclose any information concerning the officer or complaints or investigations . . . in
both criminal and civil proceedings.’ . . . [¶] The report also explained that the purpose
of the bill was to protect personnel records from random discovery by defendants
asserting self-defense to charges of criminal assault upon a police officer. Thus, the
Legislature evidenced its purpose to provide retention of relevant records while imposing
limitations upon their discovery and dissemination.” (San Francisco Police Officers’
Assn. v. Superior Court (1988) 202 Cal.App.3d 183, 189-190; accord Berkeley Police
Assn. v. City of Berkeley (2008) 167 Cal.App.4th 385, 393; see also Assem. Com. on
Crim. Justice, analysis of Sen. Bill No. 1436, Aug. 18, 1978, p. 2 [“Discovery of police
personnel files is limited to those instances set forth in Section 1043 of the Evidence
Code as added by this bill.”], italics added.)
Thus, the Legislature’s intent was to protect officer personnel files from public
disclosure, and to specify a procedure for discovery of information in such files. The
committee reports associated with the enactment never make any reference to Brady, or
express concern with prosecutorial access to personnel files. (See Neri, Pitchess v.
Brady: The Need for Legislative Reform of California’s Confidentiality Protection for
20
Peace-Officer Personnel Information (2012) 43 McGeorge L. Rev. 301, 304 (hereafter
Neri) [“The Pitchess laws were neither designed to facilitate, nor do they mention,
prosecutors’ Brady duties. Instead, they address only state-law issues regarding criminal
discovery and officer privacy rights.” (Italics added.)].) The legislative history does not
support a construction that would deem prosecutorial inspection of officer personnel files
for Brady purposes a breach of confidentiality within the meaning of Section 832.7(a).
The district attorney’s office and police department constitute a single prosecution
team in any given criminal case, and the police department acts as the prosecutor’s
“agent” with respect to the retention of potential Brady material. (Brown, supra, 17
Cal.4th at pp. 879, 881.) For this reason, we determined above that an inspection of
officer personnel files by a prosecutor would not constitute disclosure of the files within
the criminal proceeding. Similarly, such an inspection would not breach the
confidentiality of the files. The district attorney has the discretion to “initiate and
conduct on behalf of the people all prosecutions for public offenses” (Gov. Code, §
26500), and information about important officer witnesses may be necessary to the
informed exercise of that discretion. An inspection by the head of the prosecution team
for Brady purposes would not involve any disclosure outside the prosecution team, much
less public disclosure of information from the files. It would be consistent with the
Legislature’s intent to restrict discovery of the files, while preserving the prosecutor’s
ability to comply with its constitutional obligations. Our construction of the statute is
also consistent with Copley, supra, 39 Cal.4th at page 1283, which held that the inclusion
of the word “confidential” made peace officer personnel files privileged under the Public
Records Act. Thus, our conclusion that designating the personnel files as “confidential”
does not prohibit prosecutorial access for Brady purposes does not render the word
meaningless. Finally, recognizing that prosecutors are not prohibited from accessing
officer personnel files for Brady purposes is consistent with the apparent access
prosecutors have to other confidential information, such as police investigation reports
(Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169, 174-177) and the identities
of confidential informants (People v. Hobbs (1994) 7 Cal.4th 948, 957-964). As the head
21
of the prosecution team, the prosecutor has access to a range of materials otherwise
considered to be confidential.15
This construction of the term “confidential” in Section 832.7(a) is also supported
by a 1983 Attorney General opinion, the relevant reasoning of which was approved in
Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 617-618 (Fagan).16 The Attorney
General had been asked to consider “what restrictions are placed upon a district attorney
in obtaining access to the personnel records of a police officer[.]” (66 Ops.Cal.Atty.Gen.
128 (1983) (“1983 Attorney General Opinion”).) Applying an exception for
investigations of officer conduct (see Part IV.C., post), the Attorney General concluded
that “as long as the district attorney is duly investigating ‘the conduct of police officers or
a police agency’ as specified in section 832.7, he need not first obtain a court order for
access to the records in question.” (66 Ops.Cal.Atty.Gen., supra, at p. 128.) In the
course of reaching that conclusion, the Attorney General considered what it meant for the
files to be confidential. The Attorney General noted that “the Legislature and the courts
have generally allowed public access to government files relating to the conduct of
official business but not to those files relating to the personal lives of individuals.
[Citations.] The latter have been treated as ‘confidential’ so as to protect the right of
privacy.” (Id. at p. 129, fn. omitted.) “Confidential information,” the Attorney General
15
We hold only that such Brady reviews of officer personnel files do not breach the
confidentiality of the files under Section 832.7(a). Our holding should not be construed
to mean the prosecution has unlimited access to peace officer personnel files for other
reasons, and we do not address whether other disclosures to other governmental entities
for other purposes are permissible under Section 832.7(a). Furthermore, our decision
does not prohibit a police department and district attorney from fashioning procedures to
identify a pool of potential Brady materials for scrutiny by the prosecutor, much like a
pool of such materials was identified for review by the trial court in the present case (see
Part IV.F., post).
16
“ ‘Opinions of the Attorney General, while not binding, are entitled to great
weight. [Citations.] In the absence of controlling authority, these opinions are persuasive
“since the Legislature is presumed to be cognizant of that construction of the statute.” ’
[Citations.]” (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17.)
It can be presumed that, if an opinion “ ‘were a misstatement of the legislative intent,
“some corrective measure would have been adopted.” ’ ” (Ibid.)
22
observed, is “ ‘not publicly disseminated.’ ” (Ibid., fn. 3.) The Attorney General further
reasoned that disclosure to the district attorney would not compromise the confidentiality
of the files. (Id. at p. 130.)
Fagan applied the same exception for investigations of officer conduct, and held a
district attorney properly obtained the results of urinalysis tests contained in confidential
peace officer personnel files in investigating off-duty criminal conduct by the officers.
(Fagan, supra, 111 Cal.App.4th at pp. 610, 615.) As pertinent in the present case, the
court further held that the district attorney’s access to the tests did not mean that the tests
were no longer confidential. (Id. at pp. 617-618.) After discussing the 1983 Attorney
General Opinion, Fagan concluded that, while the district attorney properly accessed the
test results, the district attorney was obligated “to maintain the non-public nature of the
files absent judicial review of the relevance of the information” through a motion under
Section 1043. (Id. at p. 618.)
For the above reasons, we conclude that an inspection of an investigatory agency’s
peace officer personnel files for Brady materials by the prosecutor would not constitute a
breach of the confidentiality of the files under Section 832.7(a).
C. In the Alternative, the Exception for District Attorney Investigations
of Officer Conduct is Applicable
Appearing as amicus curiae in this proceeding, the Attorney General encourages
this court to conclude the investigation exception applies to Brady review of officer
personnel files. That exception, contained in the second sentence of Section 832.7(a) and
referenced just above, provides, “This section shall not apply to investigations or
proceedings concerning the conduct of peace officers or custodial officers, or an agency
or department that employs those officers, conducted by a grand jury, a district attorney’s
office, or the Attorney General’s office.”17 Petitioners contend the exception applies only
17
The investigation exception has been applied outside the Brady context. (Fagan,
supra, 111 Cal.App.4th at p. 615 [the exception applied to an investigation of off-duty
conduct by the officer-defendants]; People v. Gwillim (1990) 223 Cal.App.3d 1254,
1260, 1270 [under the exception, a district attorney investigating an allegation of sexual
23
“when the officer is a suspect in an investigation or target of a criminal prosecution for
conduct that occurred while employed as an officer.” We agree with the Attorney
General and conclude that, even if prosecutorial access to officer personnel files for
Brady purposes were deemed to be a disclosure in a criminal proceeding or breach of the
confidentiality of the files, the investigation exception is applicable.
