Filed 12/1/14
IN THE SUPREME COURT OF CALIFORNIA
RIVERSIDE COUNTY SHERIFF‘S
DEPARTMENT,
Plaintiff and Respondent,
S206350
v.
Ct.App. 4/2 E052729
JAN STIGLITZ, as Hearing Officer, etc.,
Riverside County
Defendant and Respondent;
Super. Ct. No. RIC10004998
KRISTY DRINKWATER,
Real Party in Interest and
Respondent;
RIVERSIDE SHERIFFS‘
ASSOCIATION,
Intervener and Appellant.
____________________________________)
RIVERSIDE COUNTY SHERIFF‘S
DEPARTMENT,
Plaintiff and Respondent,
v.
Ct.App. 4/2 E052807
JAN STIGLITZ, as Hearing Officer, etc.,
Riverside County
Defendant and Respondent;
Super. Ct. No. RIC10004998
KRISTY DRINKWATER,
Real Party in Interest and
Appellant.
Here we hold that when hearing an administrative appeal from discipline
imposed on a correctional officer, an arbitrator may rule upon a discovery motion
for officer personnel records, commonly referred to as a Pitchess motion.
(Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess); Evid. Code, §§ 1043,
1045.) Evidence Code section 1043 expressly provides that Pitchess motions may
be filed with an appropriate ―administrative body.‖ The language reflects a
legislative intent that administrative hearing officers be allowed to rule on these
motions. This holding harmonizes the statutory scheme with other Evidence Code
provisions and furthers the goals of the Public Safety Officers Procedural Bill of
Rights Act (Gov. Code, § 3300 et seq.).
I. BACKGROUND
The Riverside County Sheriff‘s Department (the department) fired Deputy
Kristy Drinkwater for falsifying her payroll forms. A memorandum of
understanding (MOU) between the Riverside Sheriffs‘ Association (Sheriffs‘
Association) and the county provided for an administrative appeal. The parties
chose arbitrator Jan Stiglitz as the hearing officer.
Drinkwater intended to urge a disparate treatment defense, claiming that
others had committed similar misconduct but were not fired. Accordingly, she
sought discovery of redacted records ―from personnel investigations of any
Department employees who have been disciplined for similar acts of misconduct.‖
(See Pegues v. Civil Service Com. (1998) 67 Cal.App.4th 95, 105-106; Talmo v.
Civil Service Com. (1991) 231 Cal.App.3d 210, 229-231.) Limiting her request to
events during the previous five years, she sought incident summaries, the rank of
2
the officer, and the discipline imposed. The department objected, arguing in part
that Drinkwater could not satisfy the requirements for a Pitchess motion under
Evidence Code sections 1043 and 1045, and could not establish the good cause
required for discovery. Stiglitz denied the motion without prejudice, ruling the
department need not search its records for similar disciplinary cases. Instead,
Drinkwater was obligated to identify particular officers whose records she
believed were relevant to her claim.
Drinkwater renewed her motion, supported by counsel‘s declaration that 11
named officers had allegedly committed similar misconduct but received little or
no discipline. Stiglitz ordered production of the 11 officers‘ records for in camera
review.
The department sought a writ of administrative mandate in superior court.
(See Code Civ. Proc., § 1094.5.) It argued initially that Drinkwater failed to
establish good cause for discovery because counsel‘s declaration was speculative
and Pitchess discovery was only available for officers involved in the underlying
incident at issue. The department then filed a supplemental brief citing the recent
case of Brown v. Valverde (2010) 183 Cal.App.4th 1531 (Brown). Brown held
that a driver facing a license suspension for driving under the influence could not
seek Pitchess discovery in a Department of Motor Vehicles (DMV) administrative
proceeding. (See discussion, post.) Relying upon Brown, the department argued
only judicial officers could grant Pitchess motions, depriving Stiglitz of authority
to rule. The superior court agreed and granted mandate, ordering Stiglitz to
reverse his prior order.
The Sheriffs‘ Association sought to intervene, moving to set aside the
mandate order and to secure a new hearing. Intervention was granted. After
additional briefing and a new hearing, the superior court again granted the
department‘s mandate petition, relying upon Brown.
3
Drinkwater and intervener Sheriffs‘ Association sought review. In
consolidated appeals, the Court of Appeal reversed, distinguishing Brown and
criticizing its reasoning. We affirm.
II. DISCUSSION
The department again urges that only judicial officers are authorized to rule
on Pitchess motions. That argument fails in light of the governing statutes.
A. The Pitchess Statutes
In Pitchess, this court held a criminal defendant could obtain discovery of
certain law enforcement personnel records upon a sufficient showing of good
cause. (Pitchess, supra, 11 Cal.3d at pp. 537-540.) ―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.‖ (City of Santa
Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81, fn. omitted (City of Santa
Cruz).) Those sections create a statutory scheme making these records
confidential and subject to discovery only through the procedure set out in the
Evidence Code. (City of Santa Cruz, at pp. 81-82.) The sole issue here is
whether, by statute, these motions may only be ruled on in the superior court, or
whether they can be resolved by an administrative hearing officer. In answering
this question of statutory interpretation, our goal is to effectuate the Legislature‘s
intent. (People v. Johnson (2013) 57 Cal.4th 250, 260; People v. Cornett (2012)
53 Cal.4th 1261, 1265.) ― ‗When interpreting statutes, we begin with the plain,
commonsense meaning of the language used by the Legislature. [Citation.] If the
language is unambiguous, the plain meaning controls.‘ [Citation.] ‗[W]henever
possible, significance must be given to every word [in a statute] in pursuing the
legislative purpose, and the court should avoid a construction that makes some
4
words surplusage.‘ [Citation.] ‗[W]e may reject a literal construction that is
contrary to the legislative intent apparent in the statute or that would lead to absurd
results . . . .‘ [Citation.]‖ (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131;
accord, Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52
Cal.4th 499, 518-519.) We consider the applicable statutes in turn.
Penal Code section 832.7, subdivision (a) provides in part: ―Peace officer
or custodial officer personnel records and records maintained by any state or local
agency pursuant to [Penal Code] Section 832.5 [regarding the investigation and
retention of citizen complaints], 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.‖ (Italics
added.) Penal Code section 832.8 defines ―personnel records,‖ a definition not
disputed here.1
Evidence Code section 1043, subdivision (a) reads in part: ―In any case in
which discovery or disclosure is sought of peace or custodial officer personnel
records . . . , the party seeking the discovery or disclosure shall file a written
motion with the appropriate court or administrative body . . . .‖ (Italics added.)
The expansive language of Evidence Code section 1043, subdivision (a) does two
things. First, it makes clear that Pitchess motions may be brought in both civil and
criminal cases. (See Commission on Peace Officer Standards & Training v.
Superior Court (2007) 42 Cal.4th 278, 293 (Peace Officer Standards); Pen. Code,
1
Penal Code section 832.8 defines personnel records as any file maintained
under an individual‘s name by his or her employer, and includes information such
as personal data, medical history, employee ―advancement, appraisal, or
discipline,‖ complaints or investigation of complaints pertaining to the
performance of the officer‘s duties, and ―[a]ny other information the disclosure of
which would constitute an unwarranted invasion of personal privacy.‖
5
§ 832.7, subd. (f).) Second, Evidence Code section 1043 specifically states the
motion should be filed in the appropriate court ―or administrative body.‖ Sections
1043 and 1045 appear in division 8 of the Evidence Code dealing with privileges.
Chapter 4, article 9 of that division contains definitions to govern the construction
of sections contained in division 8. Evidence Code section 901 expansively
defines a ―proceeding‖ as ―any action, hearing, investigation, inquest, or inquiry
(whether conducted by a court, administrative agency, hearing officer, arbitrator,
legislative body, or any other person authorized by law) in which, pursuant to law,
testimony can be compelled to be given.‖ (Italics added.) The Law Revision
Commission explained that this definition included ―administrative proceedings‖
and ―arbitration proceedings‖ (Cal. Law Revision Com. com., reprinted at 29B pt.
3A West‘s Ann. Evid. Code (2009 ed.) foll. § 901, p. 213), and that this broad
definition was necessary to protect privileges by making them applicable to
nonjudicial proceedings (id., foll. § 910, pp. 216-217).
As explained in City of Santa Cruz, Evidence Code section 1043 sets out
the initial good cause showing an applicant must make to even begin the discovery
process. If that showing is successful, Evidence Code section 1045 governs the
conduct of the resultant hearing in camera. The materials sought must be shown
―relevant to the subject matter involved in the pending litigation.‖ (Evid. Code,
§ 1045, subd. (a).) Certain categories of information are not discoverable.2 (Evid.
Code, § 1045, subds. (a), (b); see City of Santa Cruz, supra, 49 Cal.3d at p. 83.)
2
Information excluded from disclosure include complaints regarding
incidents occurring five or more years before the event at issue, facts ―that are so
remote as to make disclosure of little or no practical benefit,‖ and, in any criminal
case, the conclusions of an officer investigating a complaint. (Evid. Code, § 1045,
subd. (b).)
6
B. Evidence Code Section 1043 and the Lack of a Transfer Mechanism
The department observes that Evidence Code section 1045 repeatedly refers
to ―the court‖ as the entity that must conduct an in camera review, determine
relevance, and issue appropriate protective orders. It argues that because ―the
court‖ appears five3 times in Evidence Code section 1045, these references trump
the single reference to ―administrative body‖ in Evidence Code section 1043. The
department argues that although Evidence Code section 1043 mandates that
Pitchess motions be filed in ―the appropriate court or administrative body,‖
Evidence Code section 1045‘s repeated reference to ―the court‖ means that only
judicial officers may rule on them.
This argument fails for several reasons. First, it simply reads
―administrative body‖ out of Evidence Code section 1043. If the Legislature
intended that only the superior court could rule on Pitchess motions, it could easily
have said so. There is no discernable reason why the Legislature would expressly
provide in Evidence Code section 1043 that a Pitchess motion may be filed before
an administrative body, then implicitly suggest in Evidence Code section 1045 that
such a body was powerless to act upon the motion because only ―the court‖ may
conduct the required in camera review. Indeed, such an interpretation would mean
the Legislature had expressly provided for the doing of an idle act: filing a motion
in a body not authorized to rule on it.
3
See Evidence Code section 1045, subdivisions (b) (―In determining
relevance, the court shall examine . . . :‖), (c) (―the court shall consider . . . .‖), (d)
(―the court may make any order which justice requires . . . .‖), (e) (―The court
shall . . . order that the records disclosed or discovered may not be used for any
purpose other than a court proceeding pursuant to applicable law.‖). The
department counts as a sixth reference the use of ―the court‖ in Evidence Code
section 915, subdivision (b). This statute predated the statutory Pitchess scheme,
and its reference to ―the court‖ does not support the department‘s position in any
event.
7
Second, the argument completely ignores the broad definition of
―proceeding‖ in Evidence Code section 901, which includes administrative
hearings and arbitrations. Disregarding that section violates the principle that we
consider the language of the entire scheme and related statutes, harmonizing the
terms when possible. If any ambiguity remains, we may examine the legislative
history and the stated purpose of the scheme to guide our interpretation. (See
Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55
Cal.4th 783, 803.) Evidence Code section 900 reflects a legislative mandate that
the definitions provided ―govern the construction‖ of the division in which
Evidence Code sections 1043 and 1045 appear.
Further, had the Legislature intended that Pitchess motions could only be
conducted in the superior court, it could have provided a mechanism to transfer a
motion from an administrative proceeding to the superior courts. It did not do so.
Evidence Code section 1043 makes no provision for the transfer of Pitchess
motions from an administrative setting to the superior court. The parties agree that
no other statute authorizes such a transfer. A transfer procedure would require the
creation of an extraordinary procedure because, in a case like this one, there is no
case or controversy pending in the superior court.
While the parties cite no statutory transfer mechanism, amici curiae suggest
one may be found through various other provisions. The Los Angeles Police
Protective League (the Protective League) points to two statutes that might permit
an extraordinary transfer. First, it cites Code of Civil Procedure4 section 1281.8,
subdivision (b), which allows a party in arbitration to file in superior court ―an
application for a provisional remedy in connection with an arbitrable controversy,
4
Unspecified statutory references are to the Code of Civil Procedure.
8
but only upon the ground that the award to which the applicant may be entitled
may be rendered ineffectual without provisional relief.‖ (Italics added.) ―The
logical reason for the requirement that an applicant be required to show that an
arbitration award may be rendered ineffectual is to ensure that the court does not
invade the province of the arbitrator—i.e., the court should be empowered to grant
provisional relief in an arbitrable controversy only where the arbitrator‘s award
may not be adequate to make the aggrieved party whole.‖ (Woolley v. Embassy
Suites, Inc. (1991) 227 Cal.App.3d 1520, 1527, italics added; see California Retail
Portfolio Fund GMBH & Co. KG v. Hopkins Real Estate Group (2011) 193
Cal.App.4th 849, 856.) Section 1281.8, thus, does not speak to any and all types
of harm. It addresses only a circumstance in which a party might prevail in an
arbitration but still have no recourse due to some changing condition. (See
California Retail Portfolio Fund GMBH & Co. KG, at pp. 859-862 [affirming writ
of attachment under section 1281.8 due to the defendant‘s potential insolvency,
which might have rendered an arbitration award ineffectual].)
This scheme does not apply here. Initially, section 1281.8 only applies to
applications by parties. There may be instances in which the custodian of records
is not a party to the arbitration. Here, although the department is a party, the only
substantive ―award‖ to which it may be entitled in the arbitration is a confirmation
that its decision to terminate Drinkwater was proper. The department does not
explain how that potential confirmation would be rendered ineffectual by
production of the records sought, or by any proper order of disclosure.
The Protective League also cites a provision of the Public Safety Officers
Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.). Government
Code section 3309.5, subdivision (d)(1) provides: ―In any case where the superior
court finds that a public safety department has violated any of the provisions of
this chapter, the court shall render appropriate injunctive or other extraordinary
9
relief to remedy the violation and to prevent future violations of a like or similar
nature, including, but not limited to, the granting of a temporary restraining order,
preliminary injunction, or permanent injunction prohibiting the public safety
department from taking any punitive action against the public safety officer.‖ This
provision was enacted to prevent police departments from violating the rights of
officers. (See Jaramillo v. County of Orange (2011) 200 Cal.App.4th 811, 827-
828.) It simply does not speak to the situation at issue here. Further, nothing in
the POBRA‘s general grant of a right to administrative appeal (Gov. Code,
§§ 3304, subd. (b), 3304.5) suggests an authorization to transfer a matter from an
administrative proceeding to the superior court.
The California State Association of Counties and the California League of
Cities suggest a writ of administrative mandate might provide a transfer
mechanism. They propose that the hearing officer could begin the Pitchess
inquiry under Evidence Code section 1043. If the hearing officer finds a good
cause showing has been made, a party may seek administrative mandate. The
superior court could then review the records under Evidence Code section 1045.
Such an interpretation would morph the mandate statute beyond its
delineated contours. The Code of Civil Procedure permits administrative mandate
for inquiry ―into the validity of any final administrative order,‖ but only as to
―whether the respondent has proceeded without, or in excess of, jurisdiction;
whether there was a fair trial; and whether there was any prejudicial abuse of
discretion.‖ (§ 1094.5, subds. (a), (b).) In that mandate proceeding, the superior
court would only be empowered to review the propriety of the good cause
determination and production order. If it determined that the order was proper, the
court‘s review role would end. The authority conferred under section 1094.5 does
not grant the court broader jurisdiction to actually conduct a review of the records
10
produced. Nor does it create a cause or controversy beyond the question referred
to in the statutory language.
Similarly, we are not authorized to create a nonstatutory transfer
mechanism here. Drinkwater cites section 187, which states: ―When jurisdiction
is, by the Constitution or this Code, or by any other statute, conferred on a Court
or judicial officer, all the means necessary to carry it into effect are also given; and
in the exercise of this jurisdiction, if the course of proceeding be not specifically
pointed out by this Code or the statute, any suitable process or mode of proceeding
may be adopted which may appear most conformable to the spirit of this code.‖
―The section does not speak to jurisdiction; it does not create jurisdiction; rather,
the existence of jurisdiction is the premise for its application. Where jurisdiction
exists from other sources, Code of Civil Procedure section 187 grants courts
authority to exercise any of their various powers as may be necessary to carry out
that jurisdiction.‖ (People v. Picklesimer (2010) 48 Cal.4th 330, 338
(Picklesimer).)
Code of Civil Procedure section 187 (CCP section 187) comes into play
only when a court has lawful jurisdiction. No statute confers jurisdiction on the
superior court to hear a Pitchess motion when, as here, the motion is filed with an
administrative hearing officer. Neither Evidence Code section 1045 nor Evidence
Code section 915 speaks to jurisdiction. (See discussion, post.) At most, those
provisions describe the duties of a court if the motion is properly before it. Only
Evidence Code section 1043, which allows a Pitchess motion to be filed ―with the
appropriate court or administrative body,‖ speaks to jurisdiction. This
understanding is confirmed by Evidence Code section 1043, subdivision (b)(3),
which provides that a motion must include affidavits that ―set[] forth the
materiality thereof to the subject matter involved in the pending litigation . . . .‖
(Italics added.) Here, the pending litigation is the administrative appeal conducted
11
pursuant to the MOU. The only express grant of jurisdiction reflected in the
Pitchess statutes allows the matter to be placed before the hearing officer. CCP
section 187 requires an independent grant of jurisdiction by constitution or statute.
