*1 Feb. S098233. 2003.] [No. al., Petitioners, et
MAURICE ALFORD COUNTY, Respondent; SAN DIEGO THE SUPERIOR COURT OF al., et Real Parties Interest. THE PEOPLE
Counsel Braner, Carroll, Defender, C. Gibson Gary J. Public Matthew
Steven Alford. Cutter, Defenders, for Petitioner Maurice Public Courtney Deputy Leff Love. Donny J. for Petitioner Craig
Michael P. Judge, Public Defender Albert (Los Angeles), J. Menaster and Hands, Mark Defenders, G. Public as Amici Curiae on behalf Deputy Petitioner Maurice Alford. Adachi,
Kimiko and Jeff Burton Public Defenders Randall (San Francisco), Martin, Rosen, Chief Attorney, L. Head Stephen Attorney, as Amici Curiae on behalf Petitioner Maurice Alford.
No appearance Respondent. Gwinn, Noone,
Casey City Anita M. Assistant Attorney, City Attorney, Thomas, Shannon M. Carol A. Paul Trujillo and E. Cooper, Deputy City for Real in Interest Attorneys, Party City Diego. San Paul J. District Pfingst, Attorney, Thomas F. McArdle and Lovett, Anthony *4 District Real Deputy for in Interest the Attorneys, Party People.
Steve District Attorney Palmer, Cooley, (Los M. Head Angeles), George District Deputy Ferreira, and Brentford Attorney, J. District Attor- Deputy ney, as Amici Curiae on behalf Real Parties in Interest.
Jones & P. Palmer Mayer, and Krista MacNevin for Gregory Jee 79 Cali- Cities, fornia Association, California State Sheriffs’ California Police Chiefs Association and California Police Officers’ Association as Amici Curiae on behalf of Real Interest Party City Diego. San Pinckard, Bobbitt & Everett L. Bobbitt and A. for Toyen Sanford San Diego Police Officers Association as Amicus Curiae.
Opinion
WERDEGAR, J.
Petitioners Mauriceand
Alford
Love were ar
Donny
rested on
drug charges,
of which are not
specifics
this
pertinent
Because
narrative
appeal.
petitioners’
of events
to their arrest dif
leading
fered
officers,
from that of the arresting
they sought
challenge
moved,
court,
officers’
Petitioners
credibility.
accordingly
superior
made
past complaints
San
Police
Diego
Depart
ment
force,
regarding any incidents
excessive
dishonesty,
unnecessary
violence,
remarks,
racist
or similar
on the
misconduct
part
arresting
officers.
(See generally Pitchess
Court
Discussion
A. Statutory Background *5 482, v. Mooc 26 Cal.4th
Recently,
(2001)
Cal.Rptr.2d
[114
P.3d
and
Court
Angeles
(2002)
Los
City
Superior
21]
the
202,
129],
had occasion to review
52 P.3d
we have
[124
the
do
here in
relevant
we
so
background
statutory
again
provisions;
of our
As this
stated in
Cruz v.
City
furtherance
court
Santa
analysis.
520,
“In addition to the exclusion of specific categories of information from disclosure, section 1045 establishes criteria to general guide court’s determination and insure that the interests privacy of the officers subject the motion are protected. Where issue in concerns the litigation policies of conduct pattern employing agency, statute requires to ‘consider whether the information sought be obtained from other records . . . which would not necessitate the disclosure of individual per- sonnel records.’ (§ subd. The law (c).) further that the court provides discretion, in its may, ‘make order which justice requires protect officer or agency unnecessary annoyance, embarrassment or oppres- sion.’ subd. (§ And, italics (d), the statute added.) finally, mandates that in case where disclosure is the court ‘shall. . . order that permitted, *6 the records disclosed or discovered shall not be for used other any purpose than a court proceeding law.’ subd. pursuant applicable (§ (e), italics added.)
“As statutory schemes is a go foregoing veritable model of clarity balance. Section 1043 of cause’ clearly requires showing ‘good for discov- in two ery general categories: (1) ‘materiality’ information or intelligent light and an (Id. reasonably defense in of all relevant and accessible information.” p. 535.) the pending litigation,’ to the matter involved sought ‘subject records has the of agency ‘type’ the governmental ‘reasonable belief (2) subd. (§ (b).) or disclosed. sought information records 1043 is embodied in section for low threshold relatively “The turn, (1) explicitly which: offset, in section 1045’s protective provisions information categories of from certain enumerated ‘exclude disclosure’ in camera establish a for procedure inspection subd. (§ (b)); (2) issue a forceful subd. any (§ (b)); disclosure prior whose interests of the officers to the courts to consider directive privacy requires’ protect and take whatever sought steps ‘justice records embarrassment or ‘unnecessary annoyance, oppression.’ officers from 1045, subds. & (§ (c), (e).) (d) conflicting thus balances two directly
“The scheme carefully and the criminal interests: the officer’s claim to peace just confidentiality, information his defendant’s interest in all equally pertinent compelling cause under showing defense. The relaxed standards for relatively good matter of the subject subdivision (b)—‘materiality’ has the type and a ‘reasonable belief that pending litigation agency of all sought—insure for production inspection potentially guide documents. in camera and disclosure relevant review procedure turn, a lines set forth in section 1045 officer’s guarantee, balancing As a interests the defendant’s need for disclosure. further privacy against verbatim moreover, the courts have refused to disclose safeguard, generally files, ordering or records of kind officer peace personnel reports name, . . that reveal address and phone instead . agency dates of the number of and witnesses and the any prior complainants Court, Cruz v. Municipal incidents Santa question. (City [Citations.]” 81-84, 49 Cal.3d at fns. supra, pp. omitted.) A motion records ad officer court, for abuse. dressed to the sound discretion the trial reviewable 535; Court, v. Gill (Pitchess v. Cal.3d at supra, Cal.Rptr.2d 369].) Cal.App.4th mind, these we issues presented With turn specific principles this case. 1045(e)
B. Protective Under Section Scope Mandatory Order shall, in proceeding “The court case 1045(e) Section provides: *7 officer or or custodial permitting any peace disclosure 1040
records requested 1043, to Section pursuant order that the records disclosed or discovered not be used for any other than a purpose court proceeding pursuant to applicable law.” The parties disagree about the of the meaning “a phrase, court proceeding pursuant law.” applicable Petitioner contends it refers to proceeding, whether or not in the case in which disclosure was sought, such use provided complies applicable provisions of the law of evidence. The city attorney, on behalf of the records, that, custodian of argues context of the Pitchess scheme of which it is a part, refers to the phrase case for which the information was sought.
