Lead Opinion
Opinion
Petitioners Maurice Alford and Donny Love were arrested on drug charges, the specifics of which are not pertinent to this appeal. Because petitioners’ narrative of events leading to their arrest differed from that of the arresting officers, they sought to challenge the officers’ credibility. Petitioners accordingly moved, in superior court, for Pitchess discovery of past complaints made to the San Diego Police Department regarding any incidents of dishonesty, excessive force, unnecessary violence, racist remarks, or similar misconduct on the part of the arresting officers. (See generally Pitchess v. Superior Court (1974)
Contending the conditions were unauthorized by section 1045, subdivision (e) (hereafter section 1045(e)), petitioner Alford sought review in this court. We granted review, limited to the questions whether the protective order required by section 1045(e) must restrict use of Pitchess information
For the reasons that follow, we conclude the decision of the Court of Appeal must be reversed.
Discussion
A. Statutory Background
Recently, in People v. Mooc (2001)
“In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as‘Pitchess motions’ (after our decision in Pitchess v. Superior Court[, supra,] 11 Cal.3d 531 [113 Cal.Rptr. 897 ,522 P.2d 305 ])[3 ] through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. The Penal Code provisions define ‘personnel records’ (Pen. Code, § 832.8) and provide that such records are ‘confidential’ and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, § 832.7.) Evidence Code sections 1043 and 1045 set out the procedures for discovery in detail. As here pertinent, section 1043, subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, inter alia, ‘(2) A description of the type of records or information sought; and [f] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has such records or information from such records.’
“A finding of ‘good cause’ under section 1043, subdivision (b) is only the first hurdle in the discovery process. Once good cause for discovery has been established, section 1045 provides that the court shall then examine the information ‘in chambers’ in conformity with section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), and shall exclude from disclosure several enumerated categories of information, including: (1) complaints more than five years old, (2) the ‘conclusions of any officer investigating a complaint. . .’ and (3) facts which are ‘so remote as to make disclosure of little or no practical benefit.’ (§ 1045, subd. (b).)
“In addition to the exclusion of specific categories of information from disclosure, section 1045 establishes general criteria to guide the court’s determination and insure that the privacy interests of the officers subject to the motion are protected. Where the issue in litigation concerns the policies or pattern of conduct of the employing agency, the statute requires the court to ‘consider whether the information sought may be obtained from other records . . . which would not necessitate the disclosure of individual personnel records.’ (§ 1045, subd. (c).) The law further provides that the court may, in its discretion, ‘make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.’ (§ 1045, subd. (d), italics added.) And, finally, the statute mandates that in any case where disclosure is permitted, the court ‘shall. . . order that the records disclosed or discovered shall not be used for any purpose other than a court proceeding pursuant to applicable law.’ (§ 1045, subd. (e), italics added.)
“As statutory schemes go the foregoing is a veritable model of clarity and balance. Section 1043 clearly requires a showing of ‘good cause’ for discovery in two general categories: (1) the ‘materiality’ of the information or records sought to the ‘subject matter involved in the pending litigation,’ and (2) a ‘reasonable belief that the governmental agency has the ‘type’ of information or records sought to be disclosed. (§ 1043, subd. (b).)
“The relatively low threshold for discovery embodied in section 1043 is offset, in turn, by section 1045’s protective provisions which: (1) explicitly ‘exclude from disclosure’ certain enumerated categories of information (§ 1045, subd. (b)); (2) establish a procedure for in camera inspection by the court prior to any disclosure (§ 1045, subd. (b)); and (3) issue a forceful directive to the courts to consider the privacy interests of the officers whose records are sought and take whatever steps ‘justice requires’ to protect the officers from ‘unnecessary annoyance, embarrassment or oppression.’ (§ 1045, subds. (c), (d) & (e).)
“The statutory scheme thus carefully balances two directly conflicting interests: the peace officer’s just claim to confidentiality, and the criminal defendant’s equally compelling interest in all information pertinent to his defense. The relatively relaxed standards for a showing of good cause under section 1043, subdivision (b)—‘materiality’ to the subject matter of the pending litigation and a ‘reasonable belief that the agency has the type of information sought—insure the production for inspection of all potentially relevant documents. The in camera review procedure and disclosure guidelines set forth in section 1045 guarantee, in turn, a balancing of the officer’s privacy interests against the defendant’s need for disclosure. As a further safeguard, moreover, the courts have generally refused to disclose verbatim reports or records of any kind from peace officer personnel files, ordering instead . . . that the agency reveal only the name, address and phone number of any prior complainants and witnesses and the dates of the incidents in question. [Citations.]” (City of Santa Cruz v. Municipal Court, supra, 49 Cal.3d at pp. 81-84, fns. omitted.)