Evidence Code section 1043 articulates the appropriate venue for the filing of a
Pitchess motion. These provisions, read together, do not authorize the judicial
creation of a transfer mechanism from the hearing officer to superior court. (See
Picklesimer, supra, 48 Cal.4th at p. 338 [refusing to apply CCP § 187 to find the
superior court had jurisdiction to hear a postjudgment motion for relief from an
improper sex offender registration requirement]; Swarthout v. Superior Court
(2012) 208 Cal.App.4th 701, 707-708 [same as to a postconviction motion to
transfer an inmate]; People v. Ainsworth (1990) 217 Cal.App.3d 247, 254-255
[same as to postconviction discovery motion].)
Drinkwater also suggests that ―all courts have inherent supervisory or
administrative powers which enable them to carry out their duties, and which exist
apart from any statutory authority.‖ This argument suffers the same defect as the
one above. Courts have supervisory authority to ― ‗control litigation before
them. . . . [Citation.]‘ ‖ (In re Reno (2012) 55 Cal.4th 428, 522, italics added.) A
court has no authority to confer jurisdiction upon itself where none exists. Indeed,
in Pitchess itself, although we suggested that a court had ―inherent power to order
discovery when the interests of justice so demand‖ (Pitchess, supra, 11 Cal.3d at
p. 535), there was no question that the court had jurisdiction over the pending
criminal case. Similar exercises of a court‘s inherent supervisory authority have
occurred in the context of a court that already had jurisdiction over the matter.5
5
See Shively v. Stewart (1966) 65 Cal.2d 475, 479-480 (nonstatutory
discovery); Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 811-813
(compensation for mandatory improvements made after condemnation); Tide
(footnote continued on next page)
12
The Legislature did not specify a transfer mechanism in the Pitchess
statutes. No other statute or authority exists for such a transfer. Accordingly, we
conclude that by expressly permitting filing with an appropriate administrative
body in Evidence Code section 1043, the Legislature intended to allow
administrative hearing officers to decide such motions without court intervention.
The department‘s contrary construction of the scheme violates ―the rule of
construction that courts should, if possible, accord meaning to every word and
phrase in a statute to effectuate the Legislature‘s intent.‖ (People v. Cobb (2010)
48 Cal.4th 243, 253; St. Marie v. Riverside County Regional Park & Open-Space
Dist. (2009) 46 Cal.4th 282, 289.) There is no indication the Legislature
contemplated the filing of an ineffectual motion with a body that could not
consider it.
C. Evidence Code Sections 1045 and 915
Evidence Code section 1045‘s repeated reference to the duties of ―the
court‖ can be understood in the context of the legislative history of the Pitchess
statutes. When Evidence Code sections 1043 and 1045 were enacted, the
(footnote continued from previous page)
Water Associated Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 825-826 (cross-
complaints); People v. Castello (1998) 65 Cal.App.4th 1242, 1246-1250
(reconsideration of interim ruling); In re Amber S. (1993) 15 Cal.App.4th 1260,
1263-1267 (control of testimony); Cottle v. Superior Court (1992) 3 Cal.App.4th
1367, 1376-1381 (exclusion of evidence); Asbestos Claims Facility v. Berry &
Berry (1990) 219 Cal.App.3d 9, 18-23 (designating defense counsel program in
asbestos litigation); Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200
Cal.App.3d 272, 286-291 (evidence sanction); James v. Superior Court (1978) 77
Cal.App.3d 169, 175-176 (juvenile competency hearing); cf. Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 967-968 (control of litigation); Walker v.
Superior Court (1991) 53 Cal.3d 257, 266-267 (preunification authority to transfer
cases to the municipal court).
13
Legislature was focused primarily upon our Pitchess decision and its
consequences in the context of criminal prosecutions, which obviously occur
before courts. ―After this court rendered its decision, concerns were expressed to
the Legislature that, in response to Pitchess, law enforcement departments were
destroying personnel records in order to prevent discovery; in some instances,
criminal charges had been dismissed because the records to which the defendant
would have been entitled no longer were available. (See Sen. Com. on Judiciary,
Analysis of Sen. Bill No. 1436 (1977–1978 Reg. Sess.) as introduced, p. 7; Sen.
Com. on Judiciary, Analysis of Sen. Bill No. 1436 (1977–1978 Reg. Sess.) as
amended Apr. 3, 1978; Assem. Com. on Crim. Justice, Analysis of Sen. Bill No.
1436 (1977–1978 Reg. Sess.) as amended Aug. 7, 1978.) As a result of these
concerns, Senate Bill No. 1436 was enacted, requiring that records relating to
citizen complaints be maintained for a period of five years. (Stats. 1978, ch. 630,
§ 4, p. 2083, amending [Pen. Code,] § 832.5, subd. (b).) The statute also
established procedures, consistent with Pitchess, permitting discovery of peace
officer personnel records in civil or criminal cases only after an in camera review
of the records by a judge and a determination that the information sought is
relevant to the pending litigation. (Stats. 1978, ch. 630, §§ 1 & 3, pp. 2082–2083,
adding Evid. Code, §§ 1043 & 1045.)‖ (Peace Officer Standards, supra, 42
Cal.4th at p. 293.)
The reality that Pitchess motions are so frequently made in the context of
criminal prosecutions would explain why Evidence Code section 1045 references
―the court.‖ However, the Legislature recognized in Evidence Code section 1043
that Pitchess motions may be relevant in other contexts, thus explaining its broad
language allowing the filing of the motion in ―any case‖ before ―the appropriate
court or administrative body.‖ Given the legislative history of the Pitchess
statutes, the expansive language of Evidence Code section 1043, and the absence
14
of a transfer mechanism, the Legislature‘s reference to ―the court‖ in Evidence
Code section 1045 cannot be interpreted as a coded expression of legislative intent
to substantively limit who may rule on Pitchess motions.
The department argues that Evidence Code section 915 constitutes such a
substantive limitation. Evidence Code section 915, subdivision (a) states that in
ruling on a claim of privilege, the presiding officer cannot require disclosure of the
assertedly privileged information before ruling on the privilege claim. Evidence
Code section 915, subdivision (b) provides an exception when the court is unable
to rule unless it knows the content of the assertedly privileged information. In
such a case, the court may order the disputed information disclosed for review in
chambers. The Law Revision Commission‘s comments following Evidence Code
section 915 noted that ―[t]he exception in subdivision (b) applies only when a
court is ruling on the claim of privilege. Thus, in view of subdivision (a),
disclosure of the information cannot be required, for example, in an administrative
proceeding.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid.
Code, supra, foll. § 915, p. 256.)
The department observes Evidence Code section 1045, subdivision (b)
directs that ―[i]n determining relevance, the court shall examine the [sought]
information in chambers in conformity with Section 915 . . . .‖ Because Evidence
Code section 915 does not mention administrative proceedings, the department
argues hearing officers have no authority to decide Pitchess motions. The
department‘s argument is unpersuasive for several reasons. First, Evidence Code
section 1045 simply requires that an in camera Pitchess hearing must be had ―in
conformity with‖ Evidence Code section 915, ― ‗i.e., out of the presence of all
persons except the person authorized to claim the privilege and such other persons
as he or she is willing to have present . . . .‘ ‖ (Alford v. Superior Court (2003) 29
Cal.4th 1033, 1038 (Alford); see City of Santa Cruz, supra, 49 Cal.3d at p. 83.)
15
We observed in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc): ―[T]o protect the
officer‘s privacy, the examination of documents and questioning of the custodian
should be done in camera in accordance with the requirements of Evidence Code
section 915, and the transcript of the in camera hearing and all copies of the
documents should be sealed.‖ (Id. at p. 1229.) Thus, we have recognized that
Evidence Code section 1045 referenced Evidence Code section 915 only to the
extent the latter provision defined what procedure was required at an in camera
hearing, not who would conduct the hearing. The department‘s reading of the
statute would render the reference to Evidence Code section 915 mere surplusage.
Second, section 915 was enacted as part of the original Evidence Code in
1965. The Law Revision Commission‘s comment predated both our Pitchess
decision and the Legislature‘s subsequent codification of it. It is, then, a poor
indicator of legislative intent as to the proper scope of the Pitchess scheme. The
commission‘s comments informed the Legislature‘s understanding at the time it
enacted the Evidence Code. They did not bar the Legislature from taking future
action, as it did when it amended the code 13 years later following this court‘s
Pitchess decision. (Cf. Duarte v. Chino Community Hospital (1999) 72
Cal.App.4th 849, 856, fn. 3.)
Third, and most problematic, the department‘s interpretation of Evidence
Code section 915 suffers from the same defect as its interpretation of Evidence
Code section 1045. It requires us to conclude that the Legislature intended to also
permit Pitchess filings with an appropriate ―administrative body‖ under Evidence
Code section 1043, yet render that body unable to act on them. The Legislature
could not have intended to provide for the idle act of filing ineffectual motions.
16
D. The Purposes Behind the Pitchess Statutes and POBRA
Our conclusion is also consistent with the purposes behind the POBRA.
The POBRA, to which these parties have contractually bound themselves, ―sets
forth a number of basic rights and protections which must be accorded individual
public safety officers by the public agencies which employ them.‖ (White v.
County of Sacramento (1982) 31 Cal.3d 676, 679.) Included is the right to
administratively appeal an adverse employment decision, ―to give a peace officer
‗an opportunity . . . ―to convince the employing agency to reverse its decision‖ ‘ to
take punitive action.‖ (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th
1272, 1287 (Copley Press), italics omitted; County of Riverside v. Superior Court
(2002) 27 Cal.4th 793, 799.) The Legislature declared that ―effective law
enforcement depends upon the maintenance of stable . . . relations, between public
safety employees and their employers,‖ and that basic protections for officers were
necessary to preserve that stability. (Gov. Code, § 3301.) Allowing relevant
discovery to be ordered in an administrative hearing furthers these goals.
Our conclusion is also consistent with the overall aims of the Pitchess
scheme. Although the department adamantly argues the sole purpose of the
statutes was to rein in Pitchess motions, that characterization is not entirely
accurate. As discussed, the Pitchess statutes reflected the Legislature‘s attempt to
balance a litigant‘s discovery interest with an officer‘s confidentiality interest.
(See Peace Officer Standards, supra, 42 Cal.4th at p. 293; Garcia v. Superior
Court (2007) 42 Cal.4th 63, 69-70 (Garcia); City of Santa Cruz, supra, 49 Cal.3d
at p. 84.) Whether filed before a court or an administrative hearing officer,
interests must still be balanced when ruling on a Pitchess motion.
We emphasize that here there is no question hearing officer Stiglitz, an
attorney, is qualified to rule on the Pitchess motion. The MOU provides that a
hearing officer be selected from a mutually agreed-upon list. (MOU, art. XII,
17
§ 14, subd. A.) If the department believed Stiglitz was not qualified for any
reason, it could have removed him from the list or stricken him as an available
hearing officer in this case. In any event, the Legislature in Evidence Code section
914 has determined that hearing officers generally have the authority to rule on
claims of privilege in the same manner as courts.6
Further, we observe that this case reflects several safeguards against
improper disclosure of confidential records. The MOU here expressly provides
that the administrative hearing is a ―private proceeding‖ between the disciplined
officer and the county. (MOU, art. XII, § 14, subd. (H)(9).) Officer personnel
records are confidential under Penal Code section 832.7, and we have held such
records produced at administrative disciplinary proceedings are not subject to
public disclosure. (See Copley Press, supra, 39 Cal.4th at pp. 1286-1299.) In
addition, any discovered records may only be used in the proceeding at issue.7
(See Evid. Code, § 1045, subd. (e); Alford, supra, 29 Cal.4th at pp. 1039-1043.)
An additional confidentiality safeguard appears in Evidence Code section
1045, subdivision (c), which provides that ―[i]n determining relevance where the
issue in litigation concerns the policies or pattern of conduct of the employing
agency, the court shall consider whether the information sought may be obtained
from other records maintained by the employing agency in the regular course of
agency business which would not necessitate the disclosure of individual
6
See Evidence Code section 914, subdivision (a) (―The presiding officer
shall determine a claim of privilege in any proceeding in the same manner as a
court determines such a claim under Article 2 (commencing with Section 400) of
Chapter 4 of Division 3.‖).
7
The parties are free to include other protective language in their MOUs,
including an explicit agreement that any Pitchess material can only be used in
connection with the proceeding in which it is sought.
18
personnel records.‖ Thus, upon an appropriate finding, other data could be
released in lieu of personnel records.
We have also clarified that an officer‘s entire personnel file need not be
presented for review, only materials of the type requested. (Mooc, supra, 26
Cal.4th at pp. 1228-1230.) In the present case, such materials would be limited to
incidents involving conduct similar to Drinkwater‘s. This limitation balances
privacy interests while permitting focused discovery.
The department does not argue that Drinkwater‘s disparate treatment
defense is invalid or that the discovery she seeks is irrelevant to that defense.
Accordingly, we have no occasion to discuss the availability or scope of such a
defense. Drinkwater‘s Pitchess motion also named the specific officers whose
records she sought, reducing the possibility of an improper ―fishing expedition.‖
The department relies heavily upon Brown, supra, 183 Cal.App.4th 1531, a
case readily distinguishable. Brown concluded that a Pitchess motion was
inconsistent with the statutory scheme by which a driver‘s license may be
suspended after a drunk driving arrest. The Brown court reasoned a Pitchess
motion would frustrate the Legislature‘s aim to quickly remove unsafe drivers
from the road using an administrative procedure. Further, the hearing addressed
only whether the licensee drove with a blood-alcohol level above the legal limit.
The relevance of Pitchess discovery in that context was questionable. (Brown, at
pp. 1555-1557.) To the extent Brown rejected the claim ―that the Legislature
intended Pitchess discovery to be available in all administrative proceedings‖
where an officer‘s credibility was at issue (id., at p. 1555, italics added), such
conclusion is inapposite here. The department concedes that the discovery
Drinkwater seeks is relevant to the review of her discipline and does not bear on
the credibility of officers whose records are sought. The question here is not
whether those officers might be credible, but whether department decisionmakers
19
granted those officers disparate treatment. Additionally, unlike the license
suspension context, allowing Pitchess motions in this case furthers the goals of the
POBRA, and honors the Legislature‘s Pitchess scheme. In any case, ― ‗ ―[i]t is
axiomatic that cases are not authority for propositions not considered.‖ ‘ ‖
(McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626; People v. Johnson
(2012) 53 Cal.4th 519, 528.) The precedential value of Brown is limited to its
facts involving a driver‘s license suspension.
E. Evidence Code Section 1047
The department argues that, because the officers whose records Drinkwater
has requested had nothing to do with her termination, she is not entitled to
discovery. In support, the department cites Evidence Code section 1047, which
provides in part: ―Records of peace officers or custodial officers . . . who either
were not present during the arrest or had no contact with the party seeking
disclosure from the time of the arrest until the time of booking, or who were not
present at the time the conduct is alleged to have occurred within a jail facility,
shall not be subject to disclosure.‖ The department‘s reading of this statute was
rejected in Alt v. Superior Court (1999) 74 Cal.App.4th 950. Alt reasoned that
Evidence Code section 1047 only applies if the discovery request relates to an
incident involving an arrest or its equivalent. When, as here, the discovery request
is unrelated to an arrest, Evidence Code section 1047‘s limitation does not apply.
As Alt observed, a contrary conclusion ―would largely supplant the general
discovery standards set forth in sections 1043 and 1045. [A contrary]
interpretation of section 1047 would mean that police personnel information could
be discovered only if there had been an arrest or contact between arrest and
20
booking, and in no other situation. This reading runs counter to Memro‘s[8]
observation that sections 1043 and 1045 do not limit discovery of police personnel
records to cases involving altercations between police officers and arrestees.‖
(Alt, at pp. 957-958.)
Evidence Code section 1047‘s legislative history supports Alt‘s conclusion.
The proponents of the provision urged its purpose was to deter frivolous Pitchess
requests made by criminal defendants ―as a bargaining tool to attempt to reduce
pending criminal charges‖ ―made primarily to harass the officers and supervisors
within police and sheriff‘s departments.‖ (Sen. Judiciary Com., analysis of
Assem. Bill No. 1112 (1985-1986 Reg. Sess.) July 3, 1985, p. 3.) The Senate
Judiciary Committee analysis observed: ―The bill would only pertain to cases
alleging the use of excessive force by a peace officer in connection with an arrest.
It would not apply where the person had only been detained and not arrested. [¶]
This distinction appears well founded: since the person had not been arrested
there would be no incentive to file a frivolous request.‖ (Id. at p. 4.) This analysis
expressly alerted the Legislature to the limitation recognized by Alt.
F. The Dissenting Opinion
The dissenting opinion concludes that an administrative hearing officer is
empowered to rule on a Pitchess motion, but may not compel production of
personnel records for in camera review before it rules. (Conc. & dis. opn., post, at
pp. 11-12.) It suggests that if the custodian of records voluntarily produces the
records ―with the consent of the officer whose personnel records are sought, the
matter is at an end.‖ (Id. at p. 12.) If the custodian refuses to comply, the party
8
People v. Memro (1985) 38 Cal.3d 658, overruled on another ground in
People v. Gaines (2009) 46 Cal.4th 172, 181, footnote 2.
21
seeking discovery may seek to have the matter referred to the superior court.
