CRIMINAL LAW SECTION WEBINAR
19
ORANGE COUNTY BAR ASSOCIATION CRIMINAL LAW SECTION WEBINAR Demystifying Pitchess Thursday, February 18, 2021
Transcript of CRIMINAL LAW SECTION WEBINAR
ORANGE COUNTY BAR ASSOCIATION
CRIMINAL LAW SECTION WEBINAR
Demystifying Pitchess
Thursday, February 18, 2021
§ 1043. Peace or custodial officer personnel records; discovery or..., CA EVID § 1043
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West's Annotated California CodesEvidence Code (Refs & Annos)
Division 8. Privileges (Refs & Annos)Chapter 4. Particular Privileges (Refs & Annos)
Article 9. Official Information and Identity of Informer (Refs & Annos)
West's Ann.Cal.Evid.Code § 1043
§ 1043. Peace or custodial officer personnel records; discovery or disclosure; procedure
Effective: January 1, 2020Currentness
(a) In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintainedpursuant to Section 832.5 of the Penal Code or information from those records, the party seeking the discovery or disclosureshall file a written motion with the appropriate court or administrative body upon written notice to the governmental agencythat has custody and control of the records, as follows:
(1) In a civil action, the written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Codeof Civil Procedure.
(2) In a criminal action, the written notice shall be served and filed at least 10 court days before the hearing. All papers opposinga motion so noticed shall be filed with the court at least five court days, and all reply papers at least two court days, before thehearing. Proof of service of the notice shall be filed no later than five court days before the hearing.
(b) The motion shall include all of the following:
(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking discovery or disclosure, thepeace or custodial officer whose records are sought, the governmental agency that has custody and control of the records, andthe time and place at which the motion for discovery or disclosure shall be heard.
(2) A description of the type of records or information sought.
(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subjectmatter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has therecords or information from the records.
(c) Upon receipt of a notice served pursuant to subdivision (a), the governmental agency shall immediately notify the individualwhose records are sought.
§ 1043. Peace or custodial officer personnel records; discovery or..., CA EVID § 1043
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(d) No hearing upon a motion for discovery or disclosure shall be held without full compliance with the notice provisions ofthis section except upon a showing by the moving party of good cause for noncompliance, or upon a waiver of the hearing bythe governmental agency identified as having the records.
Credits(Added by Stats.1978, c. 630, p. 2082, § 1. Amended by Stats.1989, c. 693, § 7; Stats.2002, c. 391 (A.B.2040), § 1; Stats.2019,c. 585 (A.B.1600), § 2, eff. Jan. 1, 2020.)
Notes of Decisions (389)
West's Ann. Cal. Evid. Code § 1043, CA EVID § 1043Current with urgency legislation through Ch. 2 of 2021 Reg.Sess
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§ 1045. Peace or custodial officers; access to records of..., CA EVID § 1045
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 1
West's Annotated California CodesEvidence Code (Refs & Annos)
Division 8. Privileges (Refs & Annos)Chapter 4. Particular Privileges (Refs & Annos)
Article 9. Official Information and Identity of Informer (Refs & Annos)
West's Ann.Cal.Evid.Code § 1045
§ 1045. Peace or custodial officers; access to records of complaints,investigations of complaints, or discipline imposed; relevancy; protective orders
Effective: January 1, 2003Currentness
(a) Nothing in this article shall be construed to affect the right of access to records of complaints, or investigations of complaints,or discipline imposed as a result of those investigations, concerning an event or transaction in which the peace officer or custodialofficer, as defined in Section 831.5 of the Penal Code, participated, or which he or she perceived, and pertaining to the manner inwhich he or she performed his or her duties, provided that information is relevant to the subject matter involved in the pendinglitigation.
(b) In determining relevance, the court shall examine the information in chambers in conformity with Section 915, and shallexclude from disclosure:
(1) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction thatis the subject of the litigation in aid of which discovery or disclosure is sought.
(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant to Section 832.5 of thePenal Code.
(3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical benefit.
(c) In determining relevance where the issue in litigation concerns the policies or pattern of conduct of the employing agency, thecourt shall consider whether the information sought may be obtained from other records maintained by the employing agencyin the regular course of agency business which would not necessitate the disclosure of individual personnel records.
(d) Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined orby the officer whose records are sought, and upon good cause showing the necessity thereof, the court may make any orderwhich justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.
(e) The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer recordsrequested pursuant to Section 1043, order that the records disclosed or discovered may not be used for any purpose other thana court proceeding pursuant to applicable law.
§ 1045. Peace or custodial officers; access to records of..., CA EVID § 1045
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Credits(Added by Stats.1978, c. 630, p. 2082, § 3. Amended by Stats.1982, c. 946, p. 3432, § 1; Stats.2002, c. 391 (A.B.2040), § 2.)
Notes of Decisions (222)
West's Ann. Cal. Evid. Code § 1045, CA EVID § 1045Current with urgency legislation through Ch. 2 of 2021 Reg.Sess
End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.
Pitchess v. Superior Court, 11 Cal.3d 531 (1974)522 P.2d 305, 113 Cal.Rptr. 897
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11 Cal.3d 531Supreme Court of California,
In Bank.
Peter J. PITCHESS, as Sheriff, etc., Petitioner,v.
The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;Caesar ECHEVERIA, Real Party in Interest.
L.A. 30224.|
May 23, 1974.