A motion for discovery of peace officer personnel records is addressed to the sound discretion of the trial court, reviewable for abuse. (Pitchess v. Superior Court, supra,
With these principles in mind, we turn to the specific issues presented in this case.
B. Scope of Mandatory Protective Order Under Section 1045(e)
Section 1045(e) provides: “The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.” The parties disagree about the meaning of the phrase, “a court proceeding pursuant to applicable law.” Petitioner contends it refers to any court proceeding, whether or not in the case in which disclosure was sought, provided such use complies with applicable provisions of the law of evidence. The city attorney, on behalf of the custodian of records, argues that, in the context of the Pitchess scheme of which it is a part, the phrase refers to the case for which the information was sought.
Our role in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (People v. Jefferson (1999)
Petitioner contends the legislative history of section 1045(e) strongly supports his interpretation. He points out that twice, in 1978 and again in 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 particular case in which the disclosure was made. As introduced on January 27, 1978, Senate Bill No. 1436 (1977-1978 Reg. Sess.), the original legislation governing release of information from peace officer personnel records, contained no provision for a protective order. Then, on August 7, 1978, the bill was amended to include the following language: “(g) Whenever a court orders disclosure of records or information obtained therefrom pursuant to this section, use of such records or information shall be limited to the litigation in aid of which access to the records or information was sought, and any records obtained pursuant to such an order of disclosure or any copies thereof shall be returned to the department or governmental agency upon conclusion of that litigation.” (Assem. Amend, to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, italics omitted.) A subsequent Assembly amendment to Senate Bill No. 1436, on August 30, 1978, however, deleted that language and replaced it with that currently in section 1045, subdivision (d): “Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.”
Some four years later, the Legislature added section 1045(e), the provision for mandatory protective orders at issue here. As introduced on March 30, 1981, Senate Bill No. 1065 (1981-1982 Reg. Sess.) contained language limiting use of disclosed records or information therefrom to the proceeding identified in the motion: “(e) The court shall, in any case or proceeding permitting the disclosure or discovery of any peace officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose or in any proceeding other than those identified in the motion pursuant to Section 1043.” The Assembly subsequently amended the bill to remove the limitation on use of disclosed material to the proceeding identified in the motion, replacing it with the language currently found in section 1045(e). (Assem. Amend, to Sen. Bill No. 1065 (1981-1982 Reg. Sess.) Aug. 2, 1982.)
Petitioner urges that, having twice considered and rejected the very limitation for which the city attorney here advocates, the Legislature evidently did not intend that section 1045(e) be interpreted to require a trial court ordering disclosure of Pitchess information to order that such information be used only in the proceedings identified in the motion.
We do not find the import of the cited legislative history altogether clear. Examining as a whole the purpose of the 1978 legislation, we find it was intended to respond to officer complaints that Pitchess
Such was not the case. The 1982 legislation responded to the concern that disclosure of information from peace officer personnel records would be used in litigation against officers and the agencies employing them. (See Enrolled Bill Rep. on Sen. Bill No. 1065 (1981-1982 Reg. Sess.).) Notably, the bill as introduced included severe restrictions on any disclosure, proposing to limit the discovery authorized in sections 1043 and 1045 specifically to cases involving resisting arrest, assault, or battery, where claims of officer violence might be expected to be relevant. (Sen. Bill No. 1065 (1981-1982 Reg. Sess.) as introduced Mar. 30, 1981, § 1.) Evidently deemed too narrow, this provision was later revised to limit discovery to any case in which a defendant might reasonably assert self-defense and excessive force. (Sen. Amend, to Sen. Bill No. 1065 (1981-1982 Reg. Sess.) June 14, 1981.) When, finally, the Legislature gave up attempting to enumerate specific types of cases in which Pitchess discovery could be ordered, it revised section 1045(e) to provide that use of any records disclosed be limited to “a court proceeding pursuant to applicable law” rather than prohibiting their use, as the amending legislation originally would have done, “in any proceeding other than those identified in the motion pursuant to Section 1043” (Assem. Amend, to Sen. Bill No. 1065 (1981-1982 Reg. Sess.) Aug. 2, 1982), i.e., the section where the proposed narrow restrictions had been specified. The language modification, then, did not necessarily mean that disclosure was not limited to the case in which it was being sought; rather, we surmise it meant the Legislature was not defining substantively what kind of case that might be.
