PEOPLE v. S.C. (JOHNSON) (and consolidated case)Interested Entities/Parties, San Francisco Police Department and City and County of San Francisco, Petition for ReviewCal.September 18, 2014§221296 SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF Case No. CALIFORNIA, Petitioner, First Appellate District, Division Five VS. Case No. A140767 (Consolidated with SUPERIOR COURT OF CALIFORNIA Case No. A140768) FOR THE CITY AND COUNTY OF SAN FRANCISCO, San Francisco Superior Court Case No. 12029482 Respondent, SCN 221362 DARYL LEE JOHNSON, Real Party In Interest. oqoPETITION FOR REVIEW anaaS After a Published Decision by the Court of Appeal, SEP 18 2014 First Appellate District, Division Five, filed August 11, 2014 Superior Court of California, County of San Francisco FrankA MeCui The Honorable Richard B. UlmerJr. - McGuire Clerk Deputy DENNIS J. HERRERA,State Bar #139669 City Attorney JEREMY M. GOLDMAN,State Bar #218888 Deputy City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-6762 Facsimile: (415) 554-4699 Attorneys for Petitioner CITY AND COUNTY OF SAN FRANCISCOthrough the SAN FRANCISCO POLICE DEPARTMENT PETITION FOR REVIEW PETITION FOR REVIEW SUPREME COURT OF THE STATE OF CALIFORNIA Case No.PEOPLE OF THE STATE OF CALIFORNIA, Petitioner, First Appellate District, Division Five VS. Case No. A140767 (Consolidated with SUPERIOR COURT OF CALIFORNIA Case No. A140768) FOR THE CITY AND COUNTY OF SAN FRANCISCO, San Francisco Superior Court Case No. 12029482 Respondent, SCN 221362 DARYL LEE JOHNSON, Real Party In Interest. PETITION FOR REVIEW After a Published Decision by the Court of Appeal, First Appellate District, Division Five, filed August 11, 2014 Superior Court of California, County of San Francisco The Honorable Richard B. UlmerJr. PETITION FOR REVIEW DENNISJ. HERRERA,State Bar #139669 City Attorney JEREMY M. GOLDMAN,State Bar #218888 Deputy City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-6762 Facsimile: (415) 554-4699 Attorneys for Petitioner CITY AND COUNTY OF SAN FRANCISCOthrough the SAN FRANCISCO POLICE DEPARTMENT PETITION FOR REVIEW TABLE OF CONTENTS TABLE OF AUTHORITIES.......ec eecccesscceeneeeseesessnsesseeessseeseessecnesesseesiii ISSUES PRESENTED seceecceesceeaecessceeeseesesaceeseceessoesneesesensesseessessaseaseeesssseeesags 1 WHY REVIEW SHOULDBE GRANTED...eceececeeeeenseeneenteeesaeees 1 | BACKGROUND.........ceeeseuseaceneescesaesseeaceaeaesaescsacsceseeneeseenseseseecseeneoees 5 I. THE PROCEDURE USED BY THE SAN FRANCISCO POLICE DEPARTMENT AND THE . SAN FRANCISCO DISTRICT ATTORNEY TO ENSURE BRADY COMPLIANCE... ccceecececeseeeesteeesseees 5 II. PROCEEDINGSIN THE TRIAL COURT......eee6 I: PROCEEDINGS IN THE COURT OF APPEALseseseensoenseeeens 8 DISCUSSION..ssscecssneeeceeseesaeseaneeseasccesueesesseeseseseceascensessensssesaseeneeessasseeeas 10 I. REVIEW SHOULD BE GRANTED BECAUSE JOHNSON DIRECTLY CONFLICTS WITH THE PUBLISHED DECISIONS OF OTHER COURTSOF APPEAL 1... eeseeeeceeceesneeeeeeeseceessasessscccaecesseesesensesessasesenessaeees 11 ' A, The Interplay Between Pitchess and Brady weccccssccseees 11 B. Johnson Conflicts with Court of Appeal Decisions Holding That Prosecutors May Not Access Confidential Peace Officer Personnel Records for Brady Purposes Without Complying with the Pitchess Motion Procedure........ 14 C. Johnson Undermines Alfora’s Statement That the Pitchess Motion Procedure Applies to the PLOSCCULION ........:.cccceeeseeeescceeceseeeeteeeersaneeeesaeeteteeneeees 16 D. Johnson’s Alternative Holding That Section 832.7(a)’s Investigative Exception Allows Prosecutors to Access Confidential Peace Officer Personnel Records for Brady Purposes Further Conflicts with Existing Decisions................. 18 PETITION FOR REVIEW i n:\govlit\li2014\150248\00957834.doc Il. REVIEW SHOULD BE GRANTED BECAUSE JOHNSON CONFLICTS WITH EXISTING LAW BY DIMINISHING THE TRIAL COURT’S ROLE IN PROTECTING THE CONFIDENTIALITY OF PEACE OFFICER PERSONNEL FILES WHEN | CONDUCTING AN IN CAMERA REVIEW osessscsssecssseees 20 CONCLUSIONcecseccccccsssssseseccssssescsssstsvesesssssseessestistissssstitessesessstvecssssnvoeeee22 CERTIFICATE OF COMPLIANCE..sesssssscssssssesssnsssssssnasessnsnsesnse 23 PETITION FOR REVIEW il n:\govlit\li2014\150248\00957834.doc TABLE OF AUTHORITIES State Cases Abatti v. Superior Court (2003) 112 Cal.App.4th 39 ooeeeecesseceeeeeccsereserenecsseenssenseaees 3, 15, 16 Alford v. Superior Court . (2003) 29 Cal.4th 1033oedeceeceeceeaeeeseseseetenseoeses 2, 14, 15, 16, 17 Becerrada v. Superior Court (2005) 131 Cal.App.4th 409 oo.eeeeeeeeeeeeneeees besetesecreeeenrersevscsons 17 City ofLos Angeles v. Superior Court (Brandon) (2002) 29 Cal4th 1 oo... eeececcesesenecesseeseeeceeteceseerseeeenseesssenesseeoes 13, 14, 15 City ofSanta Cruz (1989) 49Cal.3d 74 ...cccccecscsseesssssseeecesseeeesesesteneneneseeseesseeesseeteeeens 2,11, 20 Fagan v. Superior Court (2003) 111 CalApp.4th 607 oc.eee eeeeeeseecesseresseeeesseeeeseeseeeesesteeeeesea 19 In re Brown (1998) 17 Cal.4th 873oeeesccessecesecseeenssssssssssssscessesesseeeesseessesseesseeneas 5 J.E. v. Superior Court (2014) 223 Cal.App.4th 1329... cccccceeseseeeseseeseeeeesseseesesseeres 3, 14, 21 People v. Gutierrez (2003) 112 Cal.App.4th 1463 oo.cececenesseesesecesesessesserseeseneens 3, 15 People v. Gwillim (1990) 223 Cal.App.3d 1254 occeeeseeeeeneeereeeeeesVeoneeceseeaseeneceneeenees 19 People v. Mooc (2001) 26 Cal.4th 1216 0...ccceececeseceeceeeeneeceeececeeseseeesenseeseeessaeneas 13, 21 People v. Superior Court (Johnson) . (2014) 228 CalApp.4th 1046 oo.eeeeeesseesseseseeeeseessaeesereeseaeoenspassim People v. Superior Court ofSanta Clara County (Gremminger) (1997) 58 Cal.App.4th 397 oo... eeccssescescssecseeescesseesscrsacesssesseseneerseeeeeres 19 Pitchess v. Superior Court (1974) 11 Cal.3d 531 ooo. eccccecessceceeeneceeeeeeseeenanecsseteseseseesesetenaeens 2,11 PETITION FOR REVIEW ill n:\govlit\li2014\150248\00957834.doc Federal Cases Brady v. Maryland (1963) 373 U.S. 83 ...ccccccccessscessceesseccescesseeeesneeseaaeteneeeeseorss Vacnensaesseaseeeees 1,12 Giglio v. United States (1972) 405 U.S. 150... eeeceeesecceseeceneeeceeceeseeseseeesaeeesseecseenssaseenssseessseeseaes 12 Kyles v. Whitley (1995) 514 US. 419.saceesseescesseccseecauescuceseecececseanenseeeseseaeenaeenseers 5: Pennsylvania v. Ritchie (1987) 480 U.S. 39 occecscccecsecsscteceeesceeeeeeeeeseseestesseststeecssessssssssterseens oy 13 United States v. Brooks (D.C. Cir. 1992) 966 F.2d 1500.veceuansesteccacssececacsececcauccececcecaceccesueuesesseeacers 14 Youngblood vy. West Virginia . (2006) 547 U.S. 867 ....ecccccsccsecescceseesceseeeeeeseeseseesessesaneseesessesssesesseseseenaeeneees 5 State Statutes & Codes Evidence Code § 1043ceecceescecceneeeesecsneeeeeesesseeesessseneceseseseuesasansseseeesseeesesaneeesPassim §. 1043 Of SCG. ceeseceeeceeccesecessecesseeveneceseecessessseesseecseeeeeseeeeseenanecseesnseessnesenaeses 8 § 1043(D) oo. ccceccsccssceseessssseececeeeecssecscecseeceesaceeeseeesossecssseessseessesspessetensees 12 § LOSeee ccscccseseceseseseneceeeeeneeceseneeesneesseseesesneueseeeesessescessesersneeespassim § 1045(a) ooo. eleceseeeteceeeseeeeeceeseneeeeseeeeaneeeseeseseessees esecessceeteneseseaeseseeeaess 12. § 1045(b).....0.... vevevacacseseecsesaesesavsevecsessscassucsescescesseeneaeees seevaceenensssssesese vee L2 § 1O45(€) ccc ceccescssscscecesseceeeseceseeecsnecenseceeseeeseseseeseesessseesseeueneesseseneeeneeees 6 § 1046.0...eedeeaeesseeaeecesaecesacecsacecsnecensecececeeeesaneceesessaaseaaeeusseeasneeeeegs 12 Penal Code § 832.5. eeccecccssceneceseesencessneceeeseeeesseeseeeneaeeescececeesseeeeeneceaeesseeceneeesaeenes 11, 12 § 832.7 oe ecccccssesccsscesscsscnscsseeeseecscescenscesseeseaecseeeeseesssesesssasssesesecseseaees 8,9, 14 § 832.7(A) ..ccccecccccecsseeceseeceeeeesnncesereseseeecesesssssaseessseescescaseesseessgeenesenaaespassim § 832.8 oo eccecsccssesscccsesecesseccsneecssneecseecsaeeseseeseaeenseeesestsssssecssenseseseesesaeensaes 12 Rules , Cal. Rules of Court Rule 8.500(D)(1).......:ccceccessssceenceecereceseeesaereseeeeneasesuacesaeenssesseesenerseseees4,10 Other Authorities 66 Ops.Cal.Atty.Gen. 128 (1983)...eeeeeeseeseseesseseesrsstsesserteesereeee LB, 1D PETITION FOR REVIEW iV n:\govlit\li2014\150248\00957834.doc The City and County of San Francisco, through the San Francisco Police Department(hereafter “Police Department” or “Department’’) petitions for review of the decision of the Court of Appeal, First Appellate | District, in People v. Superior Court (Johnson) (2014) 228 Cal.App.4th 1046, filed on August 11, 2014. ISSUES PRESENTED 1. Musta prosecutor comply with Evidence Codesection 1043 © and obtain a court order under Evidence Code section 1045 before accessing the confidential personnel file of a peace officer if the purpose of such access is to search for material that may be subject to disclosure to a criminal defendant under Brady v. Maryland (1963) 373 U.S. 83 (Brady)? 2. When reviewing documents in camera under Evidence Code section 1045 for potential disclosure under Brady, doesthetrial court have | an independentobligation to weigh peace officers’ privacy interest in their personnelrecords and order disclosure only of those materials to which the defendantis entitled under Brady? WHY REVIEW SHOULD BE GRANTED The published decision of the court below, by contradicting the published decisions of other courts of appeal, has created an untenable conflict about the procedures a prosecutor must follow to ensure disclosure of Brady material contained in peace officer personnel files, and confusion aboutthe scope of the statutory confidentiality protecting them. By holding that the confidentiality conferred on these files by Penal Code section 832.7, subdivision (a) (hereafter “Section 832.7(a)”) erects no bar to direct and routine prosecutorial access, the decision would require prosecutors to do what other appellate courts haveforbidden them to do, PETITION FOR REVIEW 1 n:\govlit\li2014\150248\00957834.doc leaving prosecutors throughoutthe state in an impossible bind. Moreover, uncertainty for prosecutors is also uncertainty for criminal defendants, because the proceduresat issue serve to protect the defendant’s right to a fair trial. And the conflict necessarily also impacts the tens of thousands of peace officers serving in California, who now cannot know whethertheir private personnel records will be subject to routine access by prosecutors. Because peaceofficers are so often material witnesses in criminal proceedings, the conflict has the potential to touch almost every criminal case—and every confidential peace officer personnel file—in the state. It requires resolution by this Court. Section 832.7(a) provides that peace officer personnel records are confidential. But federal and state constitutional guarantees of due process require that personnel records be disclosed to criminal defendants when they containinformation that could exculpate the defendantor change the outcomeofthetrial. Codifying this Court’s decision in Pitchessv. _ Superior Court (1974) 11 Cal.3d 531 (Pitchess), in 1978 the Legislature established procedures for obtaining discovery or disclosure of information in confidential peace officer personnel records by court order after an in camera review. (Evid. Code, §§ 1043, 1045.) The Pitchess statutory scheme“carefully balances twodirectly conflicting interests: the peace officer’ s just claim to confidentiality, and the criminal defendant’s equally compelling interest in all information pertinent to his defense.” (City of Santa Cruz (1989) 49 Cal.3d 74, 84 (Santa Cruz).) Citing this Court’s subsequent holding that “peace officer personnel recordsretain their confidentiality vis-a-vis the prosecution”(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1046 (Alford)), until now the courts of appeal had uniformly held that prosecutors may not access confidential PETITION FOR REVIEW 2 n:\govlit\li2014\150248\00957834.doc peace officer personnel records for Brady purposes withoutfiling a motion in accordance with the statutory Pitchess procedures. (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1475 (Gutierrez); Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 56 (Abatti).) Asin other cases involving confidential records, such as those pertaining to juveniles (e.g., Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie); J.E. v. Superior Court (2014) 223 Cal.App.4th 1329 (/_E.)), in San Francisco the disclosure of Brady information contained in peace officer personnelfiles has been secured throughthetrial court’s in camera review. The Police Departmentprovides ongoing notice to the district attorney of the identity of any officer with material in his or her personnel file that may be subject to disclosure under Brady, but the notice does not include the personnelfile itself or its contents. Upon determining that one of these officers is a material witness in a pendingcase,the district attorney moves under Evidence Codesection 1043 (hereafter “Section 1043”) for in camera review of the confidential records, which the Department furnishes directly to the court. For several years, this procedure has successfully achieved two purposes. First, as Real-Party-in-Interest Johnson’s brief in the court below affirmed,it has protected criminal defendants’ right to a fair trial because documents are disclosed early in the case based on an in camera review by a neutral arbiter. Second, it has prevented unnecessary breachesof officer privacy by ensuring that confidential personnel records are not open to every prosecutor simply because an officer may be a witnessin a future case, and that disclosure occurs only in a mannerandto an extent necessary to protect the defendant’s right to a fair trial. According to an amicus curiae brief by the Ventura County District Attorney in the court below,at PETITION FOR REVIEW 3 n:\govlit\li2014\150248\00957834.doc least twelve other counties have adopted a system similar to the San Francisco procedure that Johnson upends. Byfinding that, in the Brady context, Section 832.7(a) does not prohibit direct prosecutorial