Assn. for L.A. Deputy Sheriffs v. Super. Ct.

Filed 7/11/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ASSOCIATION FOR LOS B280676
ANGELES DEPUTY
SHERIFFS,
(Los Angeles County
Petitioner, Super. Ct. No. BS166063)
v.
SUPERIOR COURT OF THE
STATE OF CALIFORNIA FOR
THE COUNTY OF LOS
ANGELES,
Respondent;
____________________________
LOS ANGELES COUNTY
SHERIFF‟S DEPARTMENT et
al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate. James C.
Chalfant, Judge. Petition granted in part, denied in part.
Green & Shinee, Richard A. Shinee, Elizabeth J. Gibbons,
and Emily B. Suhr for Petitioner.
Frederick Bennett for Respondent.
Liebert Cassidy Whitmore, Geoffrey S. Sheldon, Alex Y.
Wong, and James E. Oldendorph, Jr. for Real Parties in Interest.
____________________________
INTRODUCTION
The primary issue in this case is whether the nearly 40-
year-old California statutory scheme that governs discovery of
peace officer personnel records, when applied to criminal cases,
violates due process and is therefore unconstitutional.
Petitioner, the Association for Los Angeles County Deputy
Sheriffs (ALADS), is the union that represents non-supervisory
Los Angeles County Sheriff‟s deputies. Real party in interest,
Jim McDonnell, is the duly elected Sheriff of Los Angeles County
(real party). Other real parties in interest include the Los
Angeles County Sheriff‟s Department (LASD), Los Angeles
County, and Does one through 50 (collectively real parties).
In Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady), the
United States Supreme Court held that constitutional due
process creates an affirmative obligation on the part of the
prosecution, whether or not requested by the defense, to disclose
all evidence within its possession that is exculpatory to a criminal
defendant. Exculpatory evidence under Brady includes
impeachment evidence. (Giglio v. United States (1972) 405 U.S.
150, 153–155 (Giglio).) The prosecution‟s disclosure obligation
under Brady extends not only to evidence in its immediate
possession, but also to evidence in the possession of other
members of the prosecution team, including law enforcement. (In
re Steele (2004) 32 Cal. 4th 682, 697, citing Kyles v. Whitley (1995)
514 U.S. 419, 437.)
2
Eleven years after Brady, the California Supreme Court, in
Pitchess v. Superior Court (1974) 11 Cal. 3d 531, 537 (Pitchess),
held that under certain circumstances, and upon an adequate
showing, a criminal defendant may discover information from a
peace officer‟s otherwise confidential personnel file that is
relevant to his or her defense. The California Legislature
eventually codified what became known as Pitchess motions in
Penal Code sections 832.7 and 832.8, as well as Evidence Code
sections 1043 through 1045 (collectively, the Pitchess statutes).
(People v. Mooc (2001) 26 Cal. 4th 1216, 1219–1220 (Mooc).)1
Generally speaking, the Pitchess statutes require a criminal
defendant to file a written motion that establishes good cause for
the discovery sought. If such a showing is made, the trial court
then reviews the law enforcement personnel records in camera
with the custodian, and discloses to the defendant any relevant
information from the personnel file. (Mooc, at p. 1226.)
Absent compliance with these procedures, peace officer
personnel records, as well as information from them, are
confidential and shall not be disclosed “in any criminal or civil
proceeding[.]” (§ 832.7, subds. (a) & (f).) Records that cannot be
disclosed absent compliance with the Pitchess procedures include
the names or identities of peace officers to the extent such a
disclosure also links the officers to disciplinary investigations in
their personnel files. (Copley Press, Inc. v. Superior Court (2006)
39 Cal. 4th 1272, 1297–1299 (Copley Press); accord Long Beach
Police Officers Assn. v. City of Long Beach (2014) 59 Cal. 4th 59,
71–73 (Long Beach); Commission on Peace Officers Standards &
Training v. Superior Court (2007) 42 Cal. 4th 278, 295, 298–299
1 All subsequent statutory references are to the Penal Code,
unless otherwise designated.
3
(POST).) Prosecutors do not have a superior right of access to
law enforcement personnel files, and must also comply with the
Pitchess statutes to obtain information from them. (People v.
Superior Court (Johnson) (2015) 61 Cal. 4th 696, 714 (Johnson).)
In this case, the LASD created a so-called “Brady” list of
deputies whose personnel files contain sustained allegations of
misconduct allegedly involving moral turpitude or other bad acts
relevant to impeachment. The LASD proposed to disclose that
list to the district attorney, as well as to other prosecutorial
agencies that handle LASD investigations, so that prosecutors in
individual cases could file Pitchess motions to discover the
underlying misconduct or advise the defense of the disclosure so
the defense could file its own Pitchess motion. ALADS opposed
disclosure of the Brady list and filed the immediate action.
ALADS‟ lawsuit seeks, in part, an injunction that prohibits
disclosure of the list or any individual on the list to anyone
outside the LASD, including prosecutors, absent complete
compliance with the Pitchess statutes described above.
After full briefing, the trial court filed a thorough and
lengthy written tentative ruling. After oral argument, and
consistent with that tentative, the court issued a preliminary
injunction which prohibits general disclosure of the Brady list to
the district attorney or other relevant prosecutors. Consistent
with Copley Press, POST, and Long Beach, the trial court
determined that such a disclosure, because it identifies
administratively disciplined deputies by name in the absence of a
properly filed, heard, and granted Pitchess motion, violates the
Pitchess statutes.
The injunction, however, expressly allows disclosure of
individual deputies from the list to prosecutors, in the absence of
4
compliance with Pitchess statutes, so long as any disclosed
deputy is also a potential witness in a pending criminal
prosecution. The trial court acknowledged that such a disclosure
also violates the Pitchess statutes. The trial court, however, held
that a filed criminal case triggers Brady and that the LASD, as
part of the prosecution team, then has a “Brady obligation” to
disclose exculpatory evidence in its possession. Because of this
obligation, the LASD, in the language of the trial court‟s
injunction, “may” notify the prosecutor––in the absence of a fully
litigated and granted Pitchess motion––that the identified deputy
has a founded administrative allegation of misconduct relevant to
his or her credibility.
The trial court‟s finding that, because of its “Brady
obligation,” the LASD “may” violate the Pitchess statutes‟
disclosure prohibition, is, in our opinion, identical to finding that
the Pitchess statutes‟ disclosure prohibition is unconstitutional in
the particular context of a filed prosecution wherein a Brady list
deputy is a witness. There is simply no lawful way judicially to
approve a violation of state law unless compelled to do so by a
higher authority: in this case, the United States Constitution as
construed in Brady. Also, Brady disclosure is an affirmative, sua
sponte, obligation of the prosecution team, meaning the
prosecution is required to turn over all exculpatory information
in its possession to the defense whether or not the defense
requests it. Therefore, to the extent Brady creates a disclosure
obligation that overrides Pitchess confidentiality, it is mandatory
rather than permissive, no matter how the injunction itself is
worded. And, if Brady compels the LASD to violate state law in
this fashion, by disclosing the identity of a Brady list deputy in
the absence of a fully litigated and granted Pitchess motion where
5
a deputy is also a witness in a filed prosecution, then it compels
every state and local law enforcement agency in California to do
the same under the same or similar circumstances.2
2 The concurring and dissenting opinion in this case
(hereinafter “dissent”) contends that we have mischaracterized
the trial court‟s ruling and created a constitutional issue where
none exists. The dissent asserts that the trial court “harmonized”
Brady and Pitchess rather than found them in contradiction.
(Conc. & dis. opn. post, at pp. 2–3.) We disagree.
In its written tentative ruling, after reviewing Copley Press,
POST, and Long Beach, the trial court summarized its
conclusion: “The clear import of Copley Press, POST, and Long
Beach is that the names of peace officers are confidential and not
subject to disclosure absent a Pitchess motion when connected or
linked with employee discipline and investigation of complaints
concerning an employee.” Later in the tentative, the court
reiterated this position, but added its conclusion regarding the
obligation created by Brady: “Petitioner is correct that the names
of peace officers are confidential and not subject to disclosure
absent a Pitchess motion when connected or linked with the
officers‟ discipline under Copley Press, POST, and Long Beach.
[Citation.] These names cannot be disclosed to the District
Attorney absent a Brady obligation to do so.”
Thus, in its tentative, the trial court expressly
acknowledged that disclosing the identity of a deputy from the
Brady list to the district attorney in the absence of a litigated and
granted Pitchess motion violates the Pitchess statutes.
Nevertheless, the court then approved of that disclosure, and
hence the Pitchess violation it creates, so long as the Brady
obligation has been triggered by a filed prosecution involving a
deputy from the list as a witness. As mentioned above, this is no
different from saying the Pitchess procedures that prohibit
identifying a deputy connected to a disciplinary investigation are
unconstitutional and therefore must be ignored when a Brady list
deputy is a potential witness in a filed prosecution. Thus, we
6
The affirmative disclosure obligation of the prosecution
required by Brady and constitutional due process have now
coexisted with a criminal defendant‟s good cause burden under
the Pitchess statutes for nearly 40 years. In that time frame, no
reported case that we are aware of has found Pitchess or the
Pitchess statutes to contravene Brady and thus violate the
United States Constitution. In this case, real parties ask us to
uphold the trial court‟s injunction. As explained above, to do so
would require us to find the Pitchess statutes unconstitutional
insofar as they prohibit, absent compliance with their specific
procedures, disclosure to prosecutors of deputies from the Brady
list who are also potential witnesses in a pending criminal
prosecution. ALADS disagrees that Brady and constitutional due
process compel disclosure in the absence of compliance with
Pitchess, even if the deputy is a potential witness in a pending
criminal prosecution. ALADS seeks an order commanding the
trial court to strike language that permits such disclosure from
the injunction.
While we understand the appeal of a procedure intended to
streamline the disclosure of information that guarantees a
criminal defendant‟s right to a fair trial, we do not write on a
blank slate guided only by policy concerns. Both our Supreme
Court and at least one Court of Appeal have examined the
constitutionality of Pitchess and the Pitchess statutes in light of
Brady and found no constitutional infirmity. It is our obligation
to follow precedent, whether or not we agree with it; we have no
authority, as an intermediate appellate court, to ignore
precedent, jump ahead of our Supreme Court, and create new
believe that the constitutional issue addressed in this opinion is
squarely before us.
7
law. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal. 2d 450, 455 (Auto Equity Sales).)
Our review of the relevant cases convinces us that the
current state of the law supports ALADS. We therefore grant the
relief, described above, that ALADS seeks.
FACTUAL HISTORY
Prior to October 14, 2016, the LASD convened a
Commander‟s Panel to review individual deputy personnel files.
Based upon this review, the panel identified approximately 300
individual deputies who had administratively founded allegations
of misconduct involving moral turpitude, conduct which might be
used to impeach the deputy‟s testimony in a criminal prosecution.
The categories of misconduct upon which the panel based its
decisions were administratively founded violations of various
sections of the Sheriff‟s Manual of Policy and Procedures:
(1) Immoral Conduct (§§ 3-01/030.07), (2) Bribes, Rewards,
Loans, Gifts, Favors (§§ 3-01/030.75), (3) Misappropriation of
Property (§§ 3-01/040.40), (4) Tampering with Evidence (§§ 3-
01/040.65), (5) False Statements (§§ 3-01/040.70), (6) Failure to
Make Statements and/or Making False Statements During
Departmental Internal Investigations (§§ 3-01/040.75),
(7) Obstructing an Investigation/Influencing a Witness (§§ 3-
01/040.76), (8) False Information in Records (§§ 3-01/100.35),
(9) Policy of Equality―Discriminatory Harassment (§§ 3-
01/121.20), (10) Unreasonable Force (§§ 3-01/030.10), and
(11) Family Violence (§§ 3-01/030.16).
In order to comply with what it believed to be its
obligations under Brady and Johnson, the LASD proposed to
send a “Brady list” of these deputies, identified by name and
serial number only, to the various prosecutorial agencies that
8
handle cases investigated by the LASD. The list would identify
the deputy as having at least one founded violation of the above
categories of misconduct in his or her personnel file. In the event
such a deputy was or became a witness on a filed or to be filed
prosecution, the prosecutor could (1) make a motion pursuant to
Pitchess and Evidence Code sections 1043 and 1045, to discover
the conduct underlying the deputy‟s inclusion on the list, or
(2) provide the information disclosed by the LASD to the defense
so it could make its own Pitchess motion. (Johnson, supra, 61
Cal.4th at pp. 715–716.)