SynopsisSheriff sought writ of mandate to compel the quashing of subpoena duces tecum requiring production of records of investigationconducted by sheriff's department internal unit with respect to citizens' complaints of official misconduct. The Supreme Court,Mosk, J., held that affidavits in which accused, who was charged with committing battery against deputy sheriffs and whoasserted that he had acted in self-defense, were sufficient to justify discovery of records involving investigations concerningaccusations by various members of the public that the deputies allegedly attacked by accused had themselves used excessiveforce on previous occasions, and that Evidence Code provision granting public entities a formal privilege to refuse to divulgeofficial information when need to maintain secrecy is greater than need for disclosure provided exclusive means for assertionof claim of governmental privilege and, therefore, sheriff could not avoid discovery on basis of common-law privilege ofconfidentiality.
Peremptory writ denied.
Clark, J., concurred specially and filed opinion.
Opinion, 109 Cal.Rptr. 596, vacated.
West Headnotes (14)
[1] Mandamus Presumptions and burden of proof
Sheriff who sought writ of mandate to compel the quashing of subpoena duces tecum requiring production of certaindocuments in criminal proceeding had burden of demonstrating that grant of subpoena was an abuse of discretion.
14 Cases that cite this headnote
[2] Criminal Law In general; examination of victim or witness
Statutory provisions governing discovery in civil actions are inapplicable to criminal proceedings. West's Ann.CodeCiv.Proc. §§ 1985, 2016 et seq., 2036, 2036(a).
7 Cases that cite this headnote
[3] Criminal Law Discretion in ordering disclosure
Pitchess v. Superior Court, 11 Cal.3d 531 (1974)522 P.2d 305, 113 Cal.Rptr. 897
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Defendant's motion to discover is addressed solely to sound discretion of trial court which has inherent power to orderdiscovery when interests of justice so demand.
273 Cases that cite this headnote
[4] Criminal Law Information or Things, Disclosure of
An accused in a criminal prosecution may compel discovery by demonstrating that requested information will facilitatethe ascertainment of the facts and a fair trial.
64 Cases that cite this headnote
[5] Criminal Law Application, motion or request; affidavits
Requisite showing by criminal defendant who seeks to compel discovery, that requested information will facilitatethe ascertainment of the facts and a fair trial, may be satisfied by general allegations which establish some cause fordiscovery other than a mere desire for the benefit of all information which has been obtained by the people in theirinvestigation of the crime.
580 Cases that cite this headnote
[6] Criminal Law Application, motion or request; affidavits
Affidavits which were filed by defendant, who was charged with committing battery against deputy sheriffs and whoasserted that he had acted in self-defense, and in which it was stated, inter alia, that specified persons who had filedcomplaints concerning official misconduct by deputy sheriffs involved in the prosecution with sheriff's departmentinternal unit were unavailable for interview, that additional witnesses were available but could not recall details andthat disciplinary records were necessary as character evidence of deputies' tendency to violence were sufficient tojustify discovery of records of investigations conducted by the sheriff's department internal unit. West's Ann.Pen.Code,§§ 242, 243; West's Ann.Evid.Code, § 1103.
1198 Cases that cite this headnote
[7] Assault and Battery Defenses and mitigating circumstances
Evidence of deputy sheriffs' tendencies to violence was relevant and admissible in prosecution for battery committedagainst the deputy sheriffs where defendant asserted that he had acted in self-defense in response to use of excessiveforce by the deputy sheriffs. West's Ann.Pen.Code, §§ 242, 243; West's Ann.Evid.Code, § 1103.
25 Cases that cite this headnote
[8] Criminal Law Circumstances precluding disclosure; information unavailable
Right of an accused to obtain discovery is not absolute even upon showing of good cause; trial court has wide discretionto protect against disclosure of information which might unduly hamper prosecution or violate some other legitimategovernmental interest.
79 Cases that cite this headnote
[9] Privileged Communications and Confidentiality Official information in general
Records of investigations conducted by sheriff's department internal unit which inquired into citizens' complaints ofofficial misconduct were within privilege attaching to official information where the records were compiled on the
Pitchess v. Superior Court, 11 Cal.3d 531 (1974)522 P.2d 305, 113 Cal.Rptr. 897
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basis of statements made in confidence to members of the unit and investigations conducted pursuant thereto. West'sAnn.Evid.Code, § 1040.
42 Cases that cite this headnote
[10] Privileged Communications and Confidentiality Public Officers and Records
In view of enactment of statutory privilege permitting public entities to refuse to divulge official information whenneed to maintain secrecy is greater than need for disclosure, no common-law privilege of governmental confidentialityexists. West's Ann.Evid.Code, § 1040.
5 Cases that cite this headnote
[11] Criminal Law Excuse or justification
Evidence Code is the sole and authoritative arbiter of all matters within its purview. West's Ann.Evid.Code, § 2.
[12] Constitutional Law Privileges
In view of Evidence Code provision codifying, revising or supplanting any privileges previously available at commonlaw, courts are no longer free to modify existing privileges or to create new privileges. West's Ann.Evid.Code, §§2, 12(c), 1040, 1042(a).
10 Cases that cite this headnote
[13] Privileged Communications and Confidentiality Official information in general
Statutory privilege permitting public entities to refuse to divulge official information when need to maintain secrecy isgreater than need for disclosure is exclusive means by which public entity may assert claim of governmental privilegebased upon necessity for secrecy. West's Ann.Evid.Code, §§ 1040, 1042(a).
