Supreme Court of California Justia
Docket No. S221296

People v. Super. Ct. (Johnson)

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.
1



In City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1 (City of Los
Angeles),1 we considered the interplay between the prosecution‘s constitutional
duty under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and its progeny, and
statutory procedures by which the parties can seek discovery of information in
confidential peace officer personnel records. We do so again.
Brady, supra, 373 U.S. 83, generally obligates the prosecution to disclose
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) 11 Cal.3d 531 (Pitchess), which allow criminal defendants
to seek discovery from the court of potentially exculpatory information located in
otherwise confidential peace officer personnel records. If a party bringing what is
commonly called a Pitchess motion makes a threshold showing, the court must
review the records in camera and disclose to that party any information they
contain that is material to the underlying case. (See Evid. Code, §§ 1043, 1045.)
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 Pitchess

1
Jeremy Brandon was the real party in interest in City of Los Angeles, supra,
29 Cal.4th 1, and some of the parties have given the case the shortened name
Brandon. However, because its official name is City of Los Angeles v. Superior
Court
, we will instead call it the City of Los Angeles case. (See Cal. Style Man.
(4th ed. 2000) § 1:1[A], p. 4.)
2


motions? (2) What must the prosecution do with this information to fulfill its
Brady 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 Brady 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
Pitchess 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 Pitchess procedures.
We reverse the judgment of the Court of Appeal, which reached different
conclusions.
I. PROCEDURAL BACKGROUND
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,
3
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, supra, 373 U.S. 83, that is subject
to disclosure. It also asked the court to ―disclose to the District Attorney‘s Office
and the defense any Brady material located in the personnel files, and . . . issue a
protective order to protect the officers‘ statutory right of privacy in their personnel
files.‖
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 Brady
material, she believed the officers‘ personnel files contain ―sustained allegations
of specific Brady 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 Brady
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
4
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 ― ‗Brady committee‘ ‖ reviews the synopsis and, after notifying
and permitting comment from the affected employee, recommends to the chief of
police whether to disclose the employee‘s name to the district attorney. The chief
of police either approves or disapproves the recommendation. If disclosure of an
officer‘s name is approved, the district attorney is notified that the officer ―has
material in his or her personnel file that may be subject to disclosure under‖
Brady.
The Bureau Order contemplates that the district attorney ―will create a list
of Department employees who have potential Brady material in their personnel
files,‖ and that ―[w]hen the District Attorney‘s office deems that a law
5
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 Brady. 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 Brady 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 Pitchess motion procedures do not apply to motions seeking
review of peace officer personnel records under Brady, and that Penal Code
section 832.7 is unconstitutional to the extent it bars the prosecution from gaining
6
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 Brady 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 Brady 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 Brady 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.
7
Maryland, supra, 373 U.S. 83, the District Attorney shall file a motion under
Evidence Code section 1043 to obtain such disclosure.‖
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) 373 U.S. 83 (Brady) and its progeny [would] be satisfied if it
simply informs the defense of what the police department has informed it (that the
two officers‘ personnel files might contain Brady material), which would allow the
defense to decide for itself whether to seek discovery of that material pursuant to
statutory procedures.‖
II. DISCUSSION
A. Background
Under Brady, supra, 373 U.S. 83, and its progeny, the prosecution has a
constitutional duty to disclose to the defense material exculpatory evidence,
including potential impeaching evidence. The duty extends to evidence known to
others acting on the prosecution‘s behalf, including the police. (Kyles v. Whitley
(1995) 514 U.S. 419, 437; People v. Whalen (2013) 56 Cal.4th 1, 64 [because a
criminalist ―participated in the investigation of the . . . murder and was employed
by an investigating agency, he was part of the prosecution team, and the
prosecutor therefore had a constitutional duty to disclose exculpatory, material
evidence in [his] possession regardless whether the prosecutor was personally
aware of the existence of the evidence‖]; People v. Zambrano (2007) 41 Cal.4th
1082, 1132 [the duty of disclosure ―is not limited to evidence the prosecutor‘s
office itself actually knows of or possesses, but includes ‗evidence known to the
others acting on the government‘s behalf in the case, including the police‘ ‖].)
The duty to disclose ―exists even though there has been no request by the
8
accused.‖ (People v. Salazar (2005) 35 Cal.4th 1031, 1042; see United States v.
Agurs (1976) 427 U.S. 97, 107.) For Brady purposes, evidence is material if it is
reasonably probable its disclosure would alter the outcome of trial. (People v.
Lucas (2014) 60 Cal.4th 153, 273-274; City of Los Angeles, supra, 29 Cal.4th at
pp. 7-8.)
―There are three components of a true Brady 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) 527 U.S. 263, 281-282.)
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 ―Pitchess motions‖ . . .
through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code
sections 1043 through 1045.‘ ‖ (People v. Mooc (2001) 26 Cal.4th 1216, 1219-
1220 (Mooc).) ―Traditionally, Pitchess motions seek information about past
complaints by third parties of excessive force, violence, dishonesty, or the filing of
false police reports contained in the officer‘s personnel file.‖ (Rezek v. Superior
Court (2012) 206 Cal.App.4th 633, 640.)
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
9
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, supra, 26 Cal.4th at p. 1226.)
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 Pitchess and the statutory scheme
codifying Pitchess require the intervention of a neutral trial judge, who examines
10
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)
49 Cal.3d 74, 84.)
Although both Brady, supra, 373 U.S. 83, and its progeny, and the statutory
Pitchess procedures employ the terms ―material‖ or ―materiality‖ in describing
what must be disclosed, these words are not used in the same way. Under Brady,
evidence is ―material‖ only if it is reasonably probable a prosecution‘s outcome
would have been different had the evidence been disclosed. (City of Los Angeles,
supra, 29 Cal.4th at pp. 7-8.) By contrast, ―[u]nder Pitchess, a defendant need
only show that the information sought is material ‗to the subject matter involved in
the pending litigation.‘ ([Evid. Code,] § 1043, subd. (b)(3).) Because Brady‘s
constitutional materiality standard is narrower than the Pitchess requirements, any
[information] that meets Brady‘s test of materiality necessarily meets the
relevance standard for disclosure under Pitchess. ([Evid. Code,] § 1045, subd.
(b).)‖ (Id. at p. 10.)
―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
11
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 Brady material. Then we will examine the
prosecution‘s exact obligation under Brady 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, 26 Cal.4th at p. 1227), we have said that this provision
requires the prosecution, as well as the defendant, to comply with the Pitchess
procedures if it wishes to obtain information from confidential personnel records.