On October 14, 2016, the LASD sent letters to all affected
deputies notifying them of this proposed policy. The letter
advised the affected deputy that he or she had a founded
allegation of misconduct in his or her personnel file, and that his
or her name and serial number would therefore be disclosed to
the district attorney, as well as other relevant prosecutorial
agencies, in order to comply with Brady. The letter affirmatively
stated that records of the investigation itself, as well as the
deputy‟s personnel file, would not be disclosed absent the
appropriate Pitchess motion and corresponding court order. The
letter also warned of the possibility of assignment transfers, in
the event the LASD determined such transfers were necessary to
protect the integrity of criminal investigations in light of the
disclosures. If the LASD determined such transfers were
necessary, the letter advised that proper notice and a hearing
would be given, and that “[a]ll due process rights afforded by
federal, state, and local law, as well as any applicable union
memorandum of understanding (MOU),” would be followed.
The letter also advised any affected deputy who believed
his or her name was improperly included on the list to notify
9
LASD Captain Gregory Nelson, in writing, within 12 days. In
response to this request, ALADS sent letters on behalf of
approximately 92 so-affected deputies.
In a separate declaration, LASD Captain Nelson provided
further details of the proposed LASD Brady list policy. The
declaration reiterated that only names and serial numbers of
affected deputies would be disclosed. Details of investigations or
portions of the deputies‟ personnel files would only be disclosed
after a formal Pitchess motion and accompanying court order.
The LASD would not take any punitive or disciplinary action
against any affected deputy, other than that already imposed for
the sustained allegations. The LASD, though, was considering a
number of options, including the possibility of assignment
changes or restriction to specific duties, to mitigate problems that
might arise because of the disclosures and the consequent
impaired credibility of any affected deputy. Such options, if
executed, would not be punitive, but for the purpose of protecting
the integrity of existing or future criminal investigations. Any
option utilized, including transfers or restriction of duties, would
not result in reduction of salary, rank, or bonus pay. Any
affected deputy would be given notice of the change, an
opportunity to obtain representation, and a hearing. All due
process rights, under federal, state, or local law would be followed
at the hearing, and any union MOU would also be honored.
Additionally, Captain Nelson‟s declaration clarified that
any deputy whose founded allegations were eventually
overturned or not proven during an appeal to the Los Angeles
County Civil Service Commission would not be included on the
proposed Brady list.
10
PROCEDURAL HISTORY
I. ALADS’ Petition/Complaint in the Trial Court
On November 10, 2016, ALADS filed its petition for writ of
mandate and complaint for temporary restraining order,
preliminary injunction, and permanent injunction in the trial
court. The petition and complaint allege three causes of action:
(1) Code of Civil Procedure section 1085 (writ of mandate),
(2) Government Code section 3309.5 (the enforcement section of
the Public Safety Officers Procedural Bill of Rights Act (POBRA),
Gov. Code, § 3300 et seq.), and (3) Code of Civil Procedure
sections 526 and 527 (injunctive relief).
Overall, the petition seeks a writ of mandate and injunction
compelling real parties in interest to comply with the provisions
of section 832.5 et seq. (maintenance, use, and confidentiality of
peace officer personnel files), Evidence Code section 1043 et seq.
(Pitchess motions), and POBRA, by not (1) disclosing the Brady
list or the identity of any individual deputy on the list to the
district attorney or any other prosecutorial agency without a
court order obtained pursuant to Pitchess and the Pitchess
statutes; (2) maintaining in any affected deputy‟s personnel file
the letter mailed October 14, 2016, or any similar letter;
(3) taking any punitive action, such as transfer or restriction of
duties against any deputy identified on the Brady list; (4) placing
any deputy on the Brady list based upon disciplinary action
taken over one year after notice to the deputy of the alleged
misconduct; (5) placing any deputy on the Brady list based upon
disciplinary action that was overturned or found not to be proven
during an appeal by the deputy to the Los Angeles County Civil
Service Commission; and (6) placing any deputy on the Brady list
11
without first providing the deputy with an opportunity for
administrative appeal.
After ALADS filed the petition, both sides stipulated that
the Brady list would not be disclosed prior to the trial court
ruling on ALADS‟ request for a preliminary injunction. Prior to
oral argument, the trial court posted a lengthy and thorough
written tentative ruling that became, in large part, the formal
written order partially granting ALADS‟ request for a
preliminary injunction.
II. The Trial Court’s Tentative Ruling
A. Brady and Pitchess
In its tentative, the trial court observed that real parties
have a statutory obligation to protect the confidentiality of peace
officer personnel records. (§§ 832.7, 832.8.) The court also noted
that, as a statutory matter, such records cannot be disclosed to
any third party (including prosecutors) absent compliance with
Pitchess and Evidence Code section 1043 et seq. Further, even
the identity of a peace officer is confidential and not subject to
disclosure when connected or linked to employee discipline or
investigation of complaints against the officer. (Copley Press,
supra, 39 Cal.4th at pp. 1298–1299.)
The trial judge then contrasted these statutory
confidentiality obligations with the federal constitutional
disclosure obligations of Brady and the cases that followed it.
Pursuant to Brady, the prosecution has an affirmative obligation
to turn over exculpatory evidence whether or not there is a
motion by or request from the defense. (Johnson, supra, 61
Cal.4th at p. 709.) That affirmative obligation extends to others
acting on the prosecution‟s behalf (the prosecution team). The
prosecution team includes law enforcement. (Kyles v. Whitley
12
(1995) 514 U.S. 419, 437; Johnson, at p. 709.) Exculpatory
evidence includes impeachment evidence. (Strickler v. Greene
(1999) 527 U.S. 263, 281–282; Johnson, at p. 710.)
The trial court then concluded that the LASD‟s plan to
circulate, generally, a Brady list of its deputies to the district
attorney and other prosecutorial agencies runs afoul of Pitchess
and the statutes protecting confidentiality of law enforcement
personnel files. Further, the court concluded, such a practice is
not constitutionally compelled by Brady, because the LASD‟s
proposed disclosure is not tied to particular deputies involved as
potential witnesses in an actual case against a particular
defendant. Although, the court concluded, the LASD is a part of
the prosecution team subject to Brady’s disclosure obligations,
those obligations are triggered only where there is a filed
criminal prosecution against a particular defendant and a deputy
named on the list is a potential witness in the case. In sum, the
trial court observed that “[t]he [LASD] simply is not part of the
prosecution team, and is not acting on the prosecution‟s behalf, in
providing the District Attorney a Brady list not tied to a
particular prosecution. This is obvious from the fact that there is
no Brady duty where there is no prosecution.”
Ultimately, the trial court concluded that the LASD is
entitled to prepare its own internal Brady list, but is
constitutionally required, under Brady, to disclose deputies from
that list to the district attorney (or other relevant prosecutor)
only when the deputies are involved as witnesses in an actual
criminal prosecution. Otherwise, the Pitchess statutes prohibit
disclosure, absent compliance with their procedures. When the
LASD makes a constitutionally compelled disclosure outside of
Pitchess, the prosecution can file its own Pitchess motion to
13
obtain the personnel file and investigation, and then disclose to
the defense whatever Brady requires, or simply notify the defense
of the disclosure so the defense can file its own Pitchess motion.
Either option satisfies the prosecution team‟s Brady obligations.
(Johnson, supra, 61 Cal.4th at pp. 715–716.)
Essentially, the trial court held that when a deputy on the
list is a potential witness in a pending prosecution, Brady creates
a federal constitutional disclosure obligation that overrides the
state-created confidentiality restrictions of Pitchess and the
Pitchess statutes. When a deputy on the list is not involved as a
witness in a particular filed prosecution, however, the Brady
disclosure obligation is not triggered, and the LASD cannot
violate its statutory confidentiality obligation by disclosing names
from the list to outside prosecutors in the absence of a properly
filed, heard, and granted Pitchess motion.
Based upon its analysis, the trial court concluded that
ALADS was likely to succeed on the merits in terms of preventing
the wholesale disclosure of the entire Brady list to the district
attorney, but was not likely to succeed in terms of preventing
disclosure of individual deputies from the list when such deputies
were witnesses in filed prosecutions. The trial court also
concluded that general disclosure of the list would cause
irreparable harm to the reputations of the deputies on the list,
while an order enjoining such disclosure would cause no
comparable harm to real parties.
B. Government Code Section 3303 et seq. (POBRA)
The trial court also addressed ALADS‟ claim that the
possible transfer or restriction of duties of deputies on the Brady
list violates POBRA.
14
First, the trial court explained that pursuant to
Government Code section 3305.5, the LASD and other real
parties have a statutory obligation not to take punitive action
against a deputy just because his or her name has been placed on
a Brady list. Punitive action, as defined in POBRA, is limited: to
be punitive, the employer‟s action must be a personnel action that
is disciplinary in nature. (White v. County of Sacramento (1982)
31 Cal. 3d 676, 680–681.) A transfer is not necessarily
disadvantageous to a peace officer and is punitive in nature only
if it occurs for the purpose of punishment. (Id. at p. 683.) If there
is no indication that the agency intends to punish the officer
through a transfer, a court cannot deem the transfer punitive
because it is aimed at addressing an officer‟s inability to perform
a particular assignment. (Los Angeles Police Protective League v.
City of Los Angeles (2014) 232 Cal. App. 4th 136, 142.) Mere
reassignment or removal from collateral duties without a
reduction in salary or rank does not constitute punitive action.
(Perez v. City of Westminster (2016) 5 Cal.App.5th 358, 364–365.)
Based upon the above law, the trial court denied ALADS‟
request to enjoin the LASD from making transfers or taking
other action with respect to deputies on the Brady list. The court
found that ALADS was unlikely to succeed at trial because it
offered no evidence to support its contention that any such action
would be punitive in nature, rather than to accommodate the
affected deputy‟s reduced credibility because of founded
allegations of bias, moral turpitude, or dishonesty. Further, the
court determined that any deputy transferred or restricted to
certain duties who believed that such action was punitive, would
be able to challenge the reassignment or other change in duties
administratively. Thus, alternative remedies were available.
15
The trial court also denied the balance of ALADS‟ requests
for additional injunctive relief as requested in the petition and
complaint.
III. The Preliminary Injunction
The trial court ordered ALADS‟ counsel to prepare the
written order of preliminary injunction. The parties, however,
could not agree and went back and forth on the final form of the
written preliminary injunction. Initially, ALADS submitted an
order that simply enjoined the LASD from releasing the Brady
list, or any information from it, to any entity outside the LASD
absent a court order issued in response to a properly filed and
heard Pitchess motion. Real parties objected, arguing that such
an order did not encompass the entirety of the trial court‟s ruling,
since the court carved out an exception to the general prohibition
against disclosure for deputies on the list who are also witnesses
in a pending criminal prosecution. Additionally, real parties
objected because the written injunction did not include the trial
court‟s ruling that possible transfers or restrictions of duty do not
violate POBRA.
ALADS submitted two forms of the written order for
preliminary injunction: one consistent with its original order,
and one consistent with real parties‟ requested changes. Each
side filed formal objections to the opposing side‟s proposed order.
The trial court signed, and on January 27, 2017, filed the written
preliminary injunction requested by real parties. That order
enjoins real parties from a number of actions: (1) disclosing the
Brady list as a whole to any party outside the LASD;
(2) disclosing the identity of any individual deputy on the Brady
list to any party outside the LASD, except a relevant
prosecutorial agency, and then only if the deputy is a potential
16
witness in a pending criminal prosecution; and (3) except as
provided in (2) above, disclosing the identity of any individual
deputy on the Brady list to any party outside the LASD,
including prosecutorial agencies, unless compelled by a court
order issued after a properly filed and heard Brady or Pitchess
motion.