Our role in construing statute is to ascertain the intent Legislature so as to effectuate the of the purpose law. (People Jefferson 86, 21 (1999) Cal.4th 893, Cal.Rptr.2d P.2d Because the 441].) [86 statutory language the most generally reliable intent, indicator of that we look first at themselves, the words them their giving usual and ordinary meaning. v. Lawrence (People 219, Cal.Rptr.2d 570, not, however, We do 228].) consider the statutory language isolation, but rather examine the entire substance of the statute in order to determine the scope purpose provision, its words in construing context and harmonizing its various parts. v. Acosta (People Cal.4th 435, 52 P.3d 624].) Petitioner contends the legislative of section history 1045(e) strongly his supports twice, He out interpretation. points 1978 and again 1982, the Legislature considered and rejected an amendment to section 1045 that would have restricted use of the information disclosed on a Pitchess motion to the case particular in which the disclosure was made. As intro- 27, 1978, duced on January Senate Bill No. 1436 (1977-1978 Reg. Sess.), the original legislation governing release of information from officer records, contained no provision Then, order. protective 7, 1978, August the bill was amended to include the following language: “(g) Whenever a court orders disclosure of records or information obtained therefrom pursuant section, to this use of such records or information shall be limited to the litigation aid of which access to the records or informa- tion was sought, records obtained to such an pursuant order of disclosure or any thereof shall be returned copies department Amend, governmental agency upon conclusion of that litigation.” (Assem. Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. italics A omitted.) subsequent Assembly amendment to Senate Bill No. on August 1978, however, deleted that language it replaced with currently subdivision motion (d): “Upon made seasonably gov- ernmental which has agency or control of the custody records to be exam- ined or the officer whose records are cause sought, good upon *8 justice order which thereof, any make may the court necessity showing annoyance, unnecessary or agency the officer to protect requires or oppression.” embarrassment 1045(e), provision added section later, Legislature years four
Some March on here. As introduced at issue orders for mandatory protective language contained Reg. Sess.) (1981-1982 Bill No. 1065 Senate to the proceeding therefrom records or information of disclosed use limiting or shall, in case proceeding The court the motion: “(e) identified officer records requested or the disclosure permitting may discovered disclosed or that the records order to Section pursuant than those identified other or in any proceeding be used for any purpose Assembly subsequently 1043.” The to Section in the motion pursuant material to on use of disclosed the limitation the bill to remove amended currently motion, language it with in the replacing identified proceeding Amend, 1065 (1981-1982 to Sen. Bill No. found in section 1045(e). (Assem. Sess.) Aug. 1982.)4 Reg. very that, rejected twice considered having
Petitioner urges advocates, evi the Legislature here city attorney limitation for which a trial be to require that section 1045(e) interpreted did not intend dently to order that such informa Pitchess information disclosure of ordering in the motion. identified tion be used only proceedings clear. history altogether the cited legislative not find the import We do find it was we legislation, as a of the 1978 Examining purpose whole being was that Pitchess to officer complaints intended respond Peace citizen unfounded, old very complaints. ordered for anonymous, as designated privi- also had not been records specifically officer personnel (1977-1978 Reg. Sen. Bill No. 1436 Enrolled Bill (See Rep. leged. establishing require- these addressed legislation problems Sess.).) and recognizing cause for disclosure good of a showing ment specific 1045, subd. (b).) subd. (b), disclosure. (See certain exclusions from §§ orders 1045, authorizing protective subdivision to section (d) The addition of the neces- cause good showing made” and “upon motion seasonably “[ujpon against thereof,” adequate protection have been thought provide sity of Pitchess discovery. abuses the concern The 1982 legislation responded was not the case.
Such records would officer from peace of information disclosure history of Senate legislative judicial take notice of requests that this court 4 Petitioner Reg. Sess.). We (1981-1982 Bill No. 1065 Reg. Sess.) and Senate (1977-1978 Bill No. (c), 459.) (§§ (a), subds. grant request. used in officers and litigation against them. agencies employing (See *9 Enrolled Bill on Sen. Bill No. 1065 Rep. (1981-1982 Reg. Sess.).) Notably, the bill as disclosure, introduced included severe restrictions on any propos- to limit the ing authorized in sections 1043 discovery and 1045 specifically arrest, assault, to cases involving resisting where claims of officer battery, violence be might to be relevant. Bill expected (Sen. No. 1065 (1981-1982 30, 1981, as introduced Mar. Reg. Sess.) narrow, deemed too 1.) Evidently this was later revised to limit provision case in which a any defendant might assert self-defense reasonably and excessive force. (Sen. Amend, to Sen. Bill No. When, 1065 (1981-1982 Reg. June Sess.) finally, Legislature gave up to enumerate attempting specific types cases in which ordered, could be it revised section that use 1045(e) provide records disclosed limited to “a court proceeding pursuant use, law” rather than their applicable as prohibiting the amending legislation done, have originally would “in any proceeding other than those identified in the motion to Section 1043” pursuant (Assem. Amend, to Sen. Bill No. 1065 i.e., (1981-1982 Reg. Aug. Sess.) 1982), section where the narrow restrictions proposed had been specified. modification, then, did not language mean that disclosure necessarily was not limited to the case in rather, which it was being we surmise it sought; meant the was not Legislature what kind defining of case that substantively might be.
The Court of in this case reasoned Appeal that because section 1045(e) of an overall part scheme that statutory balances officers’ carefully peace interests in their privacy records personnel against defendants’ defense, access to information relevant to their and because disclosure of information contained in such records is permitted on a showing case, to a materiality the statute as particular interpret a defend allowing ant to share such information with other defendants would defeat the purpose That court also believed the balancing process. phrase “applicable law” section in fact referred to section 1043 and thus 1045(e) signified intent to restrict Legislature’s use of the disclosed to the pro in which it was ceeding sought. We like the Court of we read agree; Appeal law” in this context as “applicable referring statutory Pitchess scheme. Contrary petitioner’s argument, we believe the must mean more phrase Code, than mere with Evidence as the compliance admission Thus, evidence in a court must with that code. proceeding comply petition er’s construction tends to reduce the in contravention phrase surplusage, of the canons of construction. 50 Cal.3d (Delaney Superior 798-799 789 P.2d Cal.Rptr. 934].) reasoned,
As the Court of Appeal interpretation 1045(e) harmonizes the entire scheme and retains its effectiveness the defendant and the interests both furthering legitimate 894, 52 Cal.3d officer. v. Pieters (See People contrast, found, interpretation as 420].) petitioner’s In records, as recognized of officer confidentiality conflicts with 832.7, for disclosure requirements Code section procedural in Penal subdi- in Evidence sections of such records set forth Code (a) through visions (c). use limiting that a order mandatory protective
Petitioner contends further would sought the case in which it is conflict of Pitchess material to *10 Peti- counsel, Public Defender. County duties of the San Diego ethical his defender’s public be summarized as follows: argument tioner’s her derives his or a law firm which each deputy office essentially defender, whose duties and powers authority by public delegation v. 3 by (1969) Cal.App.3d are statute. prescribed (Mowrer 223, of the office has the ethical 125].) 230-231 Each member [83 27 interests 59 conflicting Ops.Cal.Atty.Gen. not duty represent (see Conduct, rules a confidence 3-310), Rules Prof. (1976); 1-100(B), one as held all members. obtained member of office is treated Thus, not to an order directed at one defender according public to petitioner, an order directing reveal Pitchess material is the equivalent public not to such to himself herself. Not defender reveal information untenable, it fair such an but petitioner argues, would order be undermines effort, in that encourages duplication representation inefficiency ignorance members of defender’s office must feign public file known to them and instead personally repeated cases, not information in motions disclosed “using” previously subsequent cause for making showings of disclosure. good reasons,
We are As the unpersuaded. city attorney petitioner’s argument fails to to the defender’s identify ability any impediment public represent Moreover, courts discretion on mo ruling him. trial have broad and, so, as have doing tions to discover records we police personnel discussed, between they balancing process careful implementing defendant. substantial interests of the officer and the directly conflicting, 400, 795, 15 Cal.4th Samayoa (People Cal.Rptr.2d 2]; P.2d v. Jackson People super P.2d this 1254].) Arguably, specific statutory judicial obligation distribution general concerning
sedes a defender’s office’s rules public of knowledge gained by or attribution all authority deputies deputies of them. one and Entitlement to Disclosed Standing C. Prosecutorial Information Diego Real interest the District for San party Attorney County he has a behalf of to be heard in Pitchess argues right, People, and to proceedings receive material ordered concurrently disclosed after a successful defense motion. In the district support, cites several attorney none of which provisions, confers he seeks. explicitly
Code of Civil Procedure section subdivisions (a)(6) (b), relies, on which the district set attorney forth the formal requirements notice and hearing motions, on Pitchess but are silent with to whether regard notice shall be to the district given as well as to the attorney, governmental agency that holds the records Penal Code section sought. unamended since its enactment in that the provides of the State of California are a party any criminal but does prosecution, speak of notice. question Evidence Code section subdivision (a) requires service of notice of a Pitchess motion on the governmental agency having custody of records but sought, no provides insight into whether other are to be notice in parties given this context.