11 Cases that cite this headnote
[14] Privileged Communications and Confidentiality Investigatory or law enforcement records
Sheriff which failed to invoke statutory privilege permitting public entities to refuse to divulge official informationwhen need to maintain secrecy is greater than need for disclosure could not, on basis of common-law privilege ofconfidentiality, preclude defendant, who was charged with committing battery against deputy sheriffs, from discoveryof records of investigation by sheriff's department internal unit of citizens' complaints of excessive force used by thedeputy sheriffs on previous occasions. West's Ann.Pen.Code, §§ 242, 243; West's Ann.Code Civ.Proc. §§ 1985, 2016et seq., 2036, 2036(a); West's Ann.Evid.Code, §§ 2, 12(c), 1040, 1042(a), 1103; U.S.C.A.Const. Amend. 5.
277 Cases that cite this headnote
Attorneys and Law Firms
*533 ***898 **306 John H. Larson, County Counsel, Robert C. Lynch, Frederick R. Bennett and Jeffrey H. Nelson, DeputyCounty Counsel, Los Angeles, for petitioner.
Pitchess v. Superior Court, 11 Cal.3d 531 (1974)522 P.2d 305, 113 Cal.Rptr. 897
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Thomas M. O'Connor, City Atty. (City and County of San Francisco), Philip S. Ward, Deputy City Atty., Edward A. Goggin,City Atty. (Oakland), Mark B. Shragge, Deputy City Atty., Royce A. Fincher, Jr., San Jose, Frank G. Carrington, Wayne W.Schmidt, Evanston, Ill., Paul Keller, Glen R. Murphy, Gaithersburg, Md., and Jeremiah F. O'Shea, Jr., South San Francisco, asamici curiae on behalf of petitioner.
No appearance for respondent.
*534 Miguel F. Garcia, Pico Rivera, for real party in interest.
***899 **307 Richard S. Buckley, Public Defender, Dennis A. Fischer and Edward A. Rucker, Deputy Public Defender,Andrew K. Dolan, Leon Letwin, Los Angeles, and Richard A. Wasserstrom, Santa Monica, as amici curiae on behalf of realparty in interest.
Opinion
MOSK, Justice.
Petitioner, Sheriff of Los Angeles County, seeks a writ of mandate to compel respondent superior court to quash its subpoenaduces tecum requiring the production of certain documents sought by Caesar Echeveria, real party in interest and defendant in apending trial for multiple counts of battery (Pen.Code, ss 242, 243). Petitioner contends the discovery at issue should not havebeen granted because the motion to discover is procedurally defective and the requested information is not subject to discovery.We conclude the trial court did not abuse its discretion in ordering discovery and therefore deny the writ.
Defendant, together with others, was charged in March 1972 with committing battery against four deputy sheriffs. Soonthereafter one charge was dismissed, and defendant now awaits trial on the remaining three. Defendant asserts he intends attrial to establish that he acted in self-defense in response to the use of excessive force by the deputy sheriffs. (People v. Curtis(1969) 70 Cal.2d 347, 356, 74 Cal.Rptr. 713, 450 P.2d 33.) To that end, he sought to discover evidence of the complainingwitnesses' propensity for violence. Specifically, he moved for the production of records of several investigations conductedby the administrative services bureau, a sheriff's department internal unit which inquires into citizen complaints of officialmisconduct. The investigations involved accusations by various members of the public that the deputies allegedly attackedhad themselves used excessive force on previous occasions. The motion was granted by the trial court, and the prosecutionwas ordered to secure the records from the sheriff. The commander of the administrative services bureau, however, refused tocooperate, whereupon defendant obtained a subpoena duces tecum directing the sheriff to produce the information. The sheriffdeclined to do so, and unsuccessfully moved to quash the subpoena. Now he seeks mandate.[1] At the threshold we observe that the case comes to us by a somewhat convoluted route. The trial court ordered the
prosecution to obtain the records from the sheriff. When the sheriff refused to produce the information,the *535 prosecutorshould have invoked process of the court; instead, the burden of so moving was imposed upon the defendant, here the real partyin interest. Nevertheless the trial court found the burden had been met and therefore issued a subpoena duces tecum, the sheriffmoved to quash, and the motion was denied. Thus the matter is now in a justiciable posture on the sheriff's request for mandate.On the motion to quash, and petition for mandate after denial of the motion, the burden shifts to the moving party, the sheriff,to demonstrate an abuse of discretion by the trial court. As will appear we find he has not met that burden.
[2] Petitioner initially urges that the affidavits in support of the subpoena duces tecum are insufficient to justify discoverybecause they fail to demonstrate ‘good cause’ with adequate specificity as required by Code of Civil Procedure sections 1985
and 2036. 1 The contention is premis ***900 ed **308 on the erroneous assumption that the statutory provisions governingdiscovery in civil actions apply to criminal proceedings.
[3] Unlike the statutory development of civil discovery in California, the right of an accused to seek discovery in the courseof preparing his defense to a criminal prosecution is a judicially created doctrine evoling in the absence of guiding legislation.(Ballard v. Superior Court (1966) 64 Cal.2d 159, 176, fn. 12, 49 Cal.Rptr. 302, 410 P.2d 838; Louisell & Wally, Modern Cal.
