*1 Filed 7/6/15
IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, )
) S221296 Petitioner, )
) Ct.App. 1/5 A140767 v. )
)
THE SUPERIOR COURT OF SAN )
FRANCISCO COUNTY, ) (San Francisco County
) Super. Ct. No. 12029482) Respondent; )
)
DARYL LEE JOHNSON, )
)
Real Party in Interest. )
____________________________________)
)
CITY AND COUNTY OF SAN )
FRANCISCO ex rel. CITY AND )
COUNTY OF SAN FRANCISCO )
POLICE DEPARTMENT, )
) Petitioner, ) Ct.App. 1/5 A140768 )
v. )
) THE SUPERIOR COURT OF SAN ) (San Francisco County FRANCISCO COUNTY, ) Super. Ct. No. 12029482)
)
Respondent; )
)
THE PEOPLE et al., )
)
Real Parties in Interest. )
)
*2
In
City of Los Angeles v. Superior Court
(2002)
to the defense material evidence favorable to the defendant. Separately, the
Legislature has enacted procedures to implement the decision of
Pitchess v.
Superior Court
(1974)
In this case, the City and County of San Francisco Police Department
(police department), acting pursuant to procedures it has established, informed the
district attorney that confidential personnel records of two peace officers who are
potential witnesses might contain exculpatory information. Before us are two
interrelated questions: (1) May the prosecution examine the records itself to
determine whether they contain exculpatory information, or must it, like criminal
defendants, follow the procedures the Legislature established for
1
Jeremy Brandon was the real party in interest in
City of Los Angeles
,
motions? (2) What must the prosecution do with this information to fulfill its duty?
We conclude that the prosecution does not have unfettered access to confidential personnel records of police officers who are potential witnesses in criminal cases. Rather, it must follow the same procedures that apply to criminal defendants, i.e., make a Pitchess motion, in order to seek information in those records.
Because criminal defendants and the prosecution have equal ability to seek information in confidential personnel records, and because such defendants, who can represent their own interests at least as well as the prosecution and probably better, have the right to make a Pitchess motion whether or not the prosecution does so, we also conclude that the prosecution fulfills its duty as regards the police department‘s tip if it informs the defense of what the police department informed it, namely, that the specified records might contain exculpatory information. That way, defendants may decide for themselves whether to bring a motion. The information the police department has provided, together with some explanation of how the officers‘ credibility might be relevant to the case, would satisfy the threshold showing a defendant must make in order to trigger judicial review of the records under the procedures.
We reverse the judgment of the Court of Appeal, which reached different conclusions.
I. P ROCEDURAL B ACKGROUND
We take this procedural background primarily from the opinion of the Court of Appeal.
The underlying criminal action charges real party in interest Daryl Lee
Johnson (hereafter defendant) with domestic violence crimes. Two San Francisco
police officers are potentially important witnesses in the case. In December 2013,
*4
the prosecution filed a ―Notice of Motion for Discovery of San Francisco Police
Department Peace Officer Personnel Records Under
Brady
and Evidence Code
sections 1043 and 1045[, subdivision ](e).‖ The motion asked the court to review
in camera those officers‘ personnel records to determine whether they contain any
material exculpatory information under
Brady
,
Attached to the motion was a declaration by the prosecutor assigned to the case stating that the officers in question ―are necessary and essential‖ prosecution witnesses. The police department had informed the prosecution that each officer had ―material in his . . . personnel file that may be subject to disclosure under‖ Brady . The declaration stated that the records were in the ―exclusive possession and control‖ of the police department and the district attorney did not have ―actual‖ or ―constructive‖ possession of the records. The prosecutor stated that, based on police department representations that the files contained potential material, she believed the officers‘ personnel files contain ―sustained allegations of specific misconduct, reflective of dishonesty, bias, or evidence of moral turpitude. I believe on these case facts, and given the officers‘ roles, that such misconduct would be constitutionally material to the instant case in the sense.‖ The declaration further stated that the records ―are material to the pending litigation in that they pertain to the credibility of a necessary and material prosecution witness, and could either impeach said witness or lead to evidence exonerating the defendant.‖
The prosecution‘s motion was filed in accordance with the police department‘s Bureau Order No. 2010-01 (Bureau Order), which established *5 department procedures for Brady disclosure of materials in employee personnel files. (We have attached a copy of the Bureau Order as an appendix to this opinion.) The Bureau Order explains that because ―[r]epetitive requests by the District Attorney that the [Police] Department check employee personnel files of Department employees who may be witnesses create unnecessary paperwork and personnel costs . . . the Department is adopting a procedure under which the Department advises the District Attorney‘s Office of the names of employees who have information in their personnel files that may require disclosure under Brady . The District Attorney‘s Office then makes a motion under Evidence Code 1043 and 1045 for in camera review of the records by the court.‖
The Bureau Order defines and gives examples of what may constitute ―potential ‗ Brady material.‘ ‖ It contemplates that the police department will identify potential Brady material on an ongoing basis and notify the district attorney‘s office on an ongoing basis that the personnel files for particular officers may contain Brady material. When the police department becomes aware of potential Brady material regarding an officer, it creates a synopsis identifying the officer, the conduct, and the documents and information for potential disclosure. A departmental ― ‗ committee‘ ‖ reviews the synopsis and, after notifying and permitting comment from the affected employee, recommends to the chief of police whether to disclose the employee‘s name to the district attorney. The chief of police either approves or disapproves the recommendation. If disclosure of an officer‘s name is approved, the district attorney is notified that the officer ―has material in his or her personnel file that may be subject to disclosure under‖ .