The Court of Appeal in this case reasoned that because section 1045(e) is part of an overall statutory scheme that carefully balances peace officers’ privacy interests in their personnel records against defendants’ rights of access to information relevant to their defense, and because disclosure of information contained in such records is permitted only on a showing of materiality to a particular case, to interpret the statute as allowing a defendant to share such information with other defendants would defeat the purpose of the balancing process. That court also believed the phrase “applicable law” in section 1045(e) in fact referred to section 1043 and thus signified the Legislature’s intent to restrict use of the disclosed information to the proceeding in which it was sought. We agree; like the Court of Appeal we read “applicable law” in this context as referring to the statutory Pitchess scheme. Contrary to petitioner’s argument, we believe the phrase must mean more than mere compliance with the Evidence Code, as the admission of any evidence in a court proceeding must comply with that code. Thus, petitioner’s construction tends to reduce the phrase to surplusage, in contravention of the canons of construction. (Delaney v. Superior Court (1990)
Petitioner contends further that a mandatory protective order limiting use of Pitchess material to the case in which it is sought would conflict with the ethical duties of his counsel, the San Diego County Public Defender. Petitioner’s argument may be summarized as follows: The public defender’s office is essentially a law firm in which each deputy derives his or her authority by delegation from the public defender, whose duties and powers are prescribed by statute. (Mowrer v. Superior Court (1969)
We are unpersuaded. As the city attorney reasons, petitioner’s argument fails to identify any impediment to the public defender’s ability to represent him. Moreover, trial courts have broad discretion in ruling on motions to discover police personnel records and, in doing so, as we have discussed, they are implementing a careful balancing process between the directly conflicting, substantial interests of the officer and the defendant. (People v. Samayoa (1997)
C. Prosecutorial Standing and Entitlement to Disclosed Information
Real party in interest the District Attorney for the County of San Diego argues he has a right, on behalf of the People, to be heard in Pitchess proceedings and to concurrently receive material ordered disclosed after a successful defense motion. In support, the district attorney cites several statutory provisions, none of which explicitly confers the rights he seeks.
Code of Civil Procedure section 1005, subdivisions (a)(6) and (b), on which the district attorney relies, set forth the formal requirements for notice and hearing on Pitchess motions, but are silent with regard to whether notice shall be given to the district attorney, as well as to the governmental agency that holds the records sought. Penal Code section 684, unamended
The district attorney also relies on the state constitutional guarantee of due process found in article I, section 29 of the California Constitution. The provision, adopted in 1990 as part of Proposition 115, enshrines the People’s right to due process of law. Observing that “the central meaning of procedural due process is that parties whose rights are to be affected are entitled to be heard” (People v. Sutton (1993)
We have no doubt that, as a party to the underlying criminal proceeding, the district attorney under general due process principles is entitled to notice of the date and place of the hearing on a defense Pitchess motion. In this manner, if the court requires clarification or explanation of any matters set forth in the supporting affidavits, it will be able to ask questions of both the defense and the prosecution and thus obtain any information the court deems “ ‘essential’ ” to a fair and proper decision. (Cf. People v. Ayala (2000) 24 Cal.4th 243, 262 [
The Pitchess procedure is, as noted, in essence a special instance of third party discovery. Another such procedure is reflected in Penal Code sections 1326 and 1327, which empower either party in a criminal case to serve a subpoena duces tecum requiring the person or entity in possession of the materials sought to produce the information in court for the party’s inspection. (People v. Blair (1979)
Nor do we find statutory authority to compel the defense or the trial court to share with the prosecution the fruits of a successful Pitchess motion. The prosecution is entitled to discovery from the defense only in accordance with Penal Code sections 1054.3 and 1054.7. (Pen. Code, § 1054, subd. (e); see People v. Tillis (1998)
Disposition
The judgment of the Court of Appeal is reversed, and that court is directed to issue a writ directing the superior court to vacate its order denying the motion and to reconsider the motion in light of this court’s opinion.
George, C. J., and Kennard, J., concurred.
Notes
Unless otherwise noted, all further statutory references are to the Evidence Code.
I.e., the information disclosed pursuant to a Pitchess motion. The parties have not briefed, and we express no views concerning, the treatment of information developed as a result of the receipt of information disclosed pursuant to a Pitchess motion.
In Pitchess v. Superior Court, supra,
Petitioner requests that this court take judicial notice of the legislative history of Senate Bill No. 1436 (1977-1978 Reg. Sess.) and Senate Bill No. 1065 (1981-1982 Reg. Sess.). We grant the request. (§§ 452, subds. (a), (c), 459.)