2
Although Penal Code section 832.7, subdivision (a), specifically cross-
references Evidence Code sections 1043 and 1046, we have generally read the
cross-reference as including Evidence Code section 1045. (E.g., City of Los
Angeles
, supra, 29 Cal.4th at pp. 9-11.)
12


(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1046 (lead opn.).)3 ―Absent
such compliance, . . . peace officer personnel records retain their confidentiality
vis-a-vis the prosecution.‖ (Alford, at p. 1046.) In Alford, we held that, when the
defendant makes a Pitchess motion, the prosecution does not automatically receive
whatever information the court discloses to the defendant. (Id. at pp. 1043-1046.)
We explained that the Pitchess procedure is ―in essence a special instance of third
party discovery,‖ and that in a Pitchess hearing, ―the district attorney prosecuting
the underlying criminal case represents neither the custodian of records nor their
subject, and thus has no direct stake in the outcome.‖ (Id. at p. 1045.) Although
recognizing that ―the prosecution itself remains free to seek Pitchess disclosure,‖
we found no ―statutory authority to compel the defense or the trial court to share
with the prosecution the fruits of a successful Pitchess motion.‖ (Id. at p. 1046;
see Mooc, supra, 26 Cal.4th at p. 1227 [the Pitchess statutory scheme requires a
neutral judge to examine the records in camera ―away from the eyes of either
party‖].)
The Courts of Appeal have consistently held that the prosecution does not
have access to confidential personnel records absent compliance with the Pitchess
procedures. (Rezek v. Superior Court, supra, 206 Cal.App.4th at p. 642;
Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 415; People v.
Gutierrez (2003) 112 Cal.App.4th 1463, 1475; Abatti v. Superior Court (2003)

3
Justice Werdegar‘s lead opinion in Alford v. Superior Court, supra, 29
Cal.4th 1033, received only three signatures. However, Justice Moreno, who
disagreed with another part of the lead opinion, agreed with the portion of the lead
opinion we are discussing, thus forming a majority for that portion. (Id. at p.
1057 (conc. & dis. opn. of Moreno, J.).) All further citations to the Alford case are
to the lead opinion.
13