People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397(Gremminger), cited by petitioners, is not to the contrary. There, the defendant was a
former police officer charged with murder; the prosecution subpoenaed the defendant’s
personnel records, which were delivered to the court. (Id. at pp. 400-401.) The trial
court denied the prosecution’s request for disclosure of the files, and Gremminger denied
the prosecution’s petition for writ of mandate, concluding the investigation exception did
not apply. (Id. at p. 404.) Gremminger reasoned in part, “the People cannot reasonably
contend that the district attorney seeks to review [the defendant’s] . . . police officer
personnel records in order to investigate his conduct as a police officer. Instead, the
district attorney seeks disclosure of [the defendant’s] records in order to prepare the
prosecution’s case against [the defendant], a private citizen.” (Id. at p. 406.)
Gremminger held, “where the People seek discovery of the peace officer personnel
records of a criminal defendant who was not employed as a police officer at the time the
crime was allegedly committed, the district attorney is not exempted under the provisions
of [Section 832.7(a)], and must comply with the requirements of [Section 1043] et seq.”
(Gremminger, at p. 407.)
In contrast to Gremminger, when a prosecutor conducts a Brady review of an
officer’s personnel file, the prosecutor is investigating that officer’s conduct to determine
whether there is any evidence that could be used to impeach him or her at trial. Although
in Gremminger, Gwillim, and Fagan the investigation exception was considered in
circumstances where the officer was the target of a criminal investigation, none of the
cases expressly excludes other types of investigations of officer conduct from the scope
assault by an officer could access a statement the officer-defendant provided during a
police internal investigation].)
24
of the exception. Neither does Section 832.7(a) contain any such limiting language; it
does not, for example, limit the application of the exception to investigations of the
conduct of police officers who are defendants or suspects. (See Pipes & Gagen, supra, §
10:20.3.3, p. 966.)
If prosecutorial Brady review constitutes disclosure in a criminal proceeding or
breach of the confidentiality of officer personnel files within the meaning of Section
832.7(a), then the investigation exception applies and permits such review.18
D. Alford Does Not Preclude Our Construction of Section 832.7(a)
As noted in a footnote at the outset of this decision, in Brandon the California
Supreme Court reserved the question “whether Penal Code section 832.7, which
precludes disclosure of officer records ‘except by discovery pursuant to Sections 1043
and 1046 of the Evidence Code,’ would be constitutional if it were applied to defeat the
right of the prosecutor to obtain access to officer personnel records in order to comply
with Brady.” (Brandon, supra, 29 Cal.4th at p. 12, fn. 2.) Just six months later, the court
stated in Alford, without elaboration, that “peace officer personnel records retain their
confidentiality vis-à-vis the prosecution” absent compliance with Sections 1043 and
1045. (Alford, supra, 29 Cal.4th at p. 1046.) The issues before our high court in Alford
involved the prosecution’s right to participate in a defense-initiated Pitchess motion and
discover the information disclosed to the defendant. Alford did not purport to consider
whether the prosecution could access officer personnel files to comply with its Brady
18
The amicus brief filed by the Attorney General takes the position that the
investigation exception can be “reasonably construed to authorize direct access of
personnel records by a district attorney’s office to satisfy the prosecutor’s Brady
obligation.” The Attorney General’s brief does not directly address whether such a Brady
review constitutes disclosure in a criminal proceeding or breach of the confidentiality of
officer personnel files within the meaning of the first sentence of Section 832.7(a).
Nevertheless, the Attorney General generally supports the proposition that the Legislature
would not have viewed prosecutorial access as a breach of confidentiality in stating, “the
Legislature, aware that the prosecution is deemed to have constructive knowledge of the
material exculpatory information in the files of the prosecution team that must be
disclosed under Brady to the defendant for trial, could readily have concluded that there
was no ‘just claim to confidentiality’ vis-à-vis the prosecution for such information.”
25
disclosure obligations. We do not understand that brief passage in Alford to have
resolved, without so acknowledging, the precise constitutional dilemma Brandon so
carefully delineated and left open just months earlier. We therefore disagree with the
decisions in People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1474-1475 (Gutierrez),
and Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 56 (Abatti), to the extent they
interpret Alford to hold that Section 832.7(a) prohibits the prosecution from accessing
officer personnel files for Brady purposes. In any event, neither Alford, nor Gutierrez,
nor Abati considered the particular issues of statutory interpretation addressed in the
present case, and “it is axiomatic that cases are not authority for propositions not
considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 (Alvarez).)
E. Petitioners’ Interpretation of Section 832.7(a) Presents Avoidable
Constitutional Questions
In California, the scope of the Brady disclosure requirement has been described as
follows: “A prosecutor’s duty under Brady to disclose material exculpatory evidence
applies to evidence the prosecutor, or the prosecution team, knowingly possesses or has
the right to possess. The prosecution team includes both investigative and prosecutorial
agencies and personnel. [Citations.] The prosecution must disclose evidence that is
actually or constructively in its possession or accessible to it. [Citation.]” (People v.
Jordan (2003) 108 Cal.App.4th 349, 358 (Jordan); see also People v. Superior Court
(Barrett) (2000) 80 Cal.App.4th 1305, 1315 [“[t]he scope of the prosecutorial duty to
disclose encompasses exculpatory evidence possessed by investigative agencies to which
the prosecutor has reasonable access.”].)
In Gutierrez, after concluding the prosecution could not access officer personnel
files absent a motion under Section 1043, the court relied on Jordan in concluding that
officer personnel files were outside the scope of the prosecution’s Brady disclosure
obligation. (Gutierrez, supra, 112 Cal.App.4th at pp. 1474-1475.) The court rejected the
defendant’s contention “that the prosecutor was obliged to conduct a review of the files
of ‘all significant police officer witnesses’ and disclose any Brady material[.]” (Ibid.)
Gutierrez reasoned, “Because under Alford the prosecutor does not generally have the
26
right to possess and does not have access to confidential peace officer files, Gutierrez’s
argument for routine review of the complete files of all police officer witnesses in a
criminal proceeding necessarily fails.” (Id. at p. 1475.) Under Gutierrez’s reasoning, the
prosecution arguably has no obligation under Brady to devise procedures to uncover
exculpatory evidence in officer personnel files, because those materials are outside the
Brady disclosure requirements. 19 But that conclusion, which rests on an overly-
expansive reading of Alford, seems contrary to well established, federal constitutional
law obligating the prosecution to learn of any evidence favorable to the defendant known
to the police (Kyles, supra, 514 U.S. at p. 437), including impeachment evidence
(Salazar, supra, 35 Cal.4th at p. 1042). (See also Youngblood v. West Virginia, supra,
547 U.S. at p. 870.) That is, impeachment evidence in officer personnel files cannot
constitutionally be excluded from the prosecution’s Brady disclosure obligations. (See
Neri, supra, 43 McGeorge L. Rev. at p. 310 [asserting Gutierrez “violates the federal
Supremacy Clause by redefining prosecutors’ federal Brady duty to exclude peace-officer
personnel files, and is an improper attempt to subordinate a federal constitutional right to
state privacy interests” (italics added, fn. omitted)].) Thus, petitioner’s interpretation of
Section 832.7(a), which relies on Gutierrez, raises serious constitutional questions
because it would interfere with the disclosure of exculpatory evidence in police files,
contrary to Brady and its progeny.