The Bureau Order contemplates that the district attorney ―will create a list of Department employees who have potential material in their personnel files,‖ and that ―[w]hen the District Attorney‘s office deems that a law *6 enforcement officer, identified by the Department as having possible Brady material in their personnel file, is a material witness in a pending case . . . the District Attorney shall make a ‗ Brady’ motion under Evidence Code Sections 1043 and 1045[, subdivision ](e) to the court for in-camera review of the records.‖ The police department will not disclose material from officer personnel files without a trial court order for disclosure. The Bureau Order states, ―The purpose of this procedure is to ensure that prosecutors and the defense receive sufficient information to comply with the constitutional requirements of Brady while protecting the legitimate privacy rights of law enforcement witnesses.‖
Defendant responded to the prosecutor‘s motion with his own ―Motion for Brady discovery.‖ He asked the court either to (1) conduct the requested review, (2) declare Penal Code section 832.7 (which limits review of peace officer personnel records) unconstitutional and order the police department to allow the prosecutor to review the officer personnel files for Brady material, or (3) dismiss the case due to the prosecutor‘s failure to comply with . He stated his belief that he could not himself obtain disclosure of the material in the personnel files because he ―knows only that those files contain potential material, but [he] cannot move for it specifically because . . . he does not know what it is, or how it might impact his defense.‖
The police department expressed agreement with the prosecutor‘s position and urged the trial court to conduct the in camera review that the Bureau Order disclosure protocol contemplated.
On January 7, 2014, the superior court issued an order concluding that the prosecution had not made a sufficient showing to warrant court review of the records, that the motion procedures do not apply to motions seeking review of peace officer personnel records under , and that Penal Code section 832.7 is unconstitutional to the extent it bars the prosecution from gaining *7 access to officer personnel records in order to comply with Brady . The court denied the prosecution‘s motion for in camera Brady review, and ordered the police department ―to give the District Attorney access to the personnel files of [the officers] ‗so the prosecution can comply with its Brady mandate.‘ ‖ The order stated, ―Once the District Attorney has reviewed the personnel records, he will be able to fulfill his constitutional obligation to disclose to the Public Defender any information that is material under Brady . If a close question nonetheless remains as to whether information in a specific document or documents should be disclosed under Brady , the District Attorney will be able to make the threshold‖ showing necessary to justify court review of the documents.
The district attorney and the police department filed separate petitions for writ of mandate and/or prohibition in the Court of Appeal challenging the superior court‘s order. They asked the Court of Appeal to direct the superior court to conduct the requested review of the personnel records in camera and order disclosure of all materials to both the prosecution and defense counsel, subject to a protective order. Defendant did not object to the requested relief, including trial court in camera review for material.
The Court of Appeal stayed the superior court‘s order and the underlying
criminal proceeding, consolidated the two writ proceedings, and ordered the
superior court to show cause why the requested relief should not be granted.