112 Cal.App.4th 39, 56; People v. Superior Court (Gremminger) (1997) 58
Cal.App.4th 397, 404-407.)
The Court of Appeal in this case concluded that the prosecution does have
the right to review personnel records of police officer witnesses for Brady material
without complying with the Pitchess procedures, although the prosecution would
have to comply with those procedures, and receive judicial approval, before it
could turn over to the defense any Brady 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 Pitchess
procedures but otherwise provides only one exception to the confidentiality
requirement — the exception for investigations. This exception indicates that the
Legislature considered the range of situations in which prosecutorial need justifies
direct access to peace officer personnel records, and it decided that those situations
should be limited to ―investigations or proceedings concerning the conduct of
peace officers or custodial officers‖ (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.‖
14
(Black‘s Law Dict. (10th ed. 2014) p. 953, col. 2.) Checking for Brady 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, 26 Cal.4th at p. 1229.) Treating such officers as
the subject of an investigation whenever they become a witness in a criminal case,
thus giving the prosecutor routine access to their confidential personnel records,
would not protect their privacy interests ―to the fullest extent possible.‖ (Id. at p.
1227.)
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), supra, 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 Pitchess 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 Pitchess procedures if they seek information from confidential
personnel records.
15
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, 373 U.S. 83, to provide this information to the defense. No one
disputes that. The question before us is whether the obligation goes beyond that.
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‖ (Brady, supra, 373 U.S. at p. 87) or, stated slightly differently, ―to ensure
that a miscarriage of justice does not occur‖ (United States v. Bagley (1985) 473
U.S. 667, 675). In light of this purpose, the high court has made clear that one
element of a Brady violation is that ―evidence must have been suppressed by the
State, either willfully or inadvertently.‖ (Strickler v. Greene, supra, 527 U.S. at p.
282.) If the prosecution informs the defense of what it knows regarding
information in confidential personnel records, and the defense can seek that
information itself, no evidence has been suppressed.
―[T]he prosecutor had no constitutional duty to conduct defendant‘s
investigation for him. Because Brady and its progeny serve ‗to restrict the
16
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) 888 F.2d 1484, 1488.) Consequently, ‗when information
is fully available to a defendant at the time of trial and his only reason for not
obtaining and presenting the evidence to the Court is his lack of reasonable
diligence, the defendant has no Brady claim.‘ (United States v. Brown (5th Cir.
1980) 628 F.2d 471, 473; see United States v. Stuart (8th Cir. 1998) 150 F.3d 935,
937 [―Evidence is not suppressed if the defendant has access to the evidence prior
to trial by the exercise of reasonable diligence.‖]; United States v. Slocum (11th
Cir. 1983) 708 F.2d 587, 599.)‖ (People v. Morrison (2004) 34 Cal.4th 698, 715;
see People v. Zambrano, supra, 41 Cal.4th at p. 1134.)
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 Pitchess 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 Brady material, and then lets the defense decide for itself whether
to file a Pitchess 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 Brady
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 Brady violation. (Amado v. Gonzalez (9th
17
Cir. 2014) 758 F.3d 1119, 1137 [―defense counsel cannot ignore that which is
given to him or of which he otherwise is aware‖].) An oft-cited case is U.S. v.
Dupuy (9th Cir. 1985) 760 F.2d 1492, where the prosecutor determined that
certain notes that she had promised would remain confidential contained potential
Brady material. Rather than disclose the information directly to the defendant, she
―took her dilemma to the trial judge‖ and discussed the situation with him. (Id. at
p. 1501.) Although the appellate court faulted what the trial judge ultimately did,
it found the prosecutor had acted in accordance with her Brady duty. ―By
submitting the issue to the judge, the prosecutor satisfied her duty to disclose
exculpatory material.‖ (Ibid.) It explained that ―[s]ince suppression by the
Government is a necessary element of a Brady claim, [citation], if the means of
obtaining the exculpatory evidence has been provided to the defense, the Brady
claim fails.‖ (Id. at p. 1501, fn. 5.)
Several cases have cited U.S. v. Dupuy, supra, 760 F.2d 1492, in finding no
Brady violation when the defense had the ability to obtain the exculpatory
evidence for itself. (U.S. v. Bond (9th Cir. 2009) 552 F.3d 1092, 1097 [no Brady