We are not suggesting that such notice include the affidavits and/or any other information in support of the Pitchess motion. (Cf. People v. Superior Court (Barrett) (2000)
Because we conclude the prosecution has no automatic entitlement to defense-initiated Pitchess discovery, we do not address petitioner’s further argument that receipt of such information would create an obligation, pursuant to Brady v. Maryland (1963)
Insofar as, in most cases, the officer whose personnel records the defense is seeking will be a prosecution witness or affiliated with the prosecution team, the prosecutor may be able to learn of available impeachment material against the officer by interviewing him or her, a possibility not necessarily open to the defense.
Concurrence Opinion
I concur fully with the lead opinion insofar as it requires a protective order barring use of Pitchess
However, I cannot join the lead opinion insofar as it concludes the prosecutor in the same case (1) is only entitled to notice of the defense Pitchess motion, and to answer any questions posed by the trial court, (2) is never allowed to see defense documents supporting the motion, even where such secrecy is unnecessary and where the trial court seeks input on the motion, (3) is never allowed to present the People’s litigation interests in the motion absent trial court questioning on the matter, and (4) is never allowed to request and receive copies of Pitchess material disclosed to the defense about peace officers who may testify at trial.
The reasoning behind this new rule is largely unexplained. It is also wrong. The lead opinion ignores controlling law and settled practice under the Pitchess scheme, which is now three decades old. Consistent with well-established general motion practice, prosecutors have always been afforded full notice and participation in the public phase of defense-initiated Pitchess hearings. Shared discovery, in appropriate circumstances, is simply an efficient means of allowing both parties to prepare their cases for trial. The lead opinion identifies no law or policy justification for denying the prosecution these rights in every case. I therefore dissent.
A. The People Are Entitled to Full Notice and a Hearing When the Defense Seeks Pitchess Discovery
Though it views the statutory scheme as silent on the issue, the lead opinion concedes
The lead opinion overlooks statutory provisions providing the prosecutor with notice of the whole Pitchess motion, and with a meaningful opportunity to respond. The starting point is Evidence Code section 1043, subdivision (a) (Evidence Code section 1043(a)), which requires “written notice to the governmental agency [that] has custody and control of the records,” and which directs the agency to “immediately notify the individual whose records are sought.” The same section also incorporates the noticed motion rules in Code of Civil Procedure section 1005.
The latter statute confirms that its requirements govern any “Hearing for Discovery of Peace Officer Personnel Records pursuant to Section 1043 of the Evidence Code.” (Code Civ. Proc., § 1005, subd. (a)(6).) Critical here is subdivision (b) of Code of Civil Procedure section 1005 (Code of Civil Procedure section 1005(b)). This provision—which the lead opinion never quotes or construes—states that “all moving and supporting papers shall be served and filed at least 21 calendar days before the hearing,” except as otherwise ordered or specifically provided by law. (Italics added.)
These requirements are embedded into California law. Former rule 249(c)(6) of the California Rules of Court
Here, the People are the “adverse party” (former rule 249(c)(6)) in any criminal
This open approach serves the aims of the Pitchess scheme. The special notice requirement in Evidence Code section 1043(a) is necessary because the individual officer whose records are sought and the government agency holding the records may not themselves be parties to the action, and may not otherwise have standing to appear. Their express inclusion through the Pitchess scheme ensures protection in every case of the privacy interests guarded by the Legislature. (See People v. Mooc (2001)
Contrary to what the lead opinion implies, Evidence Code section 1043(a)’s silence about notice to the People and the district attorney does not limit their participation at the hearing. Because the Pitchess scheme applies “in any criminal or civil proceeding” (Pen. Code, § 832.7, subd. (a)), the list of interested participants other than the records custodian and the individual officer differs in every case. Adverse parties like the People separately receive full notice and a hearing under Code of Civil Procedure section 1005(b), which appears in Evidence Code section 1043(a). Both statutes apply. Procedural rights afforded to the custodian and officer under the latter statute exist in addition to, not in lieu of, parallel rights afforded to the People and district attorney under the former statute.
Moreover, notice to the adverse party of any motion, and that party’s corresponding right to appear and argue the motion, are “usually considered essential” even in the absence of express statutory authority. (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 6, p. 405; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, 9:2.2, p. 9(l)-2 (rev. #1 2001).) Exceptions may exist where the matter could not possibly “affect the rights of an adverse party” (McDonald v. Severy (1936)
These principles reflect the disfavored nature of proceedings in which one party is denied a meaningful opportunity to appear and be heard. Such proceedings threaten both the evenhanded nature of judicial rulings, and the truth-seeking function of the
Not surprisingly, the parties followed the law before the lead opinion limited the People’s right to receive all moving papers and to meaningfully respond at the Pitchess hearing. Petitioner Maurice Alford and another man (defendants) were charged with transporting and possessing cocaine base for sale. Besides moving to suppress drugs allegedly found in their possession, defendants jointly sought Pitchess discovery of past dishonesty by the arresting officers. Defendants hoped to prove at both the suppression hearing and trial that they had been unlawfully stopped, searched, questioned, and arrested, and that the officers falsely reported and testified that the opposite was true. The district attorney received notice of the discovery motion and attended at least one of two discovery hearings.