Pitchess v. Superior Court, 11 Cal.3d 531 (1974)522 P.2d 305, 113 Cal.Rptr. 897
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Discovery (2d ed. 1972) pp. 847—848.) A defendant's motion to discover is addressed solely to the sound discretion of the trialcourt, which has inherent power to order discovery when the interests of justice so demand. (Hill v. Superior Court (1974) 10Cal.3d 812, 816, 112 Cal.Rptr. 257, 518 P.2d 1353; People v. Terry (1962) 57 Cal.2d 538, 560—561, 21 Cal.Rptr. 185, 370 P.2d985; Powell v. Superior Court (1957) 48 Cal.2d 704, 708, 312 P.2d 698; Vetter v. Superior Court (1961) 189 Cal.App.2d 132,134, 10 Cal.Rptr. 890.) Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to afair trial and an intelligent defense in light of all relevant and reasonably accessible information. (Hill v. Superior Court (1974)supra, 10 Cal.3d at p. 816, 112 Cal.Rptr. 257, 518 P.2d 1353; *536 Cash v. Superior Court (1959) 53 Cal.2d 72, 75, 346 P.2d407; Powell v. Superior Court (1957) supra, 48 Cal.2d at pp. 707, 709, 312 P.2d 698; People v. Riser (1956) 47 Cal.2d 566, 586,305 P.2d 1; Louisell & Wally, Modern Cal. Discovery (2d ed. 1972) supra, pp. 881—882.)
In accordance with these principles, it has long been held that civil discovery procedure has no relevance to criminalprosecutions. (Powell v. Superior Court (1957) supra, 48 Cal.2d 704, 707—708, 312 P.2d 698; Yannacone v. Municipal Court(1963) 222 Cal.App.2d 72, 74—75, 34 Cal.Rptr. 838; Clark v. Superior Court (1961) 190 Cal.App.2d 739, 742—743, 12Cal.Rptr. 191; People v. Wilkins (1955) 135 Cal.App.2d 371, 377—378, 287 P.2d 555; People v. Ratten (1940) 39 Cal.App.2d267, 271, 102 P.2d 1097; Gonzales v. Superior Court (1935) 3 Cal.2d 260, 263, 44 P.2d 320.) Chief Justice Traynor reaffirmedthis dichotomy in Shively v. Stewart (1966) 65 Cal.2d 475, 479, 55 Cal.Rptr. 217, 220, 421 P.2d 65, 68, when he wrote: ‘Weare committed to the wisdom of discovery, by statute in civil cases (Code Civ.Proc., ss 2016—2036), and by common law incriminal cases.’ Legislative silence on criminal discovery, he noted, means that it has left to the courts the adaptation of commonlaw concepts. More recently this court in Hill unequivocally declared that criminal discovery is an inherent power of the court‘in the absence of legislation’ (10 Cal.3d at p. 816, 112 Cal.Rptr. 257, 518 P.2d 1353). While civil discovery in general is asold as our Code of Civil Procedure, Witkin observes that the ‘California law of discovery in criminal cases is a creation of thecourts dating back only a few years.’ (Witkin, Cal. Criminal Procedure (1963) p. 265.)
Nothing in the legislative history of the current version of the civil discovery act (Code Civ.Proc. s 2016 et seq.) disclosesan intention to expand its province to incorporate criminal matters. (See Committee on Administration of Justice, Report onDiscovery (1956) 31 State Bar J., 204—209, 227; Comment, Depositions, Proceedings to Perpetuate Testimony, Interrogatoriesto Parties: The Federal Rules and the California Law (1956) 44 Cal.L.Rev. 909.) Indeed, civil discovery in California isnow virtually co-extensive with the federal practice, which clearly does not embrace criminal proceedings. (See Fed.RulesCrim.Proc.)[4] [5] Were a court to require strict adherence to the provisions of Code of Civil Procedure sections 1985 and 2036,
subdivision (a), it is likely that Fifth Amendment problems would develop in many instances. Therefore, in contrast to the formalrequirements ***901 **309 for civil discovery, an accused in a criminal prosecution may compel discovery by demonstratingthat the requested information will facilitate the ascertainment of the facts and a fair trial. (Cash v. Superior Court (1959) supra,53 Cal.2d 72, 75, 346 P.2d 407; *537 Powell v. Superior Court (1957) supra, 48 Cal.2d 704, 707, 312 P.2d 698.) The requisiteshowing may be satisfied by general allegations which establish some cause for discovery other than ‘a mere desire for thebenefit of all information which has been obtained by the People in their investigation of the crime.’ (People v. Cooper (1960)53 Cal.2d 755, 770, 3 Cal.Rptr. 148, 157, 349 P.2d 964, 973; see also Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 804, 91Cal.Rptr. 594, 478 P.2d 26; Ballard v. Superior Court (1966) supra, 64 Cal.2d 159, 167, 49 Cal.Rptr. 302, 410 P.2d 838; People v.Terry (1962) 57 Cal.2d 538, 561, 21 Cal.Rptr. 185, 370 P.2d 985; People v. Lane (1961) 56 Cal.2d 773, 785—786, 16 Cal.Rptr.801, 366 P.2d 57; People v. Valdez (1962) 203 Cal.App.2d 559, 565, 21 Cal.Rptr. 764; Louisell & Wally, Modern Cal. Discovery(2d ed. 1972) supra, pp. 883—886.)