Interpreting Section 832.7(a) to shift the Brady review from the prosecutor to the
trial court raises additional constitutional concerns. The prosecutor is “in the best
position to evaluate whether evidence must be disclosed because it is materially favorable
to the defense.” (Villasana v. Wilhoit (8th Cir. 2004) 368 F.3d 976, 979; see also United
States v. Holmes (4th Cir. 1983) 722 F.2d 37, 41 [pointing out that the trial court
“generally does not know the government’s theory of the prosecution nor what possible
19
The People embrace this holding in Gutierrez, expressing dismay that, if Section
832.7(a) does not preclude prosecutorial access to personnel files for Brady purposes,
“prosecutors will be duty bound . . . to examine the personnel files of every peace officer
witness in every case to search for potential Brady material.” We address that argument
later in the decision. (See Part IV.F., post.)
27
defense might be available to defendants, and thus it is unlikely that it would recognize in
a general in camera search anything but the most obviously exculpatory data”].) The
prosecutor is the only person with access to the entire landscape of evidence that will or
could be presented against the defendant at trial. At the pretrial stage, the trial court’s
knowledge of the details of the case is often very limited. Although the significance of
much impeachment evidence would likely be obvious to all, the import of other
information might be clear to the prosecutor but not to the trial court. This is particularly
true because the Brady materiality standard looks at the “suppressed evidence considered
collectively, not item by item.” (Kyles, supra, 514 U.S. at p. 436, fn. omitted.)
Therefore, “the prosecution, which alone can know what is undisclosed, must be assigned
the consequent responsibility to gauge the likely net effect of all such evidence and make
disclosure when the point of ‘reasonable probability’ is reached.” (Id. at p. 437.) The
trial court cannot analyze the cumulative impact of nondisclosure of a piece of
exculpatory—but not itself material—evidence in an officer’s personnel file.20
Thus, in addition to the reasons set out above for our construction of Section
832.7(a), the statutory interpretation principle of avoiding difficult constitutional
questions provides additional support for our approach. (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 509; see also In re Smith (2008) 42 Cal.4th 1251, 1269
[“Our common practice is to ‘construe[ ] statutes, when reasonable, to avoid difficult
constitutional questions.’ [Citation.]”]; People v. Smith (1983) 34 Cal.3d 251, 259 [“if
reasonably possible the courts must construe a statute to avoid doubts as to its
constitutionality”].)
F. Petitioners’ Additional Arguments Regarding Section 832.7(a)
Petitioners contend that interpreting Section 832.7(a) to permit the prosecutor to
access officer personnel files would render superfluous the Pitchess procedures in
20
We are aware of no court that has approved routinely shifting the responsibility for
performing the initial Brady review from the prosecution to the court. That allocation of
responsibility has long been a fundamental aspect of modern constitutional criminal
procedure, and it is not to be altered lightly.
28
Sections 1043 and 1045. However, a Pitchess motion may be initiated by a defendant, so
a defendant can obtain any information from personnel files discoverable under the
Pitchess scheme, regardless of whether the prosecutor concludes there is evidence that
must be disclosed under Brady. Moreover, Brady and Pitchess “employ different
standards of materiality.” (Brandon, supra, 29 Cal.4th at p. 7.) “Unlike the high court’s
constitutional materiality standard in Brady, which tests whether evidence is material to
the fairness of trial, a defendant seeking Pitchess disclosure . . . need only show that the
information sought is material ‘to the subject matter involved in the pending litigation.’
(§ 1043, subd. (b)(3).) Because Brady’s constitutional materiality standard is narrower
than the Pitchess requirements, any citizen complaint that meets Brady’s test of
materiality necessarily meets the relevance standard for disclosure under Pitchess. (§
1045, subd. (b).)” (Brandon, at p. 10; see also id. at p. 14.) Thus, because certain
information that would not be deemed material under Brady would be deemed material
under Pitchess, the Pitchess scheme is not rendered superfluous by our interpretation of
Section 832.7(a). Moreover, despite petitioners’ arguments to the contrary, permitting
direct access to officer personnel files will not “nullif[y]” the protections of the Pitchess
scheme, because we conclude prosecutors must use motions under Section 1043 to
disclose the Brady materials they identify to the defense. (See Part VII, post.)
Petitioners also contend the decision in Fagan, supra, 111 Cal.App.4th 607supports their position that Section 832.7(a) prohibits the district attorney from accessing
officer personnel files for Brady purposes absent a motion under Section 1043. Fagan
held the district attorney in that case properly obtained the results of the officer-
defendants’ urinalysis tests from personnel files under the Section 832.7(a) investigation
exception. (Fagan, at p. 610.) Fagan further held the results could not “be publicly
disclosed or disseminated absent compliance with [Section 1043], including a judicial
determination of their admissibility [citation], relevancy [citations], and the need for a
protective order [citation].” (Fagan, at p. 610.) In the course of its analysis, Fagan did
state, “Where the exception afforded the district attorney by [Section 832.7(a)] is
inapplicable, he must proceed according to the provisions of [Section 1043].” (Fagan, at
29
p. 618.) However, because Fagan did not consider whether prosecutorial review for
Brady purposes would, under Section 832.7(a), constitute disclosure in a criminal
proceeding or breach the confidentiality of the officer personnel files, that statement is
not properly treated as contrary authority; the same reasoning applies to similar language
in Gremminger, supra, 58 Cal.App.4th at page 407. (Alvarez, supra, 27 Cal.4th at p.
1176.)
Notably, Fagan supports the distinction we make between prosecutorial access to
a personnel file to identify Brady material and public disclosure of that material: “The
exception contained in section 832.7(a) affords the prosecution the ability to review
confidential peace officer personnel files when investigating police misconduct without
notice to the individuals involved. At the same time, it requires the district attorney to
maintain the nonpublic nature of the files absent judicial review of the relevance of the
information to a criminal or civil action.” (Fagan, supra, 111 Cal.App.4th at p. 618.)
Similarly, our construction of Section 832.7(a) affords the prosecution the ability to
review confidential peace officer personnel files in order to comply with its obligation to
identify Brady material in the possession of the prosecution team. And we further hold
the District Attorney is required to maintain the nonpublic nature of the files and seek
judicial review prior to any disclosure to the defendant through a motion under Section
1043. (See Part VII, post.)