For almost 30 years, other courts and litigants have assumed that the People are entitled to rights similar to those explicitly recognized on appeal here. (E.g., City of Los Angeles v. Superior Court (Brandon) (2002)
The lead opinion insists the People have no direct stake in the proceeding, and that any opposition to defense Pitchess discovery would merely “advance the interests of the third party custodian and police officer.” (Lead opn., ante, at p. 1045.) This argument is used to reject the People’s claim that their due process rights encompass both notice and a meaningful opportunity to be heard. The lead opinion also implies the Legislature could not possibly have contemplated prosecutorial involvement in defense Pitchess hearings any more extensive than what the lead opinion allows.
Preliminarily, I agree that the chief guardians of a peace officer’s right to privacy are the officer himself, and the government agency holding the personnel file and charged with asserting any attendant privilege. Under the special notice provisions of Evidence Code section 1043(a), both the officer and custodian can resist unwarranted attempts by criminal defendants to penetrate the private file.
However, the People have independent adversarial concerns that the lead opinion unfairly discounts. In general, the Pitchess scheme “carefully balances” the moving party’s interest in relevant information against the privacy interests identified above. (Santa Cruz, supra,
District attorneys have long joined record custodians, peace officers, and criminal defendants in litigating defense access to police personnel files. Much like the facts of this case, Pitchess disputes typically involve officers who played a significant role in investigating the charged crime. Their character, training, and experience could affect the weight and admissibility of incriminating evidence. (E.g., Brandon, supra, 29 Cal.4th 1, 5-6 [officers arrested defendant and interviewed child molestation victim]; People v. Hughes (2002)
The People have an interest in ensuring that an erroneous Pitchess determination does not unfairly jeopardize their ability to obtain a valid conviction at trial, and to prevent reversal on appeal. The lead opinion conflicts with both settled law and
C. Nothing Prevents the Trial Court from Sharing Defense Pitchess Discovery with the Prosecution upon Request
A related issue is whether the trial court may ensure adequate and efficient preparation for trial by granting a prosecutorial request for contemporaneous copies of Pitchess items disclosed to the defense. The Court of Appeal said “yes,” but the lead opinion says “no.” I am not persuaded by my colleagues’ analysis.
The lead opinion finds no statute “compelling]” the fruits of a successful Pitchess motion to be shared with the prosecution. (Lead opn., ante, at p. 1046.) This conclusion is based solely on the reciprocal discovery laws in Penal Code section 1054 et seq., adopted by voters as Proposition 115 in June 1990. The lead opinion insists any information obtained by the defense through court-ordered Pitchess discovery need not be divulged until it “ripens into the intent to call a witness.” (Lead opn., ante, at p. 1045.)
This analysis is incomplete. By its own terms, Proposition 115 governs discovery in criminal cases “except as provided by . . . other express statutory provisions.” (Pen. Code, § 1054, subd. (e).) One such provision is the Pitchess scheme, which regulates privileged information that must be sought by court order from disinterested third persons. (Albritton v. Superior Court (1990)
As the lead opinion explains (lead opn., ante, at pp. 1040-1043), the statutory scheme protects privileged information after it has been found relevant and ordered disclosed in a particular case. Evidence Code section 1045, subdivision (e) requires issuance of an order preventing use of Pitchess material outside the “court proceeding” in which it was obtained. This provision effectively prevents litigants in one action from sharing Pitchess discovery with litigants in other actions. However, no similar provision blocks a court-supervised exchange of Pitchess information in the same case.
Indeed, the lead opinion seems to concede that the People are virtually guaranteed access to Pitchess information obtained by the defense if the district attorney later brings his own Pitchess motion. (Lead opn., ante, at p. 1046. ) The reason is that relevance is a two-way street. Meritorious defense claims that Pitchess material might impeach prosecution witnesses or undermine their factual accounts necessarily implies that the prosecution could use the same material to defend the credibility of its witnesses and support its theory of the case.