Under the dissent‘s proposal, after such a transfer, the court could then review
materials in camera to decide whether it should order discovery and make any
protective order. (Ibid.)
The dissent cites Evidence Code section 914, subdivision (b), which
provides that a person may not be held in contempt for failing to disclose
privileged information unless by order of court, and Code of Civil Procedure
section 1991, which empowers a hearing officer to report to the superior court a
witness‘s disobedience to a subpoena or refusal to answer a question and to seek a
court order compelling compliance. The dissent suggests this scheme applies to
Pitchess motions before administrative hearing officers. (See conc. & dis. opn.,
post, at pp. 13-15.)
This proposal is inconsistent with the Pitchess statutes. Most
fundamentally, under the dissent‘s view, an in camera review of personnel records
would no longer be required prior to disclosure. Under the cited scheme of Code
of Civil Procedure section 1991, the superior court would become involved only if
the custodian of records refused to comply with the disclosure order. The dissent
asserts that if the custodian voluntarily complies with the disclosure order, ―the
matter is at an end‖ without any in camera review by anyone. (Conc. & dis. opn.,
post, at p. 12.)
The Legislature could not have contemplated such a scheme because
Evidence Code section 1045 expressly provides that in camera review is
mandatory before disclosure in every case. As noted, subdivision (b) of that
provision requires an examination of the records to exclude complaints about
conduct ―occurring more than five years‖ earlier; the conclusions of any
investigating officer (in a criminal proceeding); and ―[f]acts sought to be disclosed
that are so remote as to make disclosure of little or no practical benefit.‖ (Evid.
22
Code, § 1045, subd. (b).) ―By providing that the trial court should conduct an in
camera review, the Legislature balanced the accused‘s need for disclosure of
relevant information with the law enforcement officer‘s legitimate expectation of
privacy in his or her personnel records.‖ (Mooc, supra, 26 Cal.4th at p. 1220, maj.
opn. of Werdegar, J.; see Garcia, supra, 42 Cal.4th at pp. 69-70.) Nothing in the
wording of Evidence Code section 1045 remotely suggests the custodian of
records may waive in camera review, much less conduct the required review on its
own.
Indeed, in enacting the Pitchess statutes, the Legislature amended the bill to
specifically eliminate language in earlier versions that made an in camera review
optional at the request of the officer or other person who could assert the privilege.
(See Sen. Bill No. 1436 (1977-1978 Reg. Sess.) as introduced Jan. 27, 1978, p. 3;
Sen. Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Apr. 3, 1978, p. 3; Sen.
Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Apr. 17, 1978, p. 3; Assem.
Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, p. 3.)
Previous versions of the bill also limited discovery to the identities of
complainants and witnesses and, in some circumstances, their statements. They
also allowed officers an absolute right not to disclose any privileged information
notwithstanding a court‘s finding that it was relevant to the litigation at issue.
(See Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977-1978
Reg. Sess.) June 5, 1978, p. 2; Assem. Amend. to Sen. Bill No. 1436 (1977-1978
Reg. Sess.) Aug. 7, 1978, pp. 4-5.) It was in this context that legislative
committee reports provided the assurance that ―[a]ll requests for discovery of
police personnel records would require that before disclosure could be made the
judge would have to review, in camera, the records sought, to determine which if
any of them are relevant to the litigation‖ (Assem. Com. on Criminal Justice, Final
Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 30, 1978, p. 2, italics
23
added), and ―[a]ll requests for discovery would require an in camera hearing at
which the court would determine the relevancy of the material sought‖ (Assem.
Com. on Criminal Justice, analysis of proposed amendments to Sen. Bill No. 1436
(1977-1978 Reg. Sess.) Aug. 18, 1978, p. 2, italics added, underlining omitted).
This history reflects that, in exchange for allowing broader discovery of officer
personnel records and eliminating an officer‘s absolute privilege to foreclose
discovery of his files, the Legislature considered an in camera review a pivotal and
necessary protection for officers. Thus, contrary to the dissent‘s suggestion (see
conc. & dis. opn., post, at p. 8), the focus of the reports was that an in camera
review would be conducted before disclosure, not on who would conduct the
review. The legislative history materials, like Evidence Code section 1045 itself,
largely assumed a judicial proceeding, and made no mention of any difference in
procedure between judicial and nonjudicial proceedings. If the Legislature
contemplated a difference, as the dissent posits, one would expect the extensive
legislative history would have mentioned it at least once.
The dissent asserts the Pitchess statutes ―ensur[ed] that whenever discovery
was opposed, in camera review would follow as a matter of course. ([Evid. Code,]
§ 1045, subd. (b).)‖ (Conc. & dis. opn., post, at p. 13, italics added.) But
Evidence Code section 1045, subdivision (b) says nothing about contested
motions. It requires a determination of relevance and the conduct of an in camera
review to exclude certain categories of information regardless of relevance.
Nothing in the language of the statutory scheme suggests the duty to determine
relevance may be waived by the custodian of records. The only reference to
waiver appears in Evidence Code section 1043, subdivision (c), which provides
that ―[n]o hearing upon a motion for discovery or disclosure shall be held‖ without
compliance with notice obligations, including notice to the affected officer, ―or
upon a waiver of the hearing by the governmental agency identified as having the
24
records.‖ Thus, while the custodian may waive a hearing on whether good cause
has been shown, no similar waiver provision appears regarding the duty to find
relevance under Evidence Code section 1045. (See California Highway Patrol v.
Superior Court (2000) 84 Cal.App.4th 1010, 1016 [the trial court conducted an in
camera review even though the custodian did not oppose the Pitchess motion].)
The dissent suggests an ―unfortunate consequence‖ of our approach is that
a nonlawyer might preside over the administrative hearing and ―the nonparty
peace officer will have no input‖ into his selection. (Conc. & dis. opn., post, at p.
2.) The dissent further laments that such a person may order disclosure and
―formerly confidential records may be opened to inspection.‖ (Ibid.) These
comments find no footing in actual practice. First, a nonparty officer whose
records are sought would never have input into who would decide the Pitchess
motion, be it a court or an arbitrator. In any case, that concern is completely
unfounded here, where the custodian of records, who is obligated to assert the
privilege, and the Sheriff‘s Association, which represents the officer, are involved
in the litigation. Second, it is simply not so that officer records would be ―opened
to inspection.‖ (Conc. & dis. opn., post, at p. 2.) As noted, officer records
disclosed at these private proceedings remain confidential under Penal Code
section 832.7. (See Copley Press, supra, 39 Cal.3th at pp. 1286-1299.) Further,
the Pitchess statutes themselves restrict use of such records to the proceeding at
issue. (Evid. Code, § 1045, subd. (e); Alford, supra, 29 Cal.4th at pp. 1039-1043.)
The dissent first gleans legislative intent regarding the Pitchess statutes
from general Evidence Code provisions concerning privileges. We have already
addressed the Evidence Code argument, particularly the applicability of Evidence
Code section 915, at pages 15-16, ante.
25
Next, the dissent relies on a repealed provision of the Administrative
Procedure Act (APA) (Gov. Code, § 11340 et seq.). Government Code section
11507.6 allows parties in an APA proceeding to request various pretrial discovery
from the opposing party. Under Government Code former section 11507.7, if a
party failed to comply, the aggrieved party could ―file a verified petition to compel
discovery in the superior court . . . naming as respondent the party refusing or
failing to comply with‖ pretrial discovery obligations. (Gov. Code, former
§ 11507.7, subd. (a), added by Stats. 1968, ch. 808, § 5, p. 1562.) The court would
thereafter rule on the discovery matter, which included the power to review in
camera materials claimed to be privileged. (Gov. Code, former § 11507.7, subds.
(d), (e), added by Stats. 1968, ch. 808, § 5, p. 1563.) Pointing to this mechanism,
which existed at the time the Pitchess statutes were enacted, the dissent asserts that
―the Legislature has taken pains historically to identify and limit who may conduct
in camera review.‖ (Conc. & dis. opn., post, at p. 11.) It suggests the Legislature
had these provisions in mind when enacting the Pitchess scheme.
This reasoning misses the mark. First, the Legislature has expressly stated
that officer personnel 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.‖ (Pen. Code, § 832.7, subd. (a), italics added.) We
have affirmed that ―[t]he Pitchess procedure is the sole and exclusive means‖ to
obtain Pitchess discovery, and cases ―have rejected attempts to use other discovery
procedures to obtain Pitchess records.‖ (City of Los Angeles v. Superior Court
(2002) 29 Cal.4th 1, 21.) Given the Legislature‘s adoption of the Pitchess statutes
as the exclusive method for discovery of these records, it is doubtful the
Legislature contemplated that the repealed APA discovery procedure would apply.
This is especially true when neither the language nor legislative history of the
Pitchess statutes makes any reference to the APA.
26
Second, the Legislature could not have contemplated the former APA
procedure would apply to Pitchess motions in administrative hearings for the same
reasons it could not have contemplated application of Code of Civil Procedure
section 1991. Like that procedure, Government Code former section 11507.7
required an aggrieved party to file a discovery motion before the superior court
would become involved; if a party complied with the discovery request, the court
would never need to rule or view the records in camera. Again, the dissent fails to
explain why the Legislature would have expressly required an in camera review of
records before disclosure under Evidence Code section 1045, yet countenanced
application of a scheme that would have allowed disclosure of records without
such review.
Third, the motion under Government Code former section 11507.7 only
applied to discovery violations by parties. (See Gov. Code, former §§ 11507.6
[pretrial discovery obligation of parties], 11507.7, subd. (a).) By contrast,
Pitchess motions are directed at ―the governmental agency which has custody and
control of the records‖ (Evid. Code, § 1043, subd. (a)), even when the custodian is
not a party to the litigation. The Legislature could not have believed this vastly
different scheme would have any application to the Pitchess statutes.
Fourth, the Legislature‘s subsequent amendment of Government Code
former section 11507.7 presents strong evidence that the Legislature never
believed it applied to the Pitchess scheme. As the dissent acknowledges, the
Legislature in 1995, as part of a comprehensive overhaul of the APA (see
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals
Bd. (2006) 40 Cal.4th 1, 5), amended Government Code former section 11507.7 to
allow an administrative law judge (ALJ) to rule on discovery matters, which
included the power to examine privileged materials if necessary to make a ruling.
(See Gov. Code, § 11507.7, subd. (d).) An ALJ is a specialized arbitrator on staff
27
with the Office of Administrative Hearings, and the APA requires all hearings
under its provisions to be conducted by an ALJ. (Gov. Code, § 11502, subd. (a).)
Under the dissent‘s view, the 1995 amendment to the APA created a
distinction between ALJs and non-ALJ arbitrators. Thus, with respect to a
Pitchess motion after 1995, an ALJ now can conduct an in camera review of
records under Evidence Code section 1045, because Government Code section
11507.7 generally gives ALJs the power to review privileged materials in camera,
whereas non-ALJ arbitrators cannot. The dissent acknowledges that the
Legislature never amended the Pitchess statutes to reflect this asserted intent.
Indeed, the dissent, in attacking our interpretation of the scheme, makes much of
the fact that Evidence Code section 1045 repeatedly uses ―the court,‖ and reasons
that ―the Legislature has been precise in its choice of terminology‖ and ―[w]e
should take the Legislature at its word.‖ (Conc. & dis. opn., post, at p. 8.)
However, after 1995, and to this day, Evidence Code section 1045 still uses ―the
court,‖ making no reference to ALJs or the APA.
The dissent cannot have it both ways. If the Legislature intended that the
1995 amendment of the APA constituted a substantive modification of the
Pitchess scheme, such a change would have constituted a significant departure in
the law. Yet the dissent posits this major change resulted solely from silent
implication. It is doubtful that the Legislature would have instituted such a
significant change through silence. While the law can occasionally be subtle, we
should avoid constructions that render it delphic. Indeed, the 1995 bill constituted
a comprehensive amendment of the APA and numerous related statutes. It
amended or added over 100 different laws spanning 16 codes, including not only
provisions of the Government, Evidence, and Penal Codes, but sections of the
Health and Safety, Business and Professions, Labor, Revenue and Taxation,
Welfare and Institutions, Vehicle, Fish and Game, Financial, Education, Military
28
and Veterans, Public Resources, Public Utilities, and Unemployment Insurance
Codes as well. (See Stats. 1995, ch. 938, pp. 7104-7225.) It is difficult to believe
that the Legislature intended the amendment to the APA to change the Pitchess
statutes, yet chose not to modify them expressly as it did with respect to dozens of
other statutes tangentially related to the APA.
Responding to our discussion of Government Code former section 11507.7,
the dissent states it ―take[s] no position‖ on the interaction between the repealed
APA procedure and the Pitchess scheme because ―the issue is, after all, long since
moot.‖ (Conc. & dis. opn., post, at p. 10.) The dissent suggests we are imputing
to it a position about the applicability of the APA that it has not taken. (Id. at p.
14.) The dissent misapprehends the import of our discussion. The dissent asserts
that ―the Legislature had taken the extraordinary step of creating a special
statutory transfer mechanism to allow privilege disputes arising in administrative
matters to be resolved by the only body authorized to conduct in camera review, a
court.‖ (Id. at p. 1.) The dissent reasons that the existence of these transfer
mechanisms shows ―the Legislature took seriously the limits on the powers of
nonjudicial officers‖ (id. at p. 5), and, thus, the Legislature‘s use of ―the court‖ in
Evidence Code section 1045 meant only courts are authorized to conduct in
camera review. However, as noted, that transfer mechanisms such as Code of
Civil Procedure section 1991 and Government Code former section 11507.7 do
not fit the Pitchess procedure shows that the Legislature could not have had them
in mind when enacting the Pitchess statutes. And the fact that the Legislature did
not amend the Pitchess statutes in 1995 when granting ALJs authority to conduct
in camera review further supports our view that the Legislature did not consider
the former APA transfer mechanism when enacting the Pitchess scheme.
Rather than gleaning legislative intent from general statutes of questionable
applicability, the better view recognizes that the Legislature, by expressly allowing
29
Pitchess motions to be filed with an appropriate administrative body under
Evidence Code section 1043, contemplated administrative Pitchess motions from
the very beginning of the scheme. To conclude that administrative hearing
officers lack authority to rule on them effectively reads this language out of the
statute. If the Legislature intended to keep hearing officers from ruling on such
motions, or to require that only courts conduct the in camera review, it certainly
could have done so by providing that such motions not be filed before hearing
officers, or by expressly creating a transfer mechanism to the superior court. It did
neither. Our conclusion harmonizes the Pitchess scheme with Evidence Code
sections 914 and 915. It is consistent with Penal Code section 832.7 and our
holding that the confidentiality of officer personnel records extends to
administrative proceedings. Finally, allowing administrative hearing officers to
determine Pitchess motions in this context furthers the goals of the POBRA and
maintains the balance between an officer‘s interest in privacy and a litigant‘s
interest in discovery. Of course, the Legislature remains free to clarify its intent as
to the authority of administrative hearing officers in this context, and to take
additional steps to protect the confidentiality of officer personnel records in the
administrative context.
30
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
WILLHITE, J. *
______________________________
*
Associate Justice of the Court of Appeal, Second Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31
CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
I agree with the majority that Pitchess1 discovery can be sought in
administrative proceedings. I disagree, however, with the further conclusion that
every nonjudicial presiding officer may review privileged and confidential
materials in the context of such a motion.
As of the 1970s, when the Pitchess discovery scheme was enacted, the
Legislature had never entrusted administrative hearing officers with reviewing
allegedly privileged and confidential documents to determine their discoverability.
Only judicial officers were permitted to examine such documents. The disparity
in authority was neither a relic of an older time nor an inadvertent oversight; as
recently as 1968, the Legislature had taken the extraordinary step of creating a
special statutory transfer mechanism to allow privilege disputes arising in
administrative matters to be resolved by the only body authorized to conduct in
camera review, a court.
The Pitchess discovery scheme continues this regime. At every turn,
Evidence Code section 1045,2 the statute governing in camera review of
confidential peace officer records, spells out what a ―court‖ should do, eschewing
the broader term ―presiding officer‖ used elsewhere to identify those powers and
1
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2
All further unlabeled statutory references are to the Evidence Code.
duties shared by both judges and administrative hearing officers. Yet the majority
concludes the Legislature in enacting the Pitchess discovery statutes not only
intended the then unprecedented step of empowering administrative officers to
conduct in camera privilege review, but took this step sub silentio, using each
directive to ―the court‖ to announce what a ―court [or any other presiding officer]‖
should do. This cannot be what the Legislature intended.
The unfortunate consequence of the majority opinion is this. Often, the
person presiding over an administrative hearing need not be a lawyer and could be
whomever the parties choose; the nonparty peace officer will have no input. On
the say-so of such a person, without judicial oversight or any guarantee of a
protective order, the peace officer‘s formerly confidential records may be opened
to inspection. Because the statutory scheme does not compel this regrettable
result, I respectfully dissent.
I.
In 1965, the Legislature first codified in one place the rules of evidence.
(Stats. 1965, ch. 299, p. 1297.) The new Evidence Code adopted largely verbatim
the work of the California Law Revision Commission (Commission), which had
been asked to study the possibility of conforming the state‘s evidence rules to a set
of nationally proposed uniform rules. (Stats. 1956, ch. 42, pp. 263, 265; see
Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal. Law Revision
Com. Rep. (1965) p. 3.)3
3
The Commission‘s recommendations were delivered to the Legislature,
which expressly endorsed the Commission‘s commentary as reflecting its own
intent unless otherwise noted. (Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 333 (1965 Reg. Sess.) 1 Assem. J. (1965 Reg. Sess.) p. 1712; Sen. Com. on
Judiciary, Rep. on Assem. Bill No. 333 (1965 Reg. Sess.) 2 Sen. J. (1965 Reg.