Ultimately, it held that, to satisfy its constitutional duty, the prosecution may and,
before the court becomes involved, should itself review the personnel files of
peace officer witnesses for material. It directed the superior court to modify
its January 7, 2014 order ―to provide that, if the San Francisco District Attorney
identifies any evidence in the San Francisco Police Department personnel files for
[the officers] that should be disclosed to defendant Johnson under
Brady v.
*8
Maryland
,
supra
,
We granted the police department‘s and district attorney‘s petitions for
review and stayed the underlying criminal matter. Later, we requested the parties
to brief the question of whether ―the prosecution‘s obligation under
Brady v.
Maryland
(1963)
II. D ISCUSSION
A. Background
Under ,
―There are three components of a true violation: The evidence at
issue must be favorable to the accused, either because it is exculpatory, or because
it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.‖ (
Strickler v. Greene
(1999)
As a separate strand of law, ―[i]n
Pitchess v. Superior Court
(1974) 11
Cal.3d 531 (
Pitchess
), we recognized that a criminal defendant may, in some
circumstances, compel the discovery of evidence in the arresting law enforcement
officer‘s personnel file that is relevant to the defendant‘s ability to defend against
a criminal charge. ‗In 1978, the California Legislature codified the privileges and
procedures surrounding what had come to be known as ― motions‖ . . .
through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code
sections 1043 through 1045.‘ ‖ (
People v. Mooc
(2001)
Penal Code section 832.7, subdivision (a), provides that ―[p]eace officer . . . personnel records,‖ which are defined in Penal Code section 832.8, are generally confidential and may not be disclosed except pursuant to procedures established in the Evidence Code. Evidence Code sections 1043 and 1045 establish the procedures. The party seeking discovery must file a written motion with service *10 on the governmental agency having custody of the records sought. (Evid. Code, § 1043, subd. (a).) The motion must describe the type of records or information sought and include an affidavit showing good cause for the discovery, which explains the materiality of the information to the subject of the pending litigation and states on reasonable belief that the governmental agency has the records or information. (Evid. Code, § 1043, subd. (b); see City of Los Angeles , supra , 29 Cal.4th at p. 9.)
We have described the process employed when a criminal defendant brings
the motion. ―If the trial court concludes the defendant has fulfilled these
prerequisites and made a showing of good cause, the custodian of records should
bring to court all documents ‗potentially relevant‘ to the defendant‘s motion.
[Citation.] The trial court ‗shall examine the information in chambers‘ (Evid.
Code, § 1045, subd. (b)), ‗out of the presence and hearing of all persons except the
person authorized [to possess the records] and such other persons [the custodian of
records] is willing to have present‘ (
id
., § 915, subd. (b); see
id
., § 1045, subd. (b)
[incorporating
id
., § 915]). Subject to statutory exceptions and limitations, . . . the
trial court should then disclose to the defendant ‗such information [that] is relevant
to the subject matter involved in the pending litigation.‘ (
Id
., § 1045, subd. (a).)‖
(
Mooc
,
These procedures ―are based on the premise that evidence contained in a law enforcement officer‘s personnel file may be relevant to an accused‘s criminal defense and that to withhold such relevant evidence from the defendant would violate the accused‘s due process right to a fair trial. Pitchess and Evidence Code sections 1043 through 1047 also recognize that the officer in question has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily. Accordingly, both and the statutory scheme codifying require the intervention of a neutral trial judge, who examines *11 the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations. In this manner, the Legislature has attempted to protect the defendant‘s right to a fair trial and the officer‘s interest in privacy to the fullest extent possible.‖ ( Mooc , supra , 26 Cal.4th at p. 1227.)
―The relatively relaxed standards for a showing of good cause under
[Evidence Code] 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.‖ (
City of Santa Cruz v. Municipal Court
(1989)
Although both
Brady supra
,
―This procedural mechanism for criminal defense discovery, which must be viewed against the larger background of the prosecution‘s constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the *12 defendant‘s right to a fair trial [citations], is now an established part of criminal procedure in this state.‖ ( Mooc , supra , 26 Cal.4th at pp. 1225-1226.)
With these principles as background, we will first consider whether, as the Court of Appeal held, the prosecutor may always review the confidential personnel records of police officers who are witnesses in a criminal case to determine whether the records contain material. Then we will examine the prosecution‘s exact obligation under with regard to personnel records.