The district also relies on the state attorney constitutional guarantee due I, found in article process section 29 of the California Constitution. The *11 provision, in 1990 as adopted enshrines the part Proposition People’s right to due process law. that “the central Observing meaning proce- dural due is that whose process parties rights to be affected are entitled to be heard” v. Sutton (People (1993) 19 803 Cal.App.4th [23 alia, Cal.Rptr.2d 632], inter Fuentes v. citing, Shevin 407 U.S. 80 1983, 1994, S.Ct. 32 L.Ed.2d the district 556]), he has a attorney argues [92 and interest in “strong specific every motion filed in a discovery criminal notice, prosecution,” him to a entitling to be presence right heard, in that the result of a Pitchess hearing may affect outcome of the criminal action. The Court underlying that, of Appeal agreed, reasoning because the on a Pitchess ruling motion affect the outcome of whole criminal state constitutional due proceeding, afford the process principles district a both to notice attorney right and to hearing, of disclosed receipt records. that,
We have no doubt as a criminal to party underlying proceeding, the district under due attorney general is entitled to notice process principles of the date and on a place defense Pitchess motion. In this hearing manner, if the court clarification or requires matters set explanation any affidavits, forth in the it will be able supporting to ask of both the questions defense and the information and thus obtain prosecution court deems “ ” ‘essential’ to a fair and decision. proper (Cf. People Ayala (2000) However, the district 532, 6 193].)5 P.3d Cal.4th view argue prosecutorial point entitlement asserting attorney, disclosed, the extent of overstates court orders to receive information the discovery proceed- a third essentially party interest in what his legitimate the underlying attorney the district hearing, prosecuting In a Pitchess ing. nor their subject, of records neither the custodian criminal case represents this regard Instructive in has no direct stake in the outcome. and thus In Cal.App.3d Bullen v. 32]. of a third case, party on behalf the district attorney purported appear seeking in mandate proceedings to an criminal underlying prosecution, the defense access to vacate its order allowing court to compel superior authorizing no statute discovery Finding the third home for party’s purposes. in a a third attorney the district to represent party proceedings (Id. at action, the ordered the district recusal. attorney’s criminal Bullen court challenge sufficiency Arguably, actively p. 25.) prosecutor is to the interests of the third good showing Pitchess movant’s cause advance circumstance, moreover, that a custodian officer. The party police to evidence ad- may yield leading successful Pitchess motion does not necessarily give missible criminal underlying proceeding an the full due district interest in motion attorney meriting panoply in Pitchess Notably, reciprocal process proceedings. meet the defense case whenever
statutes enable the prepare prosecution call the intent to a witness. of Pitchess disclosure into receipt ripens Code, 1054.3.) Pen. (See is, noted, in instance of third
The Pitchess as essence procedure special Code is reflected in Penal sections discovery. Another such party procedure *12 1327, in a criminal case to serve a 1326 and which either party empower or the entity possession duces tecum subpoena requiring person inspec- materials to the information in court for the sought party’s produce 640, 818, P.2d 25 Cal.3d 651 602 tion. v. Blair (People (1979) Cal.Rptr. [159 1315; at 80 738]; Superior (Barrett), Cal.App.4th v. Court People supra, 552, 60 v. Court Leasing (1976) Cal.App.3d Co. Lighting Superior Pacific case, if custodian of records to objects 560 In such 559].) Cal.Rptr. [131 information must sought, seeking disclosure of the information party need showing or cause therefor. justification make a a plausible good context, revealing is not required, pain in this defense Significantly with and to strategies product, provide prosecution work possible any other information the affidavits and/or suggesting are not that such notice include 5We (Cf. People Superior (Barrett) Court the Pitchess motion. (2000) 80 v. support of 1305, Cal.Rptr.2d seeking of materials [party Cal.App.4th 1320-1321 264] [96 required provide opposing to subpoena tecum not possession party third means of duces relevancy sought].) party notice of of materials with theories 1046 of its relevancy
notice theories of of the materials but sought, instead may an v. Court make offer of at an in camera hearing. (People Superior proof (Barrett), supra, at A pp. 1320-1321.) defendant’s Sixth Amendment right the assistance of counsel in the of a case for trial likewise preparation communication of, with, the assistance encompasses confidential experts v. Court (Prince Superior 1176, defense. 8 preparing (1992) Cal.App.4th sufficient semen Cal.Rptr.2d sample existed permit [10 855] [where both defense, DNA independent testing by prosecution prosecution was not entitled to observe and results expert obtain of defense The testing].) right extends to the logically investigate and evidence opportunity develop generally, such as evidence of the kind issue impeachment here.
Nor do find statutory we the defense authority trial compel court to share with the fruits of a successful motion. prosecution is entitled to prosecution discovery from in accordance with Penal Code Code, sections 1054.3 and 1054.7. subd. (Pen. (e); § v. see People Tillis (1998) 956 P.2d [75 course, Of Pitchess disclo 409].) itself remains free to seek prosecution sure with the set forth in complying Evidence Code sections procedure 1043 and 1045.6 Absent such compliance, contrary premise underlying Justice Baxter’s concurring dissenting opinion, officer records retain their confidentiality Code, vis-á-vis the prosecution. (Pen. 832.7; see Court v. Superior (Gremminger) (1997) Cal.App.4th 397, 407 Cal.Rptr.2d 910].)7 [67 prosecution 6Because we conclude the has no automatic entitlement to defense-initiated discovery, petitioner’s argument dowe not address further of such receipt obligation, pursuant Brady information would an Maryland create v. 373 U.S. defense, 215], S.Ct. 10 L.Ed.2d provide future cases where officer in witness, question is a material whatever disclosed Pitchess information bears on the credibility significantly exculpatory. prosecution-initiated officer’s or is To the extent information, yields Pitchess motion prosecutor’s obligations, disclosure of such as in case, governed by requirements (See Izazaga are constitutional first instance. 54 Cal.3d prosecu 304] [“The process wholly independent tor’s duties of under are any statutory disclosure the due clause reciprocal discovery. process requirements self-executing scheme The due need no exists, statutory support . to be effective. . . these due scheme [I]f *13 process requirements operate prosecutor obligated outside such a scheme. The is to disclose voluntarily, such evidence not request discovery.”].) whether or the defendant a for makes concurring dissenting Footnote 8 of Justice opinion Baxter’s and must be understood with principles these in mind. as, cases, seeking in 7 Insofar most the officer whose records the defense is will team, or prosecution prosecution prosecutor a witness affiliated with the be able her, impeachment against by interviewing to learn available material the officer him possibility necessarily open to the defense.