Sess.) p. 1573.) Consequently, ―with respect to unchanged sections of the
Evidence Code the commission‘s comments state the intent of the Legislature
(footnote continued on next page)
2
With respect to privilege issues, the Commission recognized that questions
of privilege might arise in a broad range of proceedings and sought to ―remove the
existing uncertainty concerning the right to claim a privilege in a nonjudicial
proceeding.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid. Code
(2009 ed.) foll. § 910, p. 217.) The policy served by privileges would be seriously
undermined if ―[e]very officer with power to issue subpoenas for investigative
purposes, every administrative agency, every local governing board, and many
more persons could pry into the protected information . . . .‖ (Id. at p. 216.)
Accordingly, the Commission proposed, and the Legislature enacted, an explicit
declaration that privilege protections would apply equally to judicial,
administrative, and other proceedings. (§§ 901, 910.)
Equally important to protecting confidentiality, the new Evidence Code
articulated procedures for how privilege claims would be resolved in nonjudicial
proceedings. In general, ―presiding officer[s],‖ broadly defined to include not
only judicial officers but also arbitrators and anyone else overseeing a nonjudicial
proceeding, could ―determine a claim of privilege in any proceeding in the same
manner as a court determines such a claim‖ under the Evidence Code. (§ 914,
subd. (a); see § 905 [defining ― ‗Presiding officer‘ ‖]; Cal. Law Revision Com.
com., 29B pt. 3A West‘s Ann. Evid. Code, supra, foll. § 905, at p. 215.)
However, the authority to determine a claim of privilege was subject to two
significant limits. First, only a ―court,‖ not just any presiding officer, could
―require the person from whom disclosure is sought or the person authorized to
(footnote continued from previous page)
regarding those sections.‖ (Arellano v. Moreno (1973) 33 Cal.App.3d 877, 884.)
This principle applies fully to each section I discuss.
3
claim the privilege, or both, to disclose the information in chambers . . . .‖ (§ 915,
subd. (b).) The consequence of this was quite clear: the narrow authorization for
in camera review ―applies only when a court is ruling on the claim of privilege.
Thus, in view of [§ 915,] subdivision (a), disclosure of the information cannot be
required, for example, in an administrative proceeding.‖ (Cal. Law Revision Com.
com., 29B pt. 3A West‘s Ann. Evid. Code, supra, foll. § 915, at p. 256.)
Nonjudicial in camera review remained forbidden. (See ibid. [the statute‘s broad
limits on in camera review ―codif[y] existing law‖].)4
Second, recognizing the risk of error inherent in having nonjudicial officers
make privilege determinations, the Commission and Legislature withheld the
power to issue enforceable orders on privilege matters. Orders to disclose issued
by such officers carried no risk of contempt for noncompliance. (§ 914, subd. (b).)
Instead, parties seeking discovery needed a court order compelling disclosure.
(Ibid.; see Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid. Code,
supra, foll. § 914, at p. 254 [―What is contemplated is that, if a claim of privilege
is made in a nonjudicial proceeding and is overruled, application must be made to
a court for an order compelling the witness to answer.‖].) This detour to court was
necessary ―to protect persons claiming privileges in nonjudicial proceedings.
Because such proceedings are often conducted by persons untrained in law, it is
desirable to have a judicial determination of whether a person is required to
disclose information claimed to be privileged before he can be held in contempt
4
Stressing the importance of section 915‘s safeguards, the Commission
explained in camera disclosure will frequently be wholly prohibited, and even
when it is allowed, ―[s]ection 915 undertakes to give adequate protection to the
person claiming the privilege by providing that the information be disclosed in
confidence to the judge and requiring that it be kept in confidence if it is found to
be privileged.‖ (Cal. Law Revision Com. com., 29B pt. 3A West‘s Ann. Evid.
Code, supra, foll. § 915, at p. 256.)
4
for failing to disclose such information.‖ (Cal. Law Revision Com. com., at
p. 254.)
In 1968, the Legislature codified procedures for discovery in proceedings
under the Administrative Procedure Act (APA). (Stats. 1968, ch. 808, § 3,
p. 1561; Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 21.) As discussed, at the time all
nonjudicial officers were prohibited from conducting in camera review of
assertedly privileged documents. (§ 915.) Rather than lift this prohibition, the
Legislature authorized the filing of a freestanding ―verified petition to compel
discovery in the superior court for the county in which the administrative hearing
will be held, naming as [a] respondent the party‖ refusing to provide discovery.
(Gov. Code, former § 11507.7, subd. (a), enacted by Stats. 1968, ch. 808, § 5,
p. 1562.) Former section 11507.7 expressly granted a court the authority
nonjudicial officers lacked: the power to review in camera the assertedly
privileged administrative discovery materials under the rules set out in section 915
of the Evidence Code. (Gov. Code, former § 11507.7, subd. (d); Stats. 1968, ch.
808, § 5, pp. 1562, 1563.) Plainly, the Legislature took seriously the limits on the
powers of nonjudicial officers.
This, then, was the landscape in 1978 when the Legislature enacted the
Pitchess discovery statutes. Claims of privilege could be raised in judicial and
nonjudicial settings alike. (§ 910.) Courts and nonjudicial presiding officers
could rule on these claims. (§ 914, subd. (a).) Courts had authority to rule on
claims of privilege following in camera review. (§ 915, subd. (b).) Presiding
officers, other than court judges, did not; they were required to issue rulings
without directly inspecting assertedly privileged materials. (Id., subd. (a); see
§ 905 [defining ― ‗Presiding officer‘ ‖].) Moreover, compliance with nonjudicial
privilege rulings was not inherently compulsory. (§ 914, subd. (b).) Persons
possessing assertedly privileged documents could not be required to allow
5
nonjudicial officers to examine them and could not be forced to disclose them
without review by an actual court.
The statutory scheme offered a path to resolution of any privilege dispute
by the only entity entrusted to conduct in camera review and issue binding
rulings—the court. If discovery was sought and refused on grounds of privilege in
a proceeding covered by the APA, the party seeking discovery could file a petition
in superior court under Government Code former section 11507.7 and have the
court proceed with in camera review and a determination whether disclosure
should be required. (See Gov. Code, former § 11507.7, subds. (d), (e); Stats.
1968, ch. 808, § 5, p. 1563.) In proceedings not covered by the APA, application
to a court for an order compelling discovery was also necessary. In the absence of
any more specifically applicable statutory procedure, such as Government Code
former section 11507.7, the Legislature directed parties to use ―the procedure
prescribed by Section 1991 of the Code of Civil Procedure‖ to obtain such an
order. (Evid. Code, § 914, subd. (b); see Code Civ. Proc., § 1991 [granting
superior courts jurisdiction to issue orders compelling discovery].)
II.
In Pitchess, supra, 11 Cal.3d 531, 535–540, we recognized a right to
discovery of relevant peace officer records, subject only to a court‘s balancing
under section 1040 the interest in disclosure against the interest in confidentiality.
The Legislature responded by creating a new statutory peace officer privilege.
(Stats. 1978, ch. 630, § 5, p. 2083.) Henceforth, peace officer records were to be
deemed confidential, and were to be discoverable solely to the extent authorized
by newly enacted section 1043 et seq. (Pen. Code, § 832.7, subd. (a).)
Section 1043 explains how to obtain peace officer records discovery. (See
generally Alford v. Superior Court (2003) 29 Cal.4th 1033, 1038–1039; City of
Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 82–83.) The party seeking
6
disclosure must file ―a written motion with the appropriate court or administrative
body.‖ (§ 1043, subd. (a).) Notice must be given to the custodian of records, who
will notify the party whose records are sought. (Ibid.) The motion must be
supported by evidence establishing ―good cause‖ for discovery, including a
showing that the evidence sought would be material and reason to believe the
identified government agency has records of the type sought. (Id., subd. (b)(3).)
A hearing is required absent waiver by the governmental agency with custody.
(Id., subd. (c).)
Section 1045 further authorizes a ―court‖ to determine relevance by
examining records ―in chambers in conformity with Section 915.‖ (§ 1045, subd.
(b).) The ―court‖ may exclude certain irrelevant and outdated matters (ibid.),
―make any order which justice requires to protect the officer or agency from
unnecessary annoyance, embarrassment, or oppression‖ (id., subd. (d)), and issue
protective orders (id., subd. (e)).
As an initial matter, the text plainly authorizes Pitchess discovery in
nonjudicial proceedings. Section 1043, subdivision (a) expressly allows motions
before ―administrative bod[ies],‖ and we must give this language its natural and
obvious meaning.
Nothing in the text of section 1043 or section 1045, however, relaxes the
settled limits on the power of nonjudicial officers, who may neither compel
disclosure in the face of privilege claims nor demand in camera disclosure. (See
§§ 914, subd. (b), 915, subd. (b).) Nor does anything suggest the Legislature was
any less concerned about those limits here, or intended to make the new peace
officer privilege less secure against nonjudicial abrogation than other existing
privileges. Throughout section 1045, the Legislature uses the specific term
―court,‖ not the broader term ―presiding officer,‖ to identify who is authorized to
7
conduct in camera review—a distinction that comports with what was then the
firmly established practice. We should take the Legislature at its word.
Of note, the Legislature has been precise in its choice of terminology
elsewhere in the Evidence Code and, indeed, in the very legislation at issue. (See
§§ 905 [specially defining ― ‗Presiding officer‘ ‖ to encompass all hearing officers,
as distinct from judges or courts], 914 [making distinct and differential use of the
terms ―presiding officer‖ and ―court‖], 915 [same], 1043 [referring to a ―court or
administrative body‖ (italics added)].) We should not lightly presume the
Legislature was any less precise in section 1045. If it had meant ―presiding
officer,‖ the term the majority‘s interpretation effectively reads into the statute in
place of ―court,‖ it would have said so. (Cf. § 914, subd. (a) [using the term
―presiding officer‖ to explicitly grant nonjudicial hearing officers authority to
conduct privilege hearings under § 400 et seq.].) Indeed, the commentary to
section 914 notes that express authorization for nonjudicial hearing officers to
conduct privilege hearings was ―necessary because Sections 400–406, by their
terms, apply only to determinations by a court.‖ (Cal. Law Revision Com. com.,
29B pt. 3A West‘s Ann. Evid. Code, supra, foll. § 914, at p. 254.) When the
Legislature has written a statute to extend power only to a ―court,‖ it knows that
statute does not extend power to every nonjudicial ―presiding officer.‖ And when
the Legislature intends to extend new powers to nonjudicial officers, it knows how
to do so expressly.
The legislative history supports the plain meaning of the text. The purpose
of the new statutes was to ―protect peace officer personnel records from discovery
in civil or criminal proceedings‖ (Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 1436 (1977–1978 Reg. Sess.) as amended Apr. 3, 1978, p. 1) by creating a
new privilege limiting their disclosure (id. at pp. 4–5). In committee report after
committee report, assurances were offered that peace officers could not be forced
8
to surrender this newly created privilege until a judge had reviewed materials in
camera. (E.g., id. at pp. 3–5; Assem. Com. on Criminal Justice, Analysis of Sen.
Bill No. 1436 (1977–1978 Reg. Sess.) as amended Aug. 7, 1978, p. 2; Assem.
Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977–1978 Reg. Sess.)
Final Analysis, pp. 1–2.)5 These guarantees mirror the recognition in connection
with section 914 that only a judicial determination could support compelled
disclosure of privileged materials. (See Cal. Law Revision Com. com., 29B pt. 3A
West‘s Ann. Evid. Code, supra, foll. § 914, at p. 254.)
That the Legislature knows how to authorize nonjudicial officers to conduct
in camera review of privileged documents, and says so expressly when that is its
intent, is further illustrated by how the Legislature later handled nonjudicial
privilege review under the APA. In 1995, in response to recommendations from
the Commission, the Legislature substantially updated and modernized the APA.
(Stats. 1995, ch. 938, p. 7104; see Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 8–9.) Among the
proposed changes the Legislature enacted verbatim were revisions to the act‘s
discovery provisions. Whereas under then existing law, ―discovery disputes
between the parties [were] referred to the superior court for resolution and
enforcement,‖ the Commission sought to ―expedite the discovery process‖ by
―vest[ing] resolution of discovery disputes in the administrative law judge.‖
(Recommendation: Administrative Adjudication by State Agencies (Jan. 1995) 25
5
The majority is quite right to note no special focus was placed on who
would conduct the review (maj. opn., ante, at p. 24), the reason being no special
focus was needed; the various bill analyses, like the text of section 1045, carried
forward the assumption that had always been true, that in camera review was
something done only by courts and judges. If the Legislature contemplated a
departure from that well-established practice, as the majority posits, one would
expect the legislative history to so indicate. Instead, there is only silence.
9
Cal. Law Revision Com. Rep. (1995) pp. 55, 116.) Government Code section
11507.7 was revised to allow administrative law judges to do what previously only
courts had done, including, with respect to privilege claims, authorizing for the
first time an ―administrative law judge [to] order lodged with it matters provided
in subdivision (b) of Section 915 of the Evidence Code and examine the matters in
accordance with its provisions.‖ (Gov. Code, § 11507.7, subd. (d).) This new
authority eliminated any need for a transfer mechanism to bring every APA
discovery dispute before a court; accordingly, the freestanding petition previously
authorized by section 11507.7 was eliminated. (See Gov. Code, § 11507.7, subd.
(a) [motion to compel may be filed directly with the administrative law judge].)
Curiously, the majority imputes to me the view that a Government Code
former section 11507.7 petition would necessarily have provided the mechanism
for Pitchess discovery, then refutes that asserted view at length. (Maj. opn., ante,
at pp. 25-27.) But I take no position on how a former section 11507.7 petition and
the Pitchess statutes might have interacted; the issue is, after all, long since moot.
For present purposes, the significance of Government Code former section
11507.7, and of the current version of that same statute, is simply this: when it
comes to withholding or granting in camera powers to nonjudicial hearing officers,
the Legislature has acted intentionally and explicitly. We cannot fairly assume
that uniquely, in Evidence Code section 1045, it acted inadvertently and implicitly.
Turning the interpretive question on its head, the majority asks whether
section 1045 contains a limit on who may act. The majority argues that section
1045 at most ―implicitly‖ withholds from nonjudicial hearing officers the power to
conduct in camera review (maj. opn., ante, at p. 7, italics omitted), and references
to ― ‗the court‘ ‖ in that statute should not be read ―as a coded expression of
legislative intent to substantively limit who may rule on Pitchess motions‖ (maj.
opn., ante, at p. 15). But there is nothing implicit or coded about the statute. Its
10
designation of who may conduct in camera review and issue appropriate protective
and other orders is explicit and plain: ―the court.‖ (§ 1045, subds. (b), (c), (d),
(e).) When the Legislature intends a grant of authority to a broader group, it has
available, and uses, a different and more encompassing term: ―presiding officer.‖
(See §§ 905, 913–916, 919.) More fundamentally, the issue here is not whether
section 1045 contains a limit on who may act. Rather, given that until 1995, when
the Legislature amended the APA, only a judicial officer had the express power to
conduct in camera review, the relevant inquiry ought to be whether section 1045
contains an unprecedented affirmative grant of such authority to a nonjudicial
officer. By its terms, the statute does not.
The Legislature has taken pains historically to identify and limit who may
conduct in camera review. Nothing in the text or history of the Pitchess discovery
statutes authorizes us to undo that effort. We should honor the language the
Legislature has chosen by giving it effect.
III.
If, as I conclude, section 1043 allows administrative discovery but section
1045 does not authorize administrative in camera review, the further question is
how the statutory scheme, correctly applied, would operate here.
As noted, this dispute arises in a non-APA proceeding; no administrative
law judge is involved, and nonjudicial officers other than administrative law
judges have no power to issue protective orders, nor any authority to conduct in
camera review. (§ 915, subd. (b); cf. Gov. Code, §§ 11511.5, subds. (b)(7), (e),
11507.7, subd. (d).) Section 1043, subdivision (c), however, authorizes any
administrative body presented with a peace officer records discovery motion to
conduct a hearing. At that hearing, the nonjudicial presiding officer may consider
the arguments and evidence in favor of and against whether the requested
information is material and likely to be possessed by the identified custodian of
11
records, and may rule on whether a showing has been made to warrant discovery.
(See § 1043, subd. (b)(3).) Although the nonjudicial officer may not order in
camera disclosure to assist in this determination (see § 915, subd. (b)), this is
hardly unusual; the Evidence Code has always called on nonjudicial presiding
officers to rule on privilege matters without examining the assertedly privileged
documents (§§ 914, subd. (a), 915; see Southern Cal. Gas Co. v. Public Utilities
Com. (1990) 50 Cal.3d 31, 45, fn. 19). Privilege determinations nevertheless can
be rendered based on all other available evidence. (See United States v. Reynolds
(1953) 345 U.S. 1, 8–11; Costco Wholesale Corp. v. Superior Court (2009) 47
Cal.4th 725, 737.)
As has also always been the case, a nonjudicial order directing discovery is
not self-executing. If the custodian of records voluntarily complies, with the
consent of the officer whose personnel records are sought, the matter is at an end.