access to peace officer personnel records, _Johnson would require prosecutors to engage in the precise review that Gutierrez and Abatti hold to be an impermissible violation of peace officers’ privacy rights. Police departments, no less than prosecutors, need definitive guidance as to what protection the law affords these private records. Finally, Johnson holdsthat, after the prosecutor’s review and selection of material for disclosure from peace officer personnel files, the trial court must review the records in camera under Evidence Code section 1045 (hereafter “Section 1045’’) before they may be disclosed to the defendant. Butit finds that, unlike in the Pitchess context, in the Brady context the trial court has no independentobligation to balance the officer’s privacy interests against the defendant’s need for disclosure. This holding further undermines the importantrole the Legislature conferred upontrial courts in protecting the confidentiality of peace officer personnel records— a role repeatedly recognized in this Court’s decisions. The statewide importanceof these issues is confirmed by the extensive amicuscuriae briefing received in the Court of Appeal, including from the Attorney General, the Appellate Committee of the California District Attorneys Association, and the Peace Officers’ Research Association of California. And because the Court of Appeal’s published decision has created confusion.aboutthe applicable law, review should be grantedto settle it and secure uniformity of decision. (Cal. Rules of Court, rule 8.500(b)(1).) PETITION FOR REVIEW 4 n:\govlit\li2014\150248\00957834.doc BACKGROUND I. THE PROCEDURE USED BY THE SAN FRANCISCO POLICE DEPARTMENT AND THE SAN FRANCISCO DISTRICT ATTORNEY TO ENSURE BRADY COMPLIANCE The prosecutor’s obligation to make disclosures under Brady extends to discovering and disclosing information in the possession of investigating agencies. (Kyles v. Whitley (1995) 514 U.S. 419, 437-438.) Brady treats the prosecution and the police as membersof a single “prosecution team.” (Jn re Brown (1998) 17 Cal.4th 873,879.) Thus, “Brady suppression occurs when the governmentfails to turn over even evidencethat is ‘knownonly to police investigators and notto the prosecutor.’” (Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870 (per curiam) [quoting Kyles, at p. 438].) To facilitate the prosecution’s performanceof its Brady obligations, in August 2010 the Police Department issued a Bureau Order providing for ongoing identification of potential Brady material and notice to the district attorney. When the Department becomes aware of potential Brady material regarding an officer, a synopsis is created identifying the employee, the conductat issue, and the documents and information for potential disclosure. A departmental Brady Committee—consisting of the Assistant Chief of the Office of the Chief of Staff, the Director of Risk Management, the head of the Legal Division, the Director of Staff Services, the author of the synopsis, and a retired judge with criminal law experience—treviewsthe synopsis and recommendsto the Chief of Police whether the employee’s nameshould be disclosed to the district attorney. If the Chief approves the committee’s recommendation,the district attorney is notified that the officer “has material in his or her personnelfile that may be subjectto PETITION FOR REVIEW 5 n:\govlit\li2014\150248\00957834.doc disclosure under’ Brady. (Johnson, supra, 228 Cal.App.4th at pp. 1059- 1060.) Upon determining that one of these officers is a material witness in a pending case, the district attorney moves under Evidence Codesections 1043 and 1045(e) for in camera review of the potential Brady material. The Departmentfurnishes the records to the court but does notdisclose them to any party absent a court order for disclosure. (Johnson, supra, 228 Cal.App.4th at p. 1060.) The Department’s submissionto the trial court does not include the personnelfiles in their entirety but only those materials the Brady Committee has determined may be subject to disclosure. (Jd. at p. 1063, fn. 11.) Il. PROCEEDINGSIN THE TRIAL COURT The present proceeding arises from a felony domestic violence case, People v. Daryl Lee Johnson (Super. Ct. S.F. City and County, No. 12029482), the underlying facts of which are recited in the Court of Appeal’s opinion. (See Johnson, supra, 228 Cal.App.4th at p. 1058.). Consistent with the procedure contemplated in the Police Department’s Bureau Order, the prosecution filed a “Motion for Discovery of San Francisco Police Department Peace Officer Personnel Records under Brady and Evidence Code Sections 1043 and 1045(e),” supported bya declaration from the assistant district attorney prosecuting the case. She explained that Officers Paul Dominguez and Antonio Carrasco responded to the domestic violence distress call and were “necessary and essential . witnesses for the prosecutionin this case on virtually all the issues and each of the counts charged.” Shefurther stated that the officers’ personnel records were in the exclusive possession and control of the Police Departmentandthat the district attorney did not have actual or constructive PETITION FOR REVIEW 6 n:\govlit\li201 4\1 50248\00957834.doc possession of them. However, based on a representation from the Departmentthat the files contained potential Brady material, she stated that she believed the officers’ personnel files contain “sustained allegations of specific Brady misconduct, reflective of dishonesty, bias, or evidence of moral turpitude.” She further stated: “I believe on these case facts, and given the officers’ roles, that such misconduct would be constitutionally material to the instant case in the Brady sense.” Finally, she explained that the records “are material to the pending litigation in that they pertain to the credibility of a necessary and material prosecution witness, and could either impeachsaid witnessor lead to evidence exonerating the defendant.” The motion requested that, following the in camera review,the court “disclose to the District Attorney’s Office and the defense any Brady material located in the personnelfiles, and . . . issue a protective order to protect the officers’ statutory right of privacy in their personnelfiles.” (Johnson, _ supra, 228 Cal.App.4th at pp. 1058-1059.) | The Police Department respondedto the motion by agreeing that the trial court should perform the requested in camera review,and included a declaration from its counsel that “the SFPD Brady Committee believes that the defendant maybeentitled to receive material [from the officers’ personal files] that is reflective of dishonesty, bias, or evidence of conduct of moral turpitude ....” (1 App., tab 8, at 175.') Defendant Johnson responded with his own motion for Brady discovery, requesting that the trial court conduct the in camera review,or in the alternative either declare Section 832.7(a) unconstitutional and direct ’ City and County of San Francisco’s Appendix in Supportof Petition for Writ of Mandate, Prohibition or Other Appropriate Relief and Stay Request, filed in the court below (Case No. A140768). PETITION FOR REVIEW 7 n:\govlit\li2014\150248\00957834.doc the Police Department to allow the prosecutor to accessthe officers’ personnelfiles, or dismiss the case based on the prosecution’s failure to comply with Brady. (Johnson, supra, 228 Cal.App.4th at p. 1060.) - Thetrial court denied the motion for in camera review, finding that the district attorney failed to establish a basis for the claim that the personnelfiles contain material evidence becausethe district attorney did not know the contents of the files at issue. (1 App., tab 12, at 231.) It further concluded that the Pitchess motion procedures in Evidence Code section 1043 et seg. do not apply to review of personnel records under Brady, and that Section 832.7 is unconstitutionalto the extentit bars prosecutorial access to those records. Accordingly,it ordered the Police Departmentto provide the recordsto the district attorney. (Johnson, supra, 228 Cal.App.4th at p. 1061.) II. PROCEEDINGS IN THE COURT OF APPEAL The People and the City and County of San Francisco both filed petitions for writ of mandate. Among other things, they argued that the trial court applied the wrong standard for obtaining in camera review, and the court’s view that the district attorney could not make the requisite showing without having reviewedthe files was contrary to the law. Johnsonfiled a reply to the petitions in which he expressed support for the procedureset forth in the Department’s Bureau Order: “In the last three years the prosecution-police system has workedefficiently (the motions are brought pre-preliminary hearing) and well, giving crucial materials to accused citizens fortheir trials. Johnson ... believes that this working system harmonizes the statute with due process, avoiding any constitutionality issue.” (Johnson Reply atp.6.) PETITION FOR REVIEW 8 n:\govlit\li2014\1 50248\00957834.doc After the court consolidated the petitions and issued an order to show cause, the respondenttrial court filed a return in whichit reiterated its reasonsfor believing that Section 1043 does not apply to motions seeking in camera review under Brady, that such review must be done by the prosecution and notthe court, and that the district attorney, not having — reviewedthefiles, failed to make the requisite showing to obtain in camera review. It addedthattrial courts cannot and should not shoulder the burden of such review,particularly in a time of budget cuts andstaffing reductions. (Return at pp. 3-4.) Amicuscuriaebriefs filed by the Appellate Committee of the California District Attorneys Association, the Ventura County District Attorney, the Alameda County District Attorney, the Santa Clara County District Attorney, and the Peace Officers’ Research Association of California et al. uniformly agreed that Section 832.7(a) protects peace officer personnelfiles from direct prosecutorial access, and thatthetrial courtincorrectly interpreted the standard in holding that the district attorney had not made and could not make the requisite showing to obtain in camera review. The Attorney Generalfiled an amicuscuriae brief agreeing that the trial court erred by finding Section 832.7 unconstitutional, but arguing that the exception in Section 832.7(a) for investigations or proceedings concerning peace officer conduct could be construed to include prosecutorial review for Brady. material. _Inits opinion, the Court of Appeal declined to decide what showing the district attorney must maketo obtain in camera review of confidential peaceofficer personnel files. (Johnson, supra, 228 Cal.App.4th at p. 1091, fn. 34.) It rejected the trial court’s view that the Section 1043 motion procedure does not apply in the Brady context, but held that such a motion PETITION FOR REVIEW 9 n:\govlit\li2014\150248\00957834.doc is required only before documents are provided to the defendant. (Id. at pp. 1087-1091.) With respect to the prosecution,it held that Section 832.7(a) does not impose anyrestriction on direct access to personnelfiles for the purposeofidentifying Brady material. (/d. at pp. 1067-1074.) In the alternative, it accepted the Attorney General’s view that such access may be deemedto fall within the exception for an “investigation or proceeding concerning peaceofficer conduct.” (/d. at pp. 1074-1075.) Finally,in holding that the district attorney, after reviewing the records, mustfile a motion for in camera review under Section 1043 and obtain a court order for disclosure to the defendant, it found norole for the court in balancing the officer’s privacy interests against the defendant’s need for disclosure. It held that the “practical consequence”of the motion would be only to give notice to the impacted officers and an opportunity for the issuance of appropriate protective orders. (/d. at p. 1091.) Noparty filed a petition for rehearing in the Court of Appeal. A copyof the court’s opinion is appendedto this petition. DISCUSSION Review is necessary here to secure uniformity of decision and to _ settle important questions of law. (Cal. Rules of Court, rule 8.500(b)(1).) Johnson’s central holding is that Section 832.7(a) does not prevent a prosecutor from accessing confidential peace officer personnel recordsto search for Brady material, reasoning that such access neither constitutes disclosure or discovery within the meaning of Section 832.7(a) nor otherwise breaches the records’ confidentiality, or in the alternative, that such discovery, disclosure, or breach falls within Section 832.7(a)’s. exception for investigations or proceedings concerning peace officer conduct. This holding creates a direct and immediate conflict with existing PETITION FOR REVIEW - 10 n:\govlit\li2014\150248\00957834.doc case law that impacts prosecutors, criminal defendants, and peace officers throughout California. The conflict can only be resolved by this Court. Johnson further holds that, when reviewing documents in camera that the prosecutor hasidentified for potential disclosure under Brady, the trial court does not have an independentobligation to weigh peace officers’ privacy interest by engagingin the balancing analysis this Court has previously described in the Pitchess context. This holding conflicts with case law recognizing that the Legislature chargedthetrial courts with a duty to protect peace officers’ privacy interest in their personnel records. This issue likewise requires resolution by this Court. L. REVIEW SHOULD BE GRANTED BECAUSE JOHNSON DIRECTLY CONFLICTS WITH THE PUBLISHED DECISIONS OF OTHER COURTS OF APPEAL A. The Interplay Between Pitchess and Brady In Pitchess, this Court observed that the defendantin a criminaltrial is “entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” (Pitchess, supra, 11 Cal.3d at p. 535.) It held that a trial court may order discovery of records concerning past misconduct by peaceofficers, where relevant, even without statutory procedures providing for such discovery. (Id. at