B. Whether the Prosecution Has Direct Access to Confidential Personnel Records
Penal Code section 832.7, subdivision (a), provides as relevant: ―Peace officer or custodial officer personnel records . . . , or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney‘s office, or the Attorney General‘s office.‖ 2
Consistent with a recognition that one legislative purpose in establishing
these procedures was to protect the officers‘ privacy interests ―to the fullest extent
possible‖ (
Mooc
,
supra
,
(
Alford v. Superior Court
(2003)
The Courts of Appeal have consistently held that the prosecution does not
have access to confidential personnel records absent compliance with the procedures. (
Rezek v. Superior Court
,
supra
,
The Court of Appeal in this case concluded that the prosecution does have the right to review personnel records of police officer witnesses for material without complying with the procedures, although the prosecution would have to comply with those procedures, and receive judicial approval, before it could turn over to the defense any material it found. It concluded that Penal Code section 832.7, subdivision (a), does not bar such review for two reasons. First, it believed that prosecutorial review of the records without more would not constitute ― ‗disclos[ure] in any criminal or civil proceeding‘ ‖ of the records under that subdivision. Second, it believed the exception for investigations permits such review. We disagree.
Penal Code section 832.7, subdivision (a), states that police officer personnel records are ―confidential.‖ It permits disclosure by use of the procedures but otherwise provides only one exception to the confidentiality requirement — the exception for investigations. This exception indicates that the Legislature considered the range of situations in which prosecutorial need justifies direct access to peace officer personnel records, and it decided that those situations should be limited to ―investigations or proceedings concerning the conduct of peace officers or custodial officers‖ (Pen. Code, § 832.7, subd. (a)), and does not extend to this context.
Contrary to the Court of Appeal‘s view, the exception for investigations does not apply here. Black‘s Law Dictionary defines ―investigation‖ as ―[t]he activity of trying to find out the truth about something, such as a crime, accident, or historical issue; esp., either an authoritative inquiry into certain facts, as by a legislative committee, or a systematic examination of some intellectual problem or empirical question, as by mathematical treatment or use of the scientific method.‖ *15 (Black‘s Law Dict. (10th ed. 2014) p. 953, col. 2.) Checking for material is not an investigation for these purposes. A police officer does not become the target of an investigation merely by being a witness in a criminal case.
―A law enforcement officer‘s personnel record will commonly contain
many documents that would, in the normal case, be irrelevant to a
Pitchess
motion, including those describing marital status and identifying family members,
employment applications, letters of recommendation, promotion records, and
health records.‖ (
Mooc
,
supra
,
The Court of Appeal relied heavily on Michael v. Gates (1995) 38 Cal.App.4th 737 for its conclusion. That case merely held that a governmental agency may allow its own attorney to review personnel records in its possession in some situations without complying with the Pitchess procedures. It does not stand for the proposition that the prosecution, which does not represent the agency, may routinely review those records. (See discussion in People v. Superior Court (Gremminger) , 58 Cal.App.4th at pp. 405-406.)
Moreover, as discussed post , permitting prosecutors routine access to personnel records is not necessary to protect defendants‘ due process right to obtain potentially exculpatory evidence. The procedures the Legislature established long ago can protect defendants‘ interests without unduly infringing on police officers‘ privacy interests.
Accordingly, we conclude that prosecutors, as well as defendants, must comply with the procedures if they seek information from confidential personnel records.
C. The Scope of the Prosecutor’s Brady Obligation Regarding Confidential Personnel Records
When the police department informed the district attorney that the officers‘
personnel records might contain
Brady
material, the prosecution had a duty under
Brady
,
supra
,
Defendant argues that the district attorney has an obligation under Brady to provide material exculpatory information possessed by any member of the prosecution team, including the police department. The district attorney and police department respond that although in general the prosecutor‘s obligation to provide Brady material extends to what the police know, the obligation extends only to what the police know about the specific case and does not go so far as to include confidential personnel records the police department maintains in its administrative capacity. We need not resolve this dispute, because we conclude instead that the prosecution has no Brady obligation to do what the defense can do just as well for itself.