The lead opinion’s suggestion—unsupported by authority—that each party must separately file a Pitchess motion targeting the same records defies common sense. Such duplication risks unnecessary delay of the underlying action and wastes the time and resources of (1) the government agency holding the disputed records,
In any event, the lead opinion’s elaborate efforts to shield these materials from the prosecution are, in the end, pointless. Nothing in the lead opinion or elsewhere in the law precludes the prosecutor, upon receiving notice of a defense Pitchess motion, from noticing his own motion for court-ordered access to the same materials. Such overlapping discovery requests can be consolidated for hearing in the trial court, allowing each side to appear and argue their respective interests in the material. Police personnel information is relevant to both sides in a criminal case where it might lead to evidence impeaching prosecution witnesses or undermining the People’s theory of the case. To extent the defense obtains Pitchess material on this ground, the prosecution has an equal right to receive the same material after a consolidated hearing on mutual motions.
D. The People’s Involvement in Pitchess Discovery Does Not Threaten the Defendant’s Constitutional Rights and Statutory
Privileges
The lead opinion seeks to promote the Sixth Amendment right to counsel by restricting prosecutorial participation in Pitchess hearings, and by denying access to “affidavits and/or any other information in support of the Pitchess motion.” (Lead opn., ante, at p. 1045, fn. 5.) The lead opinion purports to rely on principles and authorities arising under the subpoena duces tecum statutes. (Lead opn., ante, at pp. 1045-1046, citing Pen. Code, §§ 1326-1327, and Barrett, supra,
First, it seems unlikely that the defense will be forced to disclose its own confidences in seeking Pitchess discovery. Defendants commonly investigate police officers who search for physical evidence, or who conduct arrests and interrogations. Competent counsel can be expected to look for any pattern of aggression, untrustworthiness, or other misconduct documented
Second, similar assumptions are at work under the analogous subpoena scheme—a scheme the lead opinion implicitly misconstrues. The general rule is that requests for subpoenaed records must be served on the prosecutor, who must be allowed to appear and argue whether the requisite showing has been made. (City of Alhambra v. Superior Court (1988)
Moreover, courts are not “bound by [a] defendant’s naked claim of confidentiality” in the subpoena context. (Alhambra, supra, 205 Cal.App.3d 1118, 1130.) Nor are such claims used to “totally exclude” the district attorney from the discovery process. (Department of Corrections, supra,
The lead opinion ignores this authority and instead cites Barrett, supra,
Applying these rules here, the trial court may withhold specific moving papers from the prosecutor, and excuse the prosecutor from selected portions of the Pitchess
E. Conclusion
Ignoring relevant authority, the lead opinion overturns 30 years of law and practice under the Pitchess scheme. This is the first and only decision depriving the People of full notice and adversarial participation in defense Pitchess motions, and denying access to Pitchess materials disclosed to the defendant. I disagree, and would affirm the judgment of the Court of Appeal.
Chin, J., and Brown, J., concurred.
Pitchess v. Superior Court (1974)
A11 further unlabeled rule references are to the California Rules of Court.
Former rule 249 was renumbered and substantively amended effective January 1, 2003. (See now rule 299.) In the process, the definitions of various elementary legal terms were deleted, including the phrase “serve and file” appearing in former rule 249(c)(6). (Id., subd. (c)(4) [“presiding judge"], (5) [“party”], (7) [“case”].) It appears that all of these maxims, including the one directing moving parties to “serve and file” all moving and supporting papers on the “adverse party,” were deemed so well understood and noncontroversial as to no longer require formal definition. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2002) ^ 9:82.5, p. 9(l)-39 [confirming without citation to former rule 249(c)(6) that Code of Civil Procedure section 1005(b) requires service on counsel for “all parties who have appeared in the action, whether or not the motion seeks relief against such parties”].)
According to Ayala, proceedings in which only one party participates can produce “ ‘a shortage of factual and legal contentions. Not only are facts and law from the [excluded party] lacking, but the moving party’s own presentation is often abbreviated because no challenge from the [excluded party] is anticipated at this point in the proceeding. The deficiency is frequently crucial, as reasonably adequate factual and legal contentions from diverse perspectives can be essential to the court’s initial decision.’ ” (Ayala, supra,
The record contains defendants’ Pitchess motion and counsel’s supporting declaration, but no proof of service is attached. Nonetheless, the Court of Appeal stated in its opinion that “the People were properly given notice of the Pitchess motion.” Defendants did not dispute this factual assertion in seeking rehearing and modification in the Court of Appeal. I therefore accept it as true. (See rule 28(c)(2).)
Responding to a trial court question about the logistics of Pitchess discovery in the present case, the city attorney suggested that it is not uncommon for the People to receive copies of information ordered disclosed to the defense: “Based on what the court has ordered, the [custodian of records] prepares a list of names, addresses and phone numbers to [any] complaints that the court has ordered revealed. Those are made available to both the prosecution and the defense attorneys. So that means that both of those parties may come to [the custodian of records] and pick that up." (Italics added.)