[6] [7] In the case at bar, the affidavits filed by defendant are clearly sufficient to justify discovery under the foregoingstandard. In the affidavits defendant indicates that two named persons who filed complaints concerning the deputy sheriffshere involved are unavailable for interview. Accordingly, their prior statements to the sheriff's investigators are necessary foreffective cross-examination of the deputies at trial. (People v. Shipp (1963) 59 Cal.2d 845, 849, 31 Cal.Rptr. 457, 382 P.2d577.) Defendant further states that two additional named witnesses who had previously reported misconduct on the part of thedeputies are available as witnesses, but cannot recall the details of the events which transpired some time ago. The sheriff'srecords, therefore, are necessary to refresh their recollection. (Cordry v. Superior Court (1958) 161 Cal.App.2d 267, 268, 326
Pitchess v. Superior Court, 11 Cal.3d 531 (1974)522 P.2d 305, 113 Cal.Rptr. 897
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P.2d 222.) Finally, defendant alleges that the disciplinary records are necessary as character evidence of the deputies' tendencyto violence in support of his theory of self-defense. Such evidence is unquestionably relevant and admissible under Evidence
Code section 1130. 2
On the face of the affidavits it is apparent that defendant could not ‘readily obtain the information through his ownefforts.’ (Traynor, Ground Lost and Found in Criminal Discovery (1964) 39 N.Y.U.L.Rev. 228, 244; see also Hill v. SuperiorCourt (1974) supra, 10 Cal.3d 812, 819, 112 Cal.Rptr. 257, 518 P.2d 1353; Ballard v. Superior Court (1966) supra, 64 Cal.2d 159,167, 49 Cal.Rptr. 302, 410 P.2d 838.) Though defendant was able to determine the identity of particular individuals who lodgedcomplaints against deputy sheriffs, he cannot be held responsible for their *538 unavailability or lack of memory, and hehas no access to the sheriff's investigative records. Furthermore, the information which defendant seeks may have considerablesignificance to the preparation of his defense, and the documents have been requested with adequate specificity to preclude thepossibility that defendant is engaging in a ‘fishing expedition.’ We therefore conclude that defendant demonstrated sufficientgood cause under the appropriate standards of criminal procedure, as developed in case authority, to warrant the trial court incompelling discovery.[8] Even upon a showing of good cause, however, the right of an accused to obtain discovery is not absolute. ‘In criminal
cases, the court retains wide discretion ***902 **310 to protect against the disclosure of information which might undulyhamper the prosecution or violate some other legitimate governmental interest.’ (Joe Z. v. Superior Court (1970) supra, 3 Cal.3d797, 804, 91 Cal.Rptr. 594, 598, 478 P.2d 26, 30; see also Hill v. Superior Court (1974) supra, 10 Cal.3d 812, 817, 112 Cal.Rptr.257, 518 P.2d 1353; People v. Lopez (1963) 60 Cal.2d 223, 246—247, 32 Cal.Rptr. 424, 384 P.2d 16; Jones v. Superior Court(1962) 58 Cal.2d 56, 59, 22 Cal.Rptr. 879, 372 P.2d 919; Powell v. Superior Court (1957) supra, 48 Cal.2d 604, 707—708, 312P.2d 698; People v. Riser (1956) supra, 47 Cal.2d 566, 586, 305 P.2d 1.) In the case before us, petitioner claims the informationcompiled by the administrative services bureau is not subject to discovery because of the asserted governmental interest in
preserving its confidentiality. 3
Evidence Code section 1040 now provides public entities with a formal privilege to refuse to divulge official information when
the need to maintain its secrecy is greater than the need for disclosure in the interests of justice. 4 The privilege is conditional:‘The judge must determine in each *539 instance the consequences to the public of disclosure and the consequences to thelitigant of nondisclosure and then decide which outweighs the other.’ (Assem. Com. on Judiciary, comment to Evid.Code, s1040.)[9] The privilege attaching to official information clearly encompasses the documents which defendant wishes to discover. The
records of the sheriff's department were compiled on the basis of statements made in confidence to members of the administrativeservices bureau, and investigations conducted pursuant thereto. Nevertheless, at the hearing below and in the presentation tothis court petitioner expressly refrained from invoking the governmental protections afforded him by the privilege. He candidlyexplains that he did so in order to avert the potentially adverse consequences which may accompany an exercise of officialprivilege, i.e., a dismissal of the charges or a directed verdict against the prosecution on the issue to which the excluded materialrelates. (See United States v. Reynolds (1953) 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727; Price v. Superior Court (1970) 1Cal.3d 836, 842—843, 83 Cal.Rptr. 369, 463 P.2d 721; Honore v. Superior Court (1969) 70 Cal.2d 162, 167—168, 74 Cal.Rptr.233, 449 P.2d 169; People v. McShann (1958) 50 Cal.2d 802, 806—811, 330 P.2d 33; People v. Superior Court (Biggs) (1971)19 Cal.App.3d 522, 533, 97 Cal.Rptr. 118; Evid.Code, s 1042, subd. (a).)
***903 **311 [10] In lieu of the privilege, petitioner relies on the above-cited California cases which recognize thediscretion of the trial court to prevent the disclosure of governmental information when the public interest so requires. However,
in the wake of the enactment of the Evidence Code in 1967, no such common law privilege of confidentiality currently exists. 5
[11] [12] The Legislature has declared that the Evidence Code generally ‘establishes the law of this state respecting thesubject to which it relates.’ (Evid.Code, s 2.) The statutory scheme is regarded as the sole and authoritative arbiter of all matterswhich come within its purview. With respect to the subject of privileges, the code states specifically that ‘(t)he provisions of
Pitchess v. Superior Court, 11 Cal.3d 531 (1974)522 P.2d 305, 113 Cal.Rptr. 897
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Division 8 (commencing with Section 900) relating to privilege shall govern *540 any claim of privilege made after December31, 1966.’ (Evid.Code, s 12, subd. (c).) Thus, the Legislature has codified, revised, or supplanted any privileges previouslyavailable at common law: the courts are no longer free to modify existing privileges or to create new privileges. (See generallyMcDonough, California Evidence Code: A Pre cis (1966) 18 Hastings L.J. 89.)