Citing Fagan, the People argue it would not save judicial resources to require the
prosecution to perform the initial Brady review, because “the [trial] court will still be
required to review the same records itself before ordering disclosure to the defense,
causing it the exact burden it sought to avoid in the initial in camera review.” (Bolding &
italics omitted.) However, that presupposes prosecutors will conclude that all of the
potential Brady materials identified by the police department should be disclosed in all
cases, which seems unlikely.21 In any event, our decision that the prosecutor must
21
Defendant Johnson argues that the standard for pretrial disclosure is not the Brady
materiality standard, because Penal Code section 1054.1, subdivision (e) “requires the
prosecution to disclose ‘[a]ny exculpatory evidence,’ not just material exculpatory
30
perform the initial materiality review is based not on the burdens such review would
impose on the trial court. Instead, our decision is based on the fundamental constitutional
proposition that the Brady disclosure requirement is the prosecution’s obligation and our
conclusion that Section 832.7(a) does not preclude prosecutorial access for Brady review.
Finally, petitioners suggest a system that gives the prosecution access to officer
personnel files for Brady purposes would be problematic and impractical. For example,
the District Attorney argues, “while the . . . system of maintaining a Brady alert list
permits the files of only those officers whom [the SF Police Department] believes to have
potential Brady [material] to be subject to court review,” an “open file policy would
require every prosecutor in any trial at any time to examine personal personnel records to
look for more recent potential Brady material.” The People also assert that “prosecutors
will be duty bound . . . to examine the personnel files of every peace officer witness in
every case to search for potential Brady material.”
However, our decision does not prohibit police departments and district attorneys
from designing orderly procedures to identify and provide materials for Brady review by
prosecutors. Brady imposes the disclosure obligation on the prosecution, but it allows
some flexibility in how the prosecution complies with that obligation. As a decision of
this District recently explained, “District attorneys need some mechanism for ensuring
that they learn of Brady material within their constructive possession. [Citation.] But the
choice of that mechanism is within district attorneys’ broad ‘discretionary powers in the
initiation and conduct of criminal proceedings’. . . . [Citation.]” (People v. Rose (2014)
226 Cal.App.4th 996, 1006 (Rose).) Indeed, it may be that the current procedures used to
identify materials requiring a Brady materiality determination could continue to be
evidence.” (Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.) That section of the
Penal Code “illustrates the difference between being entitled to relief for a Brady
violation and being entitled merely to receive the evidence.” (Barnett, at p. 901.)
Johnson argues the prosecution will be obligated to disclose any evidence from officer
personnel files that meets that statutory standard for disclosure. The Penal Code section
1054.1, subdivision (e) disclosure requirements are not at issue in this writ proceeding,
and nothing in this opinion is intended to address the scope of the prosecution’s
obligations under that statute.
31
employed, with the prosecutor performing the review rather than the trial court. Of
course, as always, the prosecution bears the risk of reversal if the adopted procedures are
inadequate and Brady material is not disclosed. (Rose, at p. 1007.) In any event, because
Brady requires that exculpatory evidence within officer personnel files be disclosed,
petitioners’ position would not result in any fewer files being reviewed; it would simply
result in those files being reviewed by the court.
V. The Federal Cases Cited by Petitioners Do Not Support the Requested Shift in
Responsibility for Performing Initial Brady Reviews
As discussed above, petitioners seek to routinely shift responsibility for
performing the initial Brady materiality review of officer personnel files from the
prosecutor to the trial court. None of the cases cited by petitioners supports such a
routine shift of the Brady obligation to trial courts.
A. The Ritchie Decision
In Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie), the defendant, charged
with molesting his daughter, served a subpoena seeking disclosure of confidential reports
prepared by the child protective services agency that investigated the charges. (Id. at p.
43.) The agency refused to comply with the subpoena on the basis the records were
privileged under state law. (Ibid.) As described in Ritchie, the applicable statute
provided that child abuse reports “ ‘ shall be confidential and shall only be made
available to’ ” specified entities, including “ ‘[a] court of competent jurisdiction pursuant
to a court order.’ ” (Id. at p. 44, fn. 2.) The Pennsylvania Supreme Court held the
defendant’s attorney was entitled to review the files for relevant evidence. (Id. at p. 46.)
The United States Supreme Court reversed. The court rejected the prosecution’s
argument that the reports were not subject to disclosure even if they were material within
the meaning of Brady. (Ritchie, supra, 480 U.S. at p. 57.) Ritchie reasoned that state law
permitted disclosure pursuant to a court order, and, therefore, the reports could be
disclosed “when a court of competent jurisdiction determines that the information is
‘material’ to the defense of the accused.” (Id. at p. 58.) The court held the defendant “is
entitled to have the [protective services agency] file reviewed by the trial court to
32
determine whether it contains information that probably would have changed the
outcome of his trial. If it does, he must be given a new trial.” (Ibid.) However, Ritchie
cautioned that the defendant could not “require the trial court to search through the
[agency’s] file without first establishing a basis for his claim that it contains material
evidence.” (Id. at p. 58, fn. 15; see also Brandon, supra, 29 Cal.4th at p. 15.) The court
also held the defendant’s “right to discover exculpatory evidence” under Brady did not
require that his counsel be permitted to search through the protective services agency’s
files. (Id. at p. 59.)
Petitioner SF Police Department asserts Ritchie stands for the proposition that
courts may be “enlisted to use in camera review to strike the careful balance between a
defendant’s access to Brady evidence and state law protections for privacy or
confidentiality.” However, Ritchie emphasized that, absent a specific request from the
defendant, initial Brady materiality reviews are performed by the prosecution alone.
(Ritchie, supra, 480 U.S. at p. 60.) Thus, the court explained, “In the typical case where
a defendant makes only a general request for exculpatory material under [Brady], it is the
State that decides which information must be disclosed. Unless defense counsel becomes
aware that other exculpatory evidence was withheld and brings it to the court’s attention,
the prosecutor’s decision on disclosure is final.” (Ritchie, at p. 59, fn. omitted.) It
appears Ritchie’s decision to remand for in camera review by the trial court was due to
the fact that the defendant had made a motion requesting specific exculpatory evidence
that he had reason to believe existed, thus making the case unlike the “typical case[.]”
(Ibid.)
As pertinent to the present case, we understand Ritchie to support at most only the
proposition that it may be appropriate for a court to conduct in camera Brady review of
confidential files for specific exculpatory evidence requested by a defendant. This is the
understanding adopted by Brooks, supra, 966 F.2d 1500, which concluded that, under
Ritchie, “prosecutorial review of possible Brady materials” is “normally sufficient,” and
in camera review is reserved “for cases where the defense had become ‘aware that . . .
exculpatory evidence was withheld’, [citations].” (Brooks, at p. 1505; see also U.S. v.
33
Caro-Muniz (1st Cir. 2005) 406 F.3d 22, 30 [“When a defendant fails to present a
narrowly tailored and specific request, Brady places the burden of disclosing evidence
favorable to the defendant on the government, not on the court.”].) U.S. v. Prochilo (1st
Cir. 2011) 629 F.3d 264, 268, adopted the same understanding of Ritchie, summarizing
the rule as follows: “The government is primarily responsible for deciding what evidence
it must disclose to the defendant under Brady. [Citation.] And at least where a defendant
has made only a general request for Brady material, the government’s decision about
disclosure is ordinarily final—unless it emerges later that exculpatory evidence was not
disclosed. [Citation.] When the defendant seeks access to specific materials that the
government maintains are not discoverable under Brady, however, a trial court may in
some instances conduct an in camera review of the disputed materials. [Citations.] To
justify such a review, the defendant must make some showing that the materials in
question could contain favorable, material evidence. [Citations.].”