If the custodian does not comply, or the party seeking discovery believes
compliance has been only partial, no immediate sanction is available, but the party
requesting discovery may seek referral of the matter to the superior court in the
county where the administrative proceeding is ongoing. (§ 914, subd. (b); Code
Civ. Proc., § 1991.) At this point, the provisions of Evidence Code section 1045
come into play; a court asked to enforce a nonjudicial order for section 1043
Pitchess discovery can review materials in camera to decide whether to issue a
court order directing discovery, as well as a protective order (§ 1045, subd. (e)) or
any other order ―which justice requires‖ (id., subd. (d)).
The majority criticizes this view of the governing statutes as permitting
compelled discovery without in camera review, as required by section 1045. To
the contrary, unlike the majority construction, this view ensures in camera review,
in all cases where discovery is contested, by the entity authorized to do such
review—―the court.‖ Nothing in the statutory text or history supports the view the
12
Legislature intended the contemplated protections to apply even in the rare
hypothetical instance where a privilege holder might have no objection and waive
the privilege.
To support its view that ―shall examine‖ in section 1045 means ―shall
examine‖ even when the privilege is waived and disclosure uncontested, the
majority points to earlier unenacted versions of the Pitchess discovery legislation
that made in camera review optional by placing a burden on the privilege holder to
affirmatively seek in camera review. (Maj. opn., ante, at pp. 23-24; e.g., Assem.
Amend. to Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 7, 1978, p. 3 [―In
determining relevance, the court shall, at the request of any person authorized to
claim the privilege, examine the information in chambers in conformity with
Section 915 . . .‖].) The enacted version lifted that burden, ensuring that whenever
discovery was opposed, in camera review would follow as a matter of course.
(§ 1045, subd. (b).) To interpret this change as also compelling review in
uncontested cases, and the new privilege as unwaivable even by the holder, lacks
any basis.
The majority also would find no statute currently authorizes transfer of a
discovery dispute from a nonjudicial setting to a judicial setting, and in the
absence of such a mechanism would read broad new powers for nonjudicial
officers into section 1045. Given a choice between disregarding the plain text of
section 1045, on the one hand, and reading section 914, subdivision (b) and Code
of Civil Procedure section 1991 as collectively allowing a court to act on
discovery disputes arising before nonjudicial officers, on the other, I would choose
the latter course, the one that gives effect to the text of each relevant statute and
accords with the Legislature‘s long-standing desire ―to protect persons claiming
privileges in nonjudicial proceedings‖ from having to surrender those privileges at
the sole behest of nonjudicial officers. (Cal. Law Revision Com. com., 29B pt. 3A
13
West‘s Ann. Evid. Code, supra, foll. § 914, at p. 254.) Far from reading Pitchess
discovery in administrative hearings out of section 1043, this approach embraces
such discovery. Moreover, unlike the majority‘s approach, it does so without also
sacrificing equally significant protections for privileged information expressly
codified in the in camera review provisions of section 1045.
Here, the majority again imputes to me, and then refutes, a position I do not
assert in connection with a scenario not before us: that if this were an APA
proceeding, the appropriate course necessarily would be to seek discovery under
Government Code section 11507.7, rather than under Code of Civil Procedure
section 1991. (See maj. opn., ante, at p. 27 [first imputing this imagined view and
then using it to claim ―[t]he dissent cannot have it both ways‖].) Because this case
does not involve the APA, neither I nor the majority need sort out which would be
the correct course in such a proceeding. Concerning the non-APA proceeding that
is before us, and the demonstration that Pitchess discovery can be had without
violating the general rule against nonjudicial in camera review, the majority is
largely silent.
14
IV.
Applying the foregoing framework to the instant case, I agree with the
majority and the Court of Appeal that former Deputy Kristy Drinkwater can seek
Pitchess materials through a motion filed with the nonjudicial hearing officer
reviewing her termination. I cannot agree that the nonjudicial officer has authority
to demand their production for in camera review. To so hold unjustifiedly
eviscerates the protections in sections 914, 915, and 1045 that ensure judicial
officers, and judicial officers alone, will conduct privilege review. Instead, any
determination that good cause for discovery has been shown should be followed,
in the absence of voluntary compliance, by a request for a court order enforcing
discovery under section 914, subdivision (b), and Code of Civil Procedure section
1991.
I respectfully dissent.
WERDEGAR, J.
I CONCUR:
BAXTER, J.
15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Riverside County Sheriff‘s Department v. Stiglitz
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 209 Cal.App.4th 883
Rehearing Granted
__________________________________________________________________________________
Opinion No. S206350
Date Filed: December 1, 2014
__________________________________________________________________________________
Court: Superior
County: Riverside
Judge: Mac R. Fisher
__________________________________________________________________________________
Counsel:
Hayes & Cunningham, Dennis J. Hayes, Adam E. Chaikin and Amanda K. Hansen for Intervener and Appellant.
Stone Busailah, Michael P. Stone, Muna Busailah, Melanie C. Smith, Robert Rabe and Travis M. Poteat for Real
Party in Interest and Appellant and Real Party in Interest and Respondent.
Lackie, Dammeier & McGill and Michael A. Morguess for Peace Officers‘ Research Association of California
Legal Defense Fund as Amicus Curiae on behalf of Intervener and Appellant, Real Party in Interest and Appellant
and Real Party in Interest and Respondent.
Silver, Hadden, Silver, Wexler & Levine, Richard A. Levine, Brian P. Ross and Michael Simidjian for Los Angeles
Police Protective League as Amicus Curiae on behalf of Intervener and Appellant, Real Party in Interest and
Appellant and Real Party in Interest and Respondent.
Green & Shinee, Richard A. Shinee and Helen L. Schwab for Association for Los Angles Deputy Sheriffs as
Amicus Curiae on behalf of Intervener and Appellant, Real Party in Interest and Appellant and Real Party in Interest
and Respondent.
Law Office of James E. Trott and James E. Trott for Association of Orange County Deputy Sheriffs, Long Beach
Police Officers Association and Southern California Alliance of Law Enforcement as Amici Curiae on behalf of
Intervener and Appellant, Real Party in Interest and Appellant and Real Party in Interest and Respondent.
Ferguson, Praet & Sherman, Jon F. Hamilton, Kimberly A. Wah and Bruce D. Praet for Plaintiff and Respondent.
Kathleen Bales-Lange, County Counsel (Tulare) and Crystal E. Sullivan, Deputy County Counsel, for California
State Association of Counties and California League of Cities as Amici Curiae on behalf of Plaintiff and
Respondent.
Jones & Mayer, Martin J. Mayer, Gregory P. Palmer and Krista MacNevin Jee for California State Sheriffs‘
Association as Amicus Curiae on behalf of Plaintiff and Respondent.
No appearance for Defendant and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael P. Stone
Stone Busailah
200 East Del Mar Boulevard, Suite 350
Pasadena, CA 91105
(626) 683-5600
Bruce D. Praet
Ferguson, Praet & Sherman
1631 E. 18th Street
Santa Ana, CA 92705-7101
(714) 953-5300
2
Petition for review after the Court of Appeal reversed an order granting a petition for writ of administrative mandate. The court limited review to the following issue: Does the hearing officer in an administrative appeal of the dismissal of a correctional officer employed by a county sheriff's department have the authority to grant a motion under Pitchess v. Superior Court, 11 Cal.3d 531 (1974)?
Date: | Citation: | Docket Number: |
Mon, 12/01/2014 | 60 Cal.4th 624 (2014); 339 P.3d 295 (2014); 181 Cal. Rptr. 3d 1 (2014) | S206350 |
Opinion Authors | |
Opinion | Justice Carol A. Corrigan |
Concur | Justice Kathryn M. Werdegar, Justice Marvin R. Baxter |
Dissent | Justice Kathryn M. Werdegar, Justice Marvin R. Baxter |
Brief Downloads | |
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Apr 13, 2015 Annotated by Elizabeth Hook | FACTS Deputy correctional officer Kristy Drinkwater was fired by the Riverside County Sheriff‘s Department for allegedly falsifying her payroll forms. Drinkwater appealed the termination according to the terms of a memorandum of understanding between the Riverside Sheriff’s Association and the County of Riverside that provided for an administrative appeal. Drinkwater planned to bring a disparate treatment defense, arguing that other Riverside County Sheriff’s Department personnel had committed similar misconduct and received less severe punishments. Accordingly, Drinkwater filed a motion for discovery, commonly called a Pitchess motion, seeking disciplinary records for other employees who had been investigated and disciplined for similar misconduct. Arbitrator Jan Stiglitz served as the hearing officer at the appeal. PROCEDURAL HISTORY Stiglitz initially denied Drinkwater’s motion for discovery, because under California Evidence Code Sections 1043 and 1045, Drinkwater, and not the sheriff’s department, had the burden to identify the the employees whose records she sought. Drinkwater subsequently renewed her motion, supporting it with more specific information and identifying the employees by name. Stiglitz found good cause and granted Drinkwater’s motion. The sheriff’s department sought an administrative mandate in superior court, compelling Stiglitz to vacate the decision. The superior court granted the mandate, agreeing with the sheriff's department that Pitchess motions were not properly the subject of administrative hearings, and ordered Stiglitz to reverse his previous order. The Riverside Sheriff’s Association then sought to intervene and requested a new hearing. Intervention and a new hearing were granted, but the superior court again denied Drinkwater’s motion for discovery. Drinkwater and the Riverside Sheriff’s Association sought review, and the court of appeal reversed the superior court’s decision. ISSUES Whether an administrative hearing body in an appeal from the dismissal of a county sheriff’s department correctional officer may rule on a motion seeking discovery of peace officer personnel records under Pitchess v. Superior Court, 11 Cal.3d 531 (1974). HOLDING Affirming the appellate court’s decision, the Supreme Court held, by a 5-2 vote, that an administrative body has the authority to rule on a Pitchess motion when hearing an administrative appeal from discipline imposed on a correctional officer. ANALYSIS After examining the language of California Evidence Code Section 1043, the court determined that a Pitchess motion may be filed in an appropriate administrative body and that the language reflected a legislative intent that administrative officers, not just judicial officers, be allowed to hear and decide such motions. A Pitchess motion proceeds in two steps. Under Section 1043, the movant must file a motion with an appropriate court or administrative body and establish good cause for the discovery request. Upon a showing of good cause, an in camera hearing, or private review, must be granted pursuant to California Evidence Code Section 1045 to assess the relevance of the requested discovery material. The sheriff’s department argued that references to the “court” in Section 1045 as the entity that presides over the in camera hearing were more important than the reference to an “administrative body” in Section 1043. The court, however, stressed that use of the term “court” in one section did not invalidate the use of the term “administrative body” in another section, and if the Legislature had intended to preclude administrative bodies from hearing Pitchess motions, it had had the opportunity to make that clear. The court reasoned that if a Pitchess motion were not allowed to be filed with an administrative body, then Section 1043 would be authorizing the “idle act” of filing a motion with an entity not authorized to rule on it. Moreover, since Section 1043 did not provide for a transfer mechanism for Pitchess motions from an administrative body to a superior court, the Legislature must have intended to grant administrative hearing officers the authority to decide such motions. Finally, the court determined that its holding was consistent with the purposes of the Public Safety Officers Procedural Bill of Rights Act (POBRA) which provides for the right to administratively appeal an adverse employment decision. The court also explained that its conclusion was consistent with the Pitchess scheme of balancing a litigant’s discovery interest against an officer’s confidentiality interest. Here, the court distinguished Brown v. Valverde, a 2010 case holding that only judicial officers may rule on Pitchess motions in a DMV administrative license suspension hearing. The sheriff’s department had relied heavily on Brown in its argument. Unlike Brown, where a Pitchess motion would have frustrated the legislative intent to quickly remove unsafe drivers from the road and the relevance of the discovery was questionable, the sheriff’s department in this case conceded that Drinkwater’s request was relevant to her claim and did not call into question the credibility of the officers whose records were requested. Moreover, the existence of confidentiality safeguards in this case that protected the privacy of the requested files was in line with the purposes behind POBRA and the Pitchess discovery scheme. The court concluded that the precedential value of Brown is limited to its facts and administrative license suspension hearings. Concurring and Dissenting Opinion TAGS administrative appeal, administrative body, arbitrator, Pitchess motion, Pitchess, California Evidence Code § 1045, California Evidence Code § 1043, Evidence Code § 1045, Evidence Code § 1043, § 1045, § 1043, discovery, hearing officer, correctional officer, peace officer, disparate treatment, civil, employment, labor, in camera hearing, Public Safety Officers Procedural Bill of Rights Act (POBRA) Annotation by Elizabeth Hook |
IN THE SUPREME COURT OF CALIFORNIA
MOISES GALINDO,
Petitioner,
S170550
v.
Ct.App. 2/8 B208923
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Los Angeles County
Super. Ct. No. BA337159
Respondent;
CITY OF LOS ANGELES POLICE
DEPARTMENT et al.,
Real Parties in Interest.
Charged by felony complaint with threatening and resisting an arresting
officer in the performance of his duties (Pen. Code, §§ 422, 69), petitioner Moises
Galindo brought a Pitchess motion (see Pitchess v. Superior Court (1974) 11
Cal.3d 531; Evid. Code, §§ 1043-1045) for disclosure of prior citizen complaints
made against the arresting officer and four other officers involved in the incident.
Pitchess motions are so named after this court‟s 1974 decision in Pitchess
v. Superior Court, supra, 11 Cal.3d 531, which afforded criminal defendants a
judicially created right to discovery of prior citizen complaints alleging
misconduct by California peace officers. In 1978, the Legislature codified the
right and set forth which officer records are subject to Pitchess discovery. (Pen.
1
Code, §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.) As relevant here, these
statutes permit a criminal defendant to “ „compel discovery‟ of certain relevant
information in the personnel files of police officers by making „general allegations
which establish some cause for discovery‟ of that information and by showing
how it would support a defense to the charge against him.” (Warrick v. Superior
Court (2005) 35 Cal.4th 1011, 1018-1019.) When the trial court, in exercising its
discretion, grants a defendant‟s Pitchess motion, it orders disclosure of the names,
addresses, and telephone numbers of individuals who have in the past witnessed
alleged officer misconduct or who have complained of misconduct by the officer
named in the motion. (Warrick, at p. 1019; see, e.g., People v. Prince (2007) 40
Cal.4th 1179, 1283.)
When petitioner here moved for Pitchess discovery, no preliminary hearing
had yet been held to determine whether there was probable cause to conclude that
he had committed the charged offenses. The magistrate denied the motion by an
order that did not preclude petitioner from renewing the motion after the
preliminary hearing. The magistrate gave two reasons for the denial: Pitchess
discovery was as a matter of course not available for use at the preliminary
hearing; and petitioner had not shown that Pitchess discovery would yield
“something that would change the outcome” of the hearing. Petitioner
unsuccessfully sought a writ of mandate first in the superior court, then in the
Court of Appeal. We granted petitioner‟s petition for review.
Although no statute prohibits a criminal defendant from filing a Pitchess
motion before a preliminary hearing is held, neither does any statute expressly
grant a right to obtain Pitchess discovery for use at the preliminary hearing.
Accordingly, we hold that although a defendant may file a Pitchess motion before
a preliminary hearing, the pendency of that motion will not necessarily or
invariably constitute good cause for postponing the preliminary hearing over the
2
prosecution‟s objection. The purpose of the preliminary hearing is merely “to
establish whether there exists probable cause to believe that the defendant has
committed a felony” (Pen. Code, § 866, subd. (b)), and “[b]oth the defendant and
the people have the right to a preliminary examination at the earliest possible
time” (id., § 859b, 2d par.).
Here, petitioner sought Pitchess discovery to obtain evidence for use at the
preliminary hearing, and his attorney told the trial court that petitioner would be
requesting a continuance of that hearing if the Pitchess discovery revealed
potential defense witnesses. Under these circumstances, as we explain below, the
magistrate‟s denial of the motion was not erroneous. When this case returns to the
trial court, petitioner may, however, renew his Pitchess motion for the purpose of
obtaining evidence relevant to issues at trial.
I
The police report contains these facts: On the evening of February 29,
2008, Los Angeles Police Department Officers “S. Flores” and “J. Smith” were
patrolling on foot when they saw petitioner Moises Galindo drinking alcohol in a
public place, a municipal code violation. At their approach, petitioner fled into an
apartment. Soon a crowd of petitioner‟s angry relatives and neighbors gathered
outside the apartment. After three more officers arrived, the officers obtained
permission from petitioner‟s father to enter the apartment, where they arrested
petitioner. Also arrested was petitioner‟s brother, whose presence in the apartment
complex was prohibited by a gang injunction.
As the two brothers were being taken to a police car, they made death
threats against the officers escorting them. The brothers were placed in the
backseat of the patrol car for transport to the police station. Petitioner sat between
his brother and Officer Flores. During the trip, both brothers “became extremely
belliger[e]nt,” and petitioner told Officer Flores, “I am going to . . . kill you and
3
your family.” Then petitioner, who was apparently handcuffed, struck his head
against Officer Flores‟s head.
The complaint charged petitioner with resisting a police officer in the
performance of his duties. (Pen. Code, § 69.) But on March 14, 2008, an
amended felony complaint added a charge of making threats to kill or cause great
bodily injury to Officer Flores (id., § 422), a serious felony (id., § 1192.7, subd.
(c)), and alleged that the offense was committed to benefit a criminal street gang
(id., § 186.22, subd. (b)(1)(B)).