The purpose behind the
Brady
rule is ―avoidance of an unfair trial to the
accused‖ ( ,
supra
,
―[T]he prosecutor had no constitutional duty to conduct defendant‘s
investigation for him. Because and its progeny serve ‗to restrict the
*17
prosecution‘s ability to suppress evidence rather than to provide the accused a
right to criminal discovery,‘ the
Brady
rule does not displace the adversary system
as the primary means by which truth is uncovered. (
United States v. Martinez-
Mercado
(5th Cir. 1989)
As we have explained, the prosecution and the defense have equal access to confidential personnel records of police officers who are witnesses in a criminal case. Either party may file a motion, and either party must comply with the statutory procedures to obtain information in those records. Because a defendant may seek potential exculpatory information in those personnel records just as well as the prosecution, the prosecution fulfills its Brady obligation if it shares with the defendant any information it has regarding whether the personnel records contain material, and then lets the defense decide for itself whether to file a motion. In this case, this means the prosecution fulfilled its obligation when it informed defendant of what the police department had told it, namely, that the personnel records of the officers in question might contain material, and that the officers are important witnesses.
Numerous federal decisions have made clear that if the prosecution
provides the defense with, or if the defense otherwise has, sufficient information to
obtain the evidence itself, there is no violation. (
Amado v. Gonzalez
(9th
*18
Cir. 2014)
Several cases have cited
U.S. v. Dupuy
,
The high court has held that when confidential records might contain
exculpatory material, the trial court‘s in camera review of those records, followed
by disclosure to the defense of any material that review uncovers, is
sufficient to protect the defendant‘s due process rights. In
Pennsylvania v. Ritchie
(1987)
A similar issue arose recently in California concerning confidential child
welfare services records. (
J.E. v. Superior Court
(2014)
The
J.E.
court explained that, ―[a]s a practical matter, use of a [Welfare and
Institutions Code] section 827 petition to secure
Brady
review can also serve to
streamline the review process. A section 827 petition filed directly with the
juvenile court bypasses the prosecutor as an intermediary and allows the court to
make the disclosure decision in the first instance. This eliminates the need for the
prosecution to request court permission for disclosure after its review, and
forestalls litigation brought by the defense over whether the prosecution has
complied with its obligations. Given that the Legislature has established
the section 827 court petition process for access to juvenile files, it makes practical
sense to allow use of this process to resolve requests through a single
procedure.‖ (
J.E. v. Superior Court
,
supra
,
We think the procedure used for confidential juvenile records in
Ritchie
,
supra
,
There are several advantages in these circumstances to having the defendant use the procedures to acquire exculpatory material in *21 confidential personnel records rather than require the prosecution to do so. First, in some criminal cases the credibility of police officer witnesses might not be at issue and the defense might have no reason to bring a Pitchess motion. Whether to seek information in the officer‘s personnel records should be for the defense to decide in the first instance. If the defense does not intend to challenge an officer‘s credibility, it might reasonably choose not to bring a Pitchess motion. But the prosecution would not know this. Requiring the prosecution to seek the information on the defendant‘s behalf would essentially force the Pitchess procedures to be employed in most, if not all, criminal cases, including those in which the defense has no need of impeaching material. The Pitchess procedures should be reserved for cases in which officer credibility is, or might be, actually at issue rather than essentially mandated in all cases.
Additionally, in these circumstances, it makes sense to have the defense make the Pitchess motion for itself rather than force the prosecution to do so. The defense can seek the information at least as well as the prosecution can. Although the prosecution will often be able to anticipate what information the defense might want, and it might be able to present the defense position reasonably well to the court in a Pitchess motion, the defense will know what it wants, and will often be able to explain to a court what it is seeking and why better than could the prosecution.
Requiring the prosecution routinely to seek material in personnel reports will also foster unnecessary duplicative proceedings. Whatever we say about the prosecution‘s obligation cannot deprive the defense of the right to bring its own motion. (See Rezek v. Superior Court , 206 Cal.App.4th at p. 642.) The statutory procedures apply to all parties. The defense is not required simply to trust that the prosecution has obtained for it all favorable information; it is entitled to investigate for itself. Even if the *22 prosecution brings a Pitchess motion, the defense might want to bring its own motion, something it unquestionably would have the right to do.
The prosecution also has a statutory right to bring a Pitchess motion and might want to do so sometimes for its own reasons. Indeed, at oral argument, the district attorney‘s office informed this court that it intended to continue making Pitchess motions even if we hold, as we do, that it is not constitutionally required to do so. That would be its own decision, and we cannot prohibit it from filing its own motions. We cannot even prohibit duplicative motions (by the prosecution and by the defense), although we can and do encourage the court and parties to coordinate any such duplicative motions. But we should not adopt rules that essentially force duplicative motions. Under the circumstances, it is more efficient simply to require the defense to employ the Pitchess procedures in the first instance if it wishes to obtain the information.