Accordingly, nothing in Ritchie suggests that, merely because information is of a
sensitive nature, the prosecution may compel a trial court to conduct the review for Brady
materials in the first instance, particularly where the prosecution may access those files
and conduct its own review for Brady materials. In other words, Ritchie is a case
regarding a defendant’s motion to obtain discovery of specific, identified potential Brady
materials; it is not a case about procedures for the prosecution to comply with its own
Brady obligations.
B. Petitioner’s Additional Federal Cases
Petitioners cite a handful of federal cases, which the District Attorney asserts
demonstrate that “[n]umerous courts, including the United States Supreme Court, have
also recognized that an in camera hearing is the appropriate vehicle to review documents
for Brady material.” As the court in Application of Storer Communications, Inc. (6th Cir.
1987) 828 F.2d 330 (Storer), explained, “Several courts of appeals have approved the
practice of prosecutors submitting possible Brady materials in camera to the trial court in
order to obtain a pretrial determination of whether disclosure is required. [Citations.]”
(Storer, at p. 334, citing United States v. Tucker (7th Cir.1985) 773 F.2d 136, 141; United
34
States v. Dupuy (9th Cir.1985) 760 F.2d 1492, 1501 (Dupuy); and United States v.
Holmes, supra, 722 F.2d at p. 41.) Similarly, in United States v. Agurs (1976) 427 U.S.
97 (Agurs), the United States Supreme Court stated in passing, “Although there is, of
course, no duty to provide defense counsel with unlimited discovery of everything known
by the prosecutor, if the subject matter of such a request is material, or indeed if a
substantial basis for claiming materiality exists, it is reasonable to require the prosecutor
to respond either by furnishing the information or by submitting the problem to the trial
judge.” (Agurs, at p. 106, italics added.)
Petitioners’ federal decisions do not support their request for an initial judicial
Brady materiality review. Some of the cases involve defendant-initiated requests for
particular exculpatory evidence (U.S. v. Kiszewski (2d Cir. 1989) 877 F.2d 210; U.S. v.
Phillips (7th Cir. 1988) 854 F.2d 273),22 which, as explained previously, is not the same
as a scheme under which the prosecution routinely submits potential Brady materials for
trial court review. Other cases have suggested that court review is particularly
appropriate where confidentiality issues are involved. For example, in Dupuy, supra, 760
F.2d at page 1501, the prosecutor took notes of separate plea negotiations with two co-
defendants. The prosecutor promised the negotiations would remain confidential, but she
subsequently decided the notes contained potential Brady material. (Dupuy, at p. 1501.)
She submitted the issue to the trial court, which Dupuy stated “satisfied her duty to
disclose exculpatory material.” (Ibid.; but see id. at p. 1504, Ferguson, J., concurring
[“The constitutional duty to disclose articulated in [Brady], however, never shifts from
the prosecution to the court.”].) Dupuy proceeded to hold the trial court erred in failing to
conduct an in camera review of the notes. (Id. at p. 1502.) Dupuy commented,
“[c]onsultation with the judge is particularly appropriate when the Government has
legitimate reasons for protecting the confidentiality of the material requested, for the trial
judge can then weigh the Government’s need for confidentiality against the defendant’s
22
Brooks, supra, 966 F.2d 1500, described Kiszewski as a case in which in camera
review was justified because “the defense had become ‘aware that . . . exculpatory
evidence was withheld’, [citations].” (Brooks, at p. 1505.)
35
need to use the material in order to obtain a fair trial.” (Id. at p. 1501; see also Phillips at
p. 278.)23
However, that there may be some role for the trial court in assisting prosecutors to
make difficult determinations about the materiality of specific items of evidence,
particularly where there are confidentiality concerns, does not mean prosecutors may
obligate the trial court to perform an extensive initial Brady review, as opposed to
reviewing particular documents identified by the prosecutor. One of the cases petitioners
cite, Holmes, supra, 722 F.2d 37, clarified the responsibility for performing an initial
Brady review remained with the prosecution, noting: “We add, however, that we think
that the district court was correct in ruling that it had no obligation to conduct a general
Brady-rule in camera search through the files of the prosecutor when the prosecutor had
assured the district court that all possibly exculpatory material had been produced. Of
course it would be the prosecutor’s obligation to submit any material to the district court
in camera if he had any doubts about whether it might be exculpatory. The district court,
however, generally does not know the government’s theory of the prosecution nor what
possible defense might be available to defendants, and thus it is unlikely that it would
recognize in a general in camera search anything but the most obviously exculpatory
data.” (Holmes, at p. 41.)
VI. The Other California Cases Cited by Petitioners Do Not Support the Requested
Shift in Responsibility for Performing Initial Brady Reviews
A. J.E. v. Superior Court
The recent decision in J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, is a
California case involving a Ritchie-type request by a defendant (in J.E., a juvenile) for
23
It is unclear what confidentiality interest could justify the withholding of evidence
that meets Brady’s materiality standard, but that is an issue we need not resolve in the
present case. As Judge Ferguson explained in his concurrence in Dupuy, “the Brady
decision has already identified where the Fifth Amendment has struck the balance
between the suppression or disclosure of material exculpatory information requested by
the defendant. Brady teaches that a trial in which the prosecution withholds material
exculpatory information . . . is not a fair trial.” (Dupuy, supra, 760 F.2d at p. 1504,
Ferguson, J., concurring.)
36
disclosure of specific, potentially exculpatory evidence. In J.E., a minor who was the
subject of delinquency proceedings requested that the juvenile court conduct an in camera
inspection of a prosecution witness’s juvenile dependency file for Brady material. (J.E.,
at p. 1332.) J.E.’s counsel “offered to provide specific information supporting the request
‘off the record or under seal.’ ” (Id. at p. 1333.) The request was made pursuant to
Welfare and Institutions Code section 827, which allows a juvenile court to release
information from juvenile files. The juvenile court refused, ruling the prosecutor should
undertake the Brady review. (J.E., at p. 1332.) Thereafter, the prosecutor reviewed the
records and informed the minor’s counsel there was no Brady material. (J.E., at pp.
1333-1334.)24 The minor’s counsel renewed her request that the juvenile court conduct a
Brady review, and the court again refused. (J.E., at p. 1334.) Citing Ritchie, the J.E.
court issued a writ of mandate directing the juvenile court to conduct the requested Brady
review “upon a showing there is a reasonable basis to believe exculpatory or
impeachment evidence exists in” the juvenile records at issue. (J.E., at p. 1339.)
J.E. stated that procedure made “practical sense” because it “eliminates the need
for the prosecution to request court permission for disclosure after its Brady review, and
forestalls litigation brought by the defense over whether the prosecution has complied
with its Brady obligations.” (J.E., supra, 223 Cal.App.4th at p. 1339.) Nevertheless,
J.E., like Ritchie and unlike the present case, involved a request by a defendant (or
juvenile) for judicial Brady review for specific exculpatory evidence.25 Although J.E.
held that a juvenile is entitled to judicial Brady review “upon a showing there is a
24
The statutory scheme authorized the prosecutor to access juvenile records (Welf.
& Inst. Code, § 827, subd. (a)(1)(B)), but prohibited the prosecutor from disclosing the
information to an unauthorized person without a court order. (Welf. & Inst. Code, § 827,
subd. (a)(4), (5); J.E., supra, 223 Cal.App.4th at p. 1337.)