violation where the government provided the defendant ―with the information
needed to acquire all trial testimony, and provided him with the essential factual
data to determine whether the witness‘ testimony might be helpful‖]; U.S. v. Bracy
(9th Cir. 1995) 67 F.3d 1421, 1428-1429 [no Brady violation when the
government ―provided all the information necessary for the defendants to discover
the alleged Brady material on their own, so the government was not guilty of
suppressing any evidence favorable to [a defendant]‖]; U.S. v. Aichele (9th Cir.
1991) 941 F.2d 761, 764 [―When, as here, a defendant has enough information to
be able to ascertain the supposed Brady material on his own, there is no
suppression by the government.‖].)
18
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 Brady material that review uncovers, is
sufficient to protect the defendant‘s due process rights. In Pennsylvania v. Ritchie
(1987) 480 U.S. 39 (Ritchie), the defendant, charged with molesting his minor
daughter, sought disclosure of information in confidential reports prepared by a
protective service agency that had investigated the case. The Pennsylvania
Supreme Court had ―held that defense counsel must be allowed to examine all of
the confidential information, both relevant and irrelevant, and present arguments
in favor of disclosure.‖ (Id. at p. 59.) The high court disagreed that such access
was required. ―A defendant‘s right to discover exculpatory evidence does not
include the unsupervised authority to search through the Commonwealth‘s files.‖
(Ibid.) Rather, the court found that the defendant‘s ―interest (as well as that of the
Commonwealth) in ensuring a fair trial can be protected fully by requiring that the
[confidential] files be submitted only to the trial court for in camera review.‖ (Id.
at p. 60.) ―An in camera review by the trial court will serve [the defendant‘s]
interest without destroying the Commonwealth‘s need to protect the
confidentiality of those involved in child-abuse investigations.‖ (Id. at p. 61.)
A similar issue arose recently in California concerning confidential child
welfare services records. (J.E. v. Superior Court (2014) 223 Cal.App.4th 1329.)
In that case, the prosecutor reviewed the records and told the defense there was no
Brady material. Believing that the records did contain exculpatory material, the
defense moved the trial court to review them in camera, relying on ―Welfare and
Institutions Code section 827, which allows a juvenile court to release information
from juvenile files to persons who are otherwise not authorized to access the
confidential files.‖ (Id. at p. 1332.) The appellate court held ―that when a
petitioner files a section 827 petition requesting that the court review a
19
confidential juvenile file and provides a reasonable basis to support its claim that
the file contains Brady exculpatory or impeachment material, the juvenile court is
required to conduct an in camera review.‖ (Id. at p. 1333.) It found this
requirement ―supported by both policy and practical considerations.‖ (Id. at p.
1334.)
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 Brady review, and
forestalls litigation brought by the defense over whether the prosecution has
complied with its Brady 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 Brady requests through a single
procedure.‖ (J.E. v. Superior Court, supra, 223 Cal.App.4th at p. 1339.)
We think the procedure used for confidential juvenile records in Ritchie,
supra, 480 U.S. 39, and J.E. v. Superior Court, supra, 223 Cal.App.4th 1329,
works just as well for confidential personnel records. ―Similar to the
circumstances in Ritchie, the records sought in this case are confidential but
available by court order if they are material to the issues in the pending case. The
difference between Ritchie and this case is that California has a legislatively
established, exclusive method for gaining access to police officer personnel
records for discovery of such exculpatory material — the so-called Pitchess
procedures . . . .‖ (Abatti v. Superior Court, supra, 112 Cal.App.4th at p. 58.)
There are several advantages in these circumstances to having the
defendant use the Pitchess procedures to acquire exculpatory material in
20
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 Brady material in personnel
reports will also foster unnecessary duplicative proceedings. Whatever we say
about the prosecution‘s Brady obligation cannot deprive the defense of the right to
bring its own Pitchess motion. (See Rezek v. Superior Court, supra, 206
Cal.App.4th at p. 642.) The statutory Pitchess 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
21
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, 26 Cal.4th at p. 1228.) Using the Pitchess
procedures rather than simply relying on the prosecution would thus forestall
potential litigation over whether the prosecution had fulfilled its Brady
obligations, i.e., had adequately represented the defense interests. (See J.E. v.
Superior Court, supra, 223 Cal.App.4th at p. 1339.)