pp. 536-537.) Subsequently, the Legislature codified the Pitchess motion procedure in Penal Codesection 832.7 and Evidence Codesections 1043 and 1045. (Santa Cruz, supra, 49 Cal.3d at p. 81). Penal Code section 832.5 requires state and local agencies employing peaceofficers to establish a procedure to investigate complaints against officers andretain recordsofthose investigations. Section 832.7(a) provides that those records, along with “any file” maintained by the law enforcement agency that concerns the peaceofficer’s “personal data” or PETITION FOR REVIEW 11 n:\govlitli2014\150248\00957834.doc “Ce]mployee advancement, appraisal, or discipline” (see Pen. Code, § 832.8), “are confidential and shall not be disclosed in any criminalor civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” A motion under Section 1043 requires, among other things, a “description of the type of records or information sought”and “‘[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pendinglitigation and stating upon reasonable belief that the governmental agencyidentified has the records or information from the records.” (Evid. Code, § 1043(b).) Section 1045 provides that confidential peace officer information may be disclosed whereitis “relevant to the subject matter involved in the pending litigation.” (Evid. Code, § 1045(a).) It instructs the trial court to review the records for relevance in camera and to exclude from disclosure (1) information from complaints of conduct more than five years old; (2) in any criminal proceeding, the conclusions of any officer investigating a complaint filed pursuant to Penal Code section 832.5, and (3) facts that are “so remote as to make disclosure oflittle or no practical benefit.” (Evid. Code, § 1045(b).) Onseveral occasions, this Court has considered the interaction between Pitchess and Brady, under which the prosecutor has the obligation to disclose to the defense exculpatory evidence that is material to either guilt or punishment, including evidencethat bears on the credibility of a key prosecution witness. (Brady, supra, 373 U.S.at p. 87; Giglio v. United | States (1972) 405 U.S. 150, 154-155.) * Section 1046 involves allegations of excessive force and is not relevant to this case. (Johnson, supra, 228 Cal.App.4th at p. 1062, fn. 10.) PETITION FOR REVIEW 12 n:\govlit\li2014\150248\00957834.doc In City ofLos Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1, 14 (Brandon), this Court wrote that the Pitchess procedure “operates in parallel with Brady and doesnot prohibit the disclosure of Brady information.” (See also People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc)[the Pitchess procedure “must be viewed againstthe larger background ofthe prosecution’s constitutional obligation to disclose to a defendant material exculpatory evidenceso as not to infringe the defendant’s right to a fair trial’’].) Brandon heldthatthe trial court did not act improperly by reviewing in camera information morethan five years old, notwithstanding the time limitation in Section 1045(b), for possible disclosure under Brady. Brandonstated that it found “instructive” the United States Supreme Court’s decision in Ritchie, supra, 480 U.S. 39, in which a defendant, who wascharged with molesting his 13-year-old daughter, sought disclosure of reports of the protective services agency that had investigated the charges. Brandon noted thatthe reports were privileged and confidential under Pennsylvania law, but that the law also contemplated situations when disclosure would occur, such as when the agency wasdirected to do so by court order. In that context, the U.S. Supreme Court approvedthe use of in camera reviewto identify Brady material in the confidential records. (Brandon, supra, 29 Cal.4th at p. 15 [citing Ritchie, supra, 480 U.S.at p. 58.].) In a recent decision of the Fourth District Court of Appeal, the court explainedthat, although the government’s Brady obligationsare typically placed on the prosecutor, Brady can also be satisfied whena trial court conducts an in camera review of documents containing possible exculpatory or impeachmentevidence. “Subsequentto Ritchie’s selection PETITION FOR REVIEW 13 n:\govlit\li2014\150248\00957834.doc of the in camera review procedure, courts have recognized that in camera inspection is appropriate whenthereis a ‘special interest in secrecy’ affordedto the files.” (J.E., supra, 223 Cal.App.4th at p. 1336 [quoting United States v. Brooks (D.C. Cir. 1992) 966 F.2d 1500, 1504-1505].) B. Johnson Conflicts with Court of Appeal Decisions Holding That Prosecutors May Not Access Confidential Peace Officer Personnel Records for Brady Purposes Without Complying with the Pitchess Motion Procedure Brandoninvolved a motion brought by the defendant, and in a footnote the court reserved the question of whether Section 832.7 “would be constitutional if it were applied to defeat the right of the prosecutorto obtain access to officer personnel records in order to comply with Brady.” (Brandon, supra, 29 Cal.4th at p. 12, fn. 2.) In Alford, this Court considered whetherthe prosecution was entitled to receive copies of records from peace officer personnel files that the defendants obtained by making a Pitchess motion under Section 1043. It held that, while the prosecution “remains free to seek Pitchess disclosure by complying with the procedureset forth in Evidence Codesections 1043 and 1045,” it has no entitlement to concurrent receipt of those records based on the defense’s motion: “Absent such compliance . . . peace officer personnel records retain their confidentiality vis-a-vis the prosecution.” (Alford, supra, 29 Cal.4th at p. 1046.)- Twocourts of appeal have cited the above holding from Alford to find that Section 832.7(a) does not allow prosecutors direct access to confidential personnelfiles in order to conduct a Brady review. In Gutierrez, the defendant arguedthat the statutory Pitchess procedures impermissibly interfered with the prosecutor’s duty to ascertain and disclose exculpatory evidence to the defense. The Second District PETITION FOR REVIEW 14 n:\govlit\li2014\150248\00957834.doc Court of Appeal expressly rejected the defendant’s contention that “the prosecutor wasobliged to conduct a review ofthefiles of‘all significant police officer witnesses and disclose any Brady material,” explaining: The Pitchess procedure is the only avenue by whichcitizen complaints may be discovered. [Citation.] Alford held that a prosecutoris not entitled to the fruits of a successful Pitchess motion made by the defense. [Citation.] While the prosecutionis free to seek such information by bringingits own Pitchess motion in compliance with the proceduresset forth in Evidence Codesections 1043 and 1045,‘[a]bsent such compliance... peace officer personnel records retain their confidentially vis-a-vis the prosecution.’ [Citation.] Given Alford’s limitation on disclosure to prosecutors, the Brady review suggested by Gutierrez is not tenable.” (Gutierrez, supra, 112 Cal.App.4th at pp. 1474-75, italics supplied by _Gutierrez, bold added.) Similarly, in Abatti, the Fourth District Court of Appeal approved whatit referred to as a “hybrid Pitchess/Brady motion.” (Abatti, supra, 112 Cal.App.4th at p. 49.) In that case, the defendant sought the personnel records of a formerpolice officer; the records sought were more than five years old and thus not discoverable pursuantto section 1045(b)(1). (Ud. at p. 46.) Abatti approved the use of section 1043 to obtain the records, relying in part on this Court’s recognition in Brandonthat the Pitchess process ““‘operates in parallel with Brady and does notprohibit the 299disclosure of Brady information.’” (/d. at p. 55 [quoting Brandon, supra, 29 Cal.4th at p. 14].) - After noting that Brandon found instructive Ritchie’s approval of the use of in camera review to identify Brady material in confidential protective services agency records, Abatti acknowledged Justice Brown’s concurring opinion that Ritchie would not be on pointif the prosecutor could review the records directly to comply with Brady. (Abatti, supra, 112 Cal.App.4th at p. 56 [citing Brandon, supra, 29 Cal.4th at p. 17 (conc. opn. PETITION FOR REVIEW 5 n:\govlit\li2014\150248\00957834.doc of Brown,J.)].) However, Abatti then added: “Recently our Supreme Court in Alford confirmed that the prosecutor, as well as the defendant, must comply with the statutory Pitchess requirements for disclosure of information contained in confidential peace officer records.” (Ibid. [citing -Alford, supra, 29 Cal.4th at p. 1046].) Abatti explained that “California has ‘a legislatively established, exclusive method for gaining access to police officer personnel records for discovery of . . . exculpatory material—the so- called Pitchess procedures ....” (Jd. at p. 58.) The Johnson courtstates thatit disagrees with Gutierrez and Abatti. (Johnson, supra, 228 Cal.App.4th at p. 1076.) Because Johnson would require prosecutors to engage in precisely the Brady review that Gutierrez and Abatti prohibit, there is a clear and urgent conflict requiring this Court’s resolution. Moreover, under Gutierrez and Abatti, peace officers knowthat their private personnel records will not be subject to routine access by prosecutors simply because they will serve as witnesses in a criminal case. Yet under Johnson,those records enjoy no suchlegal protection, leaving access for Brady purposes unrestricted or subject only to any internal procedures that may be developed in the exercise of the district attorney’s discretion. (See id. at pp. 1080-81.) Peace officers deserve an authoritative determination of that issue by this Court. C. Johnson Undermines Alford’s Statement That the Pitchess Motion Procedure Applies to the Prosecution Only this Court can resolve the conflict and determine whether Gutierrez and Abatti correctly interpreted Alford to protectthe confidentiality of peace officer personnel records in the Brady context. Johnson questions the significance of Alford’s statementthat peace officer personnel records“retain their confidentiality vis-a-vis the prosecution” by PETITION FOR REVIEW 16 n:\govlit\li2014\1 50248\00957834.doc noting that the case “did not purport to consider whether the prosecution could access officer personnelfiles to comply with its Brady disclosure. obligations.” (Johnson, supra, 228 Cal.App.4th at p. 1076.) Alford decided, however, that the prosecution was required tofile its own Pitchess motionif it seeks information obtained from peace officer personnelfiles by a defense Pitchess motion. (Alford, supra, 29 Cal.4th at p. 1046.) That holding necessarily starts from the premise that the officers’ personnelfiles are not already accessible by the prosecution. Moreover,in a footnote to its statement that peace officerfiles retain their confidentiality vis-a-vis the prosecution, the Court pointed outthat, unlike the defense, the prosecution may beable to learn of available impeachment information against an officer who mayserve as a prosecution witness “by interviewing him or her.” (Alford, supra, 29 Cal.4th at p. 1047, fn. 7.) This observation confirms Alford’s understanding that the confidentiality of the files under Section 832.7(a) meansthat prosecutors do not have direct access to them. (See Becerrada v. Superior Court (2005) 131 Cal.App.4th 409, 415 [“The recognition by the Supreme Court that an officer remains free to discuss with the prosecution any material in his files, in preparation for trial, means that the officer practically may give to the prosecution that which it could not get directly. [Fn. omitted.] However, this does not translate into a ‘back door’ for the prosecution to evade the legalrequirements imposed by Alford’), italics added.) | Johnson’ s reading of Alford is thus at odds with its text and contradicts its interpretation by other courts. Because Johnsonradically diminishes the scope of this Court’s holding in Alford and leaves the law in conflict, review should be granted to settle the issue. PETITION FOR REVIEW 17 n:\govlit\li2014\150248\00957834.doc D. Johnson’s Alternative Holding That Section 832.7(a)’s Investigative Exception Allows Prosecutors to Access Confidential Peace Officer Personnel Records for Brady Purposes Further Conflicts withExisting Decisions Section 832.7(a)’s prohibition on discovery or disclosure absent a motion under Section 1043 contains an exception for “investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employsthose officers, conducted by a grandjury, a district attorney’s office, or. the Attorney General’s office.” Asanalternative to its conclusion that prosecutorial access for Brady review does not constitute discovery or disclosure or otherwise breach the confidentiality of peace officer personnelfiles, Johnson holds that such access falls within this investigative exception. (Johnson, supra, 228 Cal.App.4th at pp. 1074-1075.) By requiring, merely by means ofa different theory, the same Brady review that Gutierrez and Abatti prohibit, the court’s alternative holding does nothing to alleviate the conflicting directives to which prosecutors are nowsubject and the uncertainty peace officers now face with respectto the protection afforded their private personnel records. But Johnson’s construction of the investigative exception to allow prosecutorial access for Brady purposesplacesit further at odds with existing case law. Asthe court acknowledges,this interpretation was first advanced in an Attorney General opinion issued in 1983. (See 66 Ops.Cal.Atty.Gen. 128 (1983).) That opinion, however, was not adopted by anyofthe decisions discussed above, holding in the Brady context that peace officer personnel files retain their confidentiality in relation to the prosecution. Moreover, as Johnson observed, cases interpreting the investigative exception all arise in circumstances in which the peace officer is the target of the investigation. (Johnson, supra, 228 Cal.App.4th at p. 1075.) In PETITION FOR REVIEW 18 n:\govlit\li2014\150248\00957834.doe People v. Superior Court ofSanta Clara