District Attorney Not Required to File Pitchess Motion to Review Peace Officer Personnel Files, Only to Disclose Files

Category: Client Update
Date: Oct 20, 2014 01:42 PM

In November 2012, the San Francisco District Attorney filed a complaint charging Daryl Lee Johnson with one felony count of domestic violence and one misdemeanor count of injuring a wireless communication device with the intent to prevent use of the device to summon assistance or notify a public safety agency.  At Johnson's preliminary hearing, Officer Paul Dominguez testified that he responded to a 911 call with Officer Antonio Carrasco and that Johnson admitted that he hit the victim because the victim had allegedly "maced" him.   

In December 2013, the prosecution filed a Pitchess motion pursuant to California Evidence Code sections 1043 and 1045 for discovery of the personnel records of Officers Dominguez and Carrasco.  The motion requested that the court conduct an in camera review of the personnel records to determine whether any items were subject to disclosure under Brady v. Maryland.  The assistant district attorney prosecuting the case submitted a declaration in support of the motion stating, in part, that the San Francisco Police Department had informed him that Officers Dominguez and Carrasco had material in their personnel files that may be subject to disclosure under Brady (i.e. material that was reflective of dishonesty, bias, or evidence of moral turpitude). 

The San Francisco Police Department (Department) has a Bureau Order establishing the Department's procedures for disclosing Brady materials in employee personnel files.  The premise underlying the Bureau Order is that the District Attorney cannot legally access  confidential peace officer personnel files unless it files a motion pursuant to Evidence Code section 1043 (a Pitchess motion) and obtains a court order.  The Bureau Order requires the Department to notify the District Attorney of the names of employees who have information in their personnel files that may require disclosure under Brady.  In other words, the Department creates a list of employees who have potential Brady material in their personnel files. The District Attorney's Office then makes a motion under Evidence Code sections 1043 and 1045 for an in camera review of the records by the court. 

After the District Attorney's Office filed a Pitchess motion for Brady material in the personnel files of Officers Dominguez and Carrasco, the defendant, Johnson, filed a motion requesting that the court conduct the requested in camera Brady review, declare Penal Code section 832.7 unconstitutional and direct the Department to allow the prosecutor access to the personnel files, or dismiss the case due to the prosecution's failure to comply with Brady.  The trial court denied the Pitchess motion, but concluded that Pitchess procedures did not apply to motions seeking review of personnel records under Brady and that Penal Code section 832.7 is unconstitutional to the extent it bars the prosecution from access to peace officer personnel records in order to comply with Brady.  Accordingly, the court directed the Department to give the District Attorney access to Officers Dominguez and Carrasco's personnel records to allow the prosecution to comply with Brady.

The District Attorney filed a writ petition challenging the court's decision.  The Court of Appeal denied the petition in part and granted in part. 

The Court of Appeal stated that this case is the latest to consider the "interplay" between the United States Supreme Court's 1963 decision in Brady v. Maryland and the statutory discovery procedures articulated by the California Supreme Court in Pitchess v. Superior Court.  In Brady,  the Court held that the prosecution has a duty to disclose to the defendant any evidence that is favorable and material to the defense.  However, Penal Code section 832.7 provides that peace officer personnel records are "confidential and shall not be disclosed in any criminal or civil proceeding except by discovery" pursuant to Evidence Code section 1043.  Evidence Code section 1043 sets forth the requirements for seeking discovery or disclosure of peace officer personnel records (i.e., a Pitchess motion).  The Court of Appeal analyzed the interplay of these laws, and whether the prosecution may routinely require the trial court to conduct the initial Brady review of officer personnel records to determine whether there is material evidence that must be disclosed. 

The Court began its analysis with Brady and noted that Brady requires the "prosecution team" to divulge impeachment or exculpatory evidence to the defense, even if the evidence is known only to police investigators and not prosecutors.  Thus, the prosecutor has an obligation to learn of any favorable evidence known to others acting on the government's behalf, including the police.  Turning then to Pitchess, the Court stated that California law requires that peace officer personnel files (as defined by Penal Code section 832.8) are confidential and subject to discovery only pursuant to Evidence Code sections 1043 and 1045. 

The Court then explained that with respect to materials in peace officer personnel files, there are two distinct stages: identification and disclosure.  The identification stage requires access to officer personnel files to identify materials to be disclosed under Brady.  The disclosure stage involves the disclosure of those materials to the defendant.  The Court concluded that Penal Code section 832.7 does not prohibit the prosecutor from performing the role of identifying Brady materials in personnel files as the mere act of identifying Brady material does not constitute disclosure of the personnel information, nor does it breach the confidentiality of the personnel files.  Accordingly, the District Attorney's Office and the San Francisco Police Department are part of the same prosecution "team" and prosecutorial inspection of an officer's personnel file for Brady purposes is not a disclosure of the file within the criminal proceeding.

The Court of Appeal also analyzed whether Penal Code section 832.7's designation of officer personnel records as "confidential" prevents the District Attorney from reviewing the records.   The legislative intent of section 832.7 was to protect officer personnel files from public disclosure and to establish a procedure for discovery of information in the files.  The legislative history does not express concern over prosecutorial access, and the personnel records are not publicly disclosed when a prosecutor reviews the records for Brady material.  Therefore, the Court of Appeal held that a prosecutor's inspection of peace officer personnel records for Brady material does not breach the confidentiality of the records under Penal Code section 832.7.         

However, the Court of Appeal held that the prosecution team must comply with Evidence Code sections 1043 and 1045 in order to disclose any Brady material to the defendant.  Evidence Code section 1043 provides that "[i]n any case in which discovery or disclosure is sought of peace or custodial officer personnel records," a written motion must be filed, along with an affidavit showing good cause for the discovery or disclosure sought.  Once good cause is established, Evidence Code section 1045 requires the trial court to examine the information in chambers and exclude certain information, such as complaints more than five years old.  Therefore, while the District Attorney's Office may conduct a Brady inspection of peace officer personnel records, it may not disclose the materials without first filing a Pitchess motion and obtaining permission from the court following an "in chambers" review. 

On those bases, the Court of Appeal denied the District Attorney's writ petition in part, but ordered the trial court to modify its order to provide that if the District Attorney identifies any Brady material in the personnel records, the District Attorney shall file a motion under Evidence Code section 1043 to obtain disclosure to the defendant.

Note:

The case relies, in part, on the decision in Michael v. Gates (1995) 38 Cal.App.4th 737, in which the Court held that a police agency can review its own records without triggering any Pitchess requirements because there is no disclosure or discovery of the records in litigation.   In addition, a department does not necessarily have to give a prosecutor unfettered access to all personnel records.  The Court noted that police departments may devise their own policies and procedures for Brady compliance, including a process in which the police department selects a pool of documents for the prosecutor to review and identify Brady materials, as long as the process is adequate and provides for disclosure of all Brady materials. 

People v. Superior Court (Johnson) (2014) 228 Cal.App.4th 1046.

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