Petitioner was arraigned on March 26, 2008, and a preliminary hearing was
set for April 18, but on that date defendant waived time. On or after April 24,
before a preliminary hearing was held, petitioner filed a motion seeking Pitchess
discovery as to the five officers who had been present at his arrest.
Petitioner‟s Pitchess motion sought disclosure by the Los Angeles Police
Department of the names and contact information of “all persons” who had
witnessed or complained of prior incidents involving excessive force, violence,
false arrest, fabrication or dishonesty, and any departmental discipline imposed on
Officer Flores, Smith, or any of the other three officers. Defense counsel‟s
declaration in support of the motion denied that petitioner had threatened Officer
Flores and accused the officer of assaulting petitioner both inside and outside the
patrol car on the way to the police station.
On May 16, 2008, the magistrate held a hearing on petitioner‟s Pitchess
motion. At the hearing, petitioner‟s attorney told the magistrate that if Pitchess
discovery revealed potential witnesses, petitioner would seek postponement of the
preliminary hearing, which had been set for June 2. Without precluding petitioner
from renewing the motion at a later time, the magistrate denied the Pitchess
motion, giving two reasons. First, the magistrate concluded that Pitchess
discovery was not normally available before a preliminary hearing, because the
4
discovery sought would be pertinent only to issues at trial, where the prosecution
had to prove petitioner‟s guilt of the charged offenses. Second, the magistrate
concluded that even if Pitchess discovery was permissible before the preliminary
hearing, petitioner had failed to establish that the discovery sought would affect
the crucial issue at the preliminary hearing of whether there was probable cause to
hold petitioner to answer on the charges against him. In the magistrate‟s words:
“If you make a Pitchess motion pre-prelim in addition to the ordinary Pitchess
showing, you have to show . . . a reasonable chance you are going to discover
something that will change the outcome of the [preliminary] hearing,” such as
evidence negating required elements of the offense, which would preclude finding
probable cause of petitioner‟s guilt. (See Pen. Code, § 866, subd. (a).)
The date for petitioner‟s preliminary hearing was postponed, apparently to
permit preparation of a petition for a writ of mandate challenging the magistrate‟s
ruling on petitioner‟s Pitchess motion. On June 17, 2008, petitioner filed a
mandate petition in the superior court, seeking an order directing the City of Los
Angeles (City) to disclose the Pitchess information requested. When the superior
court denied relief, petitioner sought a writ of mandate in the Court of Appeal.
That court stayed the preliminary hearing and asked both the District Attorney of
the County of Los Angeles (District Attorney) and the City to brief the issue of
whether a criminal defendant has a right to obtain Pitchess discovery before a
preliminary hearing is held. After consideration of the parties‟ briefs, the Court of
Appeal summarily denied relief and vacated the stay.
Petitioner then filed in this court a petition for review and a request to stay
the proceedings, arguing that without the fruits of Pitchess discovery he could not
receive effective assistance of counsel at the preliminary hearing, which he
described as a “critical stage” in a criminal proceeding. We stayed the preliminary
hearing, granted the petition for review, vacated the Court of Appeal‟s order
5
denying the petition for a writ of mandate, and transferred the matter to the Court
of Appeal, directing it to order the superior court to show cause why the requested
relief should not be granted. After briefing and oral argument, the Court of
Appeal issued its opinion rejecting “petitioner‟s contention that Pitchess discovery
is a precondition for effective assistance of counsel” at a preliminary hearing.
II
A defendant who is arrested and arraigned on a felony complaint is entitled
to a preliminary hearing. Both the defendant and the prosecution possess the right
to have the hearing occur “within 10 court days of the date the defendant is
arraigned or pleads, whichever occurs later.” (Pen. Code, § 859b, 2d par.)
The purpose of the preliminary hearing is to determine whether there is
probable cause to conclude that the defendant has committed the offense charged.
(People v. Wallace (2004) 33 Cal.4th 738, 749; Pen. Code, § 872.) Probable cause
exists if a person “ „ “ „of ordinary caution or prudence would be led to believe
and conscientiously entertain a strong suspicion‟ ” ‟ ” that the defendant
committed the crime. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 251; see
People v. Slaughter (1984) 35 Cal.3d 629, 636.)
Petitioner here argues that his right to the effective assistance of counsel as
guaranteed by the Sixth Amendment to the federal Constitution will be impaired if
he cannot obtain, for use at his preliminary hearing, Pitchess discovery of prior
citizen complaints against all five officers present at his arrest. He asserts that
because “all the witnesses are police officers,” Pitchess discovery is necessary to
enable his counsel to impeach the officers‟ credibility. Particularly, petitioner
seeks to undermine the credibility of Officer Flores, who prepared the police
report and whom petitioner allegedly assaulted and threatened with death.
We agree with petitioner that the right to effective assistance of counsel, as
guaranteed by the Sixth Amendment to the federal Constitution, applies not only
6
to trial but also to the preliminary hearing, which the high court has described as a
“critical phase” in a criminal proceeding (Coleman v. Alabama (1970) 399 U.S. 1,
9-10; see People v. Cudjo (1993) 6 Cal.4th 585, 615). But we disagree that this
right is violated if defense counsel lacks Pitchess discovery for use at the
preliminary hearing. Our conclusion rests not only on the nature of the
preliminary hearing itself but also on the type of evidence obtained through
Pitchess motions, as we explain below.
At a preliminary hearing, the defendant may offer evidence that is
“reasonably likely to establish an affirmative defense, negate an element of a
crime charged, or impeach the testimony” of the arresting officers. (Pen. Code,
§ 866, subd. (a).) Petitioner here contends that “Pitchess witnesses could testify
that the arresting officers had used excessive force” against them and that the
officers “then lied about” doing so. Thus, petitioner argues, the testimony of
witnesses obtained through Pitchess discovery could support a claim by him of
self-defense or the defense of others to the charge against him of resisting an
officer (Pen. Code, § 69), or such testimony could negate an element of that crime.
The availability of such witnesses to testify at the preliminary hearing, petitioner
claims, would make it more likely that the magistrate would exercise discretion
(id., § 866, subd. (b)) to admit their testimony at the hearing. But the magistrate
could also refuse to admit the testimony of these witnesses if strong and credible
evidence of defendant‟s guilt exists apart from the testimony provided by the
arresting officers. (See Evid. Code, § 352; see also People v. Slaughter, supra, 35
Cal.3d at p. 637.) When there is such evidence, “the magistrate may reasonably
assume the possibility of [the defendant‟s] guilt” and find probable cause without
resolving “all conflicts in the evidence.” (Slaughter, at p. 637.)
In this case, various relatives and neighbors of petitioner were present at his
arrest and witnessed some, if not all, of the officers‟ conduct. Petitioner knew the
7
identity of these eyewitnesses to his arrest. Through Pitchess discovery, petitioner
sought to learn the identity of individuals who in the past had filed misconduct
complaints, alleging that these same officers used excessive force or were
untruthful. It is highly unlikely that the testimony of Pitchess witnesses at the
preliminary hearing would defeat a finding that there was probable cause to
believe that the defendant “committed a felony and should be held for trial.”
(Correa v. Superior Court (2002) 27 Cal.4th 444, 452; see Pen. Code, § 872, subd.
(a).) Given this low standard of proof governing preliminary hearings, we
conclude that here the denial of petitioner‟s Pitchess discovery motion, made
before the holding of a preliminary hearing, would not prevent defense counsel
from providing effective representation at the preliminary hearing.
III
The parties dispute the impact in this case of the voters‟ June 1990 passage
of Proposition 115, the Crime Victims Justice Reform Act, a broad anticrime
initiative measure that, as relevant here, (1) adopted a new scheme of reciprocal
discovery in criminal cases; (2) limited criminal discovery to that scheme or to
“other express statutory provisions” for discovery (Pen. Code, § 1054, subd. (e));
and (3) acknowledged the People‟s right in a criminal case to due process of law
and a speedy trial. Our focus is on the measure‟s second and third components in
determining, first, whether Pitchess motions may be made before a preliminary
hearing has been held, and second, whether the preliminary hearing must be
delayed until evidence obtained through Pitchess discovery can be used at the
preliminary hearing. The answer to the first question is “yes,” and the answer to
the second question is “no,” as explained below.
The City and the District Attorney argue that the use of Pitchess discovery
at a preliminary hearing would be inconsistent with both the intent underlying
Proposition 115 and the express statutory changes it made. Petitioner, on the other
8
hand, argues that Proposition 115 did not amend the Pitchess statutory discovery
scheme, thus leaving intact the preexisting practice of allowing Pitchess discovery
motions to be made before the holding of a preliminary hearing and allowing
testimony or evidence obtained through Pitchess discovery to be used at the
hearing. The arguments of both sides have some merit, as we explain below.
As relevant here, Proposition 115 amended the California Constitution
(Cal. Const., art. I, § 30, subd. (c)) and enacted a statutory scheme to provide in
criminal cases for reciprocal discovery between the prosecution and the defense
(see Izazaga v. Superior Court (1991) 54 Cal.3d 356, 364-365). We discuss first
the statutory and then the constitutional changes, and their effect on the issue in
this case.
Proposition 115 added chapter 10 to the Penal Code. That chapter begins
with section 1054, which defines the purpose of pretrial discovery, and limits it to
aiding the trial process. That statute‟s subdivision (e) states that “no discovery
shall occur in criminal cases except as provided by this chapter, other express
statutory provisions, or as mandated by the Constitution of the United States.”
(Pen. Code, § 1054, subd. (e), italics added.) Predating this new statutory
provision by 12 years are the Pitchess discovery statutes, which therefore are
within subdivision (e)‟s category of “other express statutory provisions” that
survived the voters‟ June 1990 passage of Proposition 115.
The Pitchess discovery statutes (Evid. Code, §§ 1043-1045; Pen. Code,
§§ 832.7-832.8) do not restrict the use of evidence obtained through such
discovery to any particular proceeding. As there is no legislative prohibition
against the filing of a Pitchess discovery motion before a preliminary hearing is
held, we conclude that such a filing is permissible.
That conclusion, however, does not mean that over the prosecution‟s
objection the defense is invariably entitled to have the preliminary hearing
9
postponed until the defense has, through Pitchess discovery, obtained evidence
and witnesses for presentation at the preliminary hearing. In this context, repeated
postponements of the preliminary hearing would, as discussed below, defeat a goal
of Proposition 115: to reduce delays in criminal cases.
Before the voters‟ June 1990 passage of Proposition 115, courts would
“routinely” and repeatedly grant continuances to accommodate a criminal
defendant‟s request for “pretrial discovery to prepare for a preliminary
examination.” (Pipes & Gagen, Cal. Criminal Discovery (4th ed. 2007)
Preliminary Examinations, § 2:12, pp. 329-330; see, e.g., Saulter v. Municipal
Court (1977) 75 Cal.App.3d 231, 247.)
In their ballot argument, the proponents of Proposition 115 stressed their
goal of reducing unnecessary delays in criminal proceedings. According to the
measure‟s proponents, criminal “defense lawyers love delays” because it is in their
client‟s interest when “[w]itnesses die or their memories fade,” but Proposition
115 would end the “useless delays that frustrate criminal justice in California.”
(Ballot Pamp., Primary Elec. (June 5, 1990) argument in favor of Prop. 115,
p. 34.) The voters‟ passage of Proposition 115 codified that goal in Penal Code
section 1054, which stresses avoidance of “undue delay” in criminal proceedings.
(Pen. Code, § 1054, subd. (d).) That goal would be frustrated if we were to uphold
the pre-Proposition 115 practice of routinely and repeatedly granting
postponements of a preliminary hearing to accommodate a defendant‟s efforts to
obtain Pitchess discovery for use at the preliminary hearing.
Support for that conclusion is also found in Proposition 115‟s amendment
of our state Constitution by adding a new section declaring that “[i]n a criminal
case, the people of the State of California have the right to due process of law and
to a speedy and public trial.” (Cal. Const., art. I, § 29.) By so amending our state
Constitution, the voters expressly acknowledged that not just the criminal
10
defendant but also the People, represented in a criminal case by the prosecutor, are
constitutionally entitled to due process and to a speedy trial. The People‟s
constitutional right to a speedy trial would be violated if, as petitioner urges us to
do, we were to uphold the pre-Proposition 115 practice in question. Below, we
provide a glimpse of the delays inherent in obtaining and using Pitchess discovery.
Turning Pitchess discovery into evidence admissible at trial is not a rapid
process. To obtain Pitchess discovery of a particular peace officer‟s personnel
records, a criminal defendant must provide not only “a written motion and notice
to the governmental agency which has custody of the records” but also a
“ „description of the type of records or information sought,‟ ” as well as affidavits
“ „showing good cause for the discovery or disclosure‟ ”; and the defendant must
set forth the materiality of the information sought to the pending litigation. (City
of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 82.) If the defendant
shows good cause, the trial court directs the custodian of the records to produce all
potentially relevant documents (People v. Mooc (2001) 26 Cal.4th 1216, 1228-
1229) for its examination in chambers, that is, in a nonpublic proceeding designed
to protect the officer‟s privacy (Alford v. Superior Court (2003) 29 Cal.4th 1033,
1038-1039).
If, after reviewing the officer‟s personnel records, the trial court concludes
that they do not contain information that is statutorily excluded from disclosure
(see Evid. Code, § 1045, subd. (b)), then disclosure is called for. (Alford v.
Superior Court, supra, 29 Cal.4th at p. 1039.) But the information disclosed to the
defense will be limited to names and contact information for persons who have on
prior occasions either witnessed or filed complaints of misconduct by the officer
who is the subject of the Pitchess discovery motion. (Ibid.) The defense then
needs time to locate, interview, and obtain the in-court presence of those
individuals.
11
Long before the voters‟ June 1990 passage of Proposition 115, Penal Code
section 859b provided: “Both the defendant and the people have the right to a
preliminary examination at the earliest possible time, and unless both waive that
right or good cause for a continuance is found,” the “preliminary examination
shall be held within 10 court days of the date” on which the defendant “is
arraigned or pleads.” (Italics added.) To postpone a preliminary hearing over the
prosecutor‟s objection beyond the statutory10-court-day period for the sole
purpose of allowing a defense motion for Pitchess discovery, which may or may
not yield a witness whose testimony will be relevant to the issues at the
preliminary hearing, would deny the People their state constitutional rights to
procedural due process and to a speedy trial, in addition to, as discussed earlier,
their statutory right under Penal Code section 859b to a prompt preliminary
hearing.
Here, the magistrate heard petitioner‟s Pitchess discovery motion on May
16, 2008. At that time, petitioner‟s preliminary hearing was scheduled for June 2.
Such a short time, as the magistrate noted at the hearing on the Pitchess motion,
would not enable defense counsel “to look into” any Pitchess disclosures received
before the holding of the preliminary hearing. And defense counsel specifically
informed the magistrate that if Pitchess discovery revealed potential witnesses,
petitioner would seek postponement of the preliminary hearing. For the reasons
discussed above, such delay would have been contrary to one of Proposition 115‟s
goals: to avoid “undue delay” in criminal proceedings. (See p. 10, ante.)
After the magistrate concluded that petitioner‟s purpose in bringing the
Pitchess motion was to develop evidence for use at the preliminary hearing, that
this objective could be realized only by postponing the preliminary hearing, and
that the possibility of discovering evidence favorable to the defense did not justify
delaying the preliminary hearing, the magistrate denied petitioner‟s Pitchess
12
motion. We hold that this ruling was not an abuse of the magistrate‟s discretion.
The ruling does not preclude petitioner from bringing a renewed Pitchess motion,
when this matter returns to the magistrate, for the purpose of obtaining evidence
for use at trial.
Although we agree with the District Attorney, and with the Court of
Appeal, that the magistrate did not err in denying the Pitchess motion, we do not
agree with the District Attorney that the amendment of Penal Code section 866 by
Proposition 115 has impliedly repealed what was, until its passage, an informal
practice of granting Pitchess discovery motions before the holding of a
preliminary hearing and permitting the fruits of such discovery to be used at the
preliminary hearing. Although one statute may impliedly repeal another statute if
the two statutes are entirely irreconcilable and incapable of operating concurrently
(Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist.
(1989) 49 Cal.3d 408, 419), no statute has ever authorized Pitchess discovery for
use at a preliminary hearing, and thus the rules concerning implied repeals are not
helpful in this context.
DISPOSITION
Our previously ordered stay is vacated, and the Court of Appeal‟s judgment
denying the petition for writ of mandate is affirmed.
KENNARD, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
13
CONCURRING OPINION BY WERDEGAR, J.
Before his scheduled preliminary hearing, petitioner moved for Pitchess
discovery, that is, discovery of information from the arresting police officers‟
personnel files that might be relevant to the officers‟ respective credibility.
(Pitchess v. Superior Court (1974) 11 Cal.3d 531; Evid. Code, §§ 1043-1045.)
The magistrate denied the motion without prejudice to its renewal before trial,
explaining that, before he would grant the motion, “the defense has to logically
show they are going to discover something or might discover something that
would change the outcome of the preliminary hearing.” In addition, noted the
magistrate, “[e]ven if the Court orders disclosures, you wouldn‟t have [the] time to
look into it [before the] preliminary hearing.” The majority concludes the
magistrate did not abuse his discretion by so ruling. (Maj. opn., ante, at p. 13.)
I concur. I write separately to explain my reasons and to clarify what I believe to
be the majority‟s holding.