The order then recites additional “clarifying” principles:
(1) the LASD is not precluded from creating and maintaining an
internal Brady list; (2) the LASD is not precluded from taking
action against any deputy because he or she is on the Brady list,
including transfer or restriction of duties; and (3) the LASD is not
precluded from disclosing any future Brady list to prosecutorial
agencies insofar as it consists only of non-sworn employees not
subject to POBRA. With respect to clarifying principle (2) above,
the injunction adds that any deputy so affected by transfer,
restriction of duty, or other action who believes the action to be
punitive under POBRA, retains all administrative rights under
POBRA to challenge and overturn such action.
IV. ALADS’ Immediate Petition for Writ of Mandate
ALADS filed the immediate petition for writ of mandate on
February 14, 2017. In the petition, ALADS seeks an order to
strike or stay enforcement of the portions of the written
preliminary injunction that state that “the enjoined parties are
not precluded from” (1) maintaining an internal Brady list;
(2) disclosing to the relevant prosecutorial agency the identity of
any deputy on the Brady list, in the absence of a properly filed
Pitchess motion and accompanying court order, so long as the
deputy is a potential witness in a pending criminal prosecution;
(3) transferring, restricting duties of, or otherwise taking action
against any deputy because he or she is on the Brady list; and
17
(4) creating and disclosing any future Brady list that includes
only non-sworn employees outside the scope of POBRA.
We initially granted ALADS‟ request for an immediate stay
and ordered a preliminary response to the petition from real
parties, as well as a reply to that response from ALADS.
Subsequently, we issued an order to show cause to the trial court
why ALADS should not be granted the relief it seeks, to which
real parties filed a return and ALADS filed a reply to the return.
DISCUSSION
I. Review by Appeal or Review by Petition for
Writ of Mandate
At the outset, we must determine whether it is appropriate
to review the trial court‟s order of preliminary injunction by way
of the immediate petition for writ of mandate or by way of a later
appeal.
Code of Civil Procedure section 904.1, subdivision (a)(6),
permits review by appeal from “an order granting or dissolving
an injunction, or refusing to grant or dissolve an injunction.” The
intent of the statute “ „is that all orders granting or refusing
injunctions, whether temporary or permanent or provisional
pending appeal, shall be appealable.‟ ” (Western Electroplating
Co. v. Henness (1959) 172 Cal. App. 2d 278, 283 [construing former
Code of Civ. Proc., § 963, the predecessor to Code of Civ. Proc.,
§ 904.1].) Thus, the order by the court below granting, in part,
ALADS‟ request for a preliminary injunction, is appealable.
Ordinarily, a judgment that is immediately appealable is
not subject to review by mandate or any other extraordinary writ.
(Powers v. City of Richmond (1995) 10 Cal. 4th 85, 112.) Mandate,
though, is available to review an appealable judgment when the
remedy by appeal would be inadequate or the issues presented
18
are of public importance and must be resolved quickly. (Id. at
p. 113.)
The primary issue in this case is whether a statewide
statutory discovery procedure that has been in effect for nearly
40 years violates the Constitution, as construed in Brady, when
enforced in the context of a filed criminal prosecution that
includes as witnesses, peace officers with founded allegations of
misconduct, relevant to veracity, in their personnel files. That
procedure affects every state and local law enforcement agency in
California, and potentially every state criminal prosecution
wherein a state or local peace officer is a witness. As of 2008,
there were 509 state or local law enforcement agencies within
California that employed a total of 79,431 sworn personnel.3 In
this case, the trial court effectively held that law enforcement
agencies have an affirmative constitutional obligation under
Brady, in the absence of any compliance with the Pitchess
statutes, to notify the prosecutor whenever one of their peace
officers has a founded allegation of misconduct involving moral
turpitude in his or her personnel file, so long as that officer is also
a potential witness in a pending criminal case. The necessary
corollary of this holding is that the Pitchess statutes, which
require any party outside of the law enforcement agency––
including the prosecutor––to make a showing of good cause
before obtaining such a disclosure, are unconstitutional in this
specific context.
3 United States Department of Justice, Office of Justice
Programs, Bureau of Justice Statistics, Census of State and Local
Law Enforcement Agencies, 2008 (July 26, 2011) No. NJC 233982,
page 15, appendix table 6 ([as of July 11, 2017].)
19
While the trial court‟s ruling binds only the parties before
it, this case is now before the Court of Appeal. Were we to agree
with the trial court in a published opinion, the ruling would
become binding upon trial courts throughout the state. (See Auto
Equity Sales, supra, 57 Cal.2d at p. 455.) The ruling, imposed
statewide, would materially change the way discovery of
information from peace officer personnel records in criminal cases
has been conducted for the past four decades. As a practical
matter, it would require all state and local law enforcement
agencies to notify prosecutors, on an ongoing basis as cases are
filed, whenever an officer who is a witness has a founded
allegation of misconduct in his or her personnel file relevant to
veracity. Such a requirement would affect hundreds of law
enforcement agencies and untold numbers of individual peace
officers across the state. This case thus raises issues of public
importance that must be resolved quickly. We therefore exercise
our discretion and accept review of the trial court‟s decision by
way of ALADS‟ petition for writ of mandate.
II. Standard of Review
When deciding whether to issue a preliminary injunction, a
trial court considers two factors: (1) the reasonable probability
that the party seeking the injunction will prevail on the merits at
trial and (2) a comparison of the “irreparable harm” that will be
suffered by that party if the preliminary injunction is denied to
the “irreparable harm” that will be suffered by the opposing party
if the preliminary injunction is granted. (Code Civ. Proc., § 526,
subd. (a)(1), (2); People ex rel. Gallo v. Acuna (1997) 14 Cal. 4th
1090, 1109; 14859 Moorpark Homeowner’s Assn. v. VRT Corp.
(1998) 63 Cal. App. 4th 1396, 1402.)
20
Ordinarily, the trial court‟s evaluation of the two foregoing
factors is reviewed on appeal for abuse of discretion. (Hunter v.
City of Whittier (1989) 209 Cal. App. 3d 588, 595.) Questions of
law, however, that are decided by the trial court in the course of
its evaluation of the moving party‟s likelihood of success on the
merits are reviewed de novo. (Law School Admission Council,
Inc. v. State of California (2014) 222 Cal. App. 4th 1265, 1280–
1281.) The trial court‟s determination of constitutional questions
is also reviewed de novo. (Ibid.)
We agree, in large part, with the trial court‟s reasonable
probability of success/balance of harms analysis and find no
abuse of discretion in its decision to issue a preliminary
injunction. Based upon our de novo review, though, we find that
the trial court erred in its analysis of the constitutional question
presented by this case and improperly limited the scope of its
injunction.
III. Analysis of the Merits
As mentioned above, in this petition ALADS seeks relief
from various portions of the trial court‟s written injunction:
specifically, those portions that expressly do not prohibit the
LASD from (1) maintaining an internal Brady list; (2) disclosing
to the relevant prosecutorial agency the identity of any deputy on
the Brady list who is a potential witness in a pending criminal
prosecution where no order pursuant to a properly filed Pitchess
motion has been obtained; (3) transferring, restricting duties of,
or otherwise taking action against any deputy because he or she
is on the Brady list; and (4) creating and disclosing any future
Brady list that includes only non-sworn employees outside the
scope of POBRA. The first two depend upon an analysis of the
interplay between Brady and Pitchess, the third upon an analysis
21
of POBRA, and the fourth upon general concepts of notice and
due process. We analyze each in turn.
A. Brady and Pitchess
In Brady, supra, 373 U.S. at page 87, the United States
Supreme Court held that federal constitutional due process
creates an obligation on the part of the prosecution to disclose all
evidence within its possession that is favorable to the defendant
and material on the issue of guilt or punishment. In Giglio v.
United States, supra, 405 U.S. at pages 153 through 155, the
Court held that Brady evidence includes evidence that impeaches
prosecution witnesses, even if it is not inherently exculpatory.
Further, the prosecution‟s disclosure obligation under Brady
extends to evidence collected or known by other members of the
prosecution team, including law enforcement, in connection with
the investigation of the case. (In re Steele (2004) 32 Cal. 4th 682,
697, citing Kyles v. Whitley, supra, 514 U.S. at p. 437.)
Evidence is material under Brady if there is a reasonable
probability that the result of the proceeding would have been
different had the information been disclosed. (United States v.
Bagley (1985) 473 U.S. 667, 682.) The prosecution‟s duty to
disclose exists whether or not the defendant specifically requests
the information. (United States v. Agurs (1976) 427 U.S. 97, 107.)
In Pitchess, the California Supreme Court held that under
certain circumstances, and upon an adequate showing, a criminal
defendant may discover information from a peace officer‟s
otherwise confidential personnel file that is relevant to a defense
of the charge against him or her. (Mooc, supra, 26 Cal.4th at
pp. 1216, 1219.) Pitchess involved a defense request for
information related to the complaining deputies‟ propensity for
violence or use of excessive force as a defense to battery on peace
22
officer charges. (Pitchess, supra, 11 Cal.3d at p. 534.) The
reasoning of Pitchess, however, has been extended to defense
requests for evidence of a peace officer‟s dishonesty, instances of
fabrication, or other acts amounting to moral turpitude.
(Johnson, supra, 61 Cal.4th at p. 710; Rezek v. Superior Court
(2012) 206 Cal. App. 4th 633, 640.)
In 1978, the California Legislature codified the privileges
and procedures discussed in Pitchess in sections 832.7 and 832.8,
as well as Evidence Code sections 1043 through 1045. (Mooc,
supra, 26 Cal.4th at pp. 1219–1220.) Generally speaking, the
Pitchess statutes require a criminal defendant to file a written
motion that identifies and demonstrates good cause for the
discovery sought. If such a showing is made, the trial court then
reviews the law enforcement personnel records in camera with
the custodian, and discloses to the defendant any relevant
information from the personnel file. (Mooc, at p. 1226; see also
Evid. Code, § 1043.) Absent compliance with these procedures,
section 832.7, subdivision (a), provides that peace officer
personnel files, and information from them, “are confidential and
shall not be disclosed in any criminal or civil proceeding[.]” (See
also § 832.7, subd. (f).) The prosecution, like the defense, cannot
discover peace officer personnel records without first following
the Pitchess procedures. (Alford v. Superior Court (2003) 29
Cal. 4th 1033, 1046; Johnson, supra, 61 Cal.4th at p. 714.) Any
records disclosed are subject to a mandatory protective order that
they be used only for the purpose of the court proceeding for
which they were sought. (Alford, at p. 1042; see Evid. Code,
§ 1045, subd. (e).)
The standard of “good cause” required for Pitchess
disclosure––materiality to the subject matter of the litigation and
23
a reasonable belief that the noticed agency has the type of
information sought––is relatively relaxed and guarantees
inspection and production of all potentially relevant documents.
(Johnson, supra, 61 Cal.4th at p. 711.) The Brady test of
materiality is much narrower than that employed by Pitchess:
under Pitchess, a defendant need only show that the information
sought is material to the subject matter of the litigation, whereas
Brady requires that the information sought be material to the
outcome of the litigation. (Johnson, at p. 711.) Thus, any
information that satisfies Brady’s test of materiality necessarily
meets the standard required for disclosure under Pitchess.
(Johnson, at pp. 711–712.)
The Pitchess statutes protect the confidentiality of peace
and custodial officer “personnel records,” as well as any
“information obtained from [them].” (§ 832.7, subd. (a).)
“Personnel records” include any file maintained under an
individual‟s name by his or her employing agency that contains
records which relate to (1) personal data; (2) medical history;
(3) election of employee benefits; (4) employee advancement,
appraisal, or discipline; (5) complaints, or investigations of
complaints, involving any event pertaining to the performance of
the peace officer‟s duties which he or she participated in or
perceived; and (6) any other information the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(§ 832.8, subds. (a)-(f).)
The information protected by the confidentiality and
disclosure procedures of the Pitchess statutes is broad. Thus, the
identity of a peace officer that is derived from his or her
personnel file, to the extent it connects that officer to
administrative disciplinary proceedings or complaints of
24
misconduct also contained within the protected personnel file,
may not be disclosed absent compliance with the Pitchess
procedures. (Copley Press, supra, 39 Cal.4th at pp. 1297–1299;
accord Long Beach, supra, 59 Cal.4th at pp. 71–73; POST, supra,
42 Cal.4th at pp. 295, 298-299.)
This rule applies even if the information connected to the
identified officer is only generic in nature. We base this
conclusion on the interplay of two subdivisions within section
832.7, as well as the plain language of Copley Press.