[13] [14] Evidence Code section 1040, therefore, represents the exclusive means by which a public entity may assert a claimof governmental privilege based on the necessity for secrecy. Evidence Code section 1042, subdivision (a), in turn, codifies thedue process demand recognized by the United States Supreme Court that the prosecution cannot commence criminal proceedings
‘and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.' 6
(United States v. Reynolds (1953) supra, 345 U.S. 1, 12, 73 S.Ct. 528, 534, 97 L.Ed. 727; also see Jencks v. United States(1957) 353 U.S. 657, 672, 77 S.Ct. 1007, 1 L.Ed.2d 1103; Roviaro v. United States (1957) 353 U.S. 53, 60—61, 77 S.Ct. 623, 1L.Ed.2d 639.) In concert, the two provisions create an orderly and fair procedure designed to safeguard the legitimate interestsof both the government and criminal defendants. By purporting to rely on the superseded common law rather than the statute,petitioner attempted to avoid the potential liabilities of the statutory scheme, but in so doing waived its benefits as well.
It follows that petitioner is not entitled on the theory asserted to an order quashing the subpoena duces tecum. He may nowseek to establish the applicability of the conditional privilege declared in Evidence Code section 1040, but the decision on thepropriety of such a motion and its possible attendant consequences under Evidence Code section 1042, subdivision (a), willremain in the sound discretion of the trial court according to the standards hereinabove delineated.
The alternative writ of mandate is discharged and the peremptory writ denied.
WRIGHT, C.J., and McCOMB, TOBRINER, BURKE, and SULLIVAN, JJ., concur.
*541 CLARK, Justice (concurring).
I concur, but wish to emphasize that dismissal of the charges in Not the price of claiming the privilege for official informationin the circumstances of this case.
***904 **312 Evidence Code section 1042, subdivision (a), provides that if a claim of privilege is sustained in a criminalproceeding, ‘the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding asis required by law upon any issue in the proceeding to which the privileged information is material.’ As the information soughthere is material solely to the issue of use of excessive force on specified previous occasions, sustaining a claim of privilegeshould only result in a finding of fact adverse to the People on that collateral issue.
All Citations
11 Cal.3d 531, 522 P.2d 305, 113 Cal.Rptr. 897
Footnotes
1 Section 1985 provides in part: ‘An application before trial for a subpoena duces tecum shall be, or contain, an affidavitshowing good cause for the production of the matters and things described in such subpoena and shall specify the exactmatters or things desired to be produced, shall set forth in full detail the materiality thereof to the issues involved in thecase, and shall state that the witness has the desired matters or things in his possession or under his control.’Section 2036 subdivision (a), provides: ‘A party required to show ‘good cause’ to obtain dicsovery under any provisionof Chapter 2 (commencing with Section 1985) or of Article 3 (commencing with Section 2016) of Chapter 3 of this title
Pitchess v. Superior Court, 11 Cal.3d 531 (1974)522 P.2d 305, 113 Cal.Rptr. 897
© 2021 Thomson Reuters. No claim to original U.S. Government Works. 8
shall show specific facts justifying discovery and mere proof of the relevance of the information sought to the subjectmatter of the action shall not be sufficient.'
2 Section 1103 provides: ‘In a criminal action, evidence of the character or a trait of character (in the form of an opinion,evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendantis being prosecuted is not made inadmissible by Section 1101 if such evidence is: (a) Offered by the defendant to proveconduct of the victim in conformity with such character or trait of character. (b) Offered by the prosecution to rebutevidence adduced by the defendant under subdivision (a).’
3 We note parenthetically that the petitioner himself does not always preserve confidentiality. In an affidavit Robert D.Campbell, captain assigned to the administrative division of the sheriff's department, conceded that the ‘purpose ofthese investigations is to enable the Department to ascertain the existence or non-existence of misconduct on the partof Sheriff's deputies . . .. The final results of these investigations and the information acquired from them are used inappropriate cases by the Office of the County Counsel as attorneys for the County of Los Angeles in connection withdefending civil suits arising out of the incident investigated.’
4 Section 1040 provides: ‘(a) As used in this section, ‘official information’ means information acquired in confidenceby a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time theclaim of privilege is made.‘(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing suchinformation, if the privilege is claimed by a person authorized by the public entity to do so and:‘(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or‘(2) Disclosure of the information is against the public interest because there is a necessity for preserving theconfidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilegemay be claimed under this paragraph if any person authorized to do so has consented that the information be disclosedin the proceeding. In determining whether disclosure of the information is against the public interest, the interest of thepublic entity as a party in the outcome of the proceeding may not be considered.’
5 Petitioner's rationale for not claiming the statutory privilege is ironic in view of the fact that the trial court is equallycompelled to dismiss a prosecution when material evidence is withheld from a defendant on a common law claim ofgovernmental confidentiality. This doctrine is made clear in Reynolds, Price, Honore, and McShann, among numerousother authorities.
6 Section 1042, subdivision (a), states: ‘Except where disclosure is forbidden by an act of the Congress of the United States,if a claim of privilege under this article by the state or a public entity in this state is sustained in a criminal proceeding,the presiding officer shall make such order or finding of fact adverse to the public entity bringing the proceeding as isrequired by law upon any issue in the proceeding to which the privileged information is material.’