Finally, requiring the defense to file its own
Pitchess
motion would ensure
that a record exists of what occurred. When a party brings a
Pitchess
motion, the
trial court is required to keep a record of what it reviewed to provide meaningful
appellate review. (
Mooc
,
supra
,
Understandably, defendant tells us he ―is most concerned that defendants
get the exculpatory materials secreted in police personnel records, to which they
are entitled under .‖ But he argues that the
Pitchess
procedures are
inadequate to protect his rights. We disagree. The requirements and
procedures have long coexisted. ―[T]he scheme does not
unconstitutionally trump a defendant‘s right to exculpatory evidence as delineated
*23
in
Brady
. Instead, the two schemes operate in tandem.‖ (
People v. Gutierrez
,
supra
,
―Our state statutory scheme allowing defense discovery of certain officer
personnel records creates both a broader and lower threshold for disclosure than
does the high court‘s decision in
Brady
,
supra
,
It is true, as defendant notes, that in some ways the statutory
scheme is potentially narrower than
Brady
‘s requirements. For example, Evidence
Code section 1045, subdivision (b)(1), places a five-year limitation on the
disclosure of certain information. However, because the ― ‗ ― process‖
operates in parallel with and does not prohibit the disclosure of information,‘ ‖ all information that the trial court finds to be exculpatory and
material under must be disclosed, notwithstanding Evidence Code section
1045‘s limitations. (
City of Los Angeles
,
Defendant is concerned that the required threshold showing is too high to
expect him to be able to obtain exculpatory material from personnel records. On
the contrary, a defendant must show good cause, but the burden is not high.
―Good cause for discovery exists when the defendant shows both ‗ ―materiality‖ to
the subject matter of the pending litigation and a ―reasonable belief‖ that the
agency has the type of information sought.‘ (
City of Santa Cruz v. Municipal
Court
(1989)
Contrary to defendant‘s concern, to satisfy the ―reasonable belief‖
requirement, he need not know what information is located in personnel records
before he obtains the discovery. Such a requirement would be impossible. The
required threshold showing does not place a defendant ―in the Catch-22 position of
having to allege with particularity the very information he is seeking.‖ (
People v.
Memro
(1985)
In this case, the police department has laudably established procedures to streamline the Pitchess / Brady process. It notified the prosecution, who in turn notified the defendant, that the officers‘ personnel records might contain Brady material. A defendant‘s providing of that information to the court, together with some explanation of how the officer‘s credibility might be relevant to the proceeding, would satisfy the showing necessary under the Pitchess procedures to trigger in camera review. Moreover, as we have noted, defendants are always permitted to file their own Pitchess motion even without any indication from the police department (through the prosecution) that the records might contain Brady material and, indeed, even if, hypothetically, the prosecution had informed them that the police department had said the records do not contain material. The defense is not required simply to trust the prosecution or police department but may always investigate for itself.
For these reasons, we conclude that, under these circumstances, permitting
defendants to seek discovery fully protects their due process right under
,
supra
,
The superior court was concerned that requiring it to review personnel records routinely for exculpatory material, including material, would be too onerous. Personnel records can be quite voluminous. One answer to this concern is that the burden has long existed. First this court in , 11 Cal.3d *26 531, and then the Legislature in codifying Pitchess , placed the burden on the courts. It cannot be avoided.
But the burden need not be too great. Judicial in camera review of records will be necessary only when a party brings a Pitchess motion, which might not occur unless the officer‘s credibility will, or might, actually be at issue.
Additionally, the court need not review everything in the personnel records, but only those portions that might be relevant. ―When a trial court concludes a defendant‘s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer‘s personnel files, the custodian of the records is obligated to bring to the trial court all ‗potentially relevant‘ documents to permit the trial court to examine them for itself. [Citation.] A law enforcement officer‘s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion . . . . Documents clearly irrelevant to a defendant‘s request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant‘s motion.‖ ( Mooc , 26 Cal.4th at pp. 1228-1229.)