As discussed above, section 832.7, subdivision (a), prohibits
disclosure of peace officer personnel records or information
obtained from them “in any criminal or civil proceeding” absent
compliance with the Pitchess procedures. Section 832.7,
subdivision (c), however, creates an exception to the disclosure
prohibition of subdivision (a): “[n]otwithstanding subdivision (a),
a department or agency that employs peace . . . officers may
disseminate data regarding the number, type, or disposition of
complaints (sustained, not sustained, exonerated, or unfounded)
made against its officers if that information is in a form which
does not identify the individuals involved.” (Italics added.)
Copley Press ultimately held that “[t]he language limiting the
information that may be disclosed under [section 832.7,
subdivision (c),] demonstrates that section 832.7, subdivision (a),
is designed to protect, among other things, „the identity of
officers‟ subject to complaints. [Citation.]” (Copley Press, supra,
39 Cal.4th at p. 1297.) In other words, if section 832.7,
subdivision (c), creates an exception for the generic type of
information described therein so long as it does not identify the
officer, it necessarily implies that section 832.7, subdivision (a),
25
prohibits disclosure of such information to the extent it does
identify the officer.
The dissent asserts that Copley Press, POST, and Long
Beach are distinguishable from the present case because each
involves California Public Records Act of 1968 (CPRA; Gov. Code,
§ 6250 et seq.) requests for Pitchess information from media
organizations, rather than disclosures to prosecutors with Brady
obligations. (Conc. & dis. opn. post, at pp. 7–8.) Thus, the
dissent concludes, the Pitchess procedures do not prohibit the
generic disclosure allowed by the trial court‟s injunction. (Conc.
& dis. opn. post, at p. 8.)
While this factual difference is accurate, we find it to be a
difference without significance. The Pitchess statutes and their
requirements do not make distinctions among who is seeking the
information, or the type of proceedings in which or for which they
are sought: “[p]eace officer or custodial officer personnel records
. . . or information obtained from these records, are confidential
and shall not be disclosed in any criminal or civil proceeding
except by discovery pursuant to [s]ections 1043 and 1046 of the
Evidence Code.” (§ 832.7, subd. (a); see also Johnson, supra, 61
Cal.4th at p. 714 [prosecutors have no superior right to access
Pitchess information and must comply with Pitchess procedures
to obtain confidential information from peace officer personnel
files].) The plain language of section 832.7, subdivision (a),
categorically prohibits disclosure absent compliance with the
Pitchess statutes. The confidentiality of the information
protected by the Pitchess statutes does not depend upon who is
seeking it or for what purpose it is sought.
The dissent also contends that Copley Press is
distinguishable because the disclosure here “does not involve
26
records of any specific disciplinary incident––or any records at
all.” (Conc. & dis. opn. post, at p. 8.) The argument appears to be
that simply identifying a deputy and indicating that he or she
has at least one founded administrative allegation of misconduct
relevant to his or her veracity is too generic to be considered
information within the protection of the Pitchess statutes.
Again, we disagree. First, section 832.7, subdivision (a),
protects not only personnel records, but all “information obtained
from these records.” Notifying an outside agency, even a
prosecutor‟s office, that a deputy has an administratively founded
allegation of misconduct involving moral turpitude cannot be
characterized as anything other than disclosing information
obtained from the peace officer‟s personnel file. Moreover, as
discussed earlier, based upon the exception created by section
832.7, subdivision (c), Copley Press rejected the notion that
generic complaint information which identifies a particular
officer is outside the disclosure prohibition of section 832.7,
subdivision (a). (Copley Press, supra, 39 Cal.4th at p. 1297.)
1. Creating and Maintaining an Internal
Brady List
ALADS objects to the written injunction‟s provision that
the LASD is “not precluded from maintaining a Brady list
internally[.]”
The language objected to is contained in the portion of the
injunction which begins, “For purposes of clarifying the Enjoined
Parties‟ obligations under this injunction[.]” That qualifier is
then followed by descriptions of various conduct not precluded:
(1) creation and maintenance of an internal Brady list,
(2) transfers or restrictions of duties of Brady list deputies, and
(3) creation and disclosure of Brady lists that include only non-
27
sworn personnel. ALADS contends, generally, that describing
the conduct above as “not precluded” affirmatively authorizes
that conduct, relief which real parties never noticed or formally
requested. Such affirmative relief, ALADS continues, granted
without formal request or notice by any of the real parties,
offends basic concepts of proper notice and due process.
ALADS‟ argument is not persuasive. By inference, ALADS
raised the issue of the legality of an internal Brady list in its
original petition and complaint since it essentially objected to the
creation of a Brady list based upon already founded misconduct
unless the LASD first offered a current administrative appeal.
Moreover, the issue of the legality of such an internal list was
discussed in both the trial court‟s tentative and during the
preliminary injunction hearing. During the hearing, ALADS did
not object to the issue being raised.
Finally, the language of the preliminary injunction,
considered as a whole and in context, does not affirmatively
authorize the LASD to prepare the list. Although not express,
implicitly the language only clarifies or limits the extent of the
prohibitions contained elsewhere in the injunction: thus, we read
this part of the injunction simply to mean that nothing in the
preliminary injunction prohibits the LASD from creating the list,
so long as it does not disclose it to any person or entity outside
the LASD. In other words, the language does not affirmatively
compel or even authorize the LASD to review personnel records
and create a Brady list, it simply indicates that the injunction
does not prohibit the LASD from doing so. In terms of a notice
and/or due process issue, we find none. The trial court was
merely ensuring that the precise limits of its injunctive relief
were understood by the affected parties.
28
Moreover, we agree with the trial court on the substantive
merits of this issue. The Pitchess statutes prohibit the disclosure
of peace officer personnel records to persons or entities outside
the law enforcement agency absent compliance with their
procedures. Neither Pitchess nor the statutes discuss, let alone
prohibit, the internal collection of data, based upon past events
found to have occurred after an investigation and administrative
hearing by the employing law enforcement agency. Thus, we find
no violation of Pitchess or the Pitchess statutes insofar as the
LASD reviews already existing personnel records, and simply
compiles or creates a summary or categorization of information
already contained in those files for internal use only. (See
Michael v. Gates (1995) 38 Cal. App. 4th 737, 745 [the Pitchess
statutory scheme “regulate[s] the use of peace officer personnel
records in civil and criminal proceedings”; “[i]t was not intended
to, and does not, create substantive or procedural obstacles to a
police agency‟s review of its own files”].)
2. Disclosure of Identity if Deputy Is a
Witness in a Pending Case
This, we believe, is ALADS‟ primary objection to the trial
court‟s order: the injunction, as worded, does not prohibit the
LASD from disclosing Brady list deputies to the district attorney,
or other prosecutorial agency, so long as the deputies are also
potential witnesses in a pending criminal prosecution, even in the
absence of a properly filed, heard, and granted Pitchess motion.
The trial court concluded, and, for the reasons stated in
Part III.A, ante, we agree, that such disclosure violates Pitchess
and the Pitchess statutes. Based upon LASD personnel records,
the proposed disclosure identifies the deputy by name and serial
number and connects him or her to administratively sustained
29
allegations of misconduct involving moral turpitude or other bad
acts, without first complying with the Pitchess procedures.
(Copley Press, supra, 39 Cal.4th at pp. 1297–1299; accord Long
Beach, supra, 59 Cal.4th at pp. 71–73; POST, supra, 42 Cal.4th
at pp. 295, 298–299.) The trial court nevertheless found that
constitutional due process, as construed in Brady, requires this
violation of state law because it creates an affirmative obligation
of disclosure that overrides the state confidentiality protections
created by the Pitchess statutes. Thus, in order to affirm the trial
court, we must find that the procedures required by the Pitchess
statutes prior to disclosure are unconstitutional when a Brady
list deputy is also a potential witness in a pending criminal
prosecution.
In this regard, real parties have a tough row to hoe. Courts
will presume that a duly enacted statute is constitutional unless
its unconstitutionality appears “clearly, positively, and
unmistakably.” In making this analysis, all “presumptions and
intendments favor its validity.” (City of Los Angeles v. Superior
Court (2002) 29 Cal. 4th 1, 10–11 (City of Los Angeles).)
Additionally, and most importantly, the California
Supreme Court, as a general matter, has at least twice expressly
observed that the statutory Pitchess procedures do not violate
either Brady or constitutional due process, but rather,
supplement both. In City of Los Angeles, the court held that the
Pitchess statutes‟ limitation of discoverable complaints to those
five years old or less does not violate the requirements of Brady.
(City of Los Angeles, supra, 29 Cal.4th at p. 16.) In defense of its
holding, the court agreed with the Attorney General that the
“ „ “Pitchess process” operates in parallel with Brady and does not
30
prohibit the disclosure of Brady information.‟ ” (City of Los
Angeles, at p. 14.)
In Mooc, the court “examine[d] the nuts and bolts of a
Pitchess motion,” and what such a motion requires of both the
custodian and the court conducting the in camera review of
records. In doing so, the court specifically noted that the Pitchess
“procedural mechanism for criminal defense discovery, which
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 [citations omitted], is now an
established part of criminal procedure in this state.” (Mooc,
supra, 26 Cal.4th at pp. 1225–1226.) The Mooc court also
observed that Pitchess “and its statutory progeny are based on
the premise that evidence contained in a law enforcement
officer‟s personnel file may be relevant to an accused‟s criminal
defense and that to withhold such relevant evidence from the
defendant would violate the accused‟s due process right to a fair
trial.” (Mooc, at p. 1227.) In neither City of Los Angeles nor Mooc
did our Supreme Court suggest that there is any conflict between
Brady and Pitchess.
In addition to the more general observations of our
Supreme Court in City of Los Angeles and Mooc, a relatively
recent decision by our colleagues in Division Three of this District
expressly considered, and rejected, a constitutional challenge that
involves issues similar to those raised in this case. In People v.
Gutierrez (2003) 112 Cal. App. 4th 1463, 1468, review denied
January 28, 2004, S120823 (Gutierrez), a jury convicted the
defendant of forcible oral copulation and forcible sexual
penetration by foreign object while acting in concert. Prior to
31
trial, the defendant filed a Pitchess motion which sought
discovery from the personnel files of two Los Angeles Police
Department officers who were percipient witnesses to at least
some portion of the charged acts. (Gutierrez, at p. 1470.) The
trial court denied the motion and did not conduct an in camera
review, finding the defendant did not make the preliminary
showing of good cause required by the Pitchess statutes. (Ibid.)
On appeal, the defendant contended that the statutory
Pitchess procedures violated Brady because (1) they interfered
with the prosecutor‟s affirmative obligation to ascertain and
disclose exculpatory evidence and (2) placed upon a defendant the
burden of establishing good cause for an otherwise obligatory
Brady disclosure. (Gutierrez, supra, 112 Cal.App.4th at pp. 1468,
1470–1471.)
The Court of Appeal rejected defendant‟s contentions.
Relying in part on City of Los Angeles, the Gutierrez court found
that the materiality standard of Pitchess is both “broader and
lower” than that of Brady. (Gutierrez, supra, 112 Cal.App.4th at
p. 1474.) Thus, any defendant who meets the good cause
required for Pitchess discovery, will also necessarily obtain any
Brady material in the officer‟s file. (Gutierrez, at p. 1474.)
Conversely, a defendant who cannot even meet the less stringent
Pitchess materiality standard, by definition cannot meet the
higher Brady standard. (Gutierrez, at p. 1474.) Thus, the court
concluded, “Pitchess procedures implement Brady rather than
undercut it, because a defendant who cannot meet the less
stringent Pitchess standard cannot establish Brady materiality.”
(Gutierrez, at p. 1474.) The court also held that the prosecution
has no obligation to search the law enforcement personnel files.
Absent a successful Pitchess motion of its own, the prosecution
32
has no right of access to and thus no constructive possession of
personnel files or their content. (Gutierrez, at pp. 1474–1475.)