I. Effective Assistance of Counsel
As the majority explains (maj. opn., ante, at pp. 6-7), a criminal defendant
is guaranteed the constitutional right to the effective assistance of counsel at the
preliminary hearing. (People v. Cudjo (1993) 6 Cal.4th 585, 615.) Moreover, to
facilitate the right to effective assistance of counsel and to prepare for a
meaningful preliminary hearing, a criminal defendant can, as the majority affirms,
file for Pitchess discovery in advance of the hearing, not only because “[t]he
1
Pitchess discovery statutes . . . do not restrict the use of evidence obtained through
such discovery to any particular proceeding” (maj. opn., ante, at p. 9), but also
because “there is no legislative prohibition against the filing of a Pitchess
discovery motion before a preliminary hearing is held . . .” (ibid.). However,
responding to petitioner‟s argument that denial of Pitchess discovery deprived him
of the effective assistance of counsel, the majority concludes that the right to
effective assistance of counsel is not violated “if defense counsel lacks Pitchess
discovery for use at the preliminary hearing.” (Maj. opn., ante, at p. 7.)
Notwithstanding petitioner‟s argument, petitioner‟s right to effective
assistance of counsel at the preliminary hearing is, in my view, only tangentially
related to his Pitchess motion. Instead, a defendant‟s inability to obtain and
present relevant evidence at the preliminary hearing relates to the defendant‟s due
process right to a fair hearing. Although the function of a preliminary hearing is
merely to determine if probable cause exists to bind a defendant over for trial, the
ability to impeach accusatory witnesses at the hearing is an important part of that
process. The value of impeachment is explicitly recognized by Penal Code section
866, subdivision (a), which provides that a criminal defendant may present
evidence at the preliminary hearing that is “reasonably likely to . . . impeach the
testimony of a prosecution witness . . . .” “The purpose of this right is obvious: to
permit the defendant to rebut the People‟s evidence of probable cause and
persuade the magistrate not to make a probable cause finding. One of „ “[t]he
purpose[s] of the preliminary hearing is to weed out groundless or unsupported
charges of grave offenses, and to relieve the accused of the degradation and
expense of a criminal trial. Many an unjustifiable prosecution is stopped at that
point where the lack of probable cause is clearly disclosed.” ‟ ” (Nienhouse v.
Superior Court (1996) 42 Cal.App.4th 83, 91.)
2
From the facts of petitioner‟s case, we may surmise that some of the
principal witnesses against him will be the arresting police officers. Because the
Pitchess process facilitates the gathering of evidence that potentially could
impeach the credibility of such officers, it follows logically that Pitchess discovery
material may be relevant and thus admissible at the preliminary hearing. In a
given case, denying a defendant a fair opportunity to impeach the witnesses
against him could infringe on his statutory right under Penal Code section 866 and,
possibly, produce a hearing so fundamentally unfair that the error implicates his
due process right to a fair hearing.1 Nevertheless, as explained below, I do not
believe denial of petitioner‟s Pitchess motion deprived him of due process.
II. Proposition 115
Neither the right to a fair hearing or to effective counsel at the hearing nor
Penal Code section 866 guarantees a defendant the right to introduce any and all
evidence at the preliminary hearing. The right to introduce evidence at the
hearing, as in a trial proper, is subject to numerous constraints. In this case, the
1
The majority opines that “the magistrate could also refuse to admit the
testimony of [impeaching] witnesses if strong and credible evidence of
defendant‟s guilt exists apart from the testimony provided by the arresting
officers.” (Maj. opn., ante, at p. 7.) I am unaware of any legal authority
authorizing a magistrate to refuse to admit evidence impeaching a prosecution
witness on the ground that the magistrate had—midhearing—already decided the
prosecution‟s evidence demonstrated probable cause. “Depending on the
credibility of the testimony and the circumstances of the case, probable cause
would be found present or absent by the magistrate at the conclusion of the
hearing.” (Nienhouse v. Superior Court, supra, 42 Cal.App.4th at p. 91.) Nor is
the majority‟s citation to People v. Slaughter (1984) 35 Cal.3d 629, 637 of any
assistance. Slaughter holds only that, after hearing all the evidence, the magistrate
may be able to discern that probable cause exists, sufficient to bind an accused
over for trial, without resolving all the factual disputes raised by the evidence.
Slaughter does not hold the magistrate may deny an accused the right to present
impeachment evidence suggesting his innocence.
3
majority relies on one such limitation on evidence: the delay inherent in the
Pitchess discovery process. (Cf. Evid. Code, § 352 [“The court in its discretion
may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will . . . necessitate undue consumption of time
. . .”].) Thus, the majority emphasizes Proposition 115‟s concern for “undue
delay” (Pen. Code, § 1054, subd. (d)) and the creation by Proposition 115 of the
People‟s right to a speedy trial (Cal. Const., art. I, § 29). From this, the majority
opines that petitioner‟s acknowledged right to move for prehearing Pitchess
discovery “does not mean that over the prosecution‟s objection the defense is
invariably entitled to have the preliminary hearing postponed . . . .” (Maj. opn.,
ante, at pp. 9-10, italics added; see also id. at p. 10 [“repeated postponements of
the preliminary hearing would . . . defeat a goal of Proposition 115: to reduce
delays in criminal cases” (italics added)]; ibid. [the “goal [of a speedy hearing]
would be frustrated if we were to uphold the pre-Proposition 115 practice of
routinely and repeatedly granting postponements” (italics added)].) I agree.
The converse, of course, is also true: a criminal defendant‟s need for
Pitchess discovery could, depending on the particular circumstances of the case,
justify a magistrate‟s exercise of discretion to grant a request to continue the
preliminary hearing over the prosecutor‟s objection. Just as the magistrate should
not invariably or routinely grant postponements of the hearing, neither should he
or she invariably or routinely deny them. Instead, whether to continue the
preliminary hearing is committed to the magistrate‟s traditional discretion, after
considering all the relevant factors including, but not limited to, the speedy
hearing rights of both the People and the accused. Thus, the second paragraph of
Penal Code section 859b provides: “Both the defendant and the people have the
right to a preliminary examination at the earliest possible time, and unless both
waive that right or good cause for a continuance is found as provided for in
4
Section 1050, the preliminary examination shall be held [within prescribed time
limits].” (Italics added.) Penal Code section 1050, referenced in Penal Code
section 859b, provides that “[n]either the convenience of the parties nor a
stipulation of the parties is in and of itself good cause” (Pen. Code, § 1050, subd.
(e)), and “[w]hen deciding whether or not good cause for a continuance has been
shown, the court shall consider the general convenience and prior commitments of
all witnesses, including peace officers” (id., subd. (g)(1)).
In sum, the importance of a speedy preliminary hearing, explicit in Penal
Code section 1054, subdivision (d), must be balanced against both a defendant‟s
right to a fair hearing and the defendant‟s statutory right, set forth in Penal Code
section 866b, to impeach the witnesses against him at the hearing. Thus, despite
the admitted value of a speedy preliminary hearing, a magistrate entertaining a
prehearing Pitchess motion should also consider whether an accused can receive a
fair hearing in the absence of Pitchess discovery and whether he has had a fair and
reasonable opportunity to marshal the available evidence to impeach the
prosecution‟s witnesses.
On the facts of this case, I agree with the majority that the magistrate did
not abuse his discretion by denying the Pitchess motion. The need for a speedy
hearing is an important consideration. Petitioner‟s motion for discovery, which
was not heard until May 16, 2008, even if granted, would not reasonably have
enabled him to obtain any pertinent discovery (if any existed in the officers‟
personnel files) before the preliminary hearing, then scheduled for June 2.
Defense counsel expressly stated she would ask for a continuance if Pitchess
discovery revealed potential witnesses, thus making delay fairly certain rather than
merely speculative. But also significant to the magistrate‟s decision is that
evidence other than any potentially impeaching Pitchess material was available to
petitioner to rebut the prosecution‟s case. Judging from the police report,
5
petitioner‟s arrest was witnessed by several people who were friends and family of
petitioner; if the officers were lying, some of those witnesses could likely
contradict the police version of events, diminishing the importance of the potential
Pitchess evidence. “[T]he trial court has discretion to exclude impeachment
evidence . . . if it is . . . cumulative . . . .” (People v. Price (1991) 1 Cal.4th 324,
412.) Finally, the magistrate‟s denial was without prejudice to petitioner‟s
renewing the motion before trial, ensuring that if the officers‟ personnel files
contained pertinent information, petitioner would not be forever denied access to
that evidence.
Because I agree the magistrate did not abuse his discretion, I concur in the
majority opinion, which affirms the Court of Appeal‟s judgment denying
petitioner a writ of mandate. I do so with the understanding that the majority‟s
opinion neither imposes a categorical bar to defendants moving for, and obtaining,
Pitchess discovery before the preliminary hearing, nor prohibits the admission at
the hearing of information gained through the Pitchess process. Instead, I
understand the majority opinion to hold that the decision whether to grant
prehearing Pitchess discovery is within the magistrate‟s discretion after balancing
the likelihood of delay with the defendant‟s right to a fair hearing, as well as his
right, under Penal Code section 866, to present evidence impeaching the
prosecution‟s witnesses at the hearing. The discretion to grant a continuance, as
always, is committed to the magistrate‟s traditional discretion under Penal Code
section 1050. With those caveats, I concur.
WERDEGAR, J.
6
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Galindo v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 169 Cal.App.4th 1332
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S170550Date Filed: July 22, 2010
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Steven R. Van Sicklen
__________________________________________________________________________________
Attorneys for Appellant:
Michael P. Judge, Public Defender, Albert J. Menaster, Susanne Blossom and Mark Harvis, Deputy PublicDefenders, for Petitioner.
Mary Greenwood, Public Defender (Santa Clara) and Michael Ogul, Deputy Public Defender, for
California Public Defenders Association and Santa Clara County Public Defender, as Amici Curiae on
behalf of Petitioner.
John T. Philipsborn; Sanger & Swysen and Stephen P. Dunkle for California Attorneys for Criminal Justice
as Amici Curiae on behalf of Petitioner.
__________________________________________________________________________________
Attorneys for Respondent:
Steven Cooley, District Attorney, John K. Spillane, Chief Deputy District Attorney, Irene Wakabayashi,
Head Deputy District Attorney, Sharon J. Matsumoto, Brentford J. Ferreiera, Natasha Cooper and Gilbert
Wright, Deputy District Attorneys, for Respondent.
Rockard Delgadillo and Carmen A. Trutanich, City Attorneys, Carlos De La Guerra and Jess J. Gonzalez,
Assistant City Attorneys, and Kjehl T. Johansen, Deputy City Attorney, for Real Parties in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Mark HarvisDeputy Public Defender
320 West Temple Street, Suite 590
Los Angeles, CA 90012
(213) 974-3066
Gilbert Wright
Deputy District Attorney
320 West Temple Street, Suite 540
Los Angeles, CA 90012
(213) 974-5911
Kjehl T. Johansen
Deputy City Attorney
201 North Los Angeles Street, L.A. Mall Space #301A
Los Angeles, CA 90012
(213) 978-2130
Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issue: Does a criminal defendant have a right to obtain Pitchess discovery (Pitchess v. Superior Court (1974) 11 Cal.3d 531) prior to the preliminary hearing?
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S157008
v.
Ct.App. 2/4 B192177
RODNEY LOUIS GAINES,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. MA032254
A criminal defendant, on a showing of good cause, is entitled to discovery
of information in the confidential personnel records of a peace officer when that
information is relevant to defend against a criminal charge. (Pen. Code, § 832.7;
Evid. Code, § 1043 et seq.; see Pitchess v. Superior Court (1974) 11 Cal.3d 531
(Pitchess).) In this case, the Court of Appeal determined that the trial court abused
its discretion by summarily denying defendant’s Pitchess motion without first
examining the requested records in camera to determine whether they contained
relevant information. The Court of Appeal conditionally reversed the judgment of
conviction and remanded the matter to permit the trial court to conduct an in
camera review of the requested personnel records. If the trial court’s inspection
uncovered no relevant information, the trial court was to reinstate the judgment.
If, on the other hand, relevant information was discovered during the in camera
review, the trial court was to order disclosure, allow defendant an opportunity to
demonstrate prejudice from the failure to disclose the relevant information, and
1
order a new trial if there was a reasonable probability the outcome would have
been different had the information been disclosed.
The parties agree that the trial court erred in failing to review the requested
records in camera and that a remand is the appropriate remedy to permit the trial
court to conduct that review. The parties further agree that if the in camera review
uncovers no relevant information, the judgment should be reinstated. The dispute
centers on the remainder of the disposition ordered by the Court of Appeal.
Defendant argues that if the in camera review uncovers any information that ought
to have been disclosed, the trial court’s error in failing to order that disclosure
prior to trial should be deemed reversible per se or, alternatively, that the judgment
should be reversed unless the People can show that the failure to disclose the
information was harmless beyond a reasonable doubt. The People, as did the
Court of Appeal, believe that the burden of establishing prejudice from any error
in failing to disclose relevant information lies with defendant, and that the proper
standard of prejudice is whether there is a reasonable probability of a different
result had the information been disclosed.
We conclude that the trial court’s erroneous denial of a Pitchess motion is
not reversible per se. Rather, the failure to disclose relevant information in
confidential personnel files, like other discovery errors, is reversible only if there
is a reasonable probability of a different result had the information been disclosed.
We therefore affirm the judgment of the Court of Appeal, with one minor
modification to the disposition.
2
BACKGROUND1
On June 11, 2005, Los Angeles County Deputy Sheriff Roger Izzo was
conducting undercover surveillance of a home in Lancaster where he believed
narcotics were being sold. Some people left the house in a maroon minivan, and
Deputy Izzo followed the minivan as it proceeded to a liquor store about half a
mile away. He directed Deputies Steven Lehrman and Christopher McMaster to
stop the minivan when it exited the area. As Izzo waited for the minivan’s
occupants to come out of the store, defendant Rodney Louis Gaines approached
Izzo’s unmarked vehicle and asked him whether he “smoked the white.”
Defendant offered to sell whatever Izzo might want and claimed he “had it all.”
Although Izzo declined the offer, defendant spit a small black plastic bindle into
his hand and presented it to Izzo. After Izzo reiterated that he was not interested
in buying drugs, defendant walked away.
Izzo then contacted the other two deputies and asked them to detain
defendant for offering to sell drugs. While Izzo continued to wait, defendant again
approached and handed Izzo a small piece of cocaine base, later determined to
weigh .03 grams, and a glass pipe used for smoking the drug. Defendant said,
“This one [is] on me. Hit this. You’ll like it.”
Moments later, when Deputies Lehrman and McMaster drove into the
parking lot, defendant turned and walked quickly away. As he did so, he put his
right hand to his mouth. McMaster ordered defendant several times to stop and,
when he did not comply, grabbed him by the shirt and ordered him to get down on
the ground. Lehrman noticed that defendant’s mouth was clenched closed; he
1
These background facts are taken largely from the recital contained in the
Court of Appeal opinion.
3
appeared to be chewing for a moment and then swallowed. When defendant
finally opened his mouth, Lehrman saw white residue on his tongue and inside his
mouth.
Izzo gave the other deputies the glass pipe and the .03 gram piece of
cocaine in a base form.
Defendant, a convicted felon and admitted cocaine addict, denied offering
to sell Izzo any drugs, denied spitting a bindle of drugs into his hand, and denied
handing Izzo a pipe or cocaine. He testified at trial that he had gone to the liquor
store to panhandle for money to buy cocaine. While there, he saw a fellow
panhandler, an older man, go over to a car. When the panhandler returned, he
offered to give defendant a piece of cocaine in exchange for use of his pipe.
Defendant handed the panhandler his pipe. About 10 minutes later, the panhandler
left the parking lot and indicated he had left defendant’s pipe on the side of a large
trash receptacle. Defendant went back to the alley to retrieve his pipe and stuck
the pipe in his sock. When he returned to the parking lot, Deputy Izzo called him
over and asked whether he had any “rock” for sale. Defendant replied, “I don’t
sell rock, I just use it.”
Suddenly, and without warning, Deputy McMaster grabbed him by the shirt
and forced him to the ground. McMaster spotted the glass pipe in defendant’s
sock and ordered defendant to remove his socks and shoes. As defendant removed
his left sock, a “little white speck hit the ground.” Defendant thought the
panhandler must have left the cocaine base in the pipe for him.
A jury convicted defendant of possessing cocaine base (Health & Saf.
Code, § 11350) and possessing a smoking device (id., § 11364, subd. (a)).
Defendant then admitted a prior strike conviction and seven prior prison term
allegations and was sentenced to 11 years in prison.
4
The Court of Appeal determined that the trial court had erred in summarily
denying defendant’s Pitchess motion without first conducting an in camera review
of the requested records. In the trial court, defendant had sought records relating
to whether the deputies had previously falsified police records, planted evidence,
or committed acts demonstrating dishonesty, and the Court of Appeal found that
defendant’s showing satisfied “the ‘ “relatively low threshold for discovery” ’ ”
under our precedents. The Court of Appeal conditionally reversed the judgment
and remanded the case to permit the trial court to conduct an in camera review of
the requested peace officer personnel records. The Court of Appeal’s disposition
provided that “[i]f the trial court’s inspection on remand reveals no relevant
information, the trial court must reinstate the judgment of conviction and sentence,
which shall stand affirmed. If the inspection reveals relevant information, the trial
court must order disclosure, allow appellant an opportunity to demonstrate
prejudice, and order a new trial if there is a reasonable probability the outcome
would have been different had the information been disclosed.”
