Assn. for L.A. Deputy Sheriffs v. Superior Court

IN THE SUPREME COURT OF
CALIFORNIA
ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS,
Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY SHERIFF’S DEPARTMENT et al.,
Real Parties in Interest.
S243855
Second Appellate District, Division Eight
B280676
Los Angeles County Superior Court
BS166063
August 26, 2019
Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger
and Groban concurred.
ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS v.
SUPERIOR COURT
S243855
Opinion of the Court by Cantil-Sakauye, C. J.
This case concerns the relationship between prosecutors’
constitutional duty to disclose information to criminal
defendants and a statutory scheme that restricts prosecutors’
access to some of that information.
A prosecutor in a criminal case must disclose to the
defense certain evidence that is favorable to the accused. (Brady
v. Maryland (1963) 373 U.S. 83 (Brady).) This duty sometimes
requires disclosure of evidence that will impeach a law
enforcement officer’s testimony. (Giglio v. United States (1972)
405 U.S. 150, 154-155 (Giglio).) Such disclosure may be
required even if the prosecutor is not personally aware that the
evidence exists. (Kyles v. Whitley (1995) 514 U.S. 419, 437
(Kyles).) Because the duty to disclose may sweep more broadly
than the prosecutor’s personal knowledge, the duty carries with
it an obligation to “learn of any favorable evidence known to the
others acting on the government’s behalf in the case, including
the police.” (Ibid.)
The so-called Pitchess statutes, however, restrict a
prosecutor’s ability to learn of and disclose certain information
regarding law enforcement officers. (See Pitchess v. Superior
Court (1974) 11 Cal.3d 531; see also Johnson v. Superior Court
(2015) 61 Cal.4th 696, 712-714 (Johnson).) Most notably, Penal
Code section 832.7 renders confidential certain personnel
records and records of citizens’ complaints, as well as
ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS v.
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Opinion of the Court by Cantil-Sakauye, C. J.
information “obtained from” those records. (Pen. Code, § 832.7,
subd. (a) (section 832.7(a)).) Upon a motion showing good cause,
a litigant may obtain a court’s in camera inspection of the
confidential information and, possibly, win the information’s
disclosure. But the less reason there is to believe that an officer
has engaged in misconduct, the harder it is to show good cause.
In part to address this issue, some law enforcement
agencies have created so-called Brady lists. These lists
enumerate officers whom the agencies have identified as having
potential exculpatory or impeachment information in their
personnel files — evidence which may need to be disclosed to the
defense under Brady and its progeny. (See Brady, supra, 373
U.S. at p. 87.) Disclosure of the fact that an officer is on a Brady
list both signals that it may be appropriate to file a motion
seeking in camera inspection and helps to establish good cause
for that inspection. We recently described this Brady-alert
practice as “laudabl[e].” (Johnson, supra, 61 Cal.4th at p. 721.)
Petitioner in this case is the Association for Los Angeles
Deputy Sheriffs. The Association obtained a preliminary
injunction preventing the Los Angeles County Sheriff’s
Department from disclosing the identity of deputies on the
Department’s Brady list. The injunction included an exception,
permitting disclosure to prosecutors when a deputy is a
potential witness in a pending prosecution. The Court of Appeal
held that the exception is impermissible under the Pitchess
statutes. We granted review to decide the following question:
“When a law enforcement agency creates an internal Brady list
[citation], and a peace officer on that list is a potential witness
in a pending criminal prosecution, may the agency disclose to
the prosecution (a) the name and identifying number of the
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Opinion of the Court by Cantil-Sakauye, C. J.
officer and (b) that the officer may have relevant exonerating or
impeaching material in [that officer’s] confidential personnel
file . . . ?” We conclude that the Pitchess statutes permit such
disclosure.
I. FACTUAL AND PROCEDURAL HISTORY
A. The Brady List
In late 2016, the Association counted among its members
approximately 7,800 deputy sheriffs. The Department sent a
letter to roughly 300 of those deputies, informing them that a
review of “individual employees’ personnel records” had
“identified potential exculpatory or impeachment information in
your personnel file.” Among other things, the letter served to
“remind” deputies “about the existence of this material.”
According to the letter, “[e]xamples of performance
deficiencies” that qualify as potential Brady material “include,
but are not limited to, founded administrative investigations
involving violations of” any of nearly a dozen sections of the
Department’s Manual of Policy and Procedures. Those sections
concern: (1) “Immoral Conduct”; (2) “Bribes, Rewards, Loans,
Gifts, Favors”; (3) “Misappropriation of Property”;
(4) “Tampering with Evidence”; (5) “False Statements”;
(6) “Failure to make Statements and/or Making False
Statements During Departmental Internal Investigations”;
(7) “Obstructing an Investigation/Influencing a Witness”;
(8) “False Information in Records”; (9) “Policy of Equality –
Discriminatory Harassment”; (10) “Unreasonable Force”; and
(11) “Family Violence.” Notwithstanding the letter’s claim that
such violations were mere “[e]xamples of performance
deficiencies” that might justify inclusion on the Brady list, other
materials in the record suggest that the letter was only sent to
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Opinion of the Court by Cantil-Sakauye, C. J.
deputies understood to have violated at least one of those
enumerated policies.
The letter further advised deputies that, “in order to
comply with our constitutional obligations,” the Department is
“required to provide the names of employees with potential
exculpatory or impeachment material in their personnel file to
the District Attorney and other prosecutorial agencies where the
employee may be called as a witness.” Later correspondence
indicated that the deputy’s employee number might also be
provided. Consistent with that later correspondence, however,
the initial letter stressed that “no portion of an investigation or
contents of your file will be turned over to either the prosecution
or the defense absent a court order.” Deputies were also
afforded an opportunity to object to their inclusion on the Brady
list, by informing the Department that “the deputy did not have
a founded administrative investigation finding on one of the
above policy violations” or that “any such founded investigation
had been overturned in a settlement agreement or pursuant to
an appeal.”
B. Trial Court
As relevant here, the Association filed a petition for writ
of mandate and a complaint seeking preliminary and permanent
injunctive relief. It sought to prevent the Department from
disclosing the identity of deputies on the Brady list absent
compliance with Pitchess procedures. The Department agreed
to postpone disclosure until the court ruled on the request for a
preliminary injunction. (Association for Los Angeles Deputy
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Opinion of the Court by Cantil-Sakauye, C. J.
Sheriffs v. Superior Court (2017) 13 Cal.App.5th 413, 421
(Deputy Sheriffs).)1
The trial court granted the request in part. It agreed with
the Association that the identity of peace officers on the Brady
list was confidential under the Pitchess statutes because the list
linked officers to disciplinary action reflected in their personnel
records. The court further agreed that Brady did not authorize
disclosure of the list at the Department’s discretion,
unconnected to any criminal case. Over the Association’s
objection, however, the court ruled that the Department was
“not . . . enjoined from disclosing the fact that an individual
Deputy Sheriff is listed on the Sheriff’s Department’s ‘Brady
List’ when a criminal prosecution is pending and the Deputy
Sheriff at issue is involved in the pending prosecution as a
potential witness.”
C. Court of Appeal
The Association petitioned the Court of Appeal for a writ
of mandate and requested an immediate stay. The court
granted the stay request, effectively expanding the trial court’s
injunction to prevent disclosure of officer identities (outside of
the Pitchess process) without regard to whether a prosecution
was pending. After issuing an order to show cause, a divided
panel of the Court of Appeal granted the writ petition in
1
The Association sought relief against several other
individuals or entities, including then-Sheriff Jim McDonnell
and the County of Los Angeles. For ease of reference, and
because these real parties in interest are similarly situated, we
refer to the Department throughout.
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pertinent part. (Deputy Sheriffs, supra, 13 Cal.App.5th at
p. 448.)
The Court of Appeal observed that the Pitchess statutes
make confidential certain personnel records and information
obtained from those records. (Deputy Sheriffs, supra, 13
Cal.App.5th at p. 433.) Echoing the trial court, the Court of
Appeal reasoned that “[n]otifying an outside agency, even a
prosecutor’s office, that a deputy has an administratively
founded allegation of misconduct . . . cannot be characterized as
anything other than disclosing information obtained from the
peace officer’s personnel file.” (Id., at p. 435.) The appellate
court did not agree, however, that disclosure could be made
whenever an officer on the Brady list was a potential witness in
a pending case. The court thus ordered the trial court “to strike
from the injunction any language” permitting disclosure of “the
identity of any individual deputy on the . . . Brady list to any
individual or entity outside the [Department], even if the deputy
is a witness in a pending criminal prosecution, absent a properly
filed, heard, and granted Pitchess motion, accompanied by a
corresponding court order.” (Id., at p. 448.)
Justice Grimes dissented in pertinent part. She concluded
that a Pitchess motion is not “required to transfer, between
members of the prosecution team, the identities of officers
involved in a pending prosecution who may have Brady
materials in their personnel records.” (Deputy Sheriffs, supra,
13 Cal.App.5th at p. 449 (conc. & dis. opn. of Grimes, J.).)
D. Enactment of Senate Bill 1421
We granted review. While this matter was pending before
us, Senate Bill No. 1421 (2017-2018 Reg. Sess.) (Senate Bill
1421) amended one of the statutes relevant to the question
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presented. (See Stats. 2018, ch. 988, § 2, eff. Jan. 1, 2019; see
also § 832.7(a).) We obtained supplemental briefing regarding
the significance of the enactment.
II. BRADY AND PITCHESS
We begin by describing Brady and Pitchess, as an
understanding of each is necessary to understanding the
relationship between them. (See, e.g., City of Los Angeles v.
Superior Court (2002) 29 Cal.4th 1, 7-10 (City of Los Angeles).)
A. Brady
The Fourteenth Amendment to the federal Constitution
prohibits states from denying any person due process of law.
(U.S. Const., 14th Amend.) This guarantee of due process
affords criminal defendants the right to a fair trial, “impos[ing]
on States certain duties consistent with their sovereign
obligation to ensure ‘that “justice shall be done.” ’ ” (Cone v. Bell
(2009) 556 U.S. 449, 451.)
Prosecutors, as agents of the sovereign, must honor these
obligations. (See Kyles, supra, 514 U.S. at p. 438; Mooney v.
Holohan (1935) 294 U.S. 103, 112-113 (per curiam).) A
prosecutor must refrain from using evidence that the prosecutor
knows to be false. (Mooney, at pp. 112-113; see also Pyle v. State
of Kansas (1942) 317 U.S. 213, 216.) A prosecutor must correct
false evidence “when it appears.” (Napue v. Illinois (1959) 360
U.S. 264, 269.) And, under Brady, a prosecutor must disclose to
the defense evidence that is “favorable to [the] accused” and
“material either to guilt or to punishment.” (Brady, supra, 373
U.S. at p. 87.)
“For Brady purposes, evidence is favorable if it helps the
defense or hurts the prosecution, as by impeaching a prosecution
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witness.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1132; see
also United States v. Bagley (1985) 473 U.S. 667, 676; Giglio,
supra, 405 U.S. at pp. 154-155.) 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.’ ” (Kyles, supra, 514 U.S. at pp. 433-434.) Evaluating
materiality requires consideration of the collective significance
of the undisclosed evidence (Kyles, at p. 436), as well as “the
effect of the nondisclosure on defense investigations and trial
strategies” (Zambrano, at p. 1132). (See also Kyles, at p. 439;
Bagley, at p. 701 (dis. opn. of Marshall, J.).) “A reasonable
probability does not mean that the defendant ‘would more likely
than not have received a different verdict with the evidence,’
only that the likelihood of a different result is great enough to
‘undermine[] confidence in the outcome of the trial.’ ” (Smith v.
Cain (2012) 565 U.S. 73, 75.)
This materiality standard applies both after judgment,
when evaluating whether Brady was violated, and before
judgment, when evaluating whether evidence favorable to the
defense must be disclosed. (See Kyles, supra, 514 U.S. at
pp. 437-438; United States v. Agurs (1976) 427 U.S. 97, 108.)
Because it may be difficult to know before judgment what
evidence will ultimately prove material, “the prudent prosecutor
will resolve doubtful [Brady] questions in favor of disclosure.”
(Agurs, at p. 108; see also Kyles, at pp. 438-439.) Statutory and
ethical obligations may require even more. (See, e.g., Pen. Code,
§ 1054.1, subds. (d)-(e) [statutory disclosure obligation]; Rules
Prof. Conduct, rule 3.8(d) & com. [3] [ethical disclosure
obligation].)
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Opinion of the Court by Cantil-Sakauye, C. J.
B. Pitchess
Without relying on Brady, our decision in Pitchess
“recognized that a criminal defendant may, in some
circumstances, compel the discovery of evidence in the arresting
law enforcement officer’s personnel file that is relevant to the
defendant’s ability to defend against a criminal charge.” (People
v. Mooc (2001) 26 Cal.4th 1216, 1219 (Mooc).) “In 1978, the
Legislature codified the right” and defined “which officer records
are subject to Pitchess discovery.” (Galindo v. Superior Court
(2010) 50 Cal.4th 5.) “The statutory scheme is set forth in
Evidence Code sections 1043 through 1047 and Penal Code
sections 832.5, 832.7, and 832.8.” (Mooc, at p. 1226.) These
Pitchess statutes “reflect[] the Legislature’s attempt to balance
a litigant’s discovery interest with an officer’s confidentiality
interest.” (Riverside County Sheriff’s Dept. v. Stiglitz (2014)
60 Cal.4th 624, 639 (Stiglitz).)
The threshold question under the Pitchess statutes is
whether the information requested is confidential. (See Pen.
Code, § 832.7, subds. (a)-(b).) If it is, the information may
generally be disclosed only “by discovery pursuant to” Evidence
Code sections 1043, 1045, and 1046. (§ 832.7(a); see Johnson,
supra, 61 Cal.4th at p. 712, fn. 2.) Requests for disclosure are
ordinarily made in criminal cases but may also arise in
connection with civil or quasi-criminal proceedings. (See
§ 832.7(a); see also, e.g., Stiglitz, supra, 60 Cal.4th at p. 628
[appeal of employee discipline]; City of San Jose v. Superior
Court (1993) 5 Cal.4th 47, 53 (City of San Jose) [juvenile
wardship proceeding].)
A party seeking disclosure under the Pitchess statutes
must file a written motion and give notice to the agency with
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Opinion of the Court by Cantil-Sakauye, C. J.
custody and control of the records. (Evid. Code, § 1043, subd.
(a).) Among other things, the motion must identify the officer or
officers at issue (id., § 1043, subd. (b)(1)); describe “the type of
records or information” desired (id., § 1043, subd. (b)(2)); and, by
affidavit, show “good cause for the discovery or disclosure
sought” (id., § 1043, subd. (b)(3)).2
This “good cause” requirement has two components. First,
the movant must set forth “the materiality” of the information
sought “to the subject matter involved in the pending litigation.”
(Evid. Code, § 1043, subd. (b)(3).) The function of this
requirement is to “exclude[] requests for officer information that
are irrelevant to the pending charges.” (Warrick v. Superior
Court (2005) 35 Cal.4th 1011, 1021.) If the movant shows that
the request is “relevant to the pending charges, and explains
how, the materiality requirement will be met.” (Johnson, supra,
61 Cal.4th at p. 721; see also Richardson v. Superior Court
(2008) 43 Cal.4th 1040, 1048-1049 [“The materiality standard is
met if evidence of prior complaints is admissible or may lead to
admissible evidence”].) If information is “material” within the
meaning of Brady, it is necessarily material “to the subject
matter involved in” a criminal prosecution. (Evid. Code, § 1043,
subd. (b)(3); see City of Los Angeles, supra, 29 Cal.4th at p. 10.)
Second, the “good cause” requirement obliges the movant
to articulate “a ‘reasonable belief’ that the agency has the type
2
The affidavit may be executed by an attorney based on
information and belief; personal knowledge is not required. (See
Garcia v. Superior Court (2007) 42 Cal.4th 63, 74; see also City
of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 73, 86 (City
of Santa Cruz); People v. Memro (1985) 38 Cal.3d 658, 676
(Memro).)
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of information sought.” (City of Santa Cruz, supra, 49 Cal.3d at
p. 84; see also Evid. Code, § 1043, subd. (b)(3).) This belief “may
be based on a rational inference” (Johnson, supra, 61 Cal.4th at
p. 721); for example, that because officers allegedly used
excessive force in a pending case, “other complaints of excessive
force ‘may have been filed’ ” (City of Santa Cruz, at p. 90; see
also id., at p. 93, fn. 9). Certainly, a movant is not required “ ‘to
allege with particularity the very information’ ” sought.
(Johnson, at p. 721, quoting Memro, supra, 38 Cal.3d at p. 684.)
At the least, the requisite “reasonable belief” exists when a
movant declares that the agency from which the movant seeks
records has placed the officer at issue on a Brady list. (See ibid.)
The function of the “good cause” requirement at this stage
of the Pitchess process is not to determine whether documents
will be disclosed to the movant; it is to determine whether
information will be reviewed in camera. Accordingly, the
burden imposed by the requirement “is not high.” (Johnson,
supra, 61 Cal.4th at p. 720; see City of Santa Cruz, supra,
49 Cal.3d at p. 84 [requirement is designed to ensure “the
production for inspection of all potentially relevant
documents”].)
When a court determines that a movant has made a
showing sufficient to justify in camera inspection, “the custodian
of records should bring to court all documents ‘potentially
relevant’ to the . . . motion.” (Mooc, supra, 26 Cal.4th at
p. 1226.) “[I]f the custodian has any doubt whether a particular
document is relevant, [the custodian] should present it to the
trial court.” (Id., at p. 1229.) The court must examine those
documents “in conformity with [Evidence Code] section 915 (i.e.,
out of the presence of all persons except the person authorized
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to claim the privilege and such other[s as that person] is willing
to have present).” (City of Santa Cruz, supra, 49 Cal.3d at p. 83;
see Evid. Code, §§ 915, 1045, subd. (b).) To facilitate appellate
review, the court should make a record of what it has examined.
(See People v. Townsel (2016) 63 Cal.4th 25, 69; see also Mooc,
at p. 1229-1230; see generally People v. Gaines (2009) 46 Cal.4th
172.) Questioning the custodian of records under oath regarding
which documents were produced helps both to facilitate
appellate review and to ensure that information is not withheld
from the movant improperly. (See Mooc, at p. 1229 & fn. 4.)
After conducting in camera review, a court has discretion
regarding which documents, if any, it will disclose to a movant.
(See, e.g., People v. Myles (2012) 53 Cal.4th 1181, 1209.)
Evidence Code section 1045 guides the exercise of that
discretion, requiring the court to “exclude from disclosure”
certain information (id., § 1045, subd. (b)(1)-(3)) and to
“consider” whether the movant could obtain certain other
information without disclosure of individual personnel records
(id., § 1045, subd. (c)). (See also Evid. Code, § 1047; Stiglitz,
supra, 60 Cal.4th at pp. 641-642.) Notwithstanding these
provisions, however, the court must disclose information that is
favorable to the defense and “material” within the meaning of
Brady. (Johnson, supra, 61 Cal.4th at p. 720.)
Finally, the Pitchess statutes protect information that is
disclosed to a movant from further dissemination. “The court
shall, in any case or proceeding permitting the disclosure or
discovery of any peace or custodial officer records requested
pursuant to [Evidence Code] 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.”
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(Evid. Code, § 1045, subd. (e); see generally Chambers v.
Superior Court (2007) 42 Cal.4th 673; Alford v. Superior Court
(2003) 29 Cal.4th 1033.) Upon a proper motion by the custodian
or the officer at issue, the court may also “make any order which
justice requires to protect the officer or agency from unnecessary
annoyance, embarrassment or oppression.” (Evid. Code, § 1045,
subd. (d).)
III. ANALYSIS
Familiar principles of statutory interpretation guide our
analysis of the Pitchess statutes. (See, e.g., People v.
Castillolopez (2016) 63 Cal.4th 322, 329 [describing those
principles].) In particular, we bear in mind that the Pitchess
statutes “must be viewed against the larger background of the
prosecution’s” Brady obligation “so as not to infringe the
defendant’s right to a fair trial.” (Mooc, supra, 26 Cal.4th at
p. 1225.) As discussed below, these principles point toward two
main conclusions. First, the Department’s Brady list is
confidential to the extent it was derived from confidential
records. Second, the Department does not violate that
confidentiality by sharing with prosecutors the identity of
potential witnesses on the Brady list.
A. The Department’s Brady List Is Confidential to
the Extent That Officers Were Included on the
List Because of Information Obtained from
Confidential Records
To the extent the Department placed officers on the Brady
list based on information found in confidential records, the
identities of those officers were “obtained from” the records and
are thus also confidential. (§ 832.7(a).) Under legislation
enacted while this litigation was pending, however, certain
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records related to officer misconduct are not confidential. (See
Pen. Code, § 832.7, subd. (b) (section 832.7(b)).) Because such
records are not confidential, information “obtained from” those
records is also not confidential. (§ 832.7(a).) With one possible
exception not relevant here (see id., § 832.7, subd. (b)(8)), the
Pitchess statutes do not prevent the Department from disclosing
— to anyone — the identity of officers whose records contain
that nonconfidential information.
1. Section 832.7(a) creates three categories of
confidential information
In pertinent part, section 832.7(a) instructs that, “[e]xcept
as provided in subdivision (b), the personnel records of peace
officers and custodial officers and records maintained by any
state or local agency pursuant to [Penal Code] 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 of the Evidence
Code.” (Italics added.) This provision does not merely restrict
disclosure in criminal and civil proceedings; it creates a
generally applicable condition of confidentiality and recognizes
an exception for “discovery pursuant to” certain portions of the
Evidence Code. (Ibid.; see Copley Press, Inc. v. Superior Court
(2006) 39 Cal.4th 1272, 1285-1286 (Copley Press).)
Absent an exception, the confidentiality afforded by
section 832.7(a) extends to three categories of information. (See
Copley Press, supra, 39 Cal.4th at p. 1284.) First, it reaches
“personnel records of peace officers and custodial officers.”
(§ 832.7(a).) Among other things, this category shields certain
records that relate to “[e]mployee . . . discipline” (Pen. Code,
§ 832.8, subd. (a)(4)) or certain “[c]omplaints, or investigations
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of complaints, . . . pertaining to the manner in which [the
employee] performed [the employee’s] duties” (id., § 832.8, subd.
(a)(5)). (See also Long Beach Police Officers Assn. v. City of Long
Beach (2014) 59 Cal.4th 59, 71-72 (Long Beach); Commission on
Peace Officer Standards & Training v. Superior Court (2007)
42 Cal.4th 278, 291 (Commission on POST).)
The second category of confidential information
encompasses “records maintained by any state or local agency
pursuant to [Penal Code] Section 832.5.” (§ 832.7(a).) Section
832.5 “requires ‘[e]ach department or agency in [California] that
employs peace officers [to] establish a procedure to investigate
complaints by members of the public against the personnel of
these departments or agencies . . . .’ ” (Copley Press, supra,39 Cal.4th at p. 1283, quoting Pen. Code, § 832.5, subd. (a)(1).)
Such “[c]omplaints and any reports or findings relating” to them
“shall be retained for a period of at least five years,” and must
generally be “maintained either in the peace or custodial
officer’s general personnel file or in a separate file.” (Pen. Code,
§ 832.5, subd. (b); see also id., § 832.5, subds. (c), (d)(1).)
The third and final category of confidential information is
“information obtained from” the prior two types of records.
(§ 832.7(a); see Commission on POST, supra, 42 Cal.4th at
p. 289.) “In its ordinary sense, to obtain information means to
come into possession of it.” (International Federation of
Professional & Technical Engineers, Local 21, AFL-CIO v.
Superior Court (2007) 42 Cal.4th 319, 344, italics removed.)
Thus, the phrase “information obtained from” certain records
(§ 832.7(a)) “is most reasonably read to encompass information
that was acquired from” those records (Internat. Federation, at
p. 344).
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2. Senate Bill 1421 excludes certain information from
section 832.7(a)’s provision of confidentiality
Senate Bill 1421 amended Penal Code section 832.7. The
plain text of the amended statute excludes certain information
from the confidentiality afforded by section 832.7(a). As
amended, subdivision (a) applies “[e]xcept as provided in
subdivision (b).” Subdivision (b) declares in turn that,
“[n]otwithstanding . . . any other law,” certain “peace officer or
custodial officer personnel records and records maintained by
any state or local agency shall not be confidential and shall be
made available for public inspection pursuant to the California
Public Records Act.” (Pen. Code, § 832.7, subd. (b)(1), italics
added.) It follows that if subdivision (b) deems records “not . . .
confidential,” they are not “confidential” under subdivision (a).
And if records are “not . . . confidential” because of subdivision
(b), it would be nonsensical to conclude that subdivision (a)
renders “information obtained from” those nonconfidential
records “confidential.” Thus, if subdivision (b) deems a record
nonconfidential, the record, or information obtained from it, is
not confidential.
Senate Bill 1421 deems three types of records
nonconfidential. First, records “relating to the report,
investigation, or findings” of an incident in which an officer
(i) discharged a firearm at a person or (ii) used force against a
person resulting in death or great bodily injury. (Pen. Code,
§ 832.7, subd. (b)(1)(A).) Second, records “relating to an incident
in which a sustained finding was made by any law enforcement
agency or oversight agency” that an officer “engaged in sexual
assault involving a member of the public.” (Id., § 832.7, subd.
(b)(1)(B)(i).) And third, “[a]ny record relating to an incident in
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Opinion of the Court by Cantil-Sakauye, C. J.
which a sustained finding was made by any law enforcement
agency or oversight agency of dishonesty by a peace officer or
custodial officer directly relating to the reporting, investigation,
or prosecution of a crime, or directly relating to the reporting of,
or investigation of misconduct by, another peace officer or
custodial officer, including, but not limited to, any sustained
finding of perjury, false statements, filing false reports,
destruction, falsifying, or concealing of evidence.” (Id., § 832.7,
subd. (b)(1)(C); see also id., § 832.7, subd. (b)(2)-(4).) Any portion
of a Brady list based on these types of records is not confidential,
and section 832.7(a) does not restrict dissemination of such
information.
It is true that Senate Bill 1421 does not “affect the
discovery or disclosure of information contained in a peace or
custodial officer’s personnel file pursuant to Section 1043 of the
Evidence Code.” (Pen. Code, § 832.7, subd. (g).) Nor does it
“supersede or affect the criminal discovery process outlined in
Chapter 10 (commencing with [Evidence Code] Section 1054) of
Title 6 of Part 2, or the admissibility of personnel records
pursuant to subdivision (a), which codifies the court decision in
Pitchess v. Superior Court (1974) 11 Cal.3d 531.” (Id., § 832.7,
subd. (h).) But these provisions are beside the point. It may be
that Senate Bill 1421 does not expand the set of information that
a criminal defendant is entitled to receive through the Pitchess
process, an issue on which we need take no position here. For
present purposes, it is enough to say that even if Senate Bill
1421 does not increase the amount of information that a
defendant can compel an agency to disclose, the bill, by making
certain records nonconfidential, reduces the amount of
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information that agencies are forbidden from disclosing
voluntarily.
We do not suggest that nonconfidential records must be
fully disclosed, at any time, under the California Public Records
Act. As amended, Penal Code section 832.7 contemplates that
it may be appropriate for an agency to redact records (id.,
§ 832.7, subd. (b)(5)-(6)) or to delay disclosure of records to avoid
interference with certain investigations or enforcement
proceedings (id. § 832.7, subd. (b)(7)). Moreover, separate and
apart from any confidentiality, Penal Code section 832.7,
subdivision (b)(8) instructs that “[a] record of a civilian
complaint, or the investigations, findings, or dispositions of that
complaint, shall not be released pursuant to this section if the
complaint is frivolous, as defined in Section 128.5 of the Code of
Civil Procedure, or if the complaint is unfounded.” Thus, our
conclusion that records described in section 832.7(b) are not
“confidential” (§ 832.7(a)) does not mean that they are
invariably open for public inspection over the agency’s
objection.3
With this revised statutory scheme in mind, we turn to the
question whether the Department’s Brady list is confidential.
3. The record does not support a conclusion that the
Brady list is nonconfidential
Putting subdivision (b) aside, there is no serious question
that the Department reviewed “the personnel records of peace
3
We express no view regarding whether an agency
“release[s]” records concerning frivolous or unfounded civilian
complaints “pursuant to this section” when it shares them only
with a prosecutor’s office. (Pen. Code, § 832.7, subd. (b)(8).)
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officers” when creating the Brady list. (§ 832.7(a).) The parties
do not dispute that the deputies included on the list are “peace
officers.” (Ibid.) Nor is there any doubt that the Department
created its list by reviewing “the personnel records of” those
officers. (Ibid.) The Department’s initial letter to deputies
explained that they were being contacted because a review of
“personnel records” “identified potential exculpatory or
impeachment information in your personnel file.” Later
correspondence clarified that deputies were contacted “due to a
prior FOUNDED allegation of misconduct involving the Manual
of Policies and Procedures (MPP), i.e.[,] a sustained finding that
reflects moral turpitude, untruthfulness, or bias.” This
phrasing appears to refer to the statutory definition of
“ ‘[s]ustained,’ ” which “means a final determination . . . ,
following an investigation . . . that the actions of the peace officer
or custodial officer were found to violate law or department
policy.” (Pen. Code, § 832.8, subd. (b); see also id., § 832.8, subd.
(c) [“ ‘Unfounded’ means that an investigation clearly
establishes that the allegation is not true”].) Given this record,
we have no reason to doubt that the Department created the
Brady list by reviewing, at the least, personnel records “relating
to . . . [¶] . . . [e]mployee . . . discipline.” (Id., § 832.8, subd. (a)(4)
[defining personnel records].)
This conclusion entails another: The identities of officers
on the Brady list constitute “information obtained from” “the
personnel records of peace officers.” (§ 832.7(a).) The Brady list
is a catalog of officers with a particular kind of discipline-related
information in their personnel file. It was derived from
information in those files. It follows that, barring the
applicability of an exception, the Pitchess statutes render
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confidential the identities of officers on the Brady list. To hold
otherwise would mean that section 832.7(a) affords the Brady
list no protection at all.
An amicus curiae brief contends that the phrase
“information obtained from these records” (§ 832.7(a)) “could
reasonably be interpreted to refer only to information in the
records, and not to the mere fact that certain information may
exist.” Thus, the argument continues, the Department’s
“generic” notification that “ ‘there may be Brady material in the
officer’s personnel records,’ ” is not a disclosure of “information
obtained from” the records (§ 832.7(a)).
We disagree. Based on the Department’s explanation of
how the Brady list at issue in this case was assembled (see ante,
pt. I.A), the Department’s disclosure that there “may” be Brady
material in an officer’s personnel records is, in effect, a
disclosure that the officer has been found to have committed
misconduct. This is not a “generic” disclosure merely because
the misconduct could have been one of several kinds of
misconduct, nor because evidence of the misconduct might not
be “material” within the meaning of Brady in a particular case.
(Cf. Copley Press, supra¸ 39 Cal.4th at p. 1297 [section 832.7(a)
“is designed to protect, among other things, ‘the identity of
officers’ subject to complaints”].)
Moreover, information is no less “obtained from”
confidential records merely because it is abstracted before it is
disclosed. As relevant here, Penal Code Section 832.7,
subdivision (d) instructs that, “notwithstanding” the
confidentiality created by subdivision (a), “a department or
agency that employs peace or custodial officers may disseminate
data regarding the number, type, or disposition of complaints
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(sustained, not sustained, exonerated, or unfounded) made
against its officers if that information is in a form which does
not identify the individuals involved.” (Id., § 832.7, subd. (d).)
This exception would be unnecessary if providing information
about confidential records categorically fell outside of the
“information obtained from” provision. (§ 832.7(a).)
In light of Senate Bill 1421, however, some of the records
reviewed by the Department may not be confidential. (See, e.g.,
Pen. Code, § 832.7, subd. (b)(1)(C).) If the records are not
confidential, then information “obtained from” those records is
also not confidential. The record on appeal in this case was not
developed with Senate Bill 1421 in mind. Given the many
grounds that may have given rise to a deputy’s inclusion on the
Brady list, we cannot say that the list was derived entirely from
records rendered nonconfidential by Senate Bill 1421.4
Nor can we say that a Brady list that includes both
confidential and nonconfidential information melds into a
single, nonconfidential whole. It is true that when a Brady list
includes both confidential information and nonconfidential
information, an officer’s presence on the list does not necessarily
communicate confidential information about that officer. In
such a situation, one cannot infer from the officer’s presence on
the list that there is impeachment information in the officer’s
confidential records. (Cf. Long Beach, supra, 59 Cal.4th at p. 73
[“disclosing the names of officers involved in various shootings”
was permissible, as it “would not imply that those shootings
4
We express no view concerning whether Senate Bill 1421
affects the confidentiality of records that existed before the
legislation’s effective date.
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resulted in disciplinary action against the officers, and it would
not link those names to any confidential personnel matters or
other protected information”]; Commission on POST, supra, 42
Cal.4th at p. 299 [names and employment dates of officers not
confidential, in part because that information “does not involve
the identification of an individual as the officer involved in an
incident that was the subject of a complaint or disciplinary
investigation”].) But this argument reflects too narrow a view
of the confidentiality afforded by the Pitchess statutes. When a
Brady list is created based on review of confidential records,
information is still unambiguously “obtained from” those
records. (§ 832.7(a).) It would be odd indeed to conclude that
the Legislature intended to sacrifice the confidentiality of one
officer’s records merely because the officer was listed alongside
others whose records were not confidential.
Further, because this argument focuses on whether
someone can infer information about confidential records from
the fact that an officer is on the Brady list, it appears to require
one of two dubious approaches. It could be that disclosure of the
fact that an officer is on the Brady list is permissible so long as
the list is not based entirely on confidential information. That,
after all, would be enough to sever the inference that if an officer
is on the list, there must be evidence of discipline in the officer’s
confidential file. But if that is correct, then a Brady list may be
created based on almost entirely confidential information, plus
one officer whose misconduct is not confidential. We doubt the
Legislature intended that result. Alternatively, it might be
necessary to determine whether there is a sufficient mix of
confidential and nonconfidential information such that it is
genuinely unclear on what basis an officer was included on the
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Opinion of the Court by Cantil-Sakauye, C. J.
Brady list. But that line seems challenging to administer —
and, again, unmoored from the statutory text, which concerns
“information obtained from” confidential records.
Because we cannot say that the Brady list at issue in this
case is entirely nonconfidential, and because partial
nonconfidentiality would not strip the remainder of the list of its
confidential status, we next consider whether the Department
may disclose confidential information on its Brady list to
prosecutors.
B. The Department May Share Even Confidential
Portions of Its Brady List with Prosecutors
Our conclusion that portions of the Department’s Brady
list may be confidential raises the further question whether
sharing alerts based on such information with prosecutors
would be a violation of confidentiality. We conclude that the
confidentiality created by the Pitchess statutes does not forbid
the limited disclosure to prosecutors at issue in this case.
1. Section 832.7(a) permits the Department to share
Brady alerts with prosecutors
As noted, section 832.7(a) instructs that certain
information is “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.” We made clear
in Copley Press that it is the condition of confidentiality that
restricts information sharing, not the “shall not be disclosed”
provision. (See Copley Press, supra, 39 Cal.4th at p. 1285; see
also Johnson, supra, 61 Cal.4th at pp. 713-714.) Regardless, any
limitation on “disclos[ure]” raises essentially the same question
as deeming information “confidential” (§ 832.7(a)): With whom,
if anyone, may the Department share confidential information?
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The statutory text alone provides no clear answer to this
question. “In common usage, confidentiality is not limited to
complete anonymity or secrecy. A statement can be made ‘in
confidence’ even if the speaker knows the communication will be
shared with limited others, as long as the speaker expects that
the information will not be published indiscriminately.”
(Department of Justice v. Landano (1993) 508 U.S. 165, 173; see
also Food Marketing Institute v. Argus Leader Media (2019) 588
U.S. ___ [2019 WL 2570624] [part III.A].) So, for example, it is
hard to imagine that the term “confidential” would categorically
forbid one employee of a custodian of records, tasked with
maintaining personnel files, from sharing those records with
another employee assigned to the same task. Put differently,
deeming information “confidential” creates insiders (with whom
information may be shared) and outsiders (with whom sharing
information might be an impermissible disclosure). The text of
the Pitchess statutes does not clearly indicate that prosecutors
are outsiders, forbidden from receiving confidential Brady
alerts.5
5
If anything, the recent amendment to section 832.7(a)
tends to indicate that the condition of confidentiality is meant
to shield information from the public’s eyes — not from the eyes
of government officials who may need that information to satisfy
a constitutional obligation. (See Pen. Code, § 832.7, subd. (b)(1)
[certain records “shall not be confidential and shall be made
available for public inspection pursuant to the California Public
Records Act”]; cf. Copley Press, supra, 39 Cal.4th at p. 1285 [Pen.
Code, § 832.7, subds. (c)-(d), “specify circumstances under which
information may be released to the general public and the scope
of information that may be released”].)
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Viewing the Pitchess statutes “against the larger
background of the prosecution’s [Brady] obligation” (Mooc,
supra, 26 Cal.4th at p. 1225), we instead conclude that the
Department may provide prosecutors with the Brady alerts at
issue here without violating confidentiality.
There can be no serious doubt that confidential personnel
records may contain Brady material. An officer may provide
important testimony in a criminal prosecution. Confidential
personnel records may cast doubt on that officer’s veracity. Such
records can constitute material impeachment evidence. (See,
e.g., Giglio¸ supra, 407 U.S. at pp. 154-155.) These are not close
questions.
Because confidential records may contain Brady material,
construing the Pitchess statutes to permit Brady alerts best
“harmonize[s]” Brady and Pitchess. (Deputy Sheriffs, supra,
13 Cal.App.5th at p. 450 (conc. & dis. opn. of Grimes, J.).) Brady
imposes on prosecutors “a duty to learn of any favorable
evidence known to the others acting on the government’s behalf
in [a] case, including the police.” (Kyles, supra, 514 U.S. at
p. 437.) Prosecutors are deemed constructively aware of Brady
material known to anyone on the prosecution team and must
share that information with the defense. (See In re Brown
(1998) 17 Cal.4th 873, 879.) In this context, construing the
Pitchess statutes to cut off the flow of information from law
enforcement personnel to prosecutors would be anathema to
Brady compliance.
Indeed, to interpret “confidential” as forbidding the
sharing of information with prosecutors would do more than
forbid the formal Brady-list-and-alert practice at issue here.
Even without formal procedures, conscientious prosecutors have
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Opinion of the Court by Cantil-Sakauye, C. J.
conferred with law enforcement agencies to identify confidential
files that may contain impeachment material. (See, e.g.,
Johnson, supra, 61 Cal.4th at p. 707 [agency created Brady list
in the face of “ ‘unnecessary paperwork and personnel costs’ ”
caused by “ ‘[r]epetitive requests by the District Attorney that
the [Police] Department check employee personnel files of
Department employees who may be witnesses”].) If
“confidential” prevents formal procedures for sharing
information with prosecutors, it prevents informal tips as well.
Of course, no one suggests that the Pitchess statutes
completely prevent prosecutors from accessing confidential
personnel records. Section 832.7(a) includes an exception for
“investigations . . . concerning the conduct of peace officers or
custodial officers . . . conducted by . . . a district attorney’s office,
or the Attorney General’s office.” And prosecutors may file
Pitchess motions as appropriate. But the “investigations”
exception (§ 832.7(a)) does not apply merely because “[a] police
officer” is “a witness in a criminal case” (Johnson, supra,
61 Cal.4th at p. 714). And although the showing required for a
Pitchess motion to trigger in camera review “is not high”
(Johnson, at p. 720), neither is it imaginary. Without Brady
alerts, prosecutors may be unaware that a Pitchess motion
should be filed — and such a motion, if filed, may not succeed.
Thus, interpreting the Pitchess statutes to prohibit Brady alerts
would pose a substantial threat to Brady compliance.
It would also put deputies in a precarious position. The
Fourteenth Amendment underlying Brady imposes obligations
on states and their agents — not just, derivatively, on
prosecutors. Law enforcement personnel are required to share
Brady material with the prosecution. (See, e.g., Carrillo v.
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Opinion of the Court by Cantil-Sakauye, C. J.
County of Los Angeles (9th Cir. 2015) 798 F.3d 1210, 1219-1223
& fn. 12.) The harder it is for prosecutors to access that
material, the greater the need for deputies to volunteer it.
The Association’s contrary view that “Brady relates only
to the prosecutor” and that “Brady . . . does not impose
obligations on law enforcement” is distressing and wrong. The
prosecution may bear ultimate responsibility for ensuring that
necessary disclosures are made to the defense (see In re Brown,
supra, 17 Cal.4th at p. 881), but that does not mean law
enforcement personnel have no role to play. This is not to imply
that Brady alerts are a constitutionally required means of
ensuring Brady compliance; only that disclosure of Brady
material is required, and that Brady alerts help to ensure
satisfaction of that requirement.
The Association further disputes that confidential
personnel records may contain Brady material. It argues that
“when a law enforcement agency maintains information about a
peace officer in [the officer’s] personnel file, it is acting in an
administrative, not an investigative, capacity, and such
information is not within the purview of the prosecutor’s duty
under Brady.”
This argument rests on a logical error. To be sure,
although the federal Constitution imposes a duty on states to
afford defendants a fair trial, a prosecutor is not responsible for
disclosing all information known to any part of a state. Instead,
if an “agency . . . has no connection to the investigation or
prosecution of the criminal charge against the defendant,” the
agency is not part of “the prosecution team,” and “the prosecutor
does not have the duty to search for or to disclose” “information
possessed by [that] agency.” (In re Steele (2004) 32 Cal.4th 682,
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697.) But it does not follow that information in an officer’s
confidential personnel file categorically falls outside the Brady
duty to disclose. Even if one assumes that a law enforcement
agency is not a member of the prosecution team when acting in
its capacity as a custodian of records — a proposition Steele does
not establish — it may be that others, who clearly are on the
prosecution team, are aware of the existence and content of
those records. A prosecutor, for example, may know from a prior
Pitchess motion that a confidential file contains Brady
information regarding an officer involved in a pending
prosecution. Moreover, the correspondence sent to deputies in
this case served to “remind” them about information in their
records, reflecting the fact that an officer will often (if not
always) be aware of the contents of the officer’s own confidential
file. Thus, even assuming that custodians are not necessarily
part of the prosecution team, it does not follow that confidential
personnel records are categorically unknown to the members of
that team.6
The Association also suggests that confidential records fall
outside the Brady duty to disclose because that duty extends
only “to information obtained during an investigation about a
criminal matter against a defendant.” (Italics added.) This, too,
is mistaken. What matters for Brady purposes is what the
prosecution team knows, not how the prosecution team knows
it. Suppose, for example, that a prosecutor is personally aware
(based on an earlier case) that a key witness in a pending
6
We need not hold that all information known to officers is
necessarily within the scope of the Brady duty. For now, it is
enough to say that records connected to officers’ discipline
cannot be categorically excluded from that duty.
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prosecution is a habitual liar who has been repeatedly convicted
of perjury. To say that the prosecutor need not disclose that
information merely because it was not “obtained during”
investigation of the defendant’s case would be irreconcilable
with the right to a fair trial underlying Brady; it would “cast[]
the prosecutor in the role of an architect of a proceeding that
does not comport with standards of justice.” (Brady, supra, 373
U.S. at p. 88; cf. City of San Jose, supra, 5 Cal.4th at p. 57
[noting People’s concession that Brady required disclosure, to
defendants charged with battery on police officers, of the fact
that an officer had been disciplined pursuant to a complaint of
excessive force].)
To be clear, we do not suggest that permitting Brady alerts
completely resolves the tension between Brady and the Pitchess
statutes. Not all departments maintain Brady lists. And
nothing guarantees that a Brady list will reflect all information
that might prove “material” in each particular case. (Brady,
supra, 373 U.S. at p. 87; see ante, pt. I.A.) But when a
department seeks to transmit a Brady alert to prosecutors,
allowing the department to do so mitigates the risk of a
constitutional violation. With Brady in mind (see Mooc, supra,26 Cal.4th at p. 1225), the term “confidential” (§ 832.7(a)) must
be understood to permit such alerts.7
7
To permit Brady alerts is not to require that Pitchess
motions be supported by such alerts; there may be good cause
for in camera inspection even if officers have been omitted from
a Brady list maintained by their department.
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2. Johnson does not require a contrary conclusion
The Court of Appeal relied on our decision in Johnson to
reach a contrary conclusion. We decline to extend that decision
to this context.
In Johnson, we rejected the view that prosecutors “may
always review the confidential personnel records of police
officers who are witnesses in a criminal case to determine
whether the records contain Brady material.” (Johnson, supra,
61 Cal.4th at p. 712.) Most notably, we reasoned: “[Section
832.7(a)] states that police officer personnel records are
‘confidential.’ It permits disclosure by use of the Pitchess
procedures but otherwise provides only one exception to the
confidentiality requirement — the exception for investigations.
This exception indicates that the Legislature considered the
range of situations in which prosecutorial need justifies direct
access to peace officer personnel records, and it decided that
those situations should be limited to ‘investigations or
proceedings concerning the conduct of peace officers or custodial
officers’ [citation], and does not extend to this context.”
(Johnson, at pp. 713-714.)
We acknowledge the argument that this analysis applies
to Brady alerts. Brady alerts communicate information
obtained from confidential records. That information, like the
underlying records, is “confidential.” (§ 832.7(a).) And nothing
in section 832.7(a) — including the investigations exception —
explicitly declares that different kinds of confidential
information should be treated differently. (See also Johnson,
supra, 61 Cal.4th at p. 714 [“prosecutors, as well as defendants,
must comply with the Pitchess procedures if they seek
information from confidential personnel records”].)
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That said, there is no question that our decision in
Johnson was based on an understanding that Brady alerts were
permissible. We viewed Brady alerts as so “laudabl[e]”
(Johnson, supra, 61 Cal.4th at p. 721) that we attached to our
opinion the order “establish[ing] department procedures for
Brady disclosure of materials in employee personnel files” (id.,
at pp. 706-707). Moreover, when construing section 832.7(a), we
reasoned that “permitting prosecutors routine access to
personnel records is not necessary to protect defendants’ due
process rights to obtain potentially exculpatory evidence,”
relying on our later discussion of Brady alerts. (Johnson, at
p. 714; see also ibid. [“as discussed post”].) To now hold that
Johnson’s interpretation of “confidential” forbids Brady alerts
would be to read our opinion as announcing an interpretation
that both: (i) depends on the legality of Brady alerts; and yet
(ii) implies that such alerts are unlawful. Precedent cannot
compel a result if it points toward a self-defeating conclusion.
Nor is the relationship between the term “confidential”
and the investigations exception beyond debate. (Johnson,
supra, 61 Cal.4th at p. 714.) Johnson inferred that because
there is an exception to confidentiality for investigations, the
Pitchess statutes otherwise limit investigators’ (specifically,
prosecutors’) access to “confidential” information. (See id., at
pp. 713-714.) But an exception aimed at investigations need not
imply anything about whether investigators can view
confidential material; for example, the exception could concern
prosecutors’ ability to share information with others when an
investigation is ongoing. Moreover, even if the investigations
exception does imply that prosecutors lack unlimited access to
confidential records during ordinary criminal cases, the
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exception could be understood to set a floor on prosecutorial
access, rather than, as in Johnson, a ceiling. We need not
embrace either of these interpretations to conclude that
Johnson’s approach is not compelled by the statutory text — and
should not be reflexively extended without considering
“defendants’ due process rights.” (Johnson, at p. 714.)
In any event, even if the investigations exception is the
only basis on which prosecutors may directly access underlying
confidential records without a Pitchess motion, it does not follow
that the Department is forbidden to transmit the Brady alerts
at issue in this case. The Pitchess statutes reflect a balance
between “a litigant’s discovery interest” and “an officer’s
confidentiality interest.” (Stiglitz, supra, 60 Cal.4th at p. 639.)
Although the statutes may shield the fact that an officer has
been disciplined from disclosure to the public at large, the mere
fact of discipline, disclosed merely to prosecutors, raises less
significant privacy concerns than the underlying records at
issue in Johnson.
For these reasons, we decline to extend Johnson’s
conclusion regarding “direct access to peace officer personnel
records” to forbid the Brady alerts at issue here. (Johnson,
supra, 61 Cal.4th at p. 713.) The Department may share this
limited information, for the limited purpose of ensuring Brady
compliance, with the limited class of persons (i.e., prosecutors)
with a particularized need to know. (See ante, pt. III.A.)
IV. CONCLUSION AND DISPOSITION
The question presented in this case concerns whether the
Department may share confidential Brady alerts with
prosecutors. We do not address whether it would violate
confidentiality for a prosecutor to share an alert with the
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ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS v.
SUPERIOR COURT
Opinion of the Court by Cantil-Sakauye, C. J.
defense. (See Johnson, supra, 61 Cal.4th at p. 722.) And
because this case concerns only Brady alerts, it provides no
occasion to revisit whether prosecutors may directly access
underlying records, or perhaps a subset of those records. (See
Pen. Code, § 832.8, subd. (a)(4) [“discipline”], (5).) To resolve the
question presented, it is enough to hold that the Department
does not violate section 832.7(a) by sharing with prosecutors the
fact that an officer, who is a potential witness in a pending
criminal prosecution, may have relevant exonerating or
impeaching material in that officer’s confidential personnel file.
We reverse the judgment of the Court of Appeal and
remand the matter for further proceedings consistent with this
opinion.
CANTIL-SAKAUYE, C. J.
We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
33
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Association for Los Angeles Deputy Sheriffs v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 13 Cal.App.5th 413Rehearing Granted
__________________________________________________________________________________
Opinion No. S243855
Date Filed: August 26, 2019
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: James C. Chalfant
__________________________________________________________________________________
Counsel:
Benedon & Serlin, Douglas G. Benedon, Judith E. Posner; Green & Shinee, Richard A. Shinee; The
Gibbons Firm, Elizabeth J. Gibbons and Emily B. Suhr for Petitioner.
Stone Busailah, Michael P. Stone, Muna Busailah and Robert Rabe for Riverside Sheriffs’ Association, Los
Angeles Police Protective League, Southern California Alliance of Law Enforcement and Los Angeles
School Police Association as Amici Curiae on behalf of Petitioner.
Mastagni Holstedt, David P. Mastagni, David E. Mastagni, Isaac S. Stevens; Berry Wilkinson Law Group
and Alison Berry Wilkinson for Peace Officers Research Associaiton and the PORAC Legal Defense Fund
as Amici Curiae on behalf of Petitioner.
Frederick Bennett for Respondent.
Liebert Cassidy Whitmore, Geoffrey S. Sheldon, Alex Y. Wong and James E. Oldendorph, Jr., for Real
Parties in Interest.
Bartkiewicz, Kronick & Shanahan and Jennifer T. Buckman for League of California Cities as Amicus
Curiae on behalf of Real Parties in Interest.
Mark Zahner; Michael D. Schwartz, Chief Assistant District Attorney (Ventura); Jerry P. Coleman, Special
Assistant District Attorney (San Francisco); and Albert C. Locher, Retired Assistant District Attorney
(Sacramento) for California District Attorneys Association as Amicus Curiae on behalf of Real Parties in
Interest.
Peter J. Eliasberg, Melanie R.P. Ochoa; Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg &
Rhow, Benjamin N. Gluck, Naeun Rim and Nithin Kumar for ACLU of Southern California, ACLU of
Northern California, ACLU of San Diego and Imperial Counties and Dignity and Power Now as Amici
Curiae on behalf of Real Parties in Interest.
Page 2 – S243855 – counsel continued
Counsel:
Hilary Potashner, Federal Public Defender, and Alyssa D. Bell, Deputy Federal Public Defender, for the
Office of the Federal Defender of Los Angeles as Amicus Curiae on behalf of Real Parties in Interest.
Steven Harmon, Public Defender (Riverside) and Laura Arnold, Deputy Public Defender, for California
Public Defenders Association and Law Offices of the Public Defender for the County of Riverside as
Amici Curiae on behalf of Real Parties in Interest.
Jonathan Abel for Professor Jody D. Armour, Professor W. David Ball, Professor Lara Bazelon, Professor
Samantha Buckingham, Dean Erwin Chemerinsky, Professor Gabriel “Jack” Chin, Professor Beth A.
Colgan, Professor Sharon Dolovich, Professor Ingrid Eagly, Associate Dean Carrie Hemple, Professor Alex
Kreit, Professor Máximo Langer, Professor Laurie Levenson, Associate Dean Justin Levitt, Professor Eric
J. Miller, Professor Samuel Pillsbury, Dean L. Song Richardson, Professor Heidi Rummel, Professor
Jonathan Simon, Professor Kelly Strader, Professor Katie Tinto, Professor Sherod Thaxton, Professor
Ronald Tyler, Professor Rachel E. VanLandingham, Professor Robert Weisberg and Professor Kate
Weisburd as Amici Curiae on behalf of Real Parties in Interest.
Alicia Virani and Stephen K. Dunkle for California Attorneys for Criminal Justice as Amicus Curiae on
behalf of Real Parties in Interest.
George Gascón, District Attorney (San Francisco) and Allison G. Macbeth, Assistant District Attorney, for
San Francisco District Attorney as Amicus Curiae on behalf of Real Parties in Interest.
Xavier Becerra, Attorney General, Edward C. DuMont, State Solicitor General, Aimee Feinberg, Deputy
State Solicitor General, Peter D. Halloran and J. Michael Chamberlain, Deputy Attorneys General, for
Attorney General as Amicus Curiae on behalf of Real Parties in Interest.
Dennis J. Herrera, City Attorney (San Francisco) and Jeremy M. Goldman, Co-Chief of Appellate
Litigation for City and County of San Francisco, by and through the San Francisco Police Department as
Amici Curiae on behalf of Real Parties in Interest.
Jeff Adachi, Public Defender (San Francisco), Matt Gonzalez, Chief Attorney, and Dorothy Bishoff,
Deputy Public Defender, for San Francisco Public Defender’s Office as Amicus Curiae on behalf of Real
Parties in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Judith E. Posner
Benedon & Serlin
22708 Mariano Street
Woodland Hills, CA 91367-6128
(818) 340-1950
Geoffrey S. Sheldon
Liebert Cassidy Whitmore
6033 West Century Boulevard, 5th Floor
Los Angeles, CA 90045
(310) 981-2000
Aimee Feinberg
Deputy State Solicitor General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-6003