It has been said that the “good cause” standard for obtaining in camera review of Pitchess material is “relatively relaxed.” (Santa Cruz, supra,
I note one final consequence of the lead opinion’s analysis. The conclusion that the prosecution cannot see the entire defense Pitchess motion, freely respond to it, or share materials discovered thereby, rests primarily on the assumption that reciprocal notice, participation, and sharing are not expressly provided under the applicable statutes. If the statutes do not afford such rights to the prosecution when the defendant pursues Pitchess discovery, it appears the defendant would lack similar rights when a Pitchess motion is filed by the prosecution. Either way, the result is irrational.
In a related vein, the lead opinion goes too far in prohibiting shared Pitchess discovery by assuming a contrary rule might render the prosecutor a “Brady vessel” in future cases for any police personnel information he thereby receives. (See lead opn., ante, at p. 1046, fn. 6, citing Brady v. Maryland (1963)
Concurrence Opinion
A majority of the court concludes that the protective order required by Evidence Code section 1045, subdivision (e),
While I join in part C of the lead opinion, I respectfully disagree with the majority’s conclusion in part B regarding the limits of a section 1045(e) protective order. Instead, I believe the Legislature intended that a section 1045(e) protective order permit the use of Pitchess discovery in any court proceeding pursuant to applicable law.
Discussion
A. Section 1045
In 1978, and again in 1982, the Legislature considered amendments to section 1045 that would have restricted use of the information disclosed in a Pitchess motion to the particular case in which the disclosure was made. The Legislature rejected this restriction on both occasions. (See lead opn., ante, at pp. 1040-1041.) Instead, the only limitation the Legislature placed on the use of such records is that they “may not be used for any purpose other than a court proceeding pursuant to applicable law.” (§ 1045(e).) A majority of the court concludes, nonetheless, that the use of Pitchess records is limited to the particular case in which those records were obtained. It attempts to explain away the Legislature’s express rejection of such a limitation in the following manner: because the Legislature “gave up” in its attempt to enumerate specific types of cases subject to Pitchess discovery, the language “ ‘a court proceeding pursuant to applicable law’ ” “did not necessarily mean that disclosure was not limited to the case in which it was being sought; rather, we surmise it meant the Legislature was not defining substantively what kind of case that might be.” (Lead opn., ante, at p. 1042.)
I find this reasoning unpersuasive. First, it departs too far from established canons of statutory construction. In People v. Robles (2000)
A plain reading of section 1045(e) does not lend itself to the majority’s view. Simply stated, there is no language in the phrase “the court shall . . . order that the records disclosed or discovered may not be used for any purpose other than a court proceeding pursuant to applicable law” that suggests that the use of Pitchess information is limited to a particular court proceeding. While the Legislature could have utilized phrases such as “this court proceeding” or “the pending court proceeding” that would have so limited the use of such records, it did not. Instead, the Legislature’s use of the indefinite article in the phrase “a court proceeding” indicates that the use of Pitchess discovery was not to be limited to the court proceeding in which discovery was sought, but to court proceedings in general. Thus, under section 1045(e), information received through Pitchess may not, for example, be
Second, even if we assume, for the sake of argument, that the plain language of section 1045(e) is susceptible to two interpretations and is thus ambiguous, we look to the statute’s legislative history to ascertain the Legislature’s true intent. (Robles, supra,
The statutory Pitchess discovery scheme, of which section 1045(e) is a part, was enacted by the Legislature in 1978. As the lead opinion recognizes (lead opn., ante, at p. 1040), the original bill was amended on August 7, 1978, to state that the use of records obtained pursuant to Pitchess discovery “shall be limited to the litigation in aid of which access to the records or information was sought.” (Assem. Amend, to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, italics omitted.) But a subsequent Assembly amendment deleted this language and replaced it with the current version of section 1045, subdivision (d), which contains no such blanket limitation and instead provides that “the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.” (Assem. Amend, to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 30, 1978, italics omitted.)
Subdivision (e) of section 1045 was added in 1982. The original version of the bill adding this provision expressly provided that peace officer personnel records obtained through Pitchess discovery “may not be used for any purpose or in any proceedings other than those identified in the motion pursuant to Section 1043.” (Sen. Bill No. 1065 (1981-1982 Reg. Sess.) Mar. 30, 1981, italics omitted.) This language was removed, however, by a subsequent amendment and replaced with the current version of section 1045(e) which, as we have seen, provides only that such records “may not be used for any purpose other than a court proceeding pursuant to applicable law.”