We granted review on a single issue: “Is outright reversal or a remand for a
showing of prejudice the appropriate remedy for a trial court’s erroneous denial of
a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531)?”
DISCUSSION
This court has reviewed at length in several recent cases the background
and mechanics of the procedures by which a party may discover relevant evidence
in confidential peace officer personnel records. (See, e.g., Garcia v. Superior
Court (2007) 42 Cal.4th 63; Warrick v. Superior Court (2005) 35 Cal.4th 1011;
Alford v. Superior Court (2003) 29 Cal.4th 1033; City of Los Angeles v. Superior
Court (2002) 29 Cal.4th 1.) It is sufficient here to reiterate that, on a showing of
good cause, a criminal defendant is entitled to discovery of relevant documents or
information in the confidential personnel records of a peace officer accused of
5
misconduct against the defendant. (Evid. Code, § 1043, subd. (b).) 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 review of “all
potentially relevant documents.” (Ibid.) If the defendant establishes good cause,
the court must review the requested records in camera to determine what
information, if any, should be disclosed. (Chambers v. Superior Court (2007) 42
Cal.4th 673, 679.) Subject to certain statutory exceptions and limitations (see
Evid. Code, § 1045, subds. (b)-(e)), “the trial court should then disclose to the
defendant ‘such information [that] is relevant to the subject matter involved in the
litigation.’ ” (People v. Mooc (2001) 26 Cal.4th 1216, 1226, quoting Evid. Code,
§ 1045, subd. (a); see also Warrick v. Superior Court, supra, 35 Cal.4th at p.
1019.)
Applying this framework, the Court of Appeal determined that the trial
court had erred in rejecting defendant’s showing of good cause to justify an in
camera review of the requested records. Defendant, representing himself in
propria persona, had alleged in his pretrial motion that Deputies McMaster and
Lehrman did not have probable cause or reasonable suspicion to detain him, that
Deputy Izzo never called McMaster and Lehrman to tell them defendant had tried
to sell drugs, that defendant never placed drugs in or removed them from his
mouth, and that all three deputies wrote arrest reports that contained false and
misleading information. The Court of Appeal reasoned that any evidence that the
deputies had previously falsified police reports or planted evidence would be
relevant to support defendant’s assertion that they had done so in this case. In the
view of the Court of Appeal, the trial court erred in failing to conduct an in-
6
chambers review of the deputies’ personnel records to ascertain whether they
contained discoverable information relevant to these potential defenses.
The People did not dispute the Court of Appeal’s conclusion that the trial
court had erred in failing to review the deputies’ personnel records in camera, nor
did they challenge the Court of Appeal’s disposition conditionally reversing the
judgment and remanding the matter to permit the trial court to review these
records. Under the remand order, the trial court was to reinstate the judgment if it
determined that the records contained no relevant information; if the records
contained relevant information, the trial court was to disclose the information,
allow defendant an opportunity to demonstrate prejudice from the trial court’s
earlier failure to make this disclosure, and order a new trial if defendant
demonstrated a reasonable probability the outcome would have been different had
the relevant information been disclosed.
Instead, it was defendant who objected. In defendant’s view, he was
entitled to a new trial merely upon a showing that relevant information had been
erroneously withheld, without any need to demonstrate prejudice from the
nondisclosure. Defendant argued, alternatively, that if prejudice was a
prerequisite to relief, the burden should be on the People to demonstrate that the
erroneous failure to disclose the information was harmless beyond a reasonable
doubt. We disagree with both of defendant’s contentions.
As the parties concede, the proper remedy when a trial court has
erroneously rejected a showing of good cause for Pitchess discovery and has not
reviewed the requested records in camera is not outright reversal, but a conditional
reversal with directions to review the requested documents in chambers on
remand. (See Pen. Code, § 1260 [reviewing court “may, if proper, remand the
cause to the trial court for such further proceedings as may be just under the
circumstances”].) “Section 1260 evinces a ‘legislative concern with unnecessary
7
retrials where something less drastic will do.’ (People v. Vanbuskirk (1976) 61
Cal.App.3d 395, 405 (Vanbuskirk) [remand to take evidence of fairness in pretrial
identification procedures ‘may avert the need for a retrial’].) ‘[W]hen the validity
of a conviction depends solely on an unresolved or improperly resolved factual
issue which is distinct from issues submitted to the jury, such an issue can
be determined at a separate post-judgment hearing and if at such hearing the issue
is resolved in favor of the People, the conviction may stand.’ (Ibid.) In other
words, ‘when the trial is free of prejudicial error and the appeal prevails on a
challenge which establishes only the existence of an unresolved question which
may or may not vitiate the judgment, appellate courts have, in several instances,
directed the trial court to take evidence, resolve the pending question, and take
further proceedings giving effect to the determination thus made.’ ([People v.
Minor (1980) 104 Cal.App.3d 194,] 199.)” (People v. Moore (2006) 39 Cal.4th
168, 176-177.) Thus, as we have previously held, when a trial court has failed to
make a record of the Pitchess documents it reviewed in camera, it is appropriate to
remand the case “with directions to hold a hearing to augment the record with the
evidence the trial court had considered in chambers when it ruled on the Pitchess
motion.” (People v. Mooc, supra, 26 Cal.4th at p. 1231.) Similarly, when a trial
court has failed to review the Pitchess documents at all, it is appropriate to remand
the case to permit the trial court to review the requested documents in chambers
and to issue a discovery order, if warranted.2
2
There is language in People v. Memro (1985) 38 Cal.3d 658 to suggest that
an outright reversal, not a remand, is the appropriate remedy when the trial court
erroneously denies a Pitchess motion without conducting an in camera review of
the requested documents. (Memro, supra, 38 Cal.3d at p. 685.) However, no
published decision has ever cited Memro as authority for an outright reversal in
such circumstances, defendant does not contend here that Memro announced a rule
requiring an outright reversal, and it would make no sense to reverse a judgment
(footnote continued on next page)
8
After reviewing the confidential materials in chambers, the trial court may
determine that the requested personnel records contain no relevant information.
The Court of Appeal directed the trial court, in that circumstance, to reinstate the
judgment, and no party objects to that portion of the disposition.3 It is also
possible for the trial court to determine on remand that relevant information exists
and should be disclosed. The Court of Appeal provided, in that event, that the trial
court “must order disclosure, allow [defendant] an opportunity to demonstrate
prejudice, and order a new trial if there is a reasonable probability the outcome
would have been different had the information been disclosed.” This was not
error.
“It is settled that an accused must demonstrate that prejudice resulted from
a trial court’s error in denying discovery.” (People v. Memro, supra, 38 Cal.3d at
p. 684; see also People v. Cruz (2008) 44 Cal.4th 636, 670-671; cf. People v. Snow
(1985) 44 Cal.3d 216, 226 [infringement on right to fair and impartial jury is
(footnote continued from previous page)
for a new trial “if it turns out after discovery is granted [at the retrial] that the
personnel files contain no evidence to support the defendant’s claim.” (Memro,
supra, 38 Cal.3d at p. 708 (conc. & dis. opn. of Grodin, J.).) We therefore
overrule Memro to the extent it is inconsistent with the views expressed here.
3
The Court of Appeal’s disposition on this point provided that “[i]f the trial
court’s inspection on remand reveals no relevant information, the trial court must
reinstate the judgment of conviction and sentence, which shall stand affirmed.”
We are concerned, however, that the italicized language “could be construed to
preclude the defendant from seeking appellate review of the trial court’s rulings on
the Pitchess motion following remand,” even though “the defendant retains the
right to appeal from the judgment for the limited purpose of challenging the
Pitchess findings.” (People v. Wycoff (2008) 164 Cal.App.4th 410, 415.)
Accordingly, we will modify the Court of Appeal’s disposition to delete the
italicized language.
9
reversible per se].) Defendant contends nonetheless that no separate prejudice
analysis should be required here, in that a trial court’s determination that relevant
information exists and should be disclosed is the result of “a process, akin to
weighing prejudice, in which it has deemed the records integral to the defendant’s
case.” Defendant misapprehends the Pitchess procedure.
“This court has held that the good cause requirement embodies a ‘relatively
low threshold’ for discovery” (People v. Samuels (2005) 36 Cal.4th 96, 109),
under which a defendant need demonstrate only “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.” (Warrick v. Superior Court, supra, 35
Cal.4th at p. 1021.) The trial court may then disclose information from the
confidential records that “is relevant to the subject matter involved in the pending
litigation” (Evid. Code, § 1045, subd. (a)), provided that the information does not
concern peace officer conduct occurring more than five years earlier, the
conclusions of an officer investigating a citizen complaint about a peace officer, or
facts that are so remote as to make disclosure of little or no practical benefit (id.,
§ 1045, subd. (b)). Evidence Code section 1045 thus balances the officer’s
privacy interests against the defendant’s need for disclosure. (Alford v. Superior
Court, supra, 29 Cal.4th at p. 1039.) As we have previously explained, however,
this weighing process for screening out unwarranted discovery requests is not akin
to the inquiry into whether a particular error in denying discovery was prejudicial,
an inquiry that involves an assessment or weighing of the persuasive value of the
evidence that was presented and that which should have been presented. (Warrick
v. Superior Court, supra, 35 Cal.4th at p. 1026; cf. People v. Vanbuskirk, supra,
61 Cal.App.3d at p. 407, fn. 10 [once the Court of Appeal determined that
prejudice existed “if either identification was unfair,” the matter was remanded to
10
the trial court to consider defendant’s claim that both eyewitness identifications
were unfairly tainted by an improper photographic identification, and to order a
new trial if it determined that either identification was unfair].) Indeed, a
defendant is entitled to discover relevant information under Pitchess even in the
absence of any judicial determination that the potential defense is credible or
persuasive. (Warrick, supra, 35 Cal.4th at p. 1026.)
Accordingly, a trial court’s determination that information in the requested
records ought to have been disclosed is not equivalent to a finding that such
information would have had any effect on the outcome of the underlying court
proceeding—or, indeed, even a finding that such information would have been
admissible, inasmuch as the trial court’s duty to disclose encompasses information
that is not itself admissible but which “may lead to admissible evidence.”
(Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1048-1049.) To obtain
relief, then, a defendant who has established that the trial court erred in denying
Pitchess discovery must also demonstrate a reasonable probability of a different
outcome had the evidence been disclosed. (People v. Gonzalez (2006) 38 Cal.4th
932, 960; People v. Samuels, supra, 36 Cal.4th at p. 110; People v. Memro, supra,
38 Cal.3d at p. 685; People v. Johnson (2004) 118 Cal.App.4th 292, 305; People
v. Hustead (1999) 74 Cal.App.4th 410, 421-422; see also People v. Gill (1997) 60
Cal.App.4th 743, 751 [new trial required if the Pitchess evidence would have been
“helpful” to the defense and of a nature “to affect the outcome of his trial”]; see
generally Cal. Const., art. VI, § 13.)
The reasonable-probability standard of prejudice we have applied in
Pitchess cases is the same standard we have applied generally to claims that the
prosecution improperly withheld exculpatory evidence in violation of a
defendant’s right to due process. Brady v. Maryland (1963) 373 U.S. 83 (Brady)
held “that the suppression by the prosecution of evidence favorable to an accused
11
. . . violates due process where the evidence is material either to guilt or to
punishment.” (Id. at p. 87.) Evidence is material “ ‘if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’ ” (Kyles v. Whitley (1995) 514 U.S. 419,
433-434.) It is true, as defendant points out, that a trial court need make a
determination only of “the materiality [of the requested documents] to the subject
matter involved in the pending litigation” before ordering disclosure of the
confidential materials under Pitchess. (Evid. Code, § 1043, subd. (b)(3).) But a
trial court’s finding that information is material within the meaning of the Pitchess
scheme does not mean that it is material within the meaning of Brady, for these
two legal schemes “employ different standards of materiality.” (City of Los
Angeles v. Superior Court, supra, 29 Cal.4th at p. 7.) “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 [citation], that is, ‘all information pertinent to the defense.’ ” (City of
Los Angeles v. Superior Court, supra, 29 Cal.4th at p. 14.) Consequently, a
finding that material evidence was wrongfully withheld under Pitchess does not
invariably mean that a defendant’s right to due process was denied, “since ‘the
Constitution is not violated every time the government fails or chooses not to
disclose evidence that might prove helpful to the defense.’ ” (People v. Salazar
(2005) 35 Cal.4th 1031, 1050, quoting Kyles v. Whitley, supra, 514 U.S. at pp.
436-437.) To establish a due process violation, a defendant must do more than
show that “helpful” evidence was withheld (People v. Gill, supra, 60 Cal.App.4th
at p. 751); a defendant must go on to show that “ ‘there is a reasonable probability
that, had [the evidence] been disclosed to the defense, the result . . . would have
12
been different.’ ” (In re Sassounian (1995) 9 Cal.4th 535, 544; see generally
Weatherford v. Bursey (1977) 429 U.S. 545, 559 [“There is no general
constitutional right to discovery in a criminal case”]; Wardius v. Oregon (1973)
412 U.S. 470, 474 [except for Brady, supra, 373 U.S. 83, “the Due Process Clause
has little to say regarding the amount of discovery which the parties must be
afforded”].)
Defendant contends also that the withholding of discoverable materials
should result in a reversal without any further showing of prejudice because the
nature of a Pitchess violation precludes a court from undertaking a meaningful
inquiry into whether prejudice occurred. In defendant’s view, courts are “poorly
equipped to appraise the ways in which the failure to turn over critical police
personnel records prejudiced the defendant,” including “how their deprivation
adversely affected the defendant’s overall strategy.” We disagree. The
determination of materiality for Brady claims “ ‘is necessarily fact specific’ ”
(People v. Salazar, supra, 35 Cal.4th at p. 1052, fn. 8), yet courts are called upon
in each case to assess the probable effect of withholding such evidence on the
outcome. Moreover, the Brady duty of disclosure, like the duty announced in
Pitchess, extends to impeachment evidence (People v. Salazar, supra, 35 Cal.4th
at p. 1050), including impeachment of peace officers. (People v. Gutierrez (2003)
112 Cal.App.4th 1463, 1474, fn. 6; accord, U.S. v. Alvarez (9th Cir. 1996) 86 F.3d
901, 903-905.) In determining whether there is a reasonable probability that
disclosure of such evidence would have yielded a different outcome under Brady,
“ ‘the court must consider the nondisclosure dynamically, taking into account the
range of predictable impacts on trial strategy.’ ” (U.S. v. Johnson (D.C. Cir. 2008)
519 F.3d 478, 489.) Defendant does not explain how it can be that courts are
deemed well equipped to ascertain the prejudicial effect of failing to disclose
evidence tending to impeach an officer but must be deemed poorly equipped to
13
ascertain the effect of failing to disclose the same information when it derives
from confidential personnel files.
Finally, defendant contends that a heightened standard of prejudice—i.e.,
the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v.
California (1967) 386 U.S. 18—must be applied because a failure to disclose
evidence helpful to the defense would impinge on his federal constitutional right
to confrontation under the Sixth Amendment. He is mistaken. Even if relevant
evidence that could have been used to impeach the deputies was wrongfully
withheld, defendant suffered no restriction on the scope of their cross-examination
and was free to cross-examine these witnesses on any relevant subject. “The
constitutional error, if any, in this case was the Government’s failure to assist the
defense by disclosing information that might have been helpful in conducting the
cross-examination. As discussed above, such suppression of evidence amounts to
a constitutional violation only if it deprives the defendant of a fair trial. Consistent
with ‘our overriding concern with the justice of the finding of guilt,’ [citation], a
constitutional error occurs, and the conviction must be reversed, only if the
evidence is material in the sense that its suppression undermines confidence in the
outcome of the trial.” (United States v. Bagley (1985) 473 U.S. 667, 678, italics
added; see Pennsylvania v. Ritchie (1987) 480 U.S. 39, 53 (plur. opn. of Powell,
J.) [“The ability to question adverse witnesses . . . does not include the power to
require pretrial disclosure of any and all information that might be useful in
contradicting unfavorable testimony”]; accord, In re Brown (1998) 17 Cal.4th 873,
884.) Because that is precisely the standard employed by the Court of Appeal
(Strickland v. Washington (1984) 466 U.S. 668, 694 [“A reasonable probability is
a probability sufficient to undermine confidence in the outcome”]), no error
appears.
14
DISPOSITION
We modify the judgment of the Court of Appeal to delete the direction that
the judgment “shall stand affirmed” if the trial court’s inspection of the requested
personnel records on remand reveals no relevant information. As so modified, the
judgment of the Court of Appeal is affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Gaines
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 8/29/07 – 2d Dist., Div. 4Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S157008Date Filed: April 30, 2009
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Lisa Mangay Chung
__________________________________________________________________________________
Attorneys for Appellant:
Peter Gold, under appointment by the Supreme Court, and Heather J. Manolakas, under appointment by theCourt of Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.Hamanaka, Assistant Attorney General, Keith Borjon, Kathy S. Pomerantz, Scott A. Taryle, Kristofer
Jorstad and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Peter Gold2269 Chestnut Street, #124
San Francisco, CA 94123
(510) 872-6305
Stacy S. Schwartz
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2252
Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses and remanded with directions. The court limited review to the following issue: Is outright reversal or a remand for a showing of prejudice the appropriate remedy for a trial court's erroneous denial of a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531)?