The custodian of the records can assist the trial court by focusing the court‘s attention on what is relevant. Typically, the defendant is seeking information that could be impeaching. Such information should be readily apparent, especially when the defense specifies, as it should, the kind of *27 impeaching information it is seeking. For all of these reasons, we believe that the procedures can, and must, be employed in a way that ensures compliance with defendants‘ due process rights to receive exculpatory information without unduly burdening trial courts.
III. C ONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with our opinion.
C HIN , J .
W E C ONCUR :
C ANTIL -S AKAUYE , C. J.
W ERDEGAR , J .
C ORRIGAN , J.
L IU , J.
C UÉLLAR , J.
K RUGER , J.
See last page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Superior Court (Johnson)
__________________________________________________________________________________ Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX
Rehearing Granted
__________________________________________________________________________________ Opinion No. S221296
Date Filed: July 6, 2015
__________________________________________________________________________________ Court: Superior
County: San Francisco
Judge: Richard B. Ulmer, Jr.
__________________________________________________________________________________ Counsel:
George Gascón, District Attorney, Jerry P. Coleman, Laura L. vanMunching, James R. Thompson and Allison G. MacBeth, Assistant District Attorneys, for Petitioner and Real Parties in Interest the People. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Seth K. Schalit, Deputy Attorneys General, for California Attorney General as Amicus Curiae on behalf of Petitioner and Real Parties in Interest the People.
Gregory D. Totten, District Attorney (Ventura) and Michael D. Schwartz, Assistant District Attorney, as Amici Curiae on behalf of Petitioner and Real Parties in Interest the People.
Rains Lucia Stern, Michael L. Rains and Zachary A. Lopes for Peace Officers‘ Research Association of California, The PORAC Legal Defense Fund and The San Francisco Police Officers‘ Association as Amici Curiae on behalf of Petitioner and Real Parties in Interest the People.
Nancy E. O‘Malley, District Attorney (Alameda), Michael O‘Connor, Assistant District Attorney, and Jeff Rubin, Deputy District Attorney, for Appellate Committee of the California District Attorneys Association as Amicus Curiae on behalf of Petitioner and Real Parties in Interest the People.
Bonnie M. Dumanis, District Attorney (San Diego), Laura Tanney and Linh Lam, Deputy District Attorneys, for San Diego District Attorney as Amicus Curiae on behalf of Petitioner and Real Parties in Interest the People.
Laura Tanney and Linh Lam, Deputy District Attorneys (San Diego), Jeff H. Rubin, Deputy District Attorney (Santa Clara) and Mark Zahner for California District Attorneys Association as Amicus Curiae on behalf of Petitioner and Real Parties in Interest the People.
Jeffrey F. Rosen, District Attorney (Santa Clara) and David A. Angel, Assistant District Attorney, as Amici Curiae on behalf of Petitioner and Real Parties in Interest the People.
Page 2 – S221296 – counsel continued
Counsel:
Dennis J. Herrera, City Attorney, Jeremy M. Goldman and Christine Van Aken, Deputy City Attorneys, for Petitioner City and County of San Francisco.
Green & Shinee, Richard A. Shinee and Elizabeth J. Gibbons for Association of Los Angeles Deputy Sheriffs as Amicus Curiae on behalf of Petitioner City and County of San Francisco.
Nina D. Sariaslani for Petitioner City and County of San Francisco Police Department.
Sedgwick and Michael L. Fox for Respondent.
Jeff Adachi, Public Defender, Matt Gonzalez, Chief Attorney, and Christopher Gauger, Deputy Public Defender, for Real Party in Interest Daryl Lee Johnson
Molly O‘Neal, Public Defender (Santa Clara), and Andy Gutierrez, Deputy Public Defender, as Amici Curiae.
Manning & Kass, Ellrod, Ramirez, Trester, Eugene P. Ramirez, Tony M. Sain and Scott Wm. Davenport for City of Azusa and City of South Gate as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion): Laura L. vanMunching
Assistant District Attorney
850 Bryant Street, Room 322
San Francisco, CA 94103
(415) 551-9577
Jeremy M. Goldman
Deputy City Attorney
City Hall, Room 234
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4682
(415) 554-6762
Michael L. Fox
Sedgwick
333 Bush Street, 30th Floor
San Francisco, CA 94104
(415) 781-7900
Christopher Gauger
Deputy Public Defender
555 Seventh Street
San Francisco, CA 94103
(415) 553-9734