Since the prosecution has no general access to or constructive
possession of law enforcement personnel files, it cannot be
expected to review and disclose information from them. (Id. at
p. 1475.)
The Gutierrez court also rejected defendant‟s contention
that Pitchess unconstitutionally required him to make a good
cause showing before obtaining evidence he was entitled to under
Brady. (Gutierrez, supra, 112 Cal.App.4th at p. 1475.) The court
held that a preliminary demonstration of materiality is a valid
prerequisite to disclosure of evidence contained in conditionally
privileged state agency files. (Id. at pp. 1475–1476; see also
Garden Grove Police Department v. Superior Court (2001) 89
Cal. App. 4th 430, 435 [“[w]e cannot allow [defendant] to make an
end run on the Pitchess process by requesting the officers‟
personnel records under the guise of . . . section 1054.1 and Brady
discovery motion”].)
In support of this position, the Gutierrez court relied upon
Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie). In Ritchie,
defendant sought access to a state child protective services file, a
government agency that participated in the investigation of the
child molestation charges against him. (Ritchie, at p. 43.) The
trial court refused to order disclosure, finding the file
conditionally privileged under state law. (Ritchie, at p. 44.)
On appeal, the United States Supreme Court construed
defendant‟s argument for disclosure as a Brady due process
challenge to the state confidentiality rules. (Ritchie, supra, 480
U.S. at pp. 56–57.) The Court first recognized that Brady and its
progeny obligate the government to disclose favorable, material
33
evidence to the accused. (Ritchie, at p. 57.) The Court ultimately
rejected the trial court‟s blanket denial of access to the file, and
remanded the case so that the trial court could review the
conditionally privileged file, determine whether any information
in the file was exculpatory and material under Brady, and then
order disclosure if necessary. (Ritchie, at pp. 57–58.)
Significantly, the Court observed that defendant, “of course, may
not require the trial court to search through the [agency] file
without first establishing a basis for his claim that it contains
material evidence.” (Ritchie, at p. 58, fn. 15, italics added.) Thus,
Ritchie found no constitutional problem with requiring a
defendant to make a preliminary showing of good cause before
discovery of conditionally privileged state investigative files.
Pitchess and the Pitchess statutes require no more than
what was required of the defendant in Ritchie. We agree with
the reasoning of Gutierrez and Ritchie, as well as the more
general conclusions regarding the constitutionality of Pitchess
procedures made in City of Los Angeles and Mooc. Furthermore,
we agree with the trial court that disclosure of a deputy from the
Brady list will cause stigma and irreparable harm to the
individual deputy‟s reputation, while non-disclosure will cause no
comparable harm to the LASD or the other real parties.
Accordingly, we grant, in part, ALADS‟ petition for writ of
mandate. The language in the injunction that allows the LASD,
or any real party, to disclose the identity of any individual deputy
on the Brady list to any agency or individual outside the LASD,
absent a properly filed and granted Pitchess motion and
corresponding court order, even if the affected deputy is a
potential witness in a filed criminal prosecution, must be
stricken.
34
Setting aside, for the moment, our holding that Pitchess
and the Pitchess statutes do not violate constitutional due process
as defined in Brady, we note one other issue with the trial court‟s
injunction: as worded, the injunction allows disclosure outside of
the Pitchess procedures whenever a Brady list deputy is a
“potential” witness in a pending criminal prosecution. Not all
“potential” LASD witnesses in a criminal case, however, will be
significant enough that impeachment information in their
personnel files will be material, which Brady requires as a
prerequisite to disclosure. For example, while the credibility of a
homicide detective who obtains an unrecorded confession from a
murder defendant would likely be a material issue at trial, that
of a patrol deputy who simply arrests the defendant but
otherwise generates no incriminating evidence likely would not
be. In the latter situation, impeachment information in the
deputy‟s personnel file likely would not be material under Brady
and thus there would be no disclosure obligation, even if we
assume the validity of the trial court‟s constitutional rationale,
that justifies ignoring the requirements of the Pitchess statutes.
The injunction, though, permits violation of the Pitchess statutes
in both situations described above, since it treats potential
witnesses identically regardless of their materiality. The
injunction is therefore overbroad even if we assume the validity
of its own rationale.
a. Johnson and the Attorney General
Opinion
In their argument in favor of the trial court‟s injunction
allowing disclosure of Brady list deputies who are potential
witnesses in pending criminal prosecutions, real parties rely
largely on the 2015 California Supreme Court decision in
35
Johnson and the California Attorney General Opinion ostensibly
based upon it. (98 Ops.Cal.Atty.Gen. 54 (2015) (Opinion).) This
reliance is misplaced.
We address Johnson first. In August 2010, the San
Francisco Police Department (Department) created its own Brady
policy through the enactment of Bureau Order No. 2010–01
(Order). (Johnson, supra, 61 Cal.4th at pp. 706–707, 724, appen.)
The Order explained that because of repetitive requests from the
district attorney to check personnel files of employees who might
be witnesses in criminal trials, the Department was compiling a
list of employees who had information in their personnel files
that might be discoverable under Brady, and intended to disclose
that list to the district attorney. (Johnson, at pp. 706–707.)
The Order set up a procedure similar to that proposed by
real parties in the immediate case: “the [Department] will
identify potential Brady material on an ongoing basis and notify
the district attorney‟s office on an ongoing basis that the
personnel files for particular officers may contain Brady material.
When the police department becomes aware of potential Brady
material regarding an officer, it creates a synopsis identifying the
officer, the conduct, and the documents and information for
potential disclosure. A departmental „ “Brady Committee” ‟
reviews the synopsis and, after notifying and permitting
comment from the affected employee, recommends to the chief of
police whether to disclose the employee‟s name to the district
attorney. The chief of police either approves or disapproves the
recommendation. If disclosure of an officer‟s name is approved,
the district attorney is notified that the officer „has material in
his or her personnel file that may be subject to disclosure under‟
Brady.” (Johnson, supra, 61 Cal.4th at p. 707.)
36
The underlying criminal case in Johnson charged
defendant with various domestic violence crimes. (Johnson,
supra, 61 Cal.4th at p. 706.) The material witnesses in the case
included two San Francisco Police Department officers. (Ibid.)
The prosecutor, notified pursuant to the Order that both officers
had Brady material in their personnel files, so advised the trial
court and filed a Pitchess motion seeking discovery of the
information. (Johnson, at p. 706.) In a declaration attached to
the motion, the prosecutor also advised the court that both
officers were “ „necessary and essential‟ prosecution witnesses.”
(Ibid.) In response, defendant filed his own Pitchess/Brady
motion, and asked the court either to (1) conduct the Pitchess in
camera review or (2) declare section 832.7 unconstitutional and
order the Department to turn over the personnel files to the
prosecutor for Brady review. (Johnson, at pp. 707–708.)
The trial court denied the request for in camera review,
finding that the prosecution had not made the required Pitchess
good cause showing. (Johnson, supra, 61 Cal.4th at p. 708.)
Further, the trial court held that section 832.7 was
unconstitutional, and ordered the Department to turn over both
officers‟ personnel files to the prosecutor for Brady review.
(Johnson, at p. 708.) Both the Department and the District
Attorney‟s Office challenged the trial court‟s ruling by filing writs
in the Court of Appeal. (Ibid.)
The Court of Appeal stayed the trial court order and issued
an order to show cause. (Johnson, supra, 61 Cal.4th at p. 708.)
Ultimately, the Court of Appeal held that the prosecution may,
and before the court becomes involved, should, review the
personnel files of peace officer witnesses in order to satisfy its
constitutional Brady obligation. (Johnson, at pp. 708–709.) It
37
directed the trial court to modify its earlier order to provide that,
if the prosecution found Brady material during its review of the
personnel files, it must file a Pitchess motion to obtain
authorization before disclosure to the defense. (Johnson, at
pp. 709, 713.)
On review, the California Supreme Court reversed the
Court of Appeal insofar as it ordered, or even allowed, the
prosecution to review law enforcement personnel files absent a
properly filed Pitchess motion and accompanying court order.
(Johnson, supra, 61 Cal.4th at pp. 713, 723.) The court
recognized that the prosecution has no greater right of access to
law enforcement personnel files than does the defense. (Johnson,
at pp. 712–713.) The prosecution, like the defense, must comply
with Pitchess procedures if it seeks access to information from
confidential law enforcement personnel files. (Johnson, at
p. 714.)
The court then addressed the prosecution‟s Brady
obligation when, as in the case before it, the law enforcement
agency discloses to it that a witness officer may have Brady
material in his or her personnel file. The court held that the
prosecution is obligated to do nothing more than notify the
defendant of the information provided to it; it is not required to
make its own Pitchess motion and then disclose what it discovers
as a result of that motion. The defense can decide whether, based
upon that notice, it wishes to file its own Pitchess motion.
(Johnson, supra, 61 Cal.4th at pp. 715–716.) “ „[T]he prosecutor
[has] no constitutional duty to conduct defendant‟s investigation
for him. Because Brady and its progeny serve “to restrict the
prosecution‟s ability to suppress evidence rather than to provide
the accused a right to criminal discovery,” the Brady rule does
38
not displace the adversary system as the primary means by
which truth is uncovered.‟ ” (Johnson, at p. 715, quoting United
States v. Martinez-Mercado (5th Cir. 1989) 888 F.2d 1484, 1488.)
The defendant in Johnson argued that California‟s Pitchess
procedures were inadequate to protect his right to exculpatory
information under Brady. The court flatly rejected that
argument and reiterated the observations it made previously in
both City of Los Angeles and Mooc: “The Brady requirements and
Pitchess procedures have long coexisted. „[T]he Pitchess scheme
does not unconstitutionally trump a defendant‟s right to
exculpatory evidence as delineated in Brady. Instead, the two
schemes operate in tandem.‟ [Citation.] We are confident that
trial courts employing Pitchess procedures will continue to ensure
that defendants receive the information to which they are
entitled.” (Johnson, supra, 61 Cal.4th at pp. 719–720.)
Significantly, the favorable citation omitted in the passage above
is to Gutierrez, one of the cases we rely on today in upholding
Pitchess and the Pitchess statutes against real parties‟
constitutional Brady challenge. (Johnson, at p. 720.)
As significant as what Johnson decides, however, is what it
does not decide: Johnson does not decide and, in fact, the
Johnson court does not mention, let alone discuss, the legality
under Pitchess of the Department‟s initial disclosure to the
district attorney that the two officers had Brady material in their
personnel files. Neither the parties nor the court ever raised that
issue. In fact, by the time the prosecutor in Johnson filed her
Pitchess motion, the Order had been in place for over three years.
(Johnson, supra, 61 Cal.4th at pp. 706, 724, appen.)
Thus, at the time of the Johnson case, the Order was
essentially a fait accompli. It is unknowable, from the Johnson
39
opinion, why the legality of the order was not raised in that, or an
earlier case. Whatever the reason, Johnson simply does not
address the central issue of our case: the statutory legality of a
law enforcement agency disclosing to an outside prosecutorial
agency, absent a filed, heard, and court-granted Pitchess motion,
the fact that a peace officer has founded allegations of misconduct
in his or her personnel file and, to the extent such disclosure is
illegal under state law, whether it is nevertheless constitutionally
compelled by Brady and constitutional due process.
It is true that Johnson comments positively about the
procedure created by the San Francisco Police Department: “[i]n
this case, the police department has laudably established
procedures to streamline the Pitchess/Brady process.” (Johnson,
supra, 61 Cal.4th at p. 721.) But such brief comment, in the
context of a procedure whose legality is neither directly raised
nor expressly addressed in the opinion, is not the same as formal
legal approval. “ „It is axiomatic that language in a judicial
opinion is to be understood in accordance with the facts and
issues before the court. An opinion is not authority for
propositions not considered.‟ ” (Kinsman v. Unocal Corporation
(2005) 37 Cal. 4th 659, 680, quoting Chevron U.S.A., Inc. v.
Workers’ Compensation Appeals Board (1999) 19 Cal. 4th 1182,
1195; accord People v. Knoller (2007) 41 Cal. 4th 139, 154–155.)
Put another way, “[a]n appellate decision is not authority for
everything said in the court‟s opinion but only „for the points
actually involved and actually decided.‟ ” (Santisas v. Goodin
(1998) 17 Cal. 4th 599, 620, quoting Childers v. Childers (1946) 74
Cal. App. 2d 56, 61.)
To approve formally the legality of the Department Order
in Johnson, our Supreme Court would have had to find that the
40
Department‟s confidentiality obligations and procedures under
sections 832.7 and 832.8 and Evidence Code sections 1043 and
1045, obligations and procedures that were enacted 15 years after
Brady, and that had, in the decades since, become “an established
part of criminal procedure in this state,” Mooc, supra, 26 Cal.4th
at page 1226, violate Brady and the Constitution. To do that, the
court would have had to find first that Brady creates an
affirmative and sua sponte constitutional obligation on the part
of law enforcement agencies to disclose, to prosecutors, which of
their officers have founded allegations of misconduct relevant to
impeachment in their personnel files. Further, the court would
have had to overrule, or at least severely restrict the application,
in criminal cases, of three of its own precedents: Copley Press,
supra, 39 Cal.4th at pages 1297–1299; POST, supra, 42 Cal.4th
at page 295, and Long Beach, supra, 59 Cal.4th at page 71.
The change effected in California criminal jurisprudence by
such a ruling would be significant. It would affect every law
enforcement agency in this state and potentially every criminal
prosecution with a peace officer witness. It would effectively
require every local law enforcement agency in the state, in the
absence of any compliance with the Pitchess statutes, to notify
the prosecutor whenever one of their peace officers has a founded
allegation of misconduct involving moral turpitude in his or her
personnel file, so long as that officer is also a potential witness in
a pending criminal case.
If this is what the Constitution requires under Brady, then
so be it: the Constitution is the supreme law of the land and
must be followed. For the reasons stated earlier, however, we do
not believe this is required by the Constitution as explicated in
Brady. Additionally, we do not believe this type of “sea change”
41
ruling is one our Supreme Court would make implicitly by
commenting, without analysis, on a procedure whose legality was
never raised by the parties or expressly discussed by the court.
Given the other authority cited earlier in this opinion, we find the
court‟s brief description of the Order in Johnson as “laudable” not
dispositive in terms of our ruling on the ultimate, and serious,
constitutional issue raised in this case. It certainly does not, in
our opinion, mandate the significant change in the procedure
governing discovery of peace officer personnel records that would
be created were we to agree with real parties‟ position.
The California Attorney General‟s Opinion, based on
Johnson, is likewise not persuasive. In the Opinion, the Attorney
General approved the legality of a proposed policy, authored by
the California District Attorneys Association, which addressed
Brady disclosures from California Highway Patrol (CHP)
personnel files. (98 Ops.Cal.Atty.Gen. 54 (2015).) Under the
proposed policy, a qualified representative of the CHP would
examine personnel files and compile a list of officers who had
sustained administrative findings of misconduct involving moral
turpitude or actual criminal convictions involving moral
turpitude. Based upon this list, the CHP would create a secure
database identifying the officers, but not the misconduct.
Prosecutors would have access to the database and could search
it for the names of officers who might testify in their upcoming
trials. If an officer witness appeared on the database search, the
prosecutor would then file a Pitchess motion and any information
released after an in camera review would be disclosed to the
defense. (98 Ops.Cal.Atty.Gen. at pp. 62–64.)
The CHP objected to this policy, arguing that it could not
release to the district attorney the names of officers who were
42
also identified as having sustained allegations of misconduct
without violating Pitchess and the Pitchess statutes, an argument
fully supported by Copley Press, supra, 39 Cal.4th at pages 1297–
1299; POST, supra, 42 Cal.4th at page 295; and Long Beach,
supra, 59 Cal.4th at page 71. The Opinion summarily dismissed
this concern with a wholly conclusory, and extremely brief
reference to Johnson: “As a general proposition, CHP‟s argument
is undermined by Johnson, which––although it did not spell out
the bases for its assumption––plainly and necessarily approved a
Brady procedure like this one.” (98 Ops.Cal.Atty.Gen. at p. 64.)
The Opinion did not undertake any analysis of the cases leading
up to Johnson, including Gutierrez. Neither did it attempt to
explain why our Supreme Court would toss out decades of
criminal jurisprudence, thereby effecting a significant change in
the way discovery of peace officer personnel records is conducted
and which would affect every law enforcement agency and
district attorney‟s office in this state, without any express
analysis, and based solely upon an implication from favorable
language describing a procedure whose legality was never raised
in the litigation.
The Attorney General is authorized to issue advisory
opinions to designated state and local officials, and such opinions
are entitled to respect. They are however, advisory only, and are
not binding on the courts. (State of California v. Superior Court
(1986) 184 Cal. App. 3d 394, 396; see also Gov. Code, § 12519.)
Further, where, as here, an advisory opinion does not discuss
relevant precedent or undertake serious legal analysis in the
context of the immediate case, it may be disregarded as not
persuasive. (See Wenke v. Hitchcock (1972) 6 Cal. 3d 746, 752.)
43
For the reasons stated above, we find the Opinion to be not
persuasive and of little help in the resolution of this case.
Neither Johnson nor the Opinion, therefore, persuades us
that our earlier analysis and conclusion prohibiting disclosure of
deputy identities from the Brady list, absent a properly filed and
granted Pitchess motion and corresponding court order, are
incorrect.
B. POBRA
ALADS also opposes any language in the injunction that
allows the LASD to transfer, restrict duties of, or in any other
similar way affect the job assignment or duties of any deputy on
the Brady list.
As mentioned earlier, Government Code section 3300 et
seq. is the Public Safety Officers Procedural Bill of Rights Act,
otherwise known as POBRA. POBRA grants public safety
officers a number of basic procedural rights and protections,
which must be followed by the public safety agencies that employ
them. Government Code section 3305.5, subdivision (a), prohibits
any “punitive action” against or any denial of promotion of any
public safety officer solely because that officer has been placed on
a “Brady list,” or because that officer‟s name might otherwise be
subject to disclosure under Brady.
A “Brady list” is any “system, index, list, or other record
containing the names of peace officers whose personnel files are
likely to contain evidence of dishonesty or bias, which is
maintained by a prosecutorial agency or office in accordance with
the holding in Brady v. Maryland (1963) 373 U.S. 83.” (Gov.
Code, § 3305.5, subd. (e).) “Punitive action” is “any action that
may lead to dismissal, demotion, suspension, reduction in salary,
written reprimand, or transfer for purposes of punishment.”
44
(Gov. Code, § 3303.) “Public safety officer” includes any county
sheriff‟s deputy. (Gov. Code, § 3301; Pen Code, § 830.1, subd. (a).)
Non-probationary officers must be given an opportunity for
administrative appeal of any punitive action. (Gov. Code, § 3304,
subd. (b).) Any public safety officer who believes his or her rights
under POBRA have been violated by his or her employing agency
may bring an action in the superior court for injunctive relief, a
civil penalty not to exceed $25,000 for each violation, and actual
damages. (Gov. Code, § 3309.5, subds. (a), (c), (d), (e).)
Technically speaking, a Brady list, as defined by POBRA,
includes only lists maintained “by a prosecutorial agency or
office,” and does not seem to include similar lists maintained by a
law enforcement agency. (See Gov. Code, § 3305.5, subd. (e).)
Nevertheless, the protections of Government Code section 3305.5
do apply to the list created by the LASD since Government Code
section 3305.5, subdivision (a), prohibits punitive action against
any public safety officer on a Brady list, as defined, or against
any officer whose “name may otherwise be subject to disclosure
pursuant to [Brady].” If an officer appears on a Brady list
created by a law enforcement, rather than prosecutorial agency,
he or she certainly “may otherwise be subject to disclosure
pursuant to [Brady].” (Gov. Code, § 3305.5, subd. (a).)
None of the acts proposed by real parties that may result
from a deputy‟s placement on the LASD‟s Brady list involve
“dismissal, demotion, suspension, reduction in salary, [or] written
reprimand.” (Gov. Code, § 3303.) Indeed, Captain Nelson‟s
declaration establishes that any response by the LASD will not
involve changes in rank, salary, or even bonus pay. The only
possible action suggested by Captain Nelson‟s declaration or the
45
October 14, 2016 letter described in Government Code section
3303 is the possibility of transfer.
A transfer must be punitive in nature before it violates
POBRA. (Gov. Code, § 3303.) A transfer is not inherently
disciplinary or disadvantageous to the officer, and is punitive
only when it is “for purposes of punishment.” (White v. County of
Sacramento, supra, 31 Cal.3d at pp. 682–683; see also Gov. Code,
§ 3303.) Furthermore, a transfer is not punitive solely because it
seeks to address the officer‟s deficient performance in a current
assignment. An agency may have many reasons, quite apart
from punishment, for transferring an employee who is not
performing at a satisfactory level in his or her particular
assignment: there is a difference between a transfer to punish
deficient performance and a transfer to compensate for the
deficient performance. (Los Angeles Police Protective League v.
City of Los Angeles, supra, 232 Cal.App.4th at p. 142.) Mere
reassignment or removal from collateral duties absent a
reduction in salary or rank do not amount to punitive action.
(Perez v. City of Westminster, supra, 5 Cal.App.5th at pp. 364–
365.) Before an officer is entitled to an administrative appeal of
an alleged punitive transfer, he or she must present some
evidence that the agency‟s conduct was indeed for purposes of
punishment and not for some other, valid, reason. The focus
must be on what the agency actually intended, not on what the
officer believes the agency‟s intention to be. (Los Angeles Police
Protective League v. City of Los Angeles, at pp. 141–142.)
On this issue, we agree with the trial court that ALADS did
not demonstrate a likelihood of success on the merits. The record
below shows that ALADS failed to rebut real parties‟ evidence
that any transfer or other change in duties based upon a deputy‟s
46
placement on the LASD Brady list would be to address, or
compensate for, the deputy‟s reduced credibility due to potential
disclosure of the deputy‟s past founded allegations of misconduct.
Such a transfer is not “for purposes of punishment.” Moreover, as
the trial court observed, any individual deputy in the future who
believes his transfer is, in fact, punitive, still retains the
procedural protections of POBRA and may assert them if he or
she feels it is necessary.
To the extent ALADS argues that this portion of the
injunction grants affirmative relief to real parties that they
neither requested nor properly noticed, we reiterate our
comments made in the discussion of the LASD‟s creation and
maintenance of a wholly internal Brady list in part III.A.1, ante.
Considered as a whole, and in context, the language merely limits
what the immediate injunction prohibits. It does not
affirmatively compel or even authorize the LASD or any other
real party to make transfers or impose restrictions of duty. It
simply establishes that the immediate injunction, in and of itself,
does not prohibit such acts.
C. Non-sworn Employees
The final paragraph of the trial court‟s injunction states
that “[r]espondents are not enjoined from disclosing any future
developed „Brady List‟ to the Los Angeles County District
Attorney‟s Office, or any other prosecutorial agency, provided any
new Brady List contains only the names of non-sworn employees
who are not subject to the Public Safety Officers‟ Procedural Bill
of Rights Act („POBRA‟), Government Code section 3300, et seq.”
As ALADS points out, the non-sworn employees of the
LASD are not parties to, and are therefore not represented in,
this litigation. The issue of a Brady list for non-sworn LASD
47
employees is not raised by ALADS‟ petition and complaint, and,
as far as we can see, was never raised by the parties either in
their pleadings, motions, or other documents filed in the trial
court, or during oral argument before the trial court. It appears
to be completely beyond the scope of the issues fairly raised by
the litigation up to this point, and thus beyond the scope of the
trial court‟s injunctive authority in the context of the immediate
case. Whatever the legality, or illegality, of a Brady list
disclosure of non-sworn employees, that issue must wait for a
lawsuit in which it is fairly raised, noticed, and litigated. That
lawsuit is not the immediate case.
DISPOSITION
While we agree with the trial court that injunctive relief is
proper in this case, for the foregoing reasons we disagree with its
analysis of the constitutional question presented and thus with
the limited scope of the injunction ordered. The petition for writ
of mandate is granted, in part. The trial court‟s order of
preliminary injunction as worded, must be modified so that it is
consistent with this opinion.
The trial court is ordered to strike from the injunction any
language that allows real parties or any of them to disclose the
identity of any individual deputy on the LASD‟s Brady list to any
individual or entity outside the LASD, 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. The court must also strike any
language that purports to address real parties‟ power or
authority with respect to a Brady list involving non-sworn
employees.
48
In all other respects, the petition is denied.
SORTINO, J. *
I CONCUR:
BIGELOW, P.J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
49
Association for Los Angeles Deputy Sheriffs v. Superior
Court (Los Angeles County Sheriff’s Department et al.)
B280676
Grimes, J., concurring and dissenting.
I concur in the majority opinion with one significant
exception. I cannot accept the majority‟s principal conclusion:
that when the personnel records of a peace officer, who is a
potential witness in a pending criminal prosecution, contain
sustained allegations of misconduct, the Los Angeles County
Sheriff‟s Department (Department) cannot disclose that fact to
the prosecutor, “absent a properly filed, heard, and granted
Pitchess motion,[1] accompanied by a corresponding court order.”
(Maj. opn. ante, at p. 48.)
In my view, the Pitchess statutes,2 construed as we have
always done “against the larger background of the prosecution‟s
[Brady obligation]” (People v. Mooc (2001) 26 Cal. 4th 1216, 1225
(Mooc)), do not prohibit the disclosures permitted by the trial
court‟s injunction. I conclude the trial court properly harmonized
the Brady3 and Pitchess authorities in refusing to enjoin the
Department from disclosing to the district attorney the identity of
any deputy on the Department‟s Brady list who is a potential
witness in a pending criminal prosecution.
1 Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess).
2 As the majority explains, the Pitchess statutes are Penal
Code sections 832.7 and 832.8 and Evidence Code sections 1043
through 1045.
3 Brady v. Maryland (1963) 373 U.S. 83 (Brady).
1
As explained post, my conclusion is supported by analysis
of case authorities, including People v. Superior Court (Johnson),4
by years of past practice, and by the unworkability of requiring a
prosecutor to make a Pitchess motion merely to find out whether
or not a deputy in a pending prosecution has potential Brady
material in his personnel file.
A Pitchess motion is clearly required for anyone, including
the district attorney, to obtain an officer‟s personnel records or
the disciplinary information in them. No motion is 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. There is no
Pitchess violation in a procedure that is consonant with Brady
obligations and that does not involve a prosecutor‟s perusal of
any information in an officer‟s personnel file.
1. A Preliminary Consideration
The majority characterizes the trial court as having
“acknowledged that such a disclosure . . . violates the Pitchess
statutes,” but nonetheless found that Brady compels the violation
of state law. (Maj. opn. ante, at p. 5.) I disagree with this
characterization of the trial court‟s holding.
At the outset, the trial court recognized this case involves
“the interplay of the Brady Doctrine versus the Pitchess statutes
and the confidentiality of peace officer personnel files.” The court
said: “[T]hey [(law enforcement agencies)] have a constitutional
duty to disclose Brady information in a particular criminal case,
but they don‟t have a duty to do and what the Pitchess
4 People v. Superior Court (Johnson) (2015) 61 Cal. 4th 696
(Johnson).
2
statutes prohibit is the preparation of a Brady list that is
communicated outside the Department, in this case, to a
prosecuting agency about deputies when there is no pending
criminal case in which that deputy is involved. I believe that is
unlawful.”5 (Boldface and italics added.) The court went on to
agree that the Department is “required to provide the names of
employees with potential exculpatory impeachment material in
their personnel file to the District Attorney, . . . when there is a
pending case.”
In my view, the trial court simply harmonized Pitchess and
Brady, and did not conclude that disclosure to the prosecutor in a
pending prosecution violates the Pitchess statutes, or that Brady
compels any such violation, or that the Pitchess statutes “are
unconstitutional.” (Maj. opn. ante, at p. 19.) The majority says
the trial court “[e]ssentially” or “effectively” did so (maj. opn.,
ante, at pp. 14, 19). While I disagree, I find it unnecessary to
debate or resolve the trial court‟s thinking on the point. But the
majority uses its construction of the trial court‟s decision to raise
issues that are unnecessary to a resolution of this case: namely,
whether the Pitchess statutes are constitutional (they are), and
whether a police department must institute Brady procedures
like the ones at issue in this case.
As to the latter point, the majority says the trial court
“effectively held that law enforcement agencies have an
affirmative constitutional obligation . . . to notify the prosecutor
5 We have no occasion in this case to determine whether the
trial court was correct on that point. This writ proceeding
presents only the question whether the Pitchess statutes prohibit
the communication of the name of a Brady-list deputy by the
Department to the prosecutor in a pending prosecution.
3
whenever one of their peace officers has a founded allegation of
misconduct involving moral turpitude in his or her personnel file,
so long as that officer is also a potential witness in a pending
criminal case.” (Maj. opn. ante, at p. 19.) I do not construe the
trial court‟s injunction as creating any affirmative duty on the
part of the Department or any other law enforcement agency.
The trial court‟s injunction prohibits the Department from
disclosing its Brady list to the prosecutor (a point not at issue in
this writ proceeding). The injunction does not compel the
Department to do anything. It simply allows the Department to
implement its decision that its Brady obligations are best fulfilled
by giving the names of peace officers with Brady material in their
files to prosecutors when charges are pending.6 The injunction,
and a decision by this court to affirm it, would not require any
other law enforcement agency to institute similar practices. It
would merely confirm that such a practice is consonant with
Brady and does not violate Pitchess.
That leads me to one other preliminary point. In its
petition and its reply, petitioner repeatedly maintains that only
the prosecutor has a Brady duty to disclose exculpatory or
impeachment information to the defendant. In re Brown tells us
that the high court “has unambiguously assigned the duty to
disclose [to the defendant] solely and exclusively to the
6 Indeed, the majority, in rejecting petitioner‟s challenge to
the language elsewhere in the injunction stating the Department
is “not precluded from maintaining a „Brady List‟ internally,”
recognizes that that language “does not affirmatively compel . . .
the [Department] to review personnel records and create a Brady
list[.]” (Maj. opn. ante, at p. 28; see also id. at p. 47 [the
injunction “does not affirmatively compel . . . the [Department] to
make transfers or impose restrictions of duty”].)
4
prosecution; those assisting the government‟s case are no more
than its agents.” (In re Brown (1998) 17 Cal. 4th 873, 881.) This
means that “the prosecution remains responsible for any lapse in
compliance,” and “must be charged with any negligence on the
part of other agencies acting in its behalf [citations].” (Ibid.)
This has nothing to do with the law enforcement agency’s
own obligation to reveal Brady information to the
prosecutor. It only means that the prosecutor will pay the price
for peace officer negligence. (See United States v. Blanco (9th
Cir. 2004) 392 F.3d 382, 394 [“Brady . . . impose[s] obligations not
only on the prosecutor, but on the government as a whole”]; see
also United States v. Zuno-Arce (9th Cir. 1995) 44 F.3d 1420,
1427 [“it is the government‟s, not just the prosecutor‟s, conduct
which may give rise to a Brady violation”].)
2. The Disclosure Permitted by the Trial Court
Does Not Violate the Pitchess Statutes
I agree with the majority – indeed, everyone agrees – that
Brady principles and Pitchess procedures have long been
interpreted together and in harmony. (City of Los Angeles v.
Superior Court (2002) 29 Cal. 4th 1, 14 [“the „ “Pitchess process”
operates in parallel with Brady and does not prohibit the
disclosure of Brady information‟ ”]; Mooc, supra, 26 Cal.4th at
p. 1225 [the Pitchess “procedural mechanism for criminal defense
discovery . . . 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”].)
I see nothing to prevent continued harmonization in this
case.
5
a. The Copley Press line of cases
The crux of the difference between the majority‟s analysis
and mine lies in the construction of Supreme Court cases that
have held that a deputy‟s identity is confidential under the
Pitchess statutes, and may not be disclosed to the public, where
the records in question “linked the officer‟s name . . . to a
confidential disciplinary action involving the officer . . . .” (Long
Beach Police Officers Assn. v. City of Long Beach (2014) 59
Cal. 4th 59, 73, 71 (Long Beach), discussing Copley Press, Inc. v.
Superior Court (2006) 39 Cal. 4th 1272 (Copley Press); see also
Commission on Peace Officer Standards & Training v. Superior
Court (2007) 42 Cal. 4th 278, 298 (Commission) [explaining that
“[i]n Copley Press, we held that records of peace officer
disciplinary appeals . . . constituted confidential personnel
records under [Penal Code] section 832.7, and that the Court of
Appeal had erred in ordering disclosure of the name of the deputy
involved in a particular matter.”].)7
Unlike the majority, I cannot read those Supreme Court
cases as supporting the notion that in a pending prosecution, a
law enforcement agency may not tell the prosecutor that a
7 In Long Beach, the court permitted disclosure to The Los
Angeles Times of names of officers involved in on-duty shootings,
observing that disclosure “would not imply that those shootings
resulted in disciplinary action against the officers, and it would
not link those names to any confidential personnel matters or
other protected information.” (Long Beach, supra, 59 Cal.4th at
pp. 73, 64.) In Commission, the court permitted disclosure of
names, employing department, and hiring and termination dates
of peace officers included in an agency‟s database; those records
were not rendered confidential by the Pitchess statutes.
(Commission, supra, 42 Cal.4th at p. 284.)
6
potential witness in that criminal case has potential exculpatory
or impeachment information in his or her personnel file that
might impair the officer‟s credibility on the witness stand. None
of those cases stands for that proposition. Indeed, none of them
was decided in a context where Brady principles were also in
play. None of them even mentions Brady. All of them arose from
claims by a media organization under the California Public
Records Act (CPRA) for release of information to the general
public. Copley Press held that the CPRA did not “require[]
disclosure to a newspaper publisher of records of [a county
commission] relating to a peace officer‟s administrative appeal of
a disciplinary matter” (Copley Press, supra, 39 Cal.4th at
p. 1279), and that the deputy‟s identity was confidential under
Penal Code section 832.7, which was “designed to protect, among
other things, „the identity of officers‟ subject to complaints.”
(Copley Press, at p. 1297.)
Thus, Copley Press involved a media request for “records,
including the name of the peace officer,” relating to the officer‟s
appeal of a disciplinary matter. (Copley Press, supra, 39 Cal.4th
at p. 1279.) Both Long Beach and Commission explain Copley
Press as involving the release to the public of records that linked
the officer‟s name “to a confidential disciplinary action involving
the officer” (Long Beach, supra, 59 Cal.4th at p. 73) and disclosed
“the name of the deputy involved in a particular matter”
(Commission, supra, 42 Cal.4th at p. 298).
The majority apparently believes both that the prosecutor
in a pending prosecution is no different from the general public,
and that the Department‟s identification of a deputy as having
Brady material in his records is the equivalent of releasing
7
disciplinary records that link the deputy to the “particular
matter” (Commission, supra, 42 Cal.4th at p. 298). I do not.
The disclosure the trial court permitted in this case is
entirely different from the disclosure prohibited in Copley Press.
As we have seen, the disclosure is from a law enforcement
member of the prosecution team to the prosecutor in a pending
criminal proceeding, not a disclosure to the general public. And
the disclosure does not involve records of any specific disciplinary
incident – or any records at all. The disclosure is simply of the
fact, known to the Department, that there may be Brady material
in the officer‟s personnel records. And as we know, the
prosecutor is charged with knowledge of exculpatory evidence
known to members of the prosecution team, including law
enforcement, and has a duty to disclose material exculpatory
evidence, even if not requested to do so by the accused. (Johnson,
supra, 61 Cal.4th at p. 709.) Under these circumstances, I cannot
fathom a conclusion that keeps the prosecutor in the dark about
the Department‟s knowledge of Brady material in the files of a
deputy who may be a witness in a pending proceeding.