25
In the present case, Johnson filed a separate motion for Brady material, but
petitioners do not argue Johnson sought specific exculpatory evidence the prosecution
had failed to disclose. We need not and do not address in the present case what showing
a defendant would be required to make in order to obtain judicial Brady review of files in
the possession of the prosecution team. (See J.E., supra, 223 Cal.App.4th at pp. 1333,
1339 [adopting “reasonable basis” test for such a request in the context of juvenile
records].)
37
reasonable basis to believe exculpatory or impeachment evidence exists in” the files
(J.E., at p. 1339), J.E. did not suggest the prosecutor could compel the juvenile court to
perform the initial Brady review. Instead, absent such a request from the juvenile, the
prosecutor “request[s] court permission for disclosure after its Brady review.” (Ibid.)
Although “policy and practical considerations” (id. at p. 1334) may have provided a
justification for the judicial Brady review in that case, it did not, unlike our case, involve
any shifting of the prosecutor’s constitutional obligation to identify materials for
disclosure under Brady. Because in any given case the prosecutor is in a better position
to perform the Brady materiality review than the trial court (see Part IV.E., ante), we do
not believe that considerations of policy and pragmatism are a sufficient basis to support
the shift in responsibility requested by petitioners, especially because reasonable policy
arguments can be made in favor of both approaches.
B. Other California Cases
The California Supreme Court in Brandon held that a trial court that conducts an
in camera review of officer personnel files pursuant to a defendant’s motion under
Section 1043 may order the disclosure of material in the files that is discoverable under
Brady but not under Pitchess. (Brandon, supra, 29 Cal.4th at p. 15.) In that case, the
information at issue was a 10-year old citizen complaint against an officer. (Ibid.)
Brandon held the court “did not act improperly in evaluating” the complaint, but
cautioned, “[w]e do not suggest that trial courts must routinely review information that is
contained in peace officer personnel files and is more than five years old to ascertain
whether Brady, supra, 373 U.S. 83, requires its disclosure.” (Brandon, at p. 15, fn. 3.)
Brandon did not suggest the prosecution could require the trial court to undertake an
initial Brady materiality review under Sections 1043 and 1045.
Petitioners are also mistaken in suggesting the California Supreme Court’s
decision in People v. Hammon (1997) 15 Cal.4th 1117 supports the requested judicial
Brady review. In Hammon, the Supreme Court held the trial court properly quashed a
subpoena duces tecum the defendant served on the victim’s psychotherapists, without
first conducting an in camera review of the material. (Hammon, at p. 1119.) The court
38
held “the trial court was not required, at the pretrial stage of the proceedings, to review or
grant discovery of privileged information in the hands of third party psychotherapy
providers.” (Ibid.) Hammon also rejected the defendant’s claim the information he
sought was “in the government’s possession within the meaning of” Ritchie and Brady.
(Hammon, at p. 1125, fn. 3.) In essence, Hammon is a case about a defendant’s request
for pretrial discovery from a third party; the decision includes no broad pronouncements
about the role of the trial court in the Brady review or disclosure process.
None of petitioners’ other cases compel this court to rule in favor of the judicial
Brady review petitioners seek. As we explained previously, we disagree with Gutierrez,
supra, 112 Cal.App.4th 1463, and Abatti, supra, 112 Cal.App.4th 39, to the extent they
conclude Section 832.7(a) precludes prosecutorial access to officer personnel files for
Brady purposes.26 Neither Garden Grove Police Department v. Superior Court (2001) 89
Cal.App.4th 430, 433-435 (Garden Grove) nor Eulloqui v. Superior Court (2010) 181
Cal.App.4th 1055, 1068 (Eulloqui) holds that Section 832.7(a) precludes prosecutorial
access to officer personnel files, or that prosecutors may shift to the trial court the
responsibility for identifying Brady materials in such files. Garden Grove supports a
conclusion that Section 1043 should be used to obtain disclosure to the defense of Brady
materials in officer personnel files, which is the issue to which we now turn.27
26
We also disagree with Gutierrez’s assertion that, “if a defendant meets the good
cause requirement for Pitchess discovery, any Brady material in an officer’s file will
necessarily be included.” (Gutierrez, at p. 1474.) Gutierrez fails to consider certain
respects in which Pitchess discovery of officer personnel files is narrower than Brady
discovery. (See Neri, supra, 43 McGeorge L. Rev. at pp. 312-314.) For example,
Pitchess discovery does not encompass “complaints concerning conduct occurring more
than five years before” the events underlying the criminal case (§ 1045(b)(1)), while
Brady discovery is not so time limited. (Brandon, supra, 29 Cal.4th at p. 14.)
Furthermore, under Pitchess courts have generally required only the disclosure of “the
name, address and phone number of any prior complainants and witnesses and the dates
of the incidents in question.” (City of Santa Cruz, supra, 49 Cal.3d at p. 84.) The Brady
disclosure obligation has no such limitation.
27
In People v. Davis (2014) 226 Cal.App.4th 1353, 1361, the trial court granted the
prosecutor’s postjudgment motion under Sections 1043 and 1045 for in camera Brady
39
VII. The Prosecution Must File a Motion Under Section 1043 To Disclose Brady
Material in Officer Personnel Files to a Defendant
Having decided that Section 832.7(a) does not prevent the prosecutor from
complying with its constitutional obligation to identify Brady material in officer
personnel files, we address the second issue: is the prosecution permitted to disclose the
Brady material without seeking permission from the trial court, or must the prosecution
file a motion under Section 1043 to obtain court authorization for the disclosure to the
defense? In its order, the trial court concluded flatly that “Evidence Code § 1043 et seq.
does not apply to Brady.” (Bolding omitted.) The court directed the SF Police
Department to give the District Attorney access to the relevant officer personnel files, and
indicated a willingness to conduct an in camera review only “[i]f a close question
nonetheless remains as to whether information in a specific document or documents
should be disclosed under Brady[.]”28 On the other hand, the petitioners argue that
disclosure of information from personnel files may only be made through a motion under
Section 1043.
The plain language of Section 832.7(a) and Section 1043 compels the conclusion
that any disclosure to the defendant must be pursuant to a motion under Section 1043.
The relevant language in Section 832.7(a) is that peace officer personnel records “shall
not be disclosed in any criminal or civil proceeding except by discovery pursuant to
Sections 1043 and 1046 of the Evidence Code.”29 No party suggests any reasonable
construction of that language under which disclosure of Brady material from a personnel
file to a criminal defendant is not a disclosure of personnel records in a criminal
review of a police officer’s personnel file. However, the issue in the case was whether
the defendant could appeal from the trial court’s determination there were no Brady
materials in the file (id. at p. 1365); the propriety of the prosecutor’s motion was not at
issue.
28
The superior court’s return appears to take the same position. The return several
times identifies the issue narrowly as whether Sections 1043 and 1045 mandate the court
“to search through police officer files for ‘Brady materials.’ ” But elsewhere it asserts
more broadly that “the procedures of [Sections 1043 and 1045] do not apply to a motion
made under Brady.”
29
Evidence Code section 1046 is not applicable. (See page 9, fn. 10, ante.)