Disposition is reversed, and court directed is Court of Appeal The judgment denying court vacate order superior issue a writ directing this court’s light opinion. to reconsider the motion motion and Kennard, J., J., and concurred. George, C. fully
BAXTER, J., Concurring Dissenting, I concur with the and of Pitchess1 use barring insofar it order requires protective lead as opinion besides the one in which “court proceeding” scheme denies Code, 1045, subd. The statutory (Evid. (e).) was ordered. information where such information in other actions privileged participants review, held in camera after trial court heard an argument, was disclosed (Id., subd. (a).) and made a finding specific “relevan[ce].” However, insofar as it concludes I cannot lead join opinion case is entitled notice defense (1) same prosecutor court, motion, the trial is (2) and to answer any questions posed motion, even where never to see defense documents allowed supporting on the input such and where trial seeks secrecy unnecessary motion, interests in the litigation is never allowed present People’s matter, trial on the and is never allowed motion absent court questioning of Pitchess material disclosed request copies receive about officers who trial. may testify
The this rule is It is also reasoning behind new largely unexplained. and settled under controlling The lead law wrong. opinion ignores practice scheme, the Pitchess which now three decades old. Consistent been general always well-established motion have practice, prosecutors defense-initiated afforded notice and public phase participation full circumstances, is hearings. simply Shared discovery, appropriate cases trial. an means both their for allowing parties efficient prepare The lead no law or justification denying identifies opinion policy every these case. I therefore dissent. prosecution Hearing A. Entitled to Full Notice When Are Discovery Seeks Pitchess the Defense issue, on the the lead it views the scheme as silent Though must notice “of date concedes the district receive attorney 305], as (1974) 11 1 Pitchess v. Cal.3d 832.8, through 832.7 and Evidence Code sections codified Penal Code sections 1-3, 5, 6, 2082-2083.) (See pp. 1045. Stats. ch. §§ *14 of the place on a defense hearing Pitchess motion” consistent with the due process to rights ordinarily ante, afforded adverse parties. (Lead opn., at p. 1044; id., However, see at p. 1045.) for reasons the lead does not opinion the due explain, same principles do not a related process encompass right see “the affidavits other and/or information in of the support ante, motion” at in. or to (lead opn., the p. 5), fully “argue prosecu- torial ante, of view” point at (lead opn., 1045). According the lead the at the opinion, role prosecutor’s hearing limited to answer- apparently ing trial court specific the custodian of questions. Only records and the concerned officer receive complete copies moving papers, and possess an unrestricted under the right lead participate opinion’s ap- proach.
The lead overlooks opinion statutory provisions providing prosecutor with notice motion, of whole Pitchess and with a meaningful opportunity respond. starting Evidence point Code subdivision (a) (Evidence Code section which notice 1043(a)), requires “written governmental agency records,” has and control of custody [that] which directs agency individual whose “immediately notify records sought.” are The same section also noticed motion incorporates rules in Code Civil Procedure section 1005.
The latter statute confirms that its govern any for requirements “Hearing Discovery of Peace Officer Personnel Records pursuant Section Proc., 1005, Evidence Code.” Civ. subd. (Code Critical here is (a)(6).) subdivision Code of Civil (b) Procedure section 1005 (Code of Civil Procedure section This 1005(b)). provision—which the lead never quotes construes—states “all shall be moving supporting papers served least calendar before the days hearing,” as except filed otherwise ordered or law. specifically provided (Italics added.)
These are embedded requirements into California Former law. rule of the California 249(c)(6) Rules Court2 eff. Jan. states (adopted 1949) words ‘serve and mean . . . proof service ... prior “[t]he file’ counsel each adverse who is party counsel.” represented separate Rule (Italics added.) makes 317(a) clear that documents served on opposing (here, counsel include “all prosecutor) moving supporting papers.” (Italics added.)3
Here, the are the “adverse (former rule party” 249(c)(6)) criminal case in which the defendant invokes Pitchess scheme. Gov. (See 2A11further unlabeled rule references to the California Rules of Court. January 3Former rule 249 was and substantively renumbered amended effective 2003. (See 299.) In process, legal now rule elementary definitions of various terms were (Id., deleted, including phrase appearing 249(c)(6). “serve and file” in former rule subd. *15 and for the Code, conducted 100, subd. criminal prosecutions (b) [all § are Code, parties]; and defendant opposing People Pen. People]; [the § Court Cal.App.3d Corrections v. (1988) Department adverse Corrections) (Department fn. 2 Cal.Rptr. [“the 293] [245 . third . . . not the . . party is the People these criminal proceedings party It follows defendant].) have been subpoenaed” by from whom documents filed” with must be “served and district attorney motion, and Civ. (Code “all including moving supporting papers” Proc., argue and on People’s and must be allowed appear 1005(b)), § attorney the district Code, 26500 public prosecutor, behalf. Gov. (See [as § court].) People represents
This serves the aims the Pitchess scheme. special open approach because necessary section 1043(a) notice in Evidence Code requirement government and the sought agency the individual officer whose records action, not and may the records not themselves holding parties through Their inclusion otherwise have standing appear. express interests case every privacy scheme ensures protection v. Mooc Legislature. (See (2001) guarded by People “strong 36 P.3d the officer’s [noting (Mooc) 21] unnecessary in his file and the need prevent interest” privacy 74, 84 access]; Santa Cruz v. 49 Cal.3d City Municipal where Pitchess motion (Santa Cruz) 222] [even safeguard” by revealing courts “further file granted, private dates and wit- of incidents and information about identifying complainants nesses].) to what the lead Evidence Code section
Contrary opinion implies, district attorney silence about notice and the does 1043(a)’s People limit their at the Because the Pitchess scheme hearing. applies participation Code, 832.7, list “in criminal civil subd. proceeding” (Pen. (a)), and the individual of interested other than the records custodian participants separately officer differs case. Adverse like every parties People receive notice Civil Procedure section full and a under Code of hearing which Code section Both statutes 1005(b), appears 1043(a). Evidence Procedural afforded to the custodian officer under latter apply. maxims, [“case”].) (c)(4) judge"], (5) [“party”], appears that all of these [“presiding It including moving moving directing parties supporting the one to “serve file” all party,” as to no papers on the “adverse were deemed so well understood noncontroversial Brown, longer (See require formal definition. & Cal. Practice Guide: Civil Procedure Weil 9:82.5, [confirming 2002) without citation to (The Group 9(l)-39 Before Trial Rutter ^ 1005(b) requires 249(c)(6) former of Civil Procedure service rule that Code action, for “all appeared in the whether or not the motion seeks parties counsel who have against parties”].) relief such to, of, statute exist in addition not in lieu afforded to parallel rights and district attorney under the former statute. *16 Moreover, motion, notice adverse of and that party party’s to motion, and the corresponding right appear argue considered “usually essential” the even in absence of Witkin, express statutory authority. (6 Cal. Procedure 6, ed. (4th 1997) Trial, 405; Without see Proceedings p. Weil & Brown, Cal. Trial, Practice Guide: 9:2.2, Civil Procedure Before supra, 9(l)-2 (rev. 2001).) #1 exist Exceptions may where the matter could not “affect possibly rights the of an adverse v. party” (McDonald Severy (1936) 6 629, Cal.2d 631 P.2d or [dictum]), where there is an “overriding” [59 98]
need to hide the contents of the motion v. hearing. (People Ayala (2000) 24 243, Cal.4th 294 Cal.Rptr.2d of (dis. opn. George, 193] C. J.) (Ayala).)