The Legislature, in enacting the Pitchess discovery scheme, and again in enacting section 1045(e), considered and rejected limiting the use of Pitchess discovery to the proceedings in which the discovery was obtained. In Hess v. Ford Motor Co. (2002)
We applied this general rule, in the context of Pitchess, in City of Santa Cruz v. Municipal Court (1989)
The reasoning utilized in City of Santa Cruz applies equally here. The Legislature obviously knew how to limit the use of Pitchess materials to a particular case. It conspicuously failed to do so. Our court should not, therefore, redraft section 1045(e) to impose such a burdensome requirement when the Legislature expressly considered and rejected the same. Instead, the better view, based on Hess and City of Santa Cruz, is that the Legislature not only “gave up” on enumerating specific crimes subject to Pitchess disclosure, it also “gave up” on trying to limit the use of Pitchess material to a particular proceeding.
The lead opinion counters by claiming (1) that section 1045(e) is “part of an overall statutory scheme that carefully balances peace officers’ privacy interests in their personnel records against defendants’ rights of access to information relevant to their defense, . . . [and] allowing a defendant to share such information with other defendants would defeat the purpose of the balancing process,” and (2) that the phrase “applicable law” in section 1045(e) “referred to section 1043 and thus signified the Legislature’s intent to restrict use of the disclosed information to the proceeding in which it was sought.” (Lead opn., ante, at p. 1042.)
I disagree, as there are sound reasons for the Legislature’s decision to permit the use of Pitchess discovery in any subsequent proceeding. First, the careful screening process that precedes the disclosure of Pitchess records adequately protects any privacy interest an officer has in any record disclosed, even if such record may be admitted in a subsequent judicial proceeding. As we recently held in People v. Mooc (2001)
Second, a previously disclosed Pitchess document cannot be admitted into evidence in any subsequent “court proceeding pursuant to applicable law,” unless it meets the relevancy requirements of section 210, which is the functional equivalent
Sadly, the majority’s interpretation forces defense attorneys, city attorneys and trial judges to “reinvent the wheel” with each “new” Pitchess request regarding the same peace officer—defense attorneys must write motions, city attorneys must scour records, and judges must conduct in-chambers hearings, simply to make the same Pitchess determination over and over again. Certainly, trial judges are capable of ruling on evidentiary motions, prior to trial, to determine whether a previously disclosed Pitchess record is admissible in a particular case without resort to yet another Pitchess motion. Repetitive Pitchess motions are an unnecessary and enormous waste of scant judicial and governmental resources. It is therefore reasonable to infer that the Legislature intended to avoid this result when it expressly rejected, twice, limiting the use of Pitchess disclosure to the pending proceeding.
The majority’s decision also puts defense attorneys from the same firm in the awkward position of withholding information from one another. (Lead opn., ante, at p. 1043.) And where one lawyer has two cases in which the same officer is a witness, it follows from the majority’s holding that she must not disclose Pitchess information to herself. I do not believe the Legislature intended this absurd result.
This aspect of the majority’s holding also forces defense attorneys to needlessly conduct repetitive investigations upon receiving Pitchess records. Thus, victims of substantiated police misconduct, previously disclosed by a court under Pitchess, must intrusively be located and interrogated, again and again, only to provide the same information to different defense investigators. In In re Hamilton (1999)
B. Unanswered Question
Most glaringly, the lead opinion leaves unanswered the threshold question of which particular Pitchess “records disclosed or discovered” are subject to a section 1045(e) protective order. Specifically, the information provided to the defense by the trial court after a Pitchess hearing, in daily trial practice, is limited to a complainant’s or witness’s name, address, telephone number, and the date of the incident.
Thus, a trial court’s Pitchess disclosure necessarily presupposes an independent investigation by defense counsel. Accordingly, the threshold question we should endeavor to answer is whether a section 1045(e) protective order (a) may only restrict the use of the actual information disclosed by the trial court—i.e., the complainant’s and witness’s name, address, telephone number and the date of the incident; or (b) may also encompass the direct fruits of the information developed during this independent investigation— e.g., a complainant’s or disclosed witness’s statement; or (c) may encompass other information obtained during this independent investigation—e.g., physical evidence (such as a photograph of injuries), or a statement obtained from a newly discovered witness. Until the threshold question of what constitutes Pitchess information is answered, the majority’s decision leaves trial courts, city attorneys, and defense attorneys, with little guidance.
Conclusion
The lead opinion, quoting City of Santa Cruz, supra,
The petition of real parties in interest for a rehearing was denied April 16, 2003. Baxter, J., Chin, J., and Brown, J., were of the opinion that the petition should be granted.
Hereafter section 1045(e). All statutory references are to the Evidence Code unless otherwise noted.
Section 1043, subdivision (b)(3) (hereafter section 1043(b)(3)) requires, in order to discover Pitchess information: “Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.”
Section 352 provides, in relevant part: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”