40
proceeding. The relevant language in Section 1043, subdivision (a) (Section 1043(a))
requires a motion under the section “[i]n any case in which discovery or disclosure is
sought of peace or custodial officer personnel records or records maintained pursuant to
Section 832.5 of the Penal Code or information from those records[.]” Again, no party
suggests any reasonable construction of that language under which disclosure of Brady
material from an officer personnel file to a criminal defendant is not a disclosure within
the scope of Section 1043(a). Accordingly, the relevant language in Section 832.7(a) and
Section 1043(a) is not ambiguous, and “its plain meaning controls.” (Los Angeles County
Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011) 52
Cal.4th 1100, 1107.)
We recognize, of course, that “ ‘ “language of a statute should not be given a
literal meaning if doing so would result in absurd consequences which the Legislature did
not intend.” ’ ” (People v. Ledesma (1997) 16 Cal.4th 90, 95.) We also recognize that
Section 1043 is in some ways an awkward fit with a motion to disclose Brady material.
For example, Section 1043, subdivision (b)(3) requires the movant to provide an affidavit
“showing good cause for the discovery or disclosure sought, setting forth the materiality
thereof to the subject matter involved in the pending litigation and stating upon
reasonable belief that the governmental agency identified has the records or information
from the records.” That standard of materiality—materiality “to the subject matter
involved in the pending litigation”—is broader than the Brady standard. The “narrower”
Brady standard tests “whether evidence is material to the fairness of trial[.]” (Brandon,
supra, 29 Cal.4th at p. 10.) Nevertheless, we do not read that language as requiring the
trial court to use the Pitchess materiality standard in resolving a motion for disclosure of
Brady materials; the Brady materiality standard would apply in establishing “good
cause.”
Another provision that fits imperfectly with Brady disclosure is to be found in
Section 1045. As noted previously, Section 1043 operates in conjunction with Section
1045: Section 1043 is “only the first hurdle in the discovery process,” and Section
1043’s “relatively low” discovery threshold is “offset” by the “protective provisions” in
41
Section 1045. (City of Santa Cruz, supra, 49 Cal.3d at p. 83.) Section 1045, subdivision
(b)(1) requires the trial court to exclude from disclosure records concerning conduct
occurring more than five years before the events underlying the criminal case. In
contrast, Brady does not exempt conduct older than five years from its disclosure
obligations. (Brandon, supra, 29 Cal.4th at pp. 14-15.) Nevertheless, Brandon
concluded the provision was not “an absolute bar to disclosure” of older Brady materials.
(Brandon, at p. 13.) There, the court held that a trial court considering a defendant’s
Section 1043 discovery motion could order disclosure of a ten-year-old record of police
misconduct that is material under Brady, despite Section 1045, subdivision (b)(1).
(Brandon, at pp. 13-15.) In reaching that conclusion, Brandon expressed agreement with
the Attorney General’s contention that “the ‘ “Pitchess process” operates in parallel with
Brady and does not prohibit the disclosure of Brady information.’ ” (Brandon, at p. 14;
see also Gutierrez, supra, 112 Cal.App.4th at pp. 1473-1474; Abatti, supra, 112
Cal.App.4th at p. 43; Garden Grove, supra, 89 Cal.App.4th at pp. 434-435.)
Other provisions in the Pitchess scheme that are protective of officer privacy are
consistent with a motion for disclosure of Brady material. Section 1043(a) requires that
the officer whose records are sought receive notice of the motion for disclosure. (See
also Abatti, supra, 112 Cal.App.4th at p. 56.) Furthermore, Section 1045 contains
provisions for optional and mandatory protective orders. Thus, Section 1045, subdivision
(d) authorizes the court, upon motion, to “make any order which justice requires to
protect the officer or agency from unnecessary annoyance, embarrassment or
oppression.”30 And Section 1045, subdivision (e) requires the trial court to “order that
the records disclosed or discovered may not be used for any purpose other than a court
30
Section 1045, subdivision (d) provides in full: “Upon motion seasonably made by
the governmental agency which has custody or control of the records to be examined or
by the officer whose records are sought, and upon good cause showing the necessity
thereof, the court may make any order which justice requires to protect the officer or
agency from unnecessary annoyance, embarrassment or oppression.”
42
proceeding pursuant to applicable law.”31 (See also Alford, supra, 29 Cal.4th at pp.
1039-1043.) These provisions provide added protection for officer privacy by regulating
the use and further disclosure of materials disclosed pursuant to a Section 1043 motion.
In particular, Section 1045, subdivision (e)’s mandatory protective order “carefully
balances peace officers’ privacy interests in their personnel records against defendants’
rights of access to information relevant to their defense[.]” (Alford, at p. 1042.)
We conclude that, despite the awkward fit between some language in Sections
1043 and 1045 and a request for disclosure of Brady materials, giving effect to the plain
statutory language requiring a Section 1043 motion to obtain disclosure of information
from officer personnel files in a criminal proceeding does not produce an absurd result
contrary to Legislative intent. (People v. Ledesma, supra, 16 Cal.4th at p. 95.) As
explained previously (Part IV.B., ante), the Legislature’s intent in enacting the statutory
Pitchess procedures was to protect officer personnel files from public disclosure, and to
specify a procedure for discovery of information in such files. (See San Francisco Police
Officers’ Assn. v. Superior Court, supra, 202 Cal.App.3d at pp. 189-190.) Although
there is no indication the Legislature specifically had in mind disclosures required under
Brady, extending the privacy protections provided in Section 1043 and Section 1045 to
Brady disclosure is wholly consistent with the Legislature’s intent.32
Our conclusion that the prosecution must file a motion under Section 1043 to
disclose to the defendant the Brady materials it has identified should not be construed to
mean that it would be proper for a trial court to decline to disclose materials that must be
31
Section 1045, subdivision (e) provides in full: “The court shall, in any case or
proceeding permitting the disclosure or discovery of any peace or custodial officer
records requested pursuant to Section 1043, order that the records disclosed or discovered
may not be used for any purpose other than a court proceeding pursuant to applicable
law.”
32
In Alford, the California Supreme Court concluded the prosecution did not have a
right to receive Pitchess materials disclosed pursuant to a defendant’s Pitchess motion.
(Alford, supra, 29 Cal.4th at p. 1046.) Alford did not, however, preclude the possibility
that a party could file a Section 1043 motion for disclosure of materials from personnel
files to all parties in the case. Neither does the language of Section 1043 preclude such a
motion.
43
disclosed under Brady in reliance on limitations on disclosure in Sections 1043 or 1045.
As explained previously, under Brandon, supra, 29 Cal.4th at pages 13-15, the five-year
limitation on Pitchess disclosure does not preclude broader Brady disclosure. Eulloqui,
supra, 181 Cal.App.4th at page 1065, construed Brandon to support the broader
proposition that “if materiality under the more stringent Brady standard is shown, the
statutory restrictions pertaining to the Pitchess procedure are inapplicable [citation]; but
if the defendant only shows materiality under the less stringent Pitchess standard, the
statutory limitations apply [citation].” We agree.