These reflect the principles disfavored nature of in which one proceedings is party denied a meaningful to and heard. Such opportunity appear both evenhanded proceedings threaten the nature of and judicial rulings, 4 of truth-seeking function the courts. (Ayala, supra, 262.) Not followed the law surprisingly, parties lead opinion before limited the to right receive all People’s moving and papers meaningfully at the respond Petitioner Maurice hearing. Alford and another man were (defendants) charged with and cocaine base for transporting possessing sale. Besides moving to drugs found their suppress allegedly possession, defendants jointly sought Pitchess past dishonesty by arresting officers. Defendants at both the hoped prove suppression hearing and trial that searched, had been unlawfully they stopped, questioned, and arrested, and officers and that falsely reported testified the opposite was true. The district notice attorney received motion and attended at least one of two The issue of discovery hearings.5 prosecutorial arose for the first on participation court, time because the appeal only trial absent any request by defendants, summarily district prevented attorney from the Pitchess order. The debating scope Court found Appeal “ 4 According Ayala, proceedings only party participates produce which one can ‘a shortage legal of factual and contentions. Not are facts and party] law from [excluded lacking, moving party’s presentation but the often challenge own abbreviated because no party] point from the is anticipated proceeding. deficiency at this in the [excluded crucial, frequently reasonably legal adequate as factual and perspec contentions diverse ” tives can (Ayala, be essential to the court’s 24 supra, initial decision.’ Cal.4th declaration, 5The record contains defendants’ Pitchess motion and supporting counsel’s but Nonetheless, proof no Appeal service is attached. the Court of in its opinion stated that “the People were properly given notice of the Pitchess motion.” did dispute Defendants this seeking rehearing factual assertion Appeal. and I modification Court therefore accept (See 28(c)(2).) it as true. rule 1051 now under error, range protections full of procedural giving People motion, argue appear the whole right to notice of review—the disclosed to motion, Pitchess materials to receive copies defense. have assumed litigants other courts and
For almost years, recognized explicitly appeal similar those are entitled People (Brandon) (2002) Los here. (E.g., City Angeles served 202, 52 (Brandon) P.3d Cal.4th [defendant 129] Mooc, supra, both prosecutor police department]; Pitchess motion on defend litigated prosecutor police department Cal.4th [both v. Memro 38 Cal.3d court]; in trial *17 ant’s Pitchess motion defend litigated Cal.Rptr. (Memro) [prosecutor 675 446] [214 court]; Grove Police Department Pitchess motion trial Garden ant’s 430, 432 Court 89 (2001) Cal.App.4th Superior 642] [107 [both to avoid defendant’s attempt and police department opposed prosecutor scheme]; E. v. Court Larry Superior with Pitchess compliance Pitchess [prosecutor Cal.Rptr. opposed 28-29 Cal.App.3d 264] L. v. crime]; Kelvin motion made accused juvenile accused of [juvenile Cal.App.3d 325] and police department, crime served Pitchess motion on both prosecutor does not The lead hearing].) each of whom participated opinion adoption law and or adequately explain acknowledge existing practice, new at this date. a rule late Legitimate Responding
B. People Have Interests The Attempts Privileged Defense to Obtain Information insists the have no direct stake in proceeding, lead opinion People merely would “ad- and that defense Pitchess any opposition the third custodian and officer.” police (Lead vance the interests of party claim ante, at This is used to argument reject People’s opn., p. 1045.) both notice and a meaningful that their due process encompass could to be heard. The lead also opinion implies Legislature opportunity in defense involvement prosecutorial have possibly contemplated more what the lead allows. hearings opinion extensive than chief of a officer’s Preliminarily, peace right I agree guardians himself, and the government agency holding officer privacy Under the attendant privilege. file and charged asserting the officer 1043(a), both notice Evidence Code provisions special defendants to resist criminal attempts by and custodian can unwarranted file. private penetrate
However, the have adversarial independent concerns that the lead general, discounts. In unfairly Pitchess scheme bal “carefully ances” the moving party’s interest in relevant information against pri Cruz, interests identified vacy above. (Santa 49 Cal.3d supra, 84.) Barriers include failure show “good cause” in-chambers Code, 1043, review (Evid. subd. material is not (b)(3)), finding § “relevant to the matter subject involved the pending litigation” (id., 1045, subd. and the (a)), of certain disclosure” application § “exclusions] (i 1045, subd. d., (b)). By such tuned creating finely procedures standards, and of such requiring balancing important competing concerns, the Legislature obviously intended full and debate. meaningful To the extent it limits bars in the Pitchess People’s participation “ the lead process, opinion risks trial courts of depriving information ‘essen ” tial’ to a fair and proper decision. (Ayala, supra, Cal.4th
District custodians, officers, have attorneys long record joined criminal defendants in litigating access to files. police personnel case, Much like the facts of this Pitchess disputes involve officers typically who role played significant charged crime. Their investigating character, could affect the training, experience weight admissibility *18 Brandon, 1, evidence. incriminating 29 5-6 (E.g., supra, Cal.4th [officers arrested defendant and interviewed victim]; child molestation v. People 287, 401, 27 Cal.4th 329-330 Hughes (2002) Cal.Rptr.2d [116 432] at defendant murder questioned scene then interviewed and [officers Mooc, arrested him at station]; 26 police Cal.4th 1221-1222 supra, was the victim of an alleged jailhouse battery defendant]; by People [officer v. Jackson 1219-1220 P.2d (1996) 920 Cal.Rptr.2d [56 arrested and defendant seized evidence of questioned 1254] [officers Memro, murder]; 658, 674; 38 see supra, Cal.3d id. at 669-672 pp. [officers elicited defendant’s confession multiple murder].)
The have an People interest in that an erroneous deter- ensuring Pitchess mination does not unfairly ability their to obtain valid convic- jeopardize trial, tion at and to on prevent reversal lead conflicts appeal. opinion with both settled law and insofar it practice as denies the People meaning- ful opportunity genuine interests in case. protect underlying Nothing Sharing
C. Prevents the Trial from Court Defense Discovery upon Request Pitchess Prosecution A related issue whether trial is ensure and efficient adequate for preparation by prosecutorial trial granting request contemporaneous of Pitchess items to the defense. The said copies disclosed Court Appeal
1053 colleagues’ by my “no.” I not am says persuaded the lead opinion but “yes,” analysis. a successful the fruits of “compelling]” no statute
The lead finds opinion ante, at (Lead opn., be with the prosecution. motion to shared Pitchess laws discovery solely reciprocal is based This conclusion Proposition voters as et adopted Code section 1054 seq., Penal the defense obtained by information The lead insists opinion June 1990. it until divulged need be discovery court-ordered through ante, at p. 1045.) call a witness.” (Lead opn., into the intent to “ripens terms, governs own analysis By Proposition This incomplete. . . . other express in criminal cases as “except provided discovery such Code, subd. One (e).) provision statutory provisions.” (Pen. that must scheme, information regulates privileged the Pitchess which v. third (Albritton Superior from disinterested persons. court order sought by [holding Pitchess Cal.App.3d Court 314] see measure]; an discovery 115 as independent scheme coexists with Prop. 1305, 1315 Cal.App.4th (Barrett) tecum statutes regulate duces [noting (Barrett) subpoena 264] Aside from defense of Prop. 115].) nonparties independent is whether 115, the question under discovery obligations Proposition kind issue scheme shared trial court precludes here. ante, at pp. 1040-1043),
As the lead explains (lead opn., it been found after has scheme privileged protects case. Evidence Code relevant and ordered disclosed a particular of an order use preventing issuance (e) requires subdivision *19 it obtained. the in which was material outside “court proceeding” Pitchess sharing action from in one litigants This provision effectively prevents However, no similar litigants other actions. Pitchess in the Pitchess information exchange blocks court-supervised provision case. same virtually that
Indeed, the seems to concede the People lead opinion the if the access to information obtained Pitchess guaranteed ante, at p. motion. (Lead opn., later his own Pitchess attorney brings district Meritorious defense street. two-way is that relevance 1046. The reason ) or under- witnesses prosecution material might impeach claims that Pitchess use could the necessarily prosecution mine their factual accounts implies its witnesses and support the credibility the same material defend the case. theory of
The lead each opinion’s suggestion—unsupported by authority—that must party file a Pitchess motion separately the same records defies targeting common sense. Such risks duplication unnecessary delay underlying action and the wastes time and resources of the (1) government agency records, the holding disputed (2) officer whose records are sought, counsel for these (3) two participants (here, city attorney), and trial court. In analogous situations where an accused obtains in camera review privileged records from third subpoenaed person, where trial court reveals content of such over records the People’s objection, “counsel on both sides” have received in order to for trial. copies prepare Webb (People The lead has not
779].) opinion shown the trial court lacks discretion to authorize a Code, similar here. exchange Pen. (Cf. subds. (b)-(d) must save time [reciprocal discovery and prevent unnecessary delay].)6 event, In lead elaborate efforts to shield these materials opinion’s are, from the end, in the prosecution in the lead pointless. Nothing opinion elsewhere in the law precludes upon notice of a prosecutor, receiving motion, defense Pitchess his noticing own motion court-ordered access to the same materials. Such can be overlapping discovery requests court, consolidated for hearing trial each allowing side appear their argue interests in the respective material. Police is relevant to both in a sides criminal case where it lead to evidence might impeaching witnesses or prosecution undermining theory People’s case. To extent the defense obtains Pitchess material on this ground, prosecution right has an to receive the equal same material after a consoli- dated on mutual hearing motions. People’s Discovery
D. Involvement Does Not Rights Statutory Threaten the Defendant’s Constitutional Privileges
The lead seeks to Sixth Amendment opinion promote right to counsel by restricting prosecutorial participation hearings, deny access ing to “affidavits and/or other information support ante, Pitchess motion.” (Lead fn. The lead opn., and authorities purports rely arising under principles subpoena *20 of Pitchess 6 Responding logistics to a trial court question present about the case, city attorney suggested that it copies is not uncommon for the of receive ordered, information ordered disclosed to defense: “Based on what the court has names, prepares [any] list of and phone addresses numbers [custodian records] the court has ordered revealed. Those are made to both the complaints that available prosecution attorneys. and the parties may those come to both So that means that defense pick up." (Italics custodian and [the added.) records]
1055 Code, 1045-1046, Pen. ante, citing at pp. tecum statutes. (Lead opn., duces Barrett, 1305, 1320-1321.) 80 1326-1327, Cal.App.4th and supra, §§ in conducted routinely hearings subpoena seems to be that implication and work strategy product. defense absence so as to protect the prosecutor’s it does not insinuates, though lead authority, citation Without secrecy. to such Whatever hold, a constitutional right that the defense has and threat to defense overstates those rights, majority nature of or process. the Pitchess subpoena either posed by privileges its own be forced to disclose will First, it seems defense unlikely investigate Defendants discovery. commonly Pitchess confidences seeking evidence, who conduct arrests or officers who search for physical police to look for any pattern counsel can expected interrogations. Competent documented in offic- untrustworthiness, or other misconduct aggression, is now so embedded of defense investigation er’s work files. This avenue cases is a foregone that its pursuit our criminal appropriate practice Thus, during theories of revealed conclusion. impeachment information already be inferred from likely can most process People’s possession.7
Second, under the analogous similar are at work assumptions subpoena general misconstrues. The scheme—a scheme the lead opinion implicitly must be on the prosecu rule is that records served requests subpoenaed tor, showing who must be whether the argue requisite allowed appear 205 Superior Cal.App.3d has been made. Alhambra v. (City of 1556d, 252 1130-1131 Cal.App.3d (Alhambra); 789] Corrections, aAs 1092-1093.) Department supra, Cal.App.3d matter, to disclose rarely required privileged the defendant is practical material. Correc in order to obtain subpoenaed (Department of tions, Alhambra, 1094; at at p. supra, Cal.App.3d supra, Cal.App.3d
Moreover, naked claim of courts are not “bound defendant’s by [a] subpoena supra, Cal.App.3d context. confidentiality” (Alhambra, obtaining “good in camera review Pitchess 7It been said that the cause” standard for has Cruz, Code, 74, 84, citing “relatively supra, Evid. (Santa relaxed.” 49 Cal.3d material Court, requirement to Pitchess (b)(3).) subd. This threshold is traceable 531, 537, showing general “requisite may be satisfied supra, Cal.3d which said that the fact, adopted this standard allegations discovery.” In which establish some cause for unnecessary impermissible moving protect party in an abundance of caution (Id. p. 536.) The constitutionally protected statutorily privileged material. disclosure the Pitchess scheme contrary assumption complying about the effect of opinion’s lead ignore history purpose. seems to *21 1056 Nor such claims to 1130.) used exclude” “totally the district Corrections, from
attorney the discovery process. (Department supra, 199 most, At trial courts Cal.App.3d any review information the defense presents ex parte, withhold from the only those prosecution items “specific” to necessary protect defendant’s constitutional rights and The trial privileges. (Ibid.) court then to the merits “proceed[s] defendant’s motion reasonable giving every notice and [the] opportunity participate opposing party.” (Alhambra, supra, at fn. In Cal.App.3d omitted.) words, other on defense proceedings remain subpoena requests open Correc prosecutor. (Department of tions, supra, at Cal.App.3d p. 1094.)