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§ 1044. Medical or psychological history records; right of access, CA EVID § 1044
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West's Annotated California CodesEvidence Code (Refs & Annos)
Division 8. Privileges (Refs & Annos)Chapter 4. Particular Privileges (Refs & Annos)
Article 9. Official Information and Identity of Informer (Refs & Annos)
West's Ann.Cal.Evid.Code § 1044
§ 1044. Medical or psychological history records; right of access
Currentness
Nothing in this article shall be construed to affect the right of access to records of medical or psychological history where suchaccess would otherwise be available under Section 996 or 1016.
Credits(Added by Stats.1978, c. 630, p. 2082, § 2.)
Notes of Decisions (33)
West's Ann. Cal. Evid. Code § 1044, CA EVID § 1044Current with urgency legislation through Ch. 2 of 2021 Reg.Sess
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§ 832.7. Personnel records; confidentiality; discovery; exceptions;..., CA PENAL § 832.7
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West's Annotated California CodesPenal Code (Refs & Annos)
Part 2. Of Criminal ProcedureTitle 3. Additional Provisions Regarding Criminal Procedure (Refs & Annos)
Chapter 4.5. Peace Officers (Refs & Annos)
West's Ann.Cal.Penal Code § 832.7
§ 832.7. Personnel records; confidentiality; discovery; exceptions; recordsrelating to discharge of firearm, sexual assault, or dishonesty by peace officer or
custodial officer available for public inspection; complaint disposition notification
Effective: January 1, 2019Currentness
(a) Except as provided in subdivision (b), the personnel records of peace officers and custodial officers and records maintainedby any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall notbe disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, oran agency or department that employs those officers, conducted by a grand jury, a district attorney's office, or the AttorneyGeneral's office.
(b)(1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the followingpeace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidentialand shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing withSection 6250) of Division 7 of Title 1 of the Government Code):
(A) A record relating to the report, investigation, or findings of any of the following:
(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
(ii) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death, or in greatbodily injury.
(B)(i) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversightagency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.
(ii) As used in this subparagraph, “sexual assault” means the commission or attempted initiation of a sexual act with a member ofthe public by means of force, threat, coercion, extortion, offer of leniency or other official favor, or under the color of authority.For purposes of this definition, the propositioning for or commission of any sexual act while on duty is considered a sexualassault.
§ 832.7. Personnel records; confidentiality; discovery; exceptions;..., CA PENAL § 832.7
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(iii) As used in this subparagraph, “member of the public” means any person not employed by the officer's employing agencyand includes any participant in a cadet, explorer, or other youth program affiliated with the agency.
(C) Any record relating to an incident in which a sustained finding was made by any law enforcement agency or oversightagency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution ofa crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer,including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, orconcealing of evidence.
(2) Records that shall be released pursuant to this subdivision include all investigative reports; photographic, audio, and videoevidence; transcripts or recordings of interviews; autopsy reports; all materials compiled and presented for review to the districtattorney or to any person or body charged with determining whether to file criminal charges against an officer in connection withan incident, or whether the officer's action was consistent with law and agency policy for purposes of discipline or administrativeaction, or what discipline to impose or corrective action to take; documents setting forth findings or recommended findings;and copies of disciplinary records relating to the incident, including any letters of intent to impose discipline, any documentsreflecting modifications of discipline due to the Skelly or grievance process, and letters indicating final imposition of disciplineor other documentation reflecting implementation of corrective action.
(3) A record from a separate and prior investigation or assessment of a separate incident shall not be released unless it isindependently subject to disclosure pursuant to this subdivision.
(4) If an investigation or incident involves multiple officers, information about allegations of misconduct by, or the analysis ordisposition of an investigation of, an officer shall not be released pursuant to subparagraph (B) or (C) of paragraph (1), unless itrelates to a sustained finding against that officer. However, factual information about that action of an officer during an incident,or the statements of an officer about an incident, shall be released if they are relevant to a sustained finding against anotherofficer that is subject to release pursuant to subparagraph (B) or (C) of paragraph (1).
(5) An agency shall redact a record disclosed pursuant to this section only for any of the following purposes:
(A) To remove personal data or information, such as a home address, telephone number, or identities of family members, otherthan the names and work-related information of peace and custodial officers.
(B) To preserve the anonymity of complainants and witnesses.
(C) To protect confidential medical, financial, or other information of which disclosure is specifically prohibited by federal lawor would cause an unwarranted invasion of personal privacy that clearly outweighs the strong public interest in records aboutmisconduct and serious use of force by peace officers and custodial officers.
(D) Where there is a specific, articulable, and particularized reason to believe that disclosure of the record would pose asignificant danger to the physical safety of the peace officer, custodial officer, or another person.
§ 832.7. Personnel records; confidentiality; discovery; exceptions;..., CA PENAL § 832.7
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(6) Notwithstanding paragraph (5), an agency may redact a record disclosed pursuant to this section, including personalidentifying information, where, on the facts of the particular case, the public interest served by not disclosing the informationclearly outweighs the public interest served by disclosure of the information.
(7) An agency may withhold a record of an incident described in subparagraph (A) of paragraph (1) that is the subject of anactive criminal or administrative investigation, in accordance with any of the following:
(A)(i) During an active criminal investigation, disclosure may be delayed for up to 60 days from the date the use of forceoccurred or until the district attorney determines whether to file criminal charges related to the use of force, whichever occurssooner. If an agency delays disclosure pursuant to this clause, the agency shall provide, in writing, the specific basis for theagency's determination that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This writingshall include the estimated date for disclosure of the withheld information.