In the majority‟s view, there is no material distinction
between the disclosure of a deputy‟s name to the prosecutor, and
the disclosure of identifying records to the general public
forbidden in Copley Press. The majority points out that “[t]he
prosecution, like the defense, cannot discover peace officer
personnel records without first following the Pitchess
procedures.” (Maj. opn. ante, at p. 23.) I agree, of course;
Johnson reminds us of the same point: “we have said that [Penal
Code section 832.7, subdivision (a)] requires the prosecution, as
well as the defendant, to comply with the Pitchess procedures if it
wishes to obtain information from confidential personnel
8
records.” (Johnson, supra, 61 Cal.4th at p. 712.) But that
principle on its face applies to “obtain[ing] information from
confidential personnel records.” (Ibid.) That is not what the trial
court‟s injunction here permits, and it is what Copley Press
prohibits.
In short, I see nothing in the Copley Press line of cases –
none of which involves harmonization of Pitchess and Brady
principles – that is inconsistent with the trial court‟s ruling, or
that supports the proposition that the disclosures permitted by
the trial court violate the Pitchess statutes.8
b. Practical considerations
The majority holds that the language in the injunction
allowing the Department “to disclose the identity of any
individual deputy on the Brady list” to anyone outside the
Department, “absent a properly filed and granted Pitchess motion
and corresponding court order,” must be stricken. (Maj. opn.
ante, at p. 34.)
I must confess that I may not understand the practical
import of this holding, which tells us that a prosecutor must file a
Pitchess motion to obtain the identity of a deputy on the Brady
8 Petitioner‟s authority for the proposition that an employing
agency is prohibited from making voluntary public disclosure of
confidential peace officer records (Davis v. City of San Diego
(2003) 106 Cal. App. 4th 893, 902) is likewise inapt. Davis held
that narrative reports on a police shooting constituted
confidential personnel records under the Pitchess statutes (Davis,
at p. 902), and the city was “statutorily precluded from
voluntarily disclosing those reports to the public” (id. at p. 898).
Again, the case involves a release of specific records to the
general public, does not mention Brady, and has nothing to do
with harmonizing Brady obligations.
9
list, that is, to find out whether or not a deputy in a pending
prosecution has potential Brady material in his or her file. But
the Pitchess procedures themselves demonstrate the
unworkability of making a Pitchess motion for that purpose.
A Pitchess motion cannot be made unless the prosecutor
knows the identity of the officer in question. (Pitchess motions
require, among other things, “[i]dentification of . . . the peace or
custodial officer whose records are sought . . . .” (Evid. Code,
§ 1043, subd. (b)(1).)) So, the real effect of the majority‟s holding
would seem to be either (1) to prevent entirely any disclosure of
the identity of a Brady-list officer by the Department to the
prosecutor, or (2) to require the prosecutor to make Pitchess
motions for every officer involved in a pending criminal case
(though it is hard to see how the requisite “good cause” could be
shown), or (3) to require the prosecutor to risk the consequences
of possible failure to disclose exculpatory Brady material to the
defendant. This is an unacceptable and, in my view, entirely
unnecessary conundrum, created by the erroneous conclusion
that the disclosure permitted by the trial court violates the
Pitchess statutes. No case has so held and, as discussed above,
the Copley Press line of cases does nothing, in my view, to
advance the majority‟s position.
The purport of the majority‟s decision is that it is illegal
under Pitchess for any law enforcement agency to tell the
prosecutor in a pending criminal proceeding that a potential
witness may have Brady material in his or her records. But the
record in this case suggests that law enforcement agencies across
the state have been doing so for years – not under a formalized
procedure as attempted in this case (although that, too, has been
10
happening since at least 2010), but in response to informal
requests from prosecutors.
For example, the Attorney General tells us that similar
policies are “already in use by a number of district attorneys‟
offices and law enforcement agencies.” (98 Ops.Cal.Atty.Gen. 54
(2015) [2015 Cal.AG Lexis 7, pp.*15-*16; see id. at p. *23]
[referring to “these ongoing practices” and observing that “[w]e
understand that a number of police departments employ policies
similar to the one under consideration here”].) The procedures in
the Johnson case (see pt. c., post) were implemented in 2010, and
the order doing so explained the procedures were adopted
because “ „[r]epetitive requests by the District Attorney that the
[Police] Department check employee personnel files of
Department employees who may be witnesses create unnecessary
paperwork and personnel costs . . . .‟ ” (Johnson, supra, 61
Cal.4th at pp. 707, 725.) Clearly, whether formalized or
otherwise, law enforcement agencies – at least in some parts of
the state – have been identifying police officers with Brady
material in their personnel files to prosecutors for years. (As the
trial court observed, correctly or not, “I assume [the
Department‟s] been doing that for the last 50 years or however
long Brady has existed.”) I cannot sign on to the majority‟s
conclusion that these actions by law enforcement agencies violate
California law.
c. People v. Superior Court (Johnson)
That brings me to the Johnson opinion, described in detail
by the majority. (Maj. opn., ante, at pp. 35-39.) Johnson held
that “the prosecution does not have unfettered access to
confidential personnel records of police officers who are potential
witnesses in criminal cases,” but “must follow the same
11
procedures that apply to criminal defendants, i.e., make a
Pitchess motion, in order to seek information in those records.”
(Johnson, supra, 61 Cal.4th at p. 705.) And, where the police
department, “acting pursuant to procedures it has established,”
informed the district attorney that confidential personnel records
of peace officers who were potential witnesses might contain
exculpatory information, “the prosecution fulfills its Brady duty
as regards the police department‟s tip if it provides the defense
information it received from the police department, namely, that
the specified records might contain exculpatory information.”
(Ibid.)
In my view, Johnson supports, if not compels, the
conclusion that the Pitchess statutes do not preclude the
procedure the trial court approved here. In Johnson, the police
department “informed the district attorney that the officers‟
personnel records might contain Brady material . . . .” (Johnson,
supra, 61 Cal.4th at p. 715.) Johnson observed that “[n]o one
disputes” that the prosecution then “had a duty under Brady . . .
to provide this information to the defense.” (Ibid.) The question
in Johnson was “whether the [Brady] obligation goes beyond
that.” (Ibid.) The answer was “no,” because, “[i]f the prosecution
informs the defense of what it knows regarding information in
confidential personnel records, and the defense can seek that
information itself, no evidence has been suppressed.” (Ibid.) The
court further explained: “Because a defendant may seek
potential exculpatory information in those personnel records as
well as the prosecution, the prosecution fulfills its Brady
obligation if it shares with the defendant any information it has
regarding whether the personnel records contain Brady material,
12
and then lets the defense decide for itself whether to file a
Pitchess motion.” (Id. at p. 716.)
The majority appears to believe that the same result is
appropriate – letting the defense decide whether to file a Pitchess
motion – even when the prosecution does not share information,
known to the law enforcement agency, that there is Brady
material in the officer‟s file. Thus the majority observes that
Johnson “flatly rejected” the defendant‟s claim that Pitchess
procedures were inadequate to protect his right to exculpatory
information under Brady. (Maj. opn. ante, at p. 39.) But the
majority fails to consider that Johnson found Pitchess procedures
would “ensure that defendants receive the [Brady] information to
which they are entitled” (Johnson, supra, 61 Cal.4th at p. 720) in
a context where the police told the prosecutor, who shared with the
defense, the fact that there was Brady material in the officers‟
files. In other words, the premise for everything Johnson tells us
is that the law enforcement agency told the prosecutor there was
potentially exculpatory Brady material in police officers‟
personnel files, and the prosecutor disclosed that fact to the
defense.9
9 The majority (maj. opn. ante, at pp. 31-33) relies on People
v. Gutierrez (2003) 112 Cal. App. 4th 1463 for the proposition that
“Pitchess procedures implement Brady rather than undercut it,
because a defendant who cannot meet the less stringent Pitchess
standard cannot establish Brady materiality.” (Gutierrez, at p.
1474.) The majority points out that Johnson cited Gutierrez for
the principle that “ „ “the two schemes operate in tandem.” ‟ ”
(Maj. opn. ante, at p. 39, quoting Johnson, supra, 61 Cal.4th at p.
720.) Of course I agree with those principles, but I do not see
how Gutierrez is relevant in this case. Gutierrez rejected the
defendant‟s contention that the statutory Pitchess procedures
13
The majority nevertheless insists that Johnson did not
mention, discuss or decide the legality under Pitchess of the
police department‟s initial disclosure to the prosecutor, and so
this court is now free to decide that such disclosures are in fact
illegal under Pitchess. I recognize, of course, that Johnson did
not expressly decide or discuss the point. And I am well aware
that an opinion does not stand for a principle that the court was
never asked to decide. Nonetheless, I cannot imagine the
Johnson court could have failed to question the legality, under
the very statutory scheme it was discussing, of the police
department‟s disclosures to the prosecution, if there was any
basis to do so.
The procedures the police department established in
Johnson were appended in their entirety to the Supreme Court‟s
opinion. The opinion specifically quotes from the police
department‟s order summarizing the procedure: “ „[T]he
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
violated Brady (on the ground, among others, that “the
prosecutor was obliged to conduct a review of the files of „all
significant police officer witnesses‟ and disclose any Brady
material”). (Gutierrez, at pp. 1474-1475.) Gutierrez rejected that
claim, pointing out that the prosecutor “does not generally have
the right to possess and does not have access to confidential peace
officer files,” so the defendant‟s argument for routine review of
those files “necessarily fails.” (Id. at p. 1475.) Assuming that to
be correct, I do not see its relevance to the circumstances here,
where no one has suggested that the district attorney may review
an officer‟s personnel file without following Pitchess procedures.
14
camera review of the records by the court.‟ ” (Johnson, supra, 61
Cal.4th at p. 707.) The police department‟s disclosure of the
officer‟s name is the foundation of the entire procedure. The fact
of that disclosure is repeated several times throughout the order
appended to the Johnson opinion.
In my view, had there been any doubt as to the legality of
the disclosure of the names of officers with Brady information in
their files, the court would have noticed it and requested briefing
on it. The author in Johnson, Justice Chin, is steeped in Pitchess
procedures. He wrote the opinion in Copley Press, and he
dissented in Commission, taking the view that, under Penal Code
section 832.7, an officer‟s name cannot be disclosed to the public
even if it is not linked to private or sensitive information listed in
section 832.8. (Commission, supra, 42 Cal.4th at p. 311 (dis. opn.
of Chin, J.).) In short, the Johnson court was supremely
cognizant of the confidentiality requirements of the Pitchess
statutes – and it premised its opinion on a procedure the linchpin
of which is a disclosure by the police department of Brady-list
names to the prosecutor.
Johnson is clear: “In this case, the police department has
laudably established procedures to streamline the
Pitchess/Brady process. It notified the prosecution, which in
turn notified the defendant, that the officers‟ personnel records
might contain Brady material. A defendant‟s providing of that
information to the court, together with some explanation of how
the officer‟s credibility might be relevant to the proceeding, would
satisfy the showing necessary under the Pitchess procedures to
trigger in camera review.” (Johnson, supra, 61 Cal.4th at p. 721.)
In sum, I believe the Johnson case is good reason to
conclude that the disclosures permitted by the trial court in no
15
way violate the Pitchess statutes. But even absent Johnson, I
think it is apparent, for the reasons discussed above, that the
disclosures permitted by the trial court in this case do not violate
the Pitchess statutes.
3. Summary and Conclusion
In summary, and at the risk of repetition, I return to one of
my introductory points. This case does not present the question
whether Brady principles mandate disclosure of officer names to
the prosecutor. The trial court‟s injunction merely allows the
Department to implement a determination that it can best fulfill
its Brady obligations by giving the names of peace officers with
Brady material in their files to prosecutors when charges are
pending. The injunction mandates nothing of the Department or
any other law enforcement agency.
The question presented to us is whether the Pitchess
statutes preclude the disclosure of Brady-list names by the
Department to the prosecutor in a pending prosecution. The
courts have always viewed Pitchess “against the larger
background” of the prosecution‟s constitutional Brady obligations.
(Mooc, supra, 26 Cal.4th at p. 1225.) We would do no more here,
by finding no Pitchess violation in a procedure that is consonant
with Brady obligations and that does not involve a prosecutor‟s
perusal of any information in an officer‟s personnel file. For
these reasons, I would affirm this aspect of the trial court‟s
preliminary injunction.
In all other respects, I concur with the views expressed in
the majority opinion.
GRIMES, J.
16