The lead Barrett, opinion ignores this and instead cites authority supra, Barrett, however, 1305. In the Court Cal.App.4th Appeal distinguished Corrections, own decision prior Department 199 Cal.App.3d supra, 1087, and summarily a trial upheld ruling court the defendant allowing his need for prove correctional records an subpoenaed on both in camera and ex basis. parte (Barrett, supra, Cal.App.4th pp. lead 1320-1321.) errs in opinion suggesting Barrett’s subpoena were not procedures extraordinary, and that courts exclude the generally from these proceedings. here, these rules the trial
Applying
withhold
specific moving
from
papers
and excuse the
prosecutor,
selected
prosecutor
portions
of the Pitchess
where such
hearing,
secrecy
necessary
protect
However,
defendant’s constitutional
rights
statutory privileges.
such
should
extraordinary
occur
on a
steps
basis
case-by-case
where
defendant first makes a
showing that a
compelling
particular right
privi
lege
Hence,
would otherwise be
no constitutional or
impaired.
other purpose
served insofar as
lead
withholds materials
opinion
supporting
case,
every
Pitchess motions in
and bars the prosecutor from
participating
the hearing absent a trial court
to answer
request
questions.
consequence
8 I note one final
opinion’s analysis.
of the lead
The conclusion that the
prosecution
motion,
it,
cannot see the entire
freely respond
defense Pitchess
or share
notice,
thereby,
materials discovered
primarily
assumption
reciprocal
rests
on the
partici
pation,
sharing
expressly
are not
provided
applicable
under the
If
statutes.
the statutes do
rights
such
prosecution
discovery,
afford
when
pursues
the defendant
it
appears
would
defendant
lack similar
when
Pitchess motion is filed
prosecution.
way,
Either
the result is irrational.
vein,
In a related
the lead
goes
prohibiting
discovery by
too far in
shared Pitchess
assuming
contrary
might
prosecutor
“Brady
rule
render the
vessel”
future
cases
police
ante,
he thereby
(See
opn.,
citing
receives.
lead
at p.
fn.
Brady Maryland (1963)
215].)
1057
E. Conclusion of law and years 30 the lead overturns authority, opinion relevant Ignoring first and decision This is the the Pitchess scheme. under practice in defense full notice and adversarial participation the of depriving to the to materials disclosed motions, and access Pitchess denying Pitchess of the Court Appeal. I affirm the judgment defendant. and would disagree, Chin, Brown, J., J., concurred. of the court con
MORENO, A majority J., Concurring Dissenting. Evidence Code section that the order required by cludes protective not be used “that the records disclosed or discovered may subdivision (e),1 law,” to than court pursuant applicable other proceeding purpose the use discovery (Pitchess limits of Pitchess in which 305]) 522 P.2d proceeding
Cal.3d ante, at The lead discovery sought 1040-1043). was (lead opn., pp. C to notice of the date concludes entitled part prosecutor the trial court if of a so that he or she can assist hearing place concurrently but no discovery, right it has has any questions regarding ante, 1043- pp. materials disclosed to defense. (Lead opn., receive 1046.) I respectfully I C of the lead join part
While opinion, B the limits disagree regarding with the conclusion majority’s part Instead, intended Legislature order. I believe section 1045(e) protective use Pitchess discovery that a section order permit 1045(e) protective law. proceeding pursuant applicable allowing material Brady prosecutor request and receive Pitchess implications of are the competing us considerations disclosed to defense—an issue not before here—the logical impose a weigh, alone to and are not a basis on which to rule law prosecutor’s Also, allowing discovery every Brady implications prohibiting shared case. proceedings request fully participate in defense Pitchess and to shared prosecutor Brady, supra, availability itself. Under 373 U.S. seem diluted Pitchess scheme discovering exculpatory progeny, provide a “material and its courts seek to means acting that would otherwise prosecution known or “others behalf’ evidence” [its] (In Cal.4th particular to the in a case. re Brown be available 715]; problem long pp. see id. at California solved this by establishing the police personnel ago respect contents of files allowing relevant where the procedure court-ordered action. to the Evidence Code unless 1045(e). All references are 1Hereafter section noted. otherwise
Discussion A. Section 1045
In in again the Legislature considered amendments to section 1045 that would have restricted use of the information in disclosed Pitchess to the motion in particular case which the disclosure was made. The
Legislature rejected this restriction on both ante, occasions. lead (See opn., at Instead, the pp. 1040-1041.) limitation the Legislature the placed use of such records is that they be used for “may other than any purpose a court proceeding to pursuant law.” A applicable (§ 1045(e).) majority concludes, nonetheless, court that the use of Pitchess records is limited to case in particular which those records were It obtained. to attempts explain away Legislature’s of such in express rejection a limitation following manner: because Legislature in “gave up” attempt enumerate of cases specific types Pitchess subject discovery, language “ ” ‘a court proceeding pursuant law’ “did not mean applicable necessarily that disclosure was not limited to the case in which it sought; was being rather, we it surmise meant the was not Legislature defining substantively what kind of that ante, case be.” might at (Lead opn., 1042.) p.
I First, find this reasoning it too far from unpersuasive. departs established canons of In statutory construction. People Robles Cal.4th “ 120, 5 P.3d we (Robles), stated: ‘Because 176] statutory language “generally the most provide reliable indicator” of [s] [legislative] [citations], themselves, intent we turn words them giving their “usual and ordinary meanings” them in construing context [cita- If the contains no language we ambiguity, presume tion].’ [Citation.] said, Legislature meant what it and the of the statute plain meaning governs. If, however, the is statutory language of more than susceptible [Citation.] construction, one reasonable we can look to the aid legislative history intent. ascertaining legislative [Citation.]”
A reading does plain not lend itself to the 1045(e) majority’s stated, view. there is no Simply “the court . . language shall . phrase that order the records disclosed or discovered not be may used for any other than a court purpose proceeding pursuant law” applicable use suggests of Pitchess information is limited to a court particular proceeding. While Legislature could have utilized such “this phrases as court or “the proceeding” pending that would so proceeding” have records, Instead, limited the use such it did not. use of Legislature’s the indefinite article in the “a court that the use phrase proceeding” indicates of Pitchess discovery was not be limited to the court in which proceeding Thus, under general. but to court sought, proceedings was not, ex- may through information received section 1045(e), Internet; court proceeding it be used on the but ample, posted law. pursuant applicable that the assume, argument, plain for the sake of
Second, even if we thus to two 1045(e) interpretations of section language susceptible to ascertain the statute’s legislative history we look to ambiguous, true intent. (Robles, supra, Legislature’s scheme, is a of which section 1045(e) As the lead recognizes Legislature was enacted 1978.
part, *24 7, the amended on ante, August at bill was p. original (lead opn., 1040), discovery the to Pitchess state that use of records obtained pursuant to the records or in aid of which access “shall be limited the litigation Amend, Bill (1977-1978 to Sen. No. 1436 sought.” (Assem. information was 7, 1978, Assembly italics But a omitted.) subsequent Reg. Sess.) Aug. the current version of deleted this it with language replaced amendment no such blanket limitation section subdivision which contains (d), justice that “the make order any requires instead court which provides embarrassment unnecessary annoyance, the officer or agency to protect Amend, Reg. Bill 1436 (1977-1978 to Sen. No. (Assem. oppression.” 30, 1978, italics Sess.) Aug. omitted.) in The version original
Subdivision of section was added 1982. (e) that the this officer adding provided of bill provision expressly not be discovery “may records obtained used through the identified in motion or in other than those any purpose proceedings Mar. (1981-1982 Bill No. 1065 pursuant Reg. Sess.) Section 1043.” (Sen. removed, however, a 30, 1981, italics This was omitted.) language of the current version section amendment and subsequent replaced not be which, seen, “may that such records as we have 1045(e) provides other than pursuant applicable used for a proceeding purpose law.” in scheme, discovery again enacting
The Legislature,
of Pitchess
considered and
use
rejected limiting
section
enacting
1045(e),
obtained. In Hess v.
discovery
in which
was
proceedings
531-532
Ford Motor Co.