(ii) After 60 days from the use of force, the agency may continue to delay the disclosure of records or information if thedisclosure could reasonably be expected to interfere with a criminal enforcement proceeding against an officer who used theforce. If an agency delays disclosure pursuant to this clause, the agency shall, at 180-day intervals as necessary, provide,in writing, the specific basis for the agency's determination that disclosure could reasonably be expected to interfere with acriminal enforcement proceeding. The writing shall include the estimated date for the disclosure of the withheld information.Information withheld by the agency shall be disclosed when the specific basis for withholding is resolved, when the investigationor proceeding is no longer active, or by no later than 18 months after the date of the incident, whichever occurs sooner.
(iii) After 60 days from the use of force, the agency may continue to delay the disclosure of records or information if thedisclosure could reasonably be expected to interfere with a criminal enforcement proceeding against someone other than theofficer who used the force. If an agency delays disclosure under this clause, the agency shall, at 180-day intervals, provide, inwriting, the specific basis why disclosure could reasonably be expected to interfere with a criminal enforcement proceeding,and shall provide an estimated date for the disclosure of the withheld information. Information withheld by the agency shallbe disclosed when the specific basis for withholding is resolved, when the investigation or proceeding is no longer active, orby no later than 18 months after the date of the incident, whichever occurs sooner, unless extraordinary circumstances warrantcontinued delay due to the ongoing criminal investigation or proceeding. In that case, the agency must show by clear andconvincing evidence that the interest in preventing prejudice to the active and ongoing criminal investigation or proceedingoutweighs the public interest in prompt disclosure of records about use of serious force by peace officers and custodial officers.The agency shall release all information subject to disclosure that does not cause substantial prejudice, including any documentsthat have otherwise become available.
(iv) In an action to compel disclosure brought pursuant to Section 6258 of the Government Code, an agency may justify delayby filing an application to seal the basis for withholding, in accordance with Rule 2.550 of the California Rules of Court, or anysuccessor rule thereto, if disclosure of the written basis itself would impact a privilege or compromise a pending investigation.
(B) If criminal charges are filed related to the incident in which force was used, the agency may delay the disclosure of recordsor information until a verdict on those charges is returned at trial or, if a plea of guilty or no contest is entered, the time towithdraw the plea pursuant to Section 1018.
§ 832.7. Personnel records; confidentiality; discovery; exceptions;..., CA PENAL § 832.7
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(C) During an administrative investigation into an incident described in subparagraph (A) of paragraph (1), the agency maydelay the disclosure of records or information until the investigating agency determines whether the use of force violated a lawor agency policy, but no longer than 180 days after the date of the employing agency's discovery of the use of force, or allegationof use of force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal investigation relatedto the peace officer or custodial officer's use of force, whichever is later.
(8) A record of a civilian complaint, or the investigations, findings, or dispositions of that complaint, shall not be releasedpursuant to this section if the complaint is frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or if thecomplaint is unfounded.
(c) Notwithstanding subdivisions (a) and (b), a department or agency shall release to the complaining party a copy of his orher own statements at the time the complaint is filed.
(d) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may disseminatedata regarding the number, type, or disposition of complaints (sustained, not sustained, exonerated, or unfounded) made againstits officers if that information is in a form which does not identify the individuals involved.
(e) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial officers may releasefactual information concerning a disciplinary investigation if the officer who is the subject of the disciplinary investigation, orthe officer's agent or representative, publicly makes a statement he or she knows to be false concerning the investigation or theimposition of disciplinary action. Information may not be disclosed by the peace or custodial officer's employer unless the falsestatement was published by an established medium of communication, such as television, radio, or a newspaper. Disclosure offactual information by the employing agency pursuant to this subdivision is limited to facts contained in the officer's personnelfile concerning the disciplinary investigation or imposition of disciplinary action that specifically refute the false statementsmade public by the peace or custodial officer or his or her agent or representative.
(f)(1) The department or agency shall provide written notification to the complaining party of the disposition of the complaintwithin 30 days of the disposition.
(2) The notification described in this subdivision shall not be conclusive or binding or admissible as evidence in any separateor subsequent action or proceeding brought before an arbitrator, court, or judge of this state or the United States.
(g) This section does not affect the discovery or disclosure of information contained in a peace or custodial officer's personnelfile pursuant to Section 1043 of the Evidence Code.
(h) This section does not supersede or affect the criminal discovery process outlined in Chapter 10 (commencing with Section1054) of Title 6 of Part 2, or the admissibility of personnel records pursuant to subdivision (a), which codifies the court decisionin Pitchess v. Superior Court (1974) 11 Cal.3d 531.
(i) Nothing in this chapter is intended to limit the public's right of access as provided for in Long Beach Police OfficersAssociation v. City of Long Beach (2014) 59 Cal.4th 59.
§ 832.7. Personnel records; confidentiality; discovery; exceptions;..., CA PENAL § 832.7
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Credits(Added by Stats.1978, c. 630, p. 2083, § 5. Amended by Stats.1985, c. 539, § 3; Stats.1988, c. 685, § 2; Stats.1989, c. 615,§ 1; Stats.1994, c. 741 (S.B.2058), § 1; Stats.1996, c. 220 (A.B.2176), § 1; Stats.2000, c. 971 (A.B.2559), § 1; Stats.2002, c.63 (A.B.1873), § 1; Stats.2002, c. 391 (A.B.2040), § 6; Stats.2003, c. 102 (A.B.1106), § 1; Stats.2018, c. 988 (S.B.1421), §2, eff. Jan. 1, 2019.)
Notes of Decisions (226)
West's Ann. Cal. Penal Code § 832.7, CA PENAL § 832.7Current with urgency legislation through Ch. 2 of 2021 Reg.Sess
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