The Supreme Court has also characterized Sections 1043 and 1045 as
guaranteeing “a balancing of the officer’s privacy interests against the defendant’s need
for disclosure.” (City of Santa Cruz, supra, 49 Cal.3d at p. 84, italics added; accord
Alford, supra, 29 Cal.4th at p. 1039.) The disclosure of Pitchess materials may involve
such a balancing, but we are aware of no authority that exculpatory material in officer
personnel files subject to disclosure under Brady’s federal constitutional requirements
may be exempted from disclosure due to privacy considerations. (See Dupuy, supra, 760
F.2d at p. 1504, Ferguson, J., concurring.) For example, in Ritchie, supra, 480 U.S. at
page 58, the United States Supreme Court held, despite the conditional privilege accorded
child abuse reports, the defendant was entitled to receive any information that met the
Brady materiality standard; the court did not suggest there was any need to balance the
defendant’s need for the information with the privacy interests involved. Accordingly, in
the Brady context, the main practical consequence of requiring a Section 1043 motion for
disclosure appears to be the provision of notice to the impacted officers and an
opportunity for the issuance of appropriate protective orders. The disclosure
determination does not itself require a balancing of officer privacy interests.33
33
Because we do not construe Sections 1043 or 1045 as precluding disclosure of
evidence that meets Brady’s materiality standard, we need not address whether the
Legislature could constitutionally prohibit disclosure of such material based on
considerations such as privacy. (People v. Superior Court (Romero), supra, 13 Cal.4th at
p. 509; In re Smith, supra, 42 Cal.4th at p. 1269.)
44
In sum, although the prosecution has the obligation to identify evidence in officer
personnel files that meets the Brady materiality standard, a motion under Section 1043 is
required to disclose the Brady material to the defendant.34
VIII. Conclusion
The trial court did not err in refusing to undertake a Brady review of the materials
identified by the SF Police Department, where the prosecution had not undertaken such a
review and identified for the court the documents it believed met Brady’s materiality
standard. Section 832.7(a) does not preclude prosecutorial access for Brady review, and
Brady and its progeny allocate responsibility for compliance on the prosecution. As
emphasized by our high court in Brown, supra, 17 Cal.4th at page 883, “Although
rigorous, we do not perceive the duty imposed by Brady as too onerous. [Citation.]
‘Obviously some burden is placed on the shoulders of the prosecutor when he is required
to be responsible for those persons who are directly assisting him in bringing an accused
to justice. But this burden is the essence of due process of law. It is the State that tries a
man, and it is the State that must insure that the trial is fair.’ [Ciation.] This obligation
serves ‘to justify trust in the prosecutor as “the representative . . . of a sovereignty . . .
whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice
shall be done.” ’ [Citations.] It also tends ‘to preserve the criminal trial, as distinct from
the prosecutor’s private deliberations [or some other agency’s independent assessment of
materiality], as the chosen forum for ascertaining the truth about criminal accusations.
[Citations.]’ [Citations.]” We do not decide that the prosecution must conduct a review
of the personnel file of every officer witness. And, as noted previously, we do not
preclude the District Attorney and the SF Police Department from devising their own
34
Petitioners devote a substantial portion of their briefing in this writ proceeding to
the contention that the trial court imposed the wrong “good cause” standard for obtaining
in camera review under Section 1043. We need not reach that issue, because the trial
court correctly determined Section 832.7(a) did not bar prosecution access to the
personnel files for Brady purposes. That initial prosecutorial review may render
immaterial any future dispute regarding the good cause standard, because the
prosecution, having seen the documents it seeks to disclose, should be able to make the
required showing regardless of the standard.
45
procedures for Brady compliance, including a process similar to the current process, but
with the prosecutor utilizing the pool of documents selected by the SF Police Department
to identify Brady materials. (See Rose, supra, 226 Cal.App.4th at pp. 1006-1007.) Of
course, regardless of the procedure devised, the prosecutor remains ultimately responsible
for complying with Brady. (Rose, at p. 1007.)
Prosecutorial access to officer personnel files for Brady purposes does not threaten
the privacy interests protected by Section 832.7(a), where the officer witnesses are
members of the prosecutorial team led by the prosecutor directing the review, and the
review itself does not entail disclosure of information from the files outside the
prosecution team. The legislative history shows clearly that the Legislature was
concerned with public disclosure of information from officer personnel files. We are
aware of nothing in the legislative history suggesting the Legislature intended to prevent
prosecutors from inspecting officer personnel files for Brady purposes or to otherwise
dictate the manner in which Brady materials in an officer’s personnel files may be
identified. (See Part IV.B., ante; Neri, supra, 43 McGeorge L. Rev. at pp. 304, 309.)
The Legislature’s interests in protecting officer privacy are fully preserved by our
conclusion that the prosecution must bring a motion under Section 1043 to disclose
Brady material in officer personnel files to the defendant.
DISPOSITION
The petitions for writ of mandate/prohibition are denied in part and granted in part.
Let a peremptory writ of mandate issue, directing the San Francisco Superior Court to
modify its January 7, 2014 “Order re Brady Motions” to provide that, if the San
Francisco District Attorney identifies any evidence in the San Francisco Police
Department personnel files for Officers Dominguez and Carrasco that should be
disclosed to defendant Johnson under Brady v. Maryland (1963) 373 U.S. 83, the District
Attorney shall file a motion under Evidence Code section 1043 to obtain such disclosure.
In all other respects, the writ petitions are denied. The previously imposed stay of trial in
defendant Johnson’s criminal case shall dissolve upon issuance of the remittitur.
46
_________________________
Simons, Acting P.J.
We concur:
_________________________
Needham, J.
_________________________
Bruiniers, J.
A140767, A140768
47
Superior Court of the City and County of San Francisco, No. 12029482, Richard B.
Ulmer, Jr., Judge.
George Gascón, San Francisco District Attorney, Jerry P. Coleman, Laura vanMunching,
Allison G. Macbeth, Assistant District Attorney for Petitioner and Real Party In Interest
the People.
Dennis J. Herrera, San Francisco City Attorney, Christine Van Aken for Petitioner City
and County of San Francisco.
Nina D. Sariaslani, SFPD Legal Division Attorney, for Petitioner San Francisco Police
Department.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising
Deputy Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, for
California Attorney General as Amicus Curiae on behalf of Petitioner and Real Party In
Interest the People.
Gregory D. Totten, District Attorney (Ventura County), Michael D. Schwartz, Special
Assistant District Attorney as Amicus Curiae on behalf of Petitioner and Real Party In
Interest the People.
Rains Lucia Stern, Michael L. Rains for Peace Officers’ Research Association of
California (PORAC), The PORAC Legal Defense Fund, and The San Francisco Police
Officers’ Association as Amicus Curiae on behalf of Petitioner and Real Party In Interest
the People.
Nancy E. O’Malley, District Attorney (Alameda County), Jeff Rubin, Senior Deputy
District Attorney for Appellate Committee of the California District Attorneys
Association as Amicus Curiae on behalf of Petitioner and Real Party In Interest the
People.
Jeffrey F. Rosen, District Attorney (Santa Clara), David A. Angel, Assistant District
Attorney as Amicus Curiae for Petitioner and Real Party In Interest the People.
Sedgwick, Michael L. Fox for Respondent.
Jeff Adachi, Public Defender, Matt Gonzalez, Chief Attorney, Christopher Gauger,
Deputy Public Defender for Real Party in Interest Daryl Lee Johnson.
A140767, A140768
48