Cal.4th
of Civil Code
that,
the enactment
46],
during
process
P.3d
we observed
to include
interest
amended
bill
Assembly
prejudgment
section
thereafter,
the judgment;
to Civil Code section 3291
accrued pursuant
“
Assembly deleted such
from the
stated,
final version.
language
We
‘the
Legislature’s rejection of
which
specific provision
appeared
original
version of an act
the conclusion that the
supports
act should not be construed
”
to include the omitted
provision.’
(Hess,
Cal.4th
supra,
rule,
this
applied
general
We
the context
Pitchess,
of
in City Santa
Cruz v.
Municipal
Legislature knew to limit the obviously how use of Pitchess materials to a It particular case. not, failed to do so. Our conspicuously court should therefore, redraft section such a 1045(e) impose burdensome requirement when Legislature considered and expressly Instead, the same. rejected view, Cruz, better based on Hess and City Santa that Legislature not only “gave on up” enumerating crimes specific Pitchess subject disclosure, it also “gave to limit the up” trying use Pitchess material to a particular proceeding.
The lead counters that by claiming section 1045(e) “part an overall statutory scheme that balances officers’ carefully privacy interests in their records against defendants’ of access to defense, information relevant to their . . . a defendant to allowing [and] share such information with other defendants would defeat purpose that the balancing process,” law” in phrase “applicable “referred section 1043 and 1045(e) signified thus intent Legislature’s it was which to the proceeding of the disclosed to restrict use ante, 1042.)2 at p. sought.” (Lead opn., decision Legislature’s sound reasons
I as there are disagree, First, the subsequent proceeding. any of Pitchess use permit of Pitchess records the disclosure that screening precedes careful process record dis- any an has in interest officer adequately privacy protects judicial in a closed, subsequent be admitted even if such record v. Mooc (2001) As we held recently proceeding. attorney, 21], obligation city Pitchess records, is to the in-chambers to bring a custodian
as relevant.” that he or she deems “potentially those documents hearing only those and discloses documents again, The trial then screens those judge litigation.” in the pending matter involved subject that are “material[] defense received aby information eventually (§ Any 1043(b)(3).) rel- cause” and therefore, “good has met the section 1043(b)(3) attorney, protec- has found to fall outside of Pitchess been evancy requirements, words, attorney (typi- information received tion. In other Pitchess', through has been “distilled” cally an incident of police misconduct) different again there is no need repeat judges, process, again.
Second, cannot be admitted into disclosed Pitchess document previously law,” evidence in “court any subsequent proceeding pursuant applicable of section which is unless it meets the relevancy requirements document must be mate- functional section 1043(b)(3)—such equivalent course, Of such litigation. rial to matter involved subject pending if section 352 its value probative document is also to exclusion under subject the ma- effect.3 outweighed by Accordingly, is substantially prejudicial law” limits in its assumption phrase “applicable jority oversteps *26 the those records were use of Pitchess records to case which particular obtained. attorneys attorneys, city the forces defense
Sadly, majority’s interpretation “new” the wheel” with each Pitchess request and trial to “reinvent judges requires, in order to (b)(3) (hereafter 1043(b)(3)) 2Section subdivision the showing good cause for or disclosure Pitchess information: “Affidavits discover pending materiality subject sought, setting thereof matter involved forth the to agency stating governmental identified has litigation and reasonable belief that upon records or information from the records.” evidence exclude provides, part: in relevant “The court in discretion 3Section substantially outweighed by probability that its admission will if its value probative issues, misleading confusing the danger prejudice, of . . . create substantial of undue jury.” regarding same officer—defense motions, must write attorneys city attorneys records, must scour must conduct in-chambers judges to hearings, make same simply Pitchess determination over and over again. trial are Certainly, motions, judges capable ruling evidentiary trial, to to determine whether prior disclosed previously Pitchess record is admissible in a case particular without resort to another Pitchess motion. yet Pitchess motions are an Repetitive and enormous waste of scant unnecessary It judicial governmental resources. is therefore reasonable to infer that the Legislature intended to avoid result it twice, this when expressly rejected, limiting use of to Pitchess disclosure the pending proceeding. decision also majority’s from the same firm in puts attorneys
the awkward position information from one withholding (Lead another. ante, at And where opn., p. 1043.) one has two cases in lawyer which same officer a witness, it follows from the that she majority’s holding must not disclose Pitchess information I to herself. do believe intended this absurd Legislature result.
This aspect majority’s holding also forces defense attorneys conduct needlessly repetitive investigations Pitchess records. upon receiving Thus, misconduct, victims of substantiated police aby disclosed previously Pitchess, court under be must located and intrusively interrogated, again the same again, only information to different provide defense investiga In tors. In re Hamilton 307-309 Chin, Justice 600], his concurring opinion, concern expressed over after practice interviewing years a verdict in death jurors case in the penalty He hopes generating misconduct claim. opined the time has come for the “perhaps Legislature enact a comprehensive ‘Juror Bill of Rights’ designed jurors from intrusive tactics protect while at the same time permitting reasonable means to the occasional expose case genuine jury Chin, misconduct.” It (Id. (conc. opn. J.).) seems that the victims of misconduct should entitled to the same police courtesy.
B. Unanswered Question
Most the lead leaves glaringly, unanswered threshold question of which Pitchess “records disclosed particular or discovered” subject a section order. 1045(e) protective Specifically, provided *27 trial defense court after a in hearing, daily trial practice, name, address, number, is limited to a or witness’s complainant’s telephone Cruz, and the date of incident. As in we stated Santa City supra, of Cal.3d at 84: have refused to disclose page generally verbatim “[C]ourts files, ordering officer kind from records of or reports only that the reveal agency here) court directed municipal instead (as witnesses of complainants number name, any prior and phone address incidents in question.” and the dates of the an inde- necessarily disclosure
Thus, presupposes a trial court’s Pitchess the threshold Accordingly, ques- counsel. investigation by pendent 1045(e) protective answer whether tion should endeavor to we disclosed of the actual information restrict the use may order (a) name, address, court—i.e., telephone witness’s complainant’s trial the direct incident; also may or (b) encompass number and date investigation— this during independent the information developed fruits of statement; (c) or may encompass or disclosed witness’s e.g., complainant’s investigation—e.g., this during independent obtained other information obtained statement injuries), as a evidence physical (such photograph the threshold what question Until newly from a discovered witness. answered, the decision leaves majority’s constitutes Pitchess information little courts, attorneys, guidance. trial and defense city attorneys,
Conclusion Cruz, Cal.3d at page The lead Santa City supra, opinion, quoting that, go schemes this court’s 1989 observation
repeats “‘[a]s ” ante, at (Lead opn., is a veritable model of and balance.’ clarity [Pitchess] Angeles Los City But as I said my dissenting opinion 129], trial daily practice, “While this have been true against has too in favor privacy far pendulum swung police case, the continues evidence.” In the pendulum disclosure relevant present direction. swing wrong was April for a denied rehearing of real interest petition parties Baxter, Chin, J., Brown, J., that the J., petition were the opinion 2003. granted. should be