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 Brady.‖ But he argues that the Pitchess procedures are
inadequate to protect his rights. We disagree. The Brady requirements and
Pitchess procedures have long coexisted. ―[T]he Pitchess scheme does not
unconstitutionally trump a defendant‘s right to exculpatory evidence as delineated
22
in Brady. Instead, the two schemes operate in tandem.‖ (People v. Gutierrez,
supra, 112 Cal.App.4th at p. 1473.) We are confident that trial courts employing
Pitchess procedures will continue to ensure that defendants receive the
information to which they are entitled.
―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, 373 U.S. 83. Unlike Brady,
California‘s Pitchess discovery scheme entitles a defendant to information that
will ‗facilitate the ascertainment of the facts‘ at trial (Pitchess, supra, 11 Cal.3d at
p. 536), that is, ‗all information pertinent to the defense‘ [citation].‖ (City of Los
Angeles, supra, 29 Cal.4th at p. 14.)
It is true, as defendant notes, that in some ways the Pitchess 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 ― ‗ ―Pitchess process‖
operates in parallel with Brady and does not prohibit the disclosure of Brady
information,‘ ‖ all information that the trial court finds to be exculpatory and
material under Brady must be disclosed, notwithstanding Evidence Code section
1045‘s limitations. (City of Los Angeles, supra, 29 Cal.4th at p. 14.)
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) 49 Cal.3d 74, 84.) A showing of good cause is measured by
‗relatively relaxed standards‘ that serve to ‗insure the production‘ for trial court
23
review of ‗all potentially relevant documents.‘ (Ibid.)‖ (People v. Gaines (2009)
46 Cal.4th 172, 179.) The defense only needs to demonstrate ― ‗a logical link
between the defense proposed and the pending charge‘ and describe with some
specificity ‗how the discovery being sought would support such a defense or how
it would impeach the officer‘s version of events.‘ ‖ (Id. at p. 182, quoting Warrick
v. Superior Court (2005) 35 Cal.4th 1011, 1021; see Warrick, at pp. 1024–1025
[the defense proposed may, ―depending on the circumstances of the case, . . .
consist of a denial of the facts asserted in the police report‖].) ―This specificity
requirement excludes requests for officer information that are irrelevant to the
pending charges.‖ (Warrick, at p. 1021.) But if the defendant shows that the
request is relevant to the pending charges, and explains how, the materiality
requirement will be met.
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) 38 Cal.3d 658, 684.) A reasonable belief that the agency has the
type of information sought does not necessarily mean personal knowledge but
may be based on a rational inference. (City of Santa Cruz v. Municipal Court,
supra, 49 Cal.3d at p. 90 [finding adequate to trigger in camera review defense
counsel‘s declaration stating the ― ‗belie[f]‘ ‖ that members of the public ― ‗may‘ ‖
have filed complaints of use of excessive force by the officers in question].) ―It is
equally apparent that the statute, in calling for a description of the ‗type‘ of
records sought to be disclosed, does not require the affiant to prove the existence
of particular records. . . . Clearly, an affidavit which describes the information
sought as consisting of prior ‗complaints of excessive force‘ by specific
24
officers . . . has specified a . . . ‗type‘ of information within the plain meaning of
the statute.‖ (Id. at pp. 90-91.)
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 Brady 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 Pitchess discovery fully protects their due process right under
Brady, supra, 373 U.S. 83, to obtain discovery of potentially exculpatory
information located in confidential personnel records. The prosecution need not
do anything in these circumstances beyond providing to the defense any
information it has regarding what the records might contain — in this case
informing the defense of what the police department had informed it.
The superior court was concerned that requiring it to review personnel
records routinely for exculpatory material, including Brady 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 Pitchess, supra, 11 Cal.3d
25
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 Pitchess 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 Pitchess motion.‖
(Mooc, supra, 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
26
impeaching information it is seeking. For all of these reasons, we believe that the
Pitchess 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. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter to
that court for further proceedings consistent with our opinion.
CHIN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.


27











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 228 Cal.App.4th 1046
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.

1


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.

2



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

3


Opinion Information
Date:Docket Number:
Mon, 07/06/2015S221296