County (Gremminger) (1997) 58 Cal.App.4th 397, 405, the Sixth District Court of Appeal held that the exception did not apply where the district attorney was investigating the conduct of a defendant who wasnot a police officer when heallegedly committed the charged crime. The investigation exemption,the court determined, was limited to “that officer’s conduct in his capacity as a police officer’ and did not extend to other conduct. (/bid.) Thus, while Gremminger did not consider the Attorney General’ 1983 opinion,it is inconsistent with it: Unless Brady material in peace officers’ personnel files must be limited to alleged misconduct in which those officers engaged while they were employedas police officers, then Gremminger’s admonition that the exception extends only to police conductconflicts with Johnson’ s interpretation of the exception here. Other cases interpreting the investigative exception likewise involve circumstances in whichthe police officers are the subject of a criminal investigation. (Faganv. Superior Court (2003) 111 Cal.App.4th 607, 615 [exceptionappliedto an investigation of off-duty conduct bytheofficer- defendants]; People v. Gwillim (1990) 223 Cal.App.3d 1254, 1260, 1270 [exception permitted district attorney investigating an allegation of sexual assault by an officer to access a statementthe officer-defendantprovided _ during a police internal investigation].) And Fagan agrees with Gutierrez and Abatti about the: consequences whenthe investigation exception does not apply: “Where the exception afforded the district attorney by section 832.7, subdivision (a) is inapplicable, he must proceed according to the provisions of Evidence Code section 1043.” (Fagan,at p. 618.) Both the language and purposeof the exception contemplate circumstancesin which the peace officer is the subject of the investigation. PETITION FOR REVIEW 19 n:\govlit\li2014\150248\00957834.doc The prosecution of a criminal defendant in whichtheofficer is expected to testify merely as a witnessis not an “investigation[] or proceeding[] concerning the conductof [a] peace officer[].” In a criminalcase, the focus of the district attorney’s investigation and proceeding is the defendant. By contrast, where.the peaceofficer is a suspect, a motion under Section 1043 would alert the officer and potentially delay or interfere with the investigation, so there is an understandablereasonforthe exemption in that limited context.. Johnson’s observation.that neither the statute nor the cases expressly limit the exception to circumstances in which the officer is a target.of the investigation (Johnson, supra, 228 Cal.App.4th at p. 1075) does not mean that no such limitation may be discerned from its text and rationale. Johnson’s extension of the exception to routine prosecutorial review of confidential peace officer personnelfiles for Brady purposes stretches the language beyond what it can bear and conflicts with other cases recognizing the exception’s limitedrole. ll. REVIEW SHOULD BE GRANTED BECAUSE JOHNSON CONFLICTS WITH EXISTING LAW BY DIMINISHING THE TRIAL COURT’S ROLEIN PROTECTING THE CONFIDENTIALITY OF PEACE OFFICER PERSONNEL FILES WHEN CONDUCTING AN IN CAMERA REVIEW This Court has acknowledged thatpeace officers have a “just claim to confidentiality” in their personnel records, and has explained that the in camerareview procedure andthe disclosure requirements in Section 1045 guarantee “a balancingofthe officer’ s privacy interest against the defendant’s needfor disclosure.” (Santa Cruz, supra, 49 Cal.3d at p. 84.) Although Johnson concludesthat “extending the privacy protections in Section 1043 and Section 1045 to Brady disclosure is wholly consistent with the Legislature’s intent” (Johnson, supra, 228 Cal.App.4th at p. 1090), it nonetheless finds that, while the trial court may play a balancingrole in PETITION FOR REVIEW 20 n:\govlit\li2014\150248\00957834.doc Pitchess discovery, it has no such role when reviewing documentsin camera for disclosure under Brady. (Id. at p. 1091.) Other cases, however, have acknowledged such a role where Brady material may be contained in confidential records. (E.g., J.E., supra, 223 Cal.App.4th at p. 1336-1338 [juvenile records].) It is unquestionably true that criminal defendants must receive everything to which they are entitled under Brady. (See Johnson, supra, 228 Cal.App.4th at p. 1091.) But where the potential Brady material is contained in confidential records, there is an additionalinterest, not in denying the defendant anything to which he or she is entitled, but as this Court explained in the Pitchess context, “that such records should not be disclosed unnecessarily.” (Mooc, supra, 26 Cal.4th at p. 1227.) “Accordingly, both Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutraltrial judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendantonly those records that are found both relevant and otherwise in compliance with statutory limitations.” (bid.) Johnson doesfind that Section 1045 givesthetrial court an opportunity to issue “appropriate protective orders” (Johnson, supra, 228 Cal.App.4th), and that “there may be somerole in assisting prosecutors to make difficult determinationsaboutthe materiality of specific items of evidence, particularly where there are confidentiality concerns.” (Id. at p. 1084.) But its conclusion that, when reviewing documents in camera in the Brady context, a trial court has no independentobligation to weigh the peace officer’s interest in the privacy of his or her personnel records— exceptto the extent a prosecutor seeks assistance with “specific items”— impermissibly disregards the confidentiality conferred on those records by Section 832.7(a) and conflicts with this Court’s recognition that in Section PETITION FOR REVIEW 21 n:\govlit\li2014\150248\00957834.doc 1045 the Legislature charged the trial court with protecting peace officers’ privacyinterest. CONCLUSION For the foregoing reasons, the City and County of San Francisco, through the San Francisco Police Department, requests that this Court grant review. Dated: September 18, 2014 PETITION FOR REVIEW DENNIS J. HERRERA City Attorney JEREMY M. GOLDMAN Deputy City Attorne By:ecto J M . MANPREM GOED Attorneys for Petitioner CITY AND COUNTY OF SAN FRANCISCOthrough the SAN FRANCISCO POLICE DEPARTMENT n:\govlit\li20 14\150248\00957834.doc CERTIFICATE OF COMPLIANCE I hereby certify that this brief has been prepared using proportionately double-spaced 13 point Times New Romantypeface. According to the “Word Count” feature in my Microsoft Word for Windowssoftware, this brief contains 6,070 words up to and including the signature lines that follow the brief’s conclusion. I declare under penalty of perjury that this Certificate of Compliance is true and correct andthat this declaration was executed on September18, 2014. DENNISJ. HERRERA City Attorney JEREMY M. GOLDMAN— Deputy City Attorne By: JEREMYMGOLDMAN Attorneys for Petitioner . CITY AND COUNTYOF SAN FRANCISCOthrough the SAN FRANCISCO POLICE DEPARTMENT PETITION FOR REVIEW 23 n:\govlit\i2014\150248\00957834.doc Appendix to Petition © for Review Filed 08/11/14 COPY ~ CERTIFIED FOR PUBLICATION IN THE COURT OFAPPEAL OF THE STATE OFCALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE. Court ofTepesaAppellate District LED THE PEOPLE OF THE STATE OF AUG 11 2014 CALIFORNIA, Pétitioner, v. ; THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; | DARYL LEE JOHNSON, | Real Party i n Interest. CITY ANDCOUNTY OF SAN -FRANCISCO through THE SAN FRANCISCO,POLICE DEPARTMENT, Petitioner, THE SUPERIOR COURTOF SAN FRANCISCO COUNTY, Respondent: THE PEOPLEOFTHE STATE OF CALIFORNIA and DARYL LEE JOHNSON, Real Partiesin Interest. Diana Herbert, Clerk by. Deputy Clerk} A140767 (San Francisco County _| Super.Ct. No.12029482) A140768: (San Francisco County | Super. Ct. No. 12029482) |» This case presents an issue offirst impression: In fulfilling its federal constitutional duty to disclose exculpatory evidenceto a criminal defendant under Brady v. Maryland (1963) 373 U.S. 83 (Brady),is theprosecutionentitled to direct accessto peace officer personnel files? In this consolidated:writ proceeding, petitioners the San FranciscoDistrict Attomeyandthe San:FranciscoPoliceDepartment!arguethatiin this state suchaccessis barred by Penal Code section 832,7; subdivision (a) (“Section oe 832.7(a)”).‘Section 832.Ta);is amongthe statutes adopted bytheLegislatureto codify _ thedeci i mirinPitchessv, SuperiorCourt (1974)i Cal.3d 531(Pitches), regarding the discoveryin criminal casesofcitizen complaintsagainst law enforcement witnesses,. Section 832.7(a) provides, in part, that peace officer personnel records are confidential andmaybedisclosediin a criminal proceeding only pursuant to a motion under Evidence Code section 1043 (“Section 1043”). Petitioners argue that, because Section 832.1(a) bars direct prosecutorial accesstothesefiles, the trial court is required, after a proper showingbytheprosecution;to-conduettheBradyreviewofthefilesto-identifymaterials | that must be disclosed to the defendant. Petitioners suggest the Prosecutionmay obtain such a review and disclosurebyfiling a motion under Section 1043. . Respondent superior court rejected petitioners’ contentions, concliding that Section 1043 does not apply to motions seeking review ofpeaceofficer personnel records under Brady, and Section 832.7(a) is unconstitutional to the extent it bars the prosecution from obtaining accessto officer personnel records in order to complywith Brady. The court directed the SF Police Departmentto give the District Attorney access to the relevant officer personnelfiles so that the District Attorney can comply with Brady ‘s disclosure obligations. - - | | Wedenythe writ petitions to the extentthey challenge the respondent superior court’s order requiring the SF Police Departmentto provide the prosecution access to ' ‘Onepetition (A140767) wasfiled in the name ofthe People of the State of California, represented by the San Francisco District Attorney (hereafterreferred toas the “People,” “District Attorney,” “prosecution,”or “prosecutor”). The otherpetition (A140768)wasfiled by the City and County of San Francisco through the SanFrancisco Police Department (referred to herein as the “SF Police Department”). Defendant Johnsonis a'‘real party in interest in both petitions, and the People arean additional real party in interest in the SF Police Department’spetition. officer personnel files to allow for identification of any Brady materials in thosefiles. Weconclude that Section 832.7(a), properly interpreted, does not create a barrier betweenthe prosecution and the performanceof its duty under Brady; our construction of Section 832.7(a) makesit unnecessary to consider the constitutionality of barring prosecutorial accessto officer personnel files for the purpose of identifying Brady materials therein.” On the other hand,wegrant the writ petitions to the extent they challenge the respondent superior court’s refusal to consider any request for disclosure of Brady materials pursuant to a motion under Section 1043. We conclude that, prior to disclosure to the defendant of any Brady material identified by the District Attorney, the prosecution must seek an order authorizing such disclosure under Section 1043. BACKGROUND The two petitions for writ of mandate/prohibition involvedin the present proceedingarise from a felony domestic violence case, People v. Daryl Lee Johnson (San Francisco Superior Court No. 12029482). On November14, 2012, the District Attorney filed a complaint charging defendant Johnson with one count of felony domestic violence (Pen. Code, § 273.5, subd. (a)), and one count of misdemeanorinjuring a wireless communication.device (Pen. Code, § © 591.5). At the December 2013 preliminary hearing, police officer Paul Dominguez testified regarding an incident on November 11, 2012 during which he andpolice officer Antonio Carrasco respondedto a 911 call from a residence in San Francisco. Johnson admitted he hit the victim,a female minor; Johnson claimed the minor had “[m]aced” him. The victim showed Officer Dominguez a two inch lump onthe back of her head where Johnsonstruck her. Shealso told the officer Johnson had tried to prevent her from calling 911 by grabbing her cell phone and then a cordless phone out of her hands. ° In City ofLos Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1 (Brandon), the California Supreme Court reserved “the question of whether Penal Code section 832.7, which precludes disclosure of officer records ‘except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code,’ would be constitutionalif it were applied to defeat the right of the prosecutor to obtain access to officer personnel recordsin order to comply with Brady.” (Brandon,at p. 12, fn. 2.) The District Attorney’s Motion for In Camera Brady Review In December 2013, the prosecution filed a “Notice ofMotion for Discovery of San Francisco Police Department Peace Officer Personnel Records Under Brady| and Evidence Code Sections 1043 and 1045(e).” The motion requested that the court conduct an in camera review of personnel records of Officers Dominguez and Carrasco to determine whetherany itemsin their files were material under Brady and therefore subject to disclosure.’ It also requested that the court “disclose to the District Attorney’s Office and the defense any Brady material located in the personnelfiles, and . . . issue a protective order to protect the officers’ statutory right ofprivacy in their personnelfiles.” The December 2013 motion was supported by a declaration from the assistant district attorney prosecuting the case. The declaration averred that Officers Dominguez and Carrasco “are necessary and essential witnesses for the prosecution in this case on virtually all the issues and each of the counts charged.” The SF Police Department had informed the prosecution that each of the officers had “materialin his . . . personnelfile that may be subject to disclosure under” Brady. (Italics added.) The declaration did not state that the prosecutor had viewed the potential Brady material. Instead, it stated the records were in the “exclusive possession and control” of the SF Police Department and the District Attorney did not have “actual” or “constructive” possession ofthe records. Nevertheless, the prosecutor averred that, based on the representation from the SF Police Departmentthat the files contained potential Brady material, she “believe[s]” the officers’ personnel files contain “sustained allegations of specific Brady misconduct, reflective of dishonesty, bias, or evidence of moral turpitude. I believe on these case facts, and given the officers’ roles, that such misconduct would be constitutionally material to the instant case in the Brady sense.” The declaration further explained that the records “are material to the pending litigation in that they pertain to the credibility of ; Thetrial court previously denied a similar prosecutorial motion with respect to Officer Carrasco only. Thetrial court’s order following the December 2013 motionis the orderat issue in this proceeding. a necessary and material prosecution witness, and could either impeach said witness or lead to evidence exonerating the defendant.” Bureau Order No. 2010-01 The prosecution’s December 2013 motion was in accordance with the SF Police Department’s Bureau Order No. 2010-01 (“Bureau Order”), which established the department’s procedures for Brady disclosure of materials in employee personnel files.4 A premise underlying the Bureau Orderis that the District Attorney cannotlegally access confidential officer personnel files absenta trial court order obtained pursuantto a motion under Section 1043. The Bureau Order explains its purpose as follows: Because “[rlepetitive requests by the District Attorney that the [SF Police] Department check employee personnelfiles of Department employees who may be witnessescreate unnecessary paperworkand personnel costs . . . the Department is adopting a procedure under which the Department advises the District Attorney’s Office ofthe names of employees who have information in their personnelfiles that may require disclosure under Brady. The District Attorney’s Office then makes a motion under Evidence Code 1043 and 1045 for in camera review ofthe records by the court.” The Bureau Order includes examples and definitions of evidence that may constitute “potential ‘Brady material.’ ” The Bureau Order contemplatesthat potential Brady material will be identified on an ongoing basis and that the District Attorney’s office will be notified on an ongoing basis that the personnelfiles for particular officers ' may contain Brady material. When the SF Police Department becomes aware of potential Brady material regarding an officer, a synopsis is created identifying the employee, the conductat issue, and the documents and informationfor potential disclosure. Thereafter, a departmental “ ‘Brady Committee’ ” meets to review the synopsis and recommendto the Chief ofPolice whether the employee’s name should be ‘ The Bureau Orderrelates to both police officer and civilian personnel records, but werefer herein only to officer personnel records. disclosed to the District Attorney.” The Chief of Police approves or disapproves the committee’s recommendation. If disclosure of an officer’s name is approved, the District Attorney is notified only that the officer “has material in his or her personnelfile that may be subject to disclosure under” Brady. The Bureau Order contemplates that the District Attorney “will create a list of Department employees who havepotential Brady material in their personnelfiles.” It further contemplates that, “Whenthe District Attorney’s office deemsthat a law enforcementofficer,identified by the Department as having possible Brady material in ~ their personnelfile, is a material witness in a pending criminal case. . .the District Attorney shall make a ‘Brady’ motion under Evidence Code Sections 1043 and 1045(e) to the court for in-camera review ofthe records.” The SF Police Department will not disclose material from officer personnelfiles to any party absenta trial court order for disclosure. In its conclusion, the Bureau Order explains, “The purposeofthis procedure is to ensure that prosecutors and the defense receive sufficient information to comply with the constitutional requirements of Brady while protecting the legitimate privacy rights of law enforcement witnesses.” . Defendant Johnson’s and the SF Police Department’s Responses DefendantJohnson respondedto the prosecutor’s December 2013 motion with his own “Motion for Brady discovery.” Johnson requested that thetrial court either conduct the requested in camera Brady review; declare Section 832.7(a) unconstitutional and direct the SF Police Departmentto allow the prosecutor to access the officer personnel files to perform a Brady materiality review; or dismiss the case due to the prosecution’s failure to comply with Brady. Johnsonindicated his belief that he could not himself obtain disclosure of the material in the personnelfiles, stating, “defendant knows only that those files contain potential Brady material, but cannot moveforit specifically because . . . he does not know whatit is, or how it might impact his defense.” 5 This committee consists of the Assistant Chief of the Office of Chief of Staff, the Director of Risk Management, the head of the Legal Division, the Director of Staff Services, the author of the synopsis, and a retired judge with criminal law experience. The SF Police Department responded to the prosecutor’s motion, generally expressing agreement with the positions taken by the prosecutor and urgingthe trial court to perform the in camera review contemplated by the Bureau Order’s Brady disclosure protocol. The Trial Court’s Ruling On January 7, 2014, following a hearing, the superior court issued a lengthy “Order Re Brady Motions.” The court concluded the prosecution had not made a sufficient showing of Brady materiality to justify court review of the records.° The court also concluded that the Pitchess motion procedures (§ 1043 et seq.) do not apply to motions seeking review of police officer personnel records under Brady, and Section 832.7(a) is unconstitutional to the extent it bars the prosecution from obtaining access to officer personnel records in order to comply with Brady. Thetrial court denied the prosecution’s Section 1043 motion for in camera Brady review anddirected the SF Police Department“to give the District Attorney access to the personnelfiles of officers Dominguez and Carrasco ‘so the prosecution can comply with : 9its Brady mandate[.]’ The order continued, “Once the District Attorney has reviewed - the personnel records, he will be able to fulfill his constitutional obligation to disclose to the Public Defender any information that is material under Brady. If a close question nonetheless remains as to whether information in a specific document or documents should be disclosed under Brady, the District Attorney will be able to make the threshold” materiality showing necessary to justify review of the documentsbythetrial court. The Present Writ Proceeding Petitioners filed the present petitions on January 17, 2014. Petitioners seek issuance of a writ of mandate and/or prohibition ordering respondent superior court to 6 oe 6The prosecution argued it only needed to make ‘some plausible showing’ ” the personnelfiles contain Brady material and the showing could be madebyinforming the trial court that the officers were critical witnesses and the SF Police Department had indicatedthe files had potential Brady material. 7 vacate its January 2014 order denyingthe prosecution’s Section 1043 motion,directing the SF Police Departmentto give the prosecution accessto officer personnelfiles, and declaring Section 832.7(a) unconstitutional. Petitioners request that this court direct respondent court to accept the officer personnel records proffered by the SF Police - Department and to review the records in camera and disclose all Brady materials to both the prosecution and defense counsel, subject to a protective order.’ . This court stayed the January 2014 orderandtrial in defendant Johnson’s criminal case, consolidated the two writ proceedings,anddirected the respondentcourt to show cause whytherelief requested in the petitions should not be granted. This court also granted applications for leave to file amicus curiae briefs supporting petitioners by the Appellate Committee of the California District Attorneys Association, the Ventura County District Attorney, the Santa Clara County District Attorney, and the Police Officers’ Research Association of California et al. This court also granted the respondent superior court’s requestto file a responseto the petitions, and the Attorney Generalfiled an amicus curiae brief.® DISCUSSION This caseis the latest in a body of case law considering the “interplay” between. the United States Supreme Court’s 1963 decision in Brady, supra, 373 U.S. 83, and the statutory discovery procedures enacted by the California Legislature after the California Supreme Court’s decision in Pitchess, supra, 11 Cal.3d 531. (Brandon, supra, 29 Cal.4th at p. 7.) “In Brady, the high court announceda rule, foundedon the due process guarantee of the federal Constitution, that requires the prosecution to disclose evidence that is favorable and ‘material’ to the defense.” (Ibid.) The Pitchess proceduresinclude, y In his briefing in this writ proceeding, defendant and real party in interest Johnson does not object to the relief sought by petitioners, involving in camera Brady review by the trial court. 8 On April 21, 2014, respondent superior court filed a motion for judicial notice of the “Budget Snapshot”for the court’s 2014-2015 fiscal year. Because the budgetary constraints faced by the court are not relevant to the issues of law we decide in this writ proceeding, the motion for judicial notice is denied. amongothers, the Key statutory provisionsat issue in the present case, Section 832.7(a), Section 1043, and Evidence Codesection 1045 (“Section 1045”).” Section 832.7(a) declares that peace officer personnel records “are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant” to Section 1043.'° Section 1043 sets forth requirements for a motion seeking “discovery or disclosure” of peace officer personnel records, and Section 1045 contains “protective provisions” related to officer privacy interests. (City ofSanta Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83 (City ofSanta Cruz).) At issue in this case is whether the prosecution mayroutinely require the trial court to conductthe initial Brady materiality review of documents from officer personnel files identified by the SF Police Departmentas containing potential Brady material."! Petitioners argue Section 832.7(a) prohibits the prosecution from accessing officer personnelfiles absent a motion under Section 1043. They contendthe trial court erred in denying the prosecution’s request under Section 1043 that the court perform an in camera Brady review of the documents identified by the SF Police Department and that the court authorize the disclosure to the parties of any evidence the court deemed material under Brady. They further contendthetrial court erred in concluding that Section 832.7(a) is | ? _ Unless otherwise indicated, all further undesignated statutory references are to the Evidence Code. 10 Section 832.7(a) also references section 1046,but that provision is not relevant in the present case. Section 1046 contains special requirements applicable to requests for disclosure involving allegations of excessive force. i Petitioners may take issue with our suggestion that they seek to “routinely” shift review to the trial court. However, their position essentially wouldshift the — responsibility for identifying Brady material in officer personnelfiles to the trial court; such a categorical change is properly characterized as mandating routine trial court review for those materials. The prosecution informedthetrial court that the District Attorney’s office would be making approximately 250 requests for such reviews each year. Petitioners may also take issue with our characterization of the requested trial court review as the “initial” Brady materiality review, because they seek for the court to review a pool of potential exculpatory materials identified by the SF Police Department. But the SF Police Departmentreview is not a review for Brady materiality in the context of a particular case, so the requested trial court review would bethefirst true Brady review. unconstitutional to the extent it denies prosecutorial access to officer personnel files for Brady purposes,and in directing the SF Police Department to give the prosecution access to the personnelfiles of two officer witnesses, so that the prosecution could identify any materials required to be disclosed under Brady. We concludethat, properly construed, Section 832.7(a) does not preclude prosecutorial access to officer personnelfiles for Brady purposes. Thus, we need not reach the constitutionality issue addressed bythetrial court and reserved in Brandon, supra, 29 Cal.4th at page 12, footnote 2. At various places in our opinion werefer to the initial review and identification of Brady materials by the prosecutionas the “first stage” of the Brady disclosure process. We further concludethat, prior to disclosing the identified Brady material to the defendant, the prosecution mustfile a motion for such disclosure under Section 1043. Werefer to this request for disclosure as the “second stage” of the Brady disclosure process. This resolution is consistent with the statutory language, the Legislature’s intent for a judicial role in disclosure to protect officer privacy, and the prosecution’s federal constitutional obligations under Brady. I. Standard ofReview and Statutory Interpretation Principles Resolution of the issues in this writ proceeding turns onthe interpretation of statutes, primarily Section 832.7(a) and Section 1043. Our review is de novo. (Ceja v. - Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1119.) “ *As in any case involving statutory interpretation, our fundamentaltask hereis to determine the Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.] The well-established rules for performing this task require us to begin by examining the . statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, considerthe statutory languagein isolation; rather, we look to the statute’s entire substance in order to determineits scope and purposes. [Citation.] That is, we construe the wordsin question in context, keeping in mind the statute’s nature and obvious purposes. [Citation.] We must harmonizethe statute’s various parts by consideringit in the context of the statutory framework as a whole. [Citation.] If the statutory language is unambiguous,then its plain meaning controls. If, however, the 10 language supports more than one reasonable construction, then we maylook to extrinsic aids, including the ostensible objects to be achieved andthe legislative history. | [Citation.]” (Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1106-1107.) IL. The Prosecution’s Disclosure Obligations Under Brady “In Brady, the United States Supreme Court held ‘that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or _ . bad faith of the prosecution.’ [Citation.] The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused [citation], that the duty encompasses impeachmentevidenceas well as exculpatory _ evidence [citation], and that the duty extends even to evidence knownonlyto police - investigators and notto the prosecutor[citation]. Such 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.” ’ [Citation.]” (People v. Salazar (2005) 35 | Cal.4th 1031, 1042.) _ “Responsibility for Brady compliance lies exclusively with the prosecution[.]” (In re Brown (1998) 17 Cal.4th 873, 878 (Brown).) “The scope of this disclosure obligation extends beyond the contents ofthe prosecutor’s case file and encompasses the duty to ascertain as well as divulge ‘any favorable evidence known to the others acting on the government’s behalf. .. .’ [Citation.] Courts have thusconsistently ‘decline[d] “to draw _ adistinction between different agencies under the same government, focusing instead upon the ‘prosecution team’ which includes both investigative and prosecutorial personnel.” ’ [Citation.]” (/d. at p. 879; see also Brandon, supra, 29 Cal.4th at p. 8 [the - Brady disclosure requirement “encompasses evidence ‘known only to police investigators and ‘not to the prosecutor’ ”].) Thus, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” (Kyles v. Whitley (1995) 514 U.S. 419, 437 (Kyles); accord Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870; People v. Whalen (2013) 56 11 Cal.4th 1, 64; Brandon, supra, 29 Cal.4th at p. 8.) This is because Brady places on the prosecution an “affirmative duty to disclose evidence favorable to a defendant” (Kyles, at p. 432), and “ ‘procedures and regulations can be establishedto carry [the prosecutor’s] burden and to insure communication ofall relevant information on each case to every lawyer whodeals with it.’ [Citation.]” (/d. at p. 438.) Kyles continued, “Since, then,the ‘prosecutor has the meansto discharge the government’s Brady responsibility if he will, any argumentfor excusing a prosecutor from disclosing what he does not happen to know about boils down toa plea to substitute the police for the prosecutor, and even for the courts themselves, asthe final arbiters of the government’s obligation to ensure fair _ trials.” (Kyles, at p. 438; accord Brown,at p. 881.) Asthe California Supreme Court emphasized in Brown, “the Supreme Court has unambiguously assigned the duty to disclose solely and exclusively to the prosecution; those assisting the government’s case are no more thanits agents. [Citations.] By necessary implication, the duty isnondelegableatleast to the extent the prosecution remains responsible for any lapse in compliance. Since the prosecution must bear the consequences of its own failure to disclose [citations], a fortiori, it must be charged with any negligence on the part of other agenciesacting inits behalf [citations].” (Brown, supra, 17 Cal.4th at p. 881.) Ill. The Pitchess Decision andIts Codification in Statutory Law In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court held criminal defendants havea right to discover citizen complaints of misconduct found in peace officer personnelfiles. Specifically, the court permitted the defendant, charged with battery on sheriff's deputies, to discover any complaints of excessive force in the deputies’ personnelfiles. (/d. at p. 534.) The holding was an extension of “judicially created doctrine evolving in the absence of guiding legislation . . . based on the fundamental proposition that [the accused] is entitled to a fair trial and an intelligent defensein light ofall relevant and reasonably accessible information.” (Jd. at p. 535.) The court explained that a defendant “may compel discovery by demonstrating that the requested information will facilitate the ascertainmentof the facts and a fair trial.” (Jd. at 12 p. 536.) “The requisite showing maybesatisfied by general allegations which establish somecausefor discovery other than ‘a mere desire for the benefit of all information which has been obtainedby the People in their investigation of the crime.’ [Citations.]” (Id. at p. 537.) Althoughthe Pitchess procedures “must be viewed against the larger background of the prosecution’s constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant’s rightto a fair trial,” (People v. Mooc (2001) 26 Cal.4th 1216, 1225 (Mooc)), the Pitchess decision itself did not actually rely on the prosecutor’s obligations under Brady as a basisfor its holding. In 1978, the California Legislature “codified the privileges and procedures surrounding what had cometo be known as‘Pitchess motions’ . . . through the enactment ofPenal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.” (City ofSanta Cruz, supra, 49 Cal.3dat p. 81, fn. omitted.) City ofSanta Cruz described the statutory schemeasfollows: “The Penal Code provisions define ‘personnel records’ (Pen. Code, § 832.8) and provide that such records are ‘confidential’ and subject to discovery only pursuantto the proceduresset forth in the Evidence Code. (Pen. Code,§ 832.7.) [S]ections 1043 and 1045 set out the procedures for discovery in detail. As here pertinent, section 1043, subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, inter alia, ‘(2) A description of the type of records or information sought; and [{] (3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pendinglitigation and stating upon reasonable belief that such governmental agency identified has such records or information from such records.’ ” (City ofSanta Cruz, at pp. 81-83.) City ofSanta Cruz continued: “A finding of ‘good cause’ undersection 1043, subdivision(b) is only the first hurdle in the discovery process. Once good cause for discovery has been established, section 1045 provides that the court shall then examine the information ‘in chambers’ in conformity with section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other personsas 13 he orsheis willing to have present), and shall exclude from disclosure several enumerated categories of information, including: (1) complaints more than five years old, (2) the ‘conclusions of any officer investigating a complaint . . .” and (3) facts which are ‘so remote as to makedisclosureoflittle or no practical benefit.’ (§ 1045, subd. (b).)” (City ofSanta Cruz, supra, 49 Cal.3d at p. 83; accord Alford v. Superior Court (2003) 29 Cal.4th1033, 1039 (Alford).) “The statutory schemethus carefully balances twodirectly conflicting interests: the peace officer’s just claim to confidentiality, and the criminal defendant’s equally compelling interest in all information pertinent to his defense. The relatively relaxed standards for'a showing of good cause undersection 1043, subdivision (b)—‘materiality’ to the subject matter of the pendinglitigation and a ‘reasonable belief’ - that the agencyhasthe type of information sought—insure the production for inspection of all potentially relevant documents. The in camera review procedure and disclosure guidelines set forth in section 1045 guarantee, in turn, a balancing of the officer’s privacy interests against the defendant’s need for disclosure. As a further safeguard, moreover, the courts have generally refused to disclose verbatim reports or records of any kind from peace officer personnel files, ordering instead . . . that the agency reveal only the name, address and phone numberof any prior complainants and witnesses and the dates of the | incidents in question. [Citations.]” (City ofSanta Cruz, at p. 84, fns. omitted; see also Mooc,supra, 26 Cal.4th at p. 1227.)" IV. Section 832.7(a) Does Not Preclude Prosecutorial Access to Officer Personnel Files for Brady Purposes Section 832.7(a) provides:“Peace officer or custodial officer personnel records and records maintained byanystate or local agency pursuantto Section 832.5,or information obtained from these records, are confidential and shall not be disclosed in any criminalor civil proceeding except by discovery pursuant to Sections 1043 and 1046 2 Dueto this limitation on discovery under Pitchess, the potential material for disclosure under Brady may be much moreextensive than the potential material for disclosure under Pitchess. In the present case, for example, the prosecution indicated that a previous Pitchess motion resulted in the disclosure of six pages; in contrast, there were 505 pages of potential Brady material. 14 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury,a district attorney’s office, or the Attorney General’s office.” As noted previously, Section 832.7(a) was adopted by the Legislature as part of the codification of the Pitchess decision. The stated purposeofthe bill that resulted in the enactmentof Section 832.7(a) and Sections 1043 and 1045 was “ ‘to give the peace officer and his or her employing agency the rightto refuse to disclose any information concerning the officer or complaints or investigations of the officer in both criminal andcivil proceedings.. .. Personnelfiles of peace officers . . . are deemed confidential and not subject to disclosure or discovery except as providedinthis bill.’ ” (Assem. Com. on Crim. J., Bill Analysis on Sen. Bill No. 1436 (as amended Aug.7, 1978); see also County ofLos Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, | 1609.) | In complying with Brady with respectto materials in peace officer personnelfiles, there are two analytically distinct stages, identification and disclosure. Thefirst requires access to officer personnelfiles to identify materials that must be disclosed under Brady. The secondstageis disclosure of Brady materialsto the defendantina criminal proceeding. Petitioners contend that Section 832.7(a), by effectively precluding prosecutorial access to the personnelfiles, requires, at the first stage, that the trial court makethe decision as to what must be disclosed under Brady withoutidentification by the prosecutor of the materials that should be disclosed. As explained below, we disagree that Section 832.7(a) eliminates prosecutorial access; although the statute specifies proceduresfor the second stage disclosure of Brady materials in criminal proceedings (see Part VII., post), it does not prohibit the prosecutor, asthe head of the prosecution team, from performingthe constitutionally mandated role of identifying Brady materials in the personnelfiles. In particular, when a prosecutor acting as the head of a prosecution team inspects officer personnelfiles, or portions thereof, for Brady purposes,that inspection doesnot constitute disclosure ofthe files in a criminal proceeding, or otherwise breach the confidentiality of the files. 15 A. Prosecutorial Access to Personnel Recordsfor Brady Purposes Does Not Constitute Disclosure of the Files in a Criminal Proceeding . In determining whether prosecutorial access to officer personnelfiles constitutes a disclosure prohibited by Section 832.7(a), the decision in Michael v. Gates (1995) 38 | Cal.App.4th 737 (Gates), provides guidance. There, in an earlier proceeding,a police department permitted a deputy city attorney to review the personnelrecords of a former police officer, in order to identify impeachment evidence for use in a lawsuit against the department, in which the former officer was an expert witness for the plaintiff. (/d. at p. 740.) No evidence from the personnel records wasactually introducedin the case. | (Ibid.) Subsequently, the former officer sued membersof the police department andcity attorney’s office, alleging, among other things, invasion of his right to privacy and violation of Section 832.7(a) and Section 1043. (Gates, at p. 741.) As petitioners argue in the present case, the former officer in Gates argued the deputy city attorney was prohibited from reviewing the personnel files without a noticed motion under Section 1043 “and, presumably, without obtaining a court order after the in camera hearing | prescribed in Evidence Code section 1045.” (Gates, at p. 743.) In holdingthat the officer’s claims failed, Gates focused on the language in Section 832.7(a) directing that officer personnelrecords “shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” Gates concluded there wasno “ ‘discovery or disclosure’ of [the officer’s] records within the meaningof the statutes.” (Gates, supra, 38 Cal.App.4that p. 743.) The court reasoned: “TSection 1043] applies to ‘any case in which discovery or disclosure’ of peace officer personnel records is sought. Thestatutes thus protect [officer] privacy rights by requiring a noticed motion, in camera hearing, and court order before [officer] records could be introduced or otherwise used in anylitigation.” (Gates, at p. 743.) But the legislativeintent “to balancea litigant’s need to present a case and a peace officer’s rightto privacy .. . would not be advanced by extending the procedural requirements to a preliminary review of peace officer records, where there is no disclosure in litigation, and no ‘discovery.’ In ordinary legal usage, ‘discovery’ refers to 16 the inspection of documentsand other materials in the possessionor control of an adverse party in litigation, a process whichhasasits principle purposethe elimination of the ‘game’ elementoflitigation. [Citation.] There is no suggestion that the Legislature intended any other meaning here. An agency which reviewsits own records with its attorney has not engagedin discovery.” (Id. at p. 744.) | Gates stated its holding as follows: “Thus, we hold that where, as here, a governmental agency andits attorney conduct a contained andlimited review of peace officer personnelfiles within the custody and control of the agency, for some relevant purpose,there is no disclosure under the statutes. The statutory schemeis designed to protect peace officers’ ‘just claim to confidentiality’ and to regulate the use of peace officer personnel recordsin civil and criminal proceedings. [Citation.] It was not intendedto, and doesnot, create substantive or procedural obstacles to a police agency’s review ofits ownfiles.” (Gates, supra, 38 Cal.App.4th at p. 745.) The present case is not materially distinguishable. Under Government Code section 26500, the District Attorney is the public prosecutor in a criminal prosecution, representing the People of the State of California. (Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) As noted previously, the District Attorney leads a “ ‘ “ ‘prosecution team’ ” which includes both investigative and prosecutorial personnel.’ [Citation.]” (Brown, supra, 17 Cal.4th at p. 879, fn. omitted.) Due to the “ ‘close working relationship’ ” between the police and prosecutors (id. at p. 879, fn. 3, quoting U.S. v. Brooks(D.C. Cir. 1992) 966 F.2d 1500, 1503 (Brooks)), courts in the Brady context have “consistently” declined to distinguish between separate agencies ofthe same government that are part of the prosecution team (Brown,at p. 879; see also id. at p. 881 [“those assisting the government’s case are no more than its agents”]). Even though the District Attorney in a criminal prosecutionis not the attorney for the SF Police Departmentin the same sense as in Gates, the joint operation of the agencies as a prosecution team is a sufficiently analogousrelationship, justifying the same result under Section 832.7(a). 17 Wetherefore conclude the reasoning of Gates is applicable in the present case.’ In particular, a prosecutorial inspection of an officer’s personnel file for Brady purposes is not a disclosure of the file within the criminal proceeding. B. Prosecutorial Access to Personnel Recordsfor Brady Purposes Would Not Breach the Confidentiality of the Files A separate issue not directly addressed in Gates is the significance of Section 832.7(a)’s designation of officer personnel files as “confidential.” (§ 832.7(a) [records are “confidential and shall not be disclosed in any criminal orcivil proceeding except by discovery pursuantto Sections 1043 and 1046of the Evidence Code”].) In Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1279 (Copley), the California Supreme Court held that the word “confidential” in Section 832.7(a) has independentsignificance. There, the court considered a newspaperpublisher’s request under the California Public Records Act for records relating to a peaceofficer’s administrative appeal of a disciplinary matter. The publisher argued Section 832.7(a) did not apply because it was not seeking disclosure in a criminalorcivil proceeding. (Copley, at p. 1284.) Copley concluded the records were nonetheless confidential and not subject to disclosure under the Public Records Act, reasoning,“If, in passing section 832.7, the Legislature had intended ‘only to defineprocedures for disclosure in criminal and civil proceedings, it could have done sobystating that the records “shall not be disclosed in any criminalor civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code... ,” without also designating the information “confidential.” [Citation.]’ [Citations.] Thus, by interpreting the word ‘confidential’ 8 The authors of the treatise California Criminal Discovery reach the same conclusion, stating: ““Whenthedistrict attorney (or Attorney General) prosecutes a criminal casearising out of an investigation by a law enforcement agency,the investigating law enforcementagencyis part of the ‘prosecution team,’ the district attorneyis the attorney for the ‘prosecution team,’ and the disclosureto the district attorney of the contents of the personnelrecordsof a police officer employed by that investigating law enforcement agency does notconstitute ‘disclosure’ of the personnel records within the meaning ofPenal Code section 832.7(a).” (Pipes & Gagen, Cal. Criminal Discovery (4th ed. 2008) § 10:20.3.1, p. 964.) 18 [citation] as ‘establish[ing] a general condition of confidentiality’ [citation], and interpreting the phrase ‘shall not be disclosed in any criminalor civil proceeding except by discovery pursuant to Sections 1043 and 1046 ofthe Evidence Code’ [citation] as ‘creat[ing] a limited exception to the general principle of confidentiality,’ we ‘give[ ] meaning to both clauses’ of the provision in question. [Citation.]” (Copley, at p. 1285.) Because the personnelfiles were “confidential,” they were exempt from disclosure under the Public Records Act (Gov. Code, § 6254, subd. (k)).4 (Copley, at p. 1283; see also Long Beach Police Officers Assn. v. City ofLong Beach (2014) 59 Cal.4th 59, 67; City of Richmond v. Superior Court (1995) 32 Cal.App.4th 1430, 1440.) Althoughthe officer personnelfiles within the scope of Section 832.7(a) are confidential and maynot be disclosed publicly pursuantto the Public Records Act, neither Copley, nor the Court of Appeal decisions Copley cites (Copley, supra, 39 Cal.4th at pp. 1284-1285 & fn. 5), address whether permitting a prosecutor to inspect officer personnelfiles in the possession of another memberof the prosecution team would constitute a breach of confidentiality. The term “confidential” is undefined in the statute and ambiguous. The dictionary defines “confidential” as “communicated, conveyed, acted on, or practiced in confidence : knownonlyto a limited few : not publicly disseminated : PRIVATE, SECRET.” (Webster’s 3d New Internat. Dict. (2002) p. 476.) Clearly the term prohibits public disclosure of information from officer personnelfiles, but it is otherwise unclear what limits it sets on access. It does not create an absolute bar to access, because presumably membersof a police departmentthat have legitimate reasons for accessing officer personnelfiles do not thereby breach the confidentiality of the files. It also seems safe to assumethat designating the files as confidential meansthat government employeesboth inside and outside the police departmentthat do nothave a legitimate basis for accessing officer personnelfiles cannot do so. However, the scope of the confidentiality is otherwise unclear. '* Government Codesection 6254, subdivision (k) exempts from disclosure “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal orstate law, including, but not limited to, provisions of the Evidence Coderelating to privilege.” 19 Wherea “statute is ambiguous, we mayconsidera variety of extrinsic aids, including legislative history, the statute’s purpose, and public policy. [Citation.]” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126.) “ ‘We mustselectthe construction that comports mostclosely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purposeof the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” ‘(People v. Coronado (1995) 12 Cal.4th 145, 151.) The Legislature’s intent in enacting the statutory - Pitchess procedures has been summarizedas follows: “The report by the Senate Committee on the Judiciary indicates that the main purpose of the 1978 legislation (Sen. Bill No. 1436) wasto curtail the practice of record shredding and discovery abuses which allegedly occurred in the wake of the [Pitchess] decision. [{]] The analysis of Senate Bill No. 1436 prepared for the Assembly Committee on CriminalJustice notes that ‘[t]he thrust ofthis bill is to give the peace officer and . . . employing agencythe right to refuse to disclose any information concerning the officer or complaints or investigations . . . in both criminal andcivil proceedings.’ ... [{[] The report also explained that the purpose of the bill was to protect personnel records from random discovery by defendants asserting self-defense to charges of criminal assault upon a police officer. Thus, the Legislature evidencedits purposeto provide retention of relevant records while imposing limitations upontheir discovery and dissemination.” (San Francisco Police Officers’ Assn. v. Superior Court (1988) 202 Cal.App.3d 183, 189-190; accord Berkeley Police Assn. v. City ofBerkeley (2008) 167 Cal.App.4th 385, 393; see also Assem. Com. on Crim. Justice, analysis of Sen. Bill No. 1436, Aug. 18, 1978, p. 2 [“Discovery of police personnelfiles is limited to those instancesset forth in Section 1043 of the Evidence Code as addedbythis bill.”], italics added.) Thus,the Legislature’s intent was to protect officer personnelfiles from public disclosure, and to specify a procedure for discovery of information in suchfiles. The committee reports associated with the enactment never make any reference to Brady, or express concern with prosecutorial access to personnel files. (See Neri, Pitchessv. Brady: The Needfor Legislative Reform ofCalifornia’s Confidentiality Protectionfor | 20 Peace-Officer Personnel Information (2012) 43 McGeorge L. Rev. 301, 304 (hereafter Neri) [““The Pitchess laws were neither designed to facilitate, nor do they mention, prosecutors’ Brady duties. Instead, they address only state-law issues regarding criminal discovery andofficer privacy rights.” (Italics added.)].) The legislative history does not supporta construction that would deem prosecutorial inspection of officer personnelfiles for Brady purposesa breach of confidentiality within the meaning of Section 832.7(a). Thedistrict attorney’s office and police department constitute a single prosecution team in any given criminal case, and the police departmentacts as the prosecutor’s “agent” with respect to the retention ofpotential Brady material. (Brown, supra, 17 Cal.4th at pp. 879, 881.) For this reason, we determined abovethat an inspection of officer personnelfiles by a prosecutor would notconstitute disclosure ofthe files within the criminal proceeding. Similarly, such an inspection would not breach the confidentiality of the files. The district attorney has the discretion to “initiate and conduct on behalf of the people all prosecutions for public offenses” (Gov. Code, § 26500), and information about important officer witnesses may be necessary to the informed exercise of that discretion. An inspection by the head ofthe prosecution team for Brady purposes would notinvolve any disclosure outside the prosecution team, much less public disclosure of information from the files. It would be consistent with the Legislature’s intent to restrict discovery of the files, while preserving the prosecutor’s ability to comply with its constitutional obligations. Our construction of the statute is also consistent with Copley, supra, 39 Cal.4th at page 1283, which held that the inclusion of the word “confidential” made peace officer personnelfiles privileged under the Public Records Act. Thus, our conclusion that designating the personnel files as “confidential” does not prohibit prosecutorial access for Brady purposes does not render the word meaningless. Finally, recognizing that prosecutors are not prohibited from accessing officer personnel files forBrady purposesis consistent with the apparent access — prosecutors have to other confidential information, such as police investigation reports (Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169, 174-177) and the identities of confidential informants (People v. Hobbs (1994) 7 Cal.4th 948, 957-964). As the head 21 of the prosecution team,the prosecutor has access to a range of materials otherwise considered to be confidential.’ This construction of the term “confidential” in Section 832.7(a) is also supported - by a 1983 Attorney General opinion, the relevant reasoning of which was approved in Faganv. Superior Court (2003) 111 Cal.App.4th 607, 617-618 (Fagan).'° The Attorney General had been asked to consider “what restrictions are placed upon district attorney in obtaining access to the personnel recordsofa police officer[.]” (66 Ops.Cal.Atty.Gen. 128 (1983) (1983 Attorney General Opinion”).) Applying an exception for investigations of officer conduct (see Part IV.C., post), the Attorney General concluded that “as long as the district attorney is duly investigating ‘the conduct ofpolice officers or a police agency’as specified in section 832.7, he neednotfirst obtain a court order for accessto the records in question.” (66 Ops.Cal.Atty.Gen., supra, at p. 128.) In the course of reaching that conclusion, the Attorney General considered whatit meantforthe files to be confidential. The Attorney General noted that “the Legislature and the courts have generally allowed public access to governmentfiles relating to the conduct of official business but not to thosefiles relating to the personallives of individuals. [Citations.] The latter have beentreatedas ‘confidential’ so as to protect the right of privacy.” (Id. at p. 129, fn. omitted.) “Confidential information,” the Attorney General ° Wehold only that such Brady reviewsof officer personnel files do not breach the confidentiality of the files under Section 832.7(a). Our holding should not be construed to mean the prosecution has unlimited access to peace officer personnelfiles for other - reasons, and wedo not address whether other disclosures to other governmentalentities for other purposes are permissible under Section 832.7(a). Furthermore, our decision does not prohibit a police department anddistrict attorney from fashioning proceduresto identify a pool of potential Brady materials for scrutiny by the prosecutor, muchlike a poolof such materials was identified for review bythetrial court in the present case (see Part IV.F., post). “ ‘Opinions of the Attorney General, while not binding,are entitled to great weight. [Citations.] In the absence of controlling authority, these opinions are persuasive “since the Legislature is presumed to be cognizant of that construction ofthestatute.” ’ [Citations.]” (California Assn. ofPsychology Providers v. Rank (1990) 51 Cal.3d 1, 17.) It can be presumedthat, if an opinion “ ‘were a misstatementof the legislative intent, “some corrective measure would have been adopted.” ’ ” (Ibid.) 22 observed,is “ ‘not publicly disseminated.’ ” (/bid., fn. 3.) The Attorney General further reasonedthat disclosure to the district attorney would not compromise the confidentiality of the files. (Id. at p. 130.) Fagan applied the same exception for investigations of officer conduct, and held a district attorney properly obtained the results of urinalysis tests containedin confidential peace officer personnelfiles in investigating off-duty criminal conductbytheofficers. (Fagan, supra, 111 Cal.App.4th at pp. 610, 615.) Aspertinentin the present case, the court further held that the district attorney’s access to the tests did not meanthat the tests were no longer confidential. (/d. at pp. 617-618.) After discussing the 1983 Attorney General Opinion, Fagan concludedthat, while the district attorney properly accessed the test results, the district attorney was obligated “to maintain the non-public nature of the files absent judicial review of the relevanceofthe information” through a motion under Section 1043. (id. at p. 618.) For the above reasons, we conclude that an inspection of an investigatory agency’s peace officer personnelfiles for Brady materials by the prosecutor would notconstitute a breach of the confidentiality of the files under Section 832.7(a). C. In the Alternative, the Exceptionfor District Attorney Investigations of Officer Conduct is Applicable Appearing as amicuscuriae in this proceeding, the Attorney General encourages this court to concludethe investigation exception applies to Brady review ofofficer personnelfiles. That exception, contained in the second sentence of Section 832.7(a) and referenced just above, provides, “This section shall not apply to investigations or proceedings concerning the conductof peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grandjury,a district attorney’s 3917office, or the Attorney General’s office.”’" Petitioners contend the exception applies only M The investigation exception has been applied outside the Brady context. (Fagan, supra, 111 Cal.App.4th at p. 615 [the exception applied to an investigation of off-duty conduct by the officer-defendants]; People v. Gwillim (1990) 223 Cal.App.3d 1254, 1260, 1270 [underthe exception,a district attorney investigating an allegation of sexual 23 “when the officer is a suspect in an investigation or target of a criminal prosecution for conductthat occurred while employed as an officer.” We agree with the Attorney General and concludethat, even if prosecutorial access to officer personnelfiles for Brady purposes were deemedtobe a disclosure in a criminal proceeding or breach ofthe confidentiality of the files, the investigation exception is applicable. People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397 (Gremminger), cited by petitioners, is not to the contrary. There, the defendant was a former police officer charged with murder; the prosecution subpoenaed the defendant’s personnel records, which were delivered to the court. (/d. at pp. 400-401.) The trial court denied the prosecution’s request for disclosure ofthe files, and Gremminger denied the prosecution’s petition for writ ofmandate, concluding the investigation exception did not apply. (/d. at p. 404.) Gremminger reasonedin part, “the People cannot reasonably contendthat the district attorney seeks to review [the defendant’s] . . . police officer personnelrecordsin order to investigate his conductas a police officer. Instead, the district attorney seeks disclosure of[the defendant’s] records in order to prepare the prosecution’s case against [the defendant], a private citizen.” (Jd. at p. 406.) Gremmingerheld, “where the People seek discovery of the peaceofficer personnel © records of a criminal defendant who wasnot employedas police officer at the time the crime wasallegedly committed, the district attorney is not exempted under the provisions of [Section 832.7(a)], and must comply with the requirements of [Section 1043] et seq.” (Gremminger, at p. 407.) In contrast to Gremminger, when a prosecutor conducts a Brady review of an officer’s personnelfile, the prosecutoris investigating that officer’s conduct to determine whetherthere is any evidence that could be used to impeach him orherattrial. Although in Gremminger, Gwillim, and Fagan the investigation exception was considered in circumstances where the officer was the target of a criminal investigation, none of the cases expressly excludesother types of investigations of officer conduct from the scope assault by an officer could access a statement the officer-defendant provided during a police internal investigation].) 24 of the exception. Neither does Section 832.7(a) contain any such limiting language;it does not, for example,limit the application of the exception to investigations of the conductof police officers who are defendants or suspects. (See Pipes & Gagen, supra, § 10:20.3.3, p. 966.) If prosecutorial Brady review constitutes disclosure in a criminal proceeding or breach of the confidentiality of officer personnelfiles within the meaning of Section 832.7(a), then the investigation exception applies and permits such review.'® D. Alford Does Not Preclude Our Construction ofSection 832.7(a) As noted in a footnote at the outset of this decision, in Brandon the California Supreme Court reserved the question “whether Penal Code section 832.7, which precludes disclosure of officer records ‘except by discovery pursuantto Sections 1043 and 1046 of the Evidence Code,’ would be constitutional if it were applied to defeat the right of the prosecutor to obtain access to officer personnel recordsin order to comply with Brady.” (Brandon, supra, 29 Cal.4th at p. 12, fn. 2.) Just six monthslater, the court stated in Alford, without elaboration, that “peace officer personnel records retain their confidentiality vis-4-vis the prosecution” absent compliance with Sections 1043 and 1045. (Alford, supra, 29Cal.4th at p. 1046.) The issues before our high court in Alford involved the prosecution’sright to participate in a defense-initiated Pitchess motion and discover the information disclosed to the defendant. Alford did not purport to consider whether the prosecution could access officer personnel files to comply with its Brady '8 The amicus. brief filed by the Attorney General takes the position that the investigation exception can be “reasonably construed to authorize direct access of personnel recordsby a district attorney’s office to satisfy the prosecutor’s Brady obligation.” The Attorney General’s brief does not directly address whether such a Brady review constitutes disclosure in a criminal proceeding or breach of the confidentiality of officer personnelfiles within the meaningofthe first sentence of Section 832.7(a). Nevertheless, the Attorney General generally supports the proposition that the Legislature would not have viewedprosecutorial access as a breach of confidentiality in stating, “the Legislature, aware that the prosecution is deemedto have constructive knowledgeof the material exculpatory information in the files of the prosecution team that must be disclosed under Brady to the defendantfortrial, could readily have concludedthat there was no ‘just claim to confidentiality’ vis-a-vis the prosecution for such information.” 25 disclosure obligations. We do not understandthat brief passage in Alford to have resolved, without so acknowledging, the precise constitutional dilemma Brandon so carefully delineated and left open just months earlier. We therefore disagree with the decisions in People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1474-1475 (Gutierrez), ~ and Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 56 (Abatti), to the extent they interpret Alford to hold that Section 832.7(a) prohibits the prosecution from accessing officer personnelfiles for Brady purposes. In any event, neither Alford, nor Gutierrez, nor Abati consideredthe particular issues of statutory interpretation addressed in the present case, and “‘it is axiomatic that cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 (Alvarez).) E. Petitioners’ Interpretation ofSection 832.7(a) Presents Avoidable Constitutional Questions In California, the scope of the Brady disclosure requirement has been described as follows: “A prosecutor’s duty under Brady to disclose material exculpatory evidence applies to evidence the prosecutor, or the prosecution team, knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agenciesand personnel. [Citations.] The prosecution must disclose evidencethatis actually or constructively in its possession or accessible to it. [Citation.]” (People v. Jordan (2003) 108 Cal.App.4th 349, 358 (Jordan); see also People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315 [“[t]he scope of the prosecutorial duty to disclose encompasses exculpatory evidence possessed by investigative agencies to which the prosecutor has reasonable access.”’].) ~ ‘In Gutierrez, after concluding the prosecution could not access officer personnel files absent a motion underSection 1043, the court relied on Jordan in concluding that ~ officer personnelfiles were outside the scope of the prosecution’s Brady disclosure | obligation. (Gutierrez, supra, 112 Cal.App.4th at pp. 1474-1475.) The court rejectedthe defendant’s contention “that the prosecutor was obliged to conduct a review ofthefiles of ‘all significant police officer witnesses’ and disclose any Brady material[.]” ([bid.) Gutierrez reasoned, “Because under Alford the prosecutor does not generally have the 26 right to possess and does not have access to confidential peace officer files, Gutierrez’s argument for routine review of the completefiles ofall police officer witnesses in a criminal proceeding necessarily fails.” (Jd. at p. 1475.) Under Gutierrez ’s reasoning, the prosecution arguably has no obligation under Brady to devise procedures to uncover exculpatory evidencein officer personnelfiles, because those materials are outside the Brady disclosure requirements. '? But that conclusion, which rests on an overly- expansive reading of Alford, seems contrary to well established, federal constitutional law obligating the prosecution to learn of any evidence favorable to the defendant known to the police (Kyles, supra, 514 U.S.at p. 437), including impeachment evidence (Salazar, supra, 35 Cal.4th at p. 1042). (See also Youngblood v. West Virginia, supra, 547 U.S.at p. 870.) That is, impeachment evidence in officer personnelfiles cannot constitutionally be excluded from the prosecution’s Brady disclosure obligations. (See Neri, supra, 43 McGeorgeL. Rev.at p. 310 [asserting Gutierrez “violates the federal Supremacy Clause by redefining prosecutors’ federal Brady duty to exclude peace-officer personnelfiles, and is an improper attempt to subordinate a federal constitutional right to state privacy interests”(italics added, fn. omitted)].) Thus, petitioner’s interpretation of Section 832.7(a), which relies on Gutierrez, raises serious constitutional questions becauseit wouldinterfere with the disclosure of exculpatory evidencein police files, contrary to Brady andits progeny. Interpreting Section 832.7(a) to shift the Brady review from the prosecutor to the trial court raises additional constitutional concerns. The prosecutoris “in the best position to evaluate whether evidence must be disclosed becauseit is materially favorable to the defense.” (Villasana v. Wilhoit (8th Cir. 2004) 368 F.3d 976, 979; see also United States v. Holmes (4th Cir. 1983) 722 F.2d 37, 41 [pointing out that the trial court “generally does not know the government’s theory of the prosecution nor whatpossible 9 The People embrace this holding in Gutierrez, expressing dismay that, if Section 832.7(a) does not preclude prosecutorial access to personnelfiles for Brady purposes, “prosecutors will be duty bound. . . to examine the personnel files of every peace officer witness in every case to search for potential Brady material.” We address that argument later in the decision. (See Part IV.F.,post.) 27 defense might be available to defendants, and thusit is unlikely that it would recognize in a general in camera search anything but the most obviously exculpatory data’”’].) The prosecutor is the only person with accessto the entire landscape of evidence that will or could be presented against the defendantat trial. At the pretrial stage, the trial court’s knowledgeof the details of the case is often very limited. Although the significance of much impeachmentevidence would likely be obviousto all, the import of other information mightbeclear to the prosecutor but notto the trial court. This is particularly true because the Brady materiality standard looksat the “suppressed evidence considered collectively, not item by item.” (Kyles, supra, 514 U.S. at p. 436, fn. omitted.) Therefore, “the prosecution, which alone can know whatis undisclosed, must be assigned the consequentresponsibility to gauge thelikely net effect ofall such evidence and make disclosure whenthe point of ‘reasonable probability’ is reached.” (Jd. at p. 437.) The trialcourt cannot analyze the cumulative impact of nondisclosure of a piece of exculpatory—but not itself material—evidencein an officer’s personnel file.” Thus, in addition to the reasons set out above for our construction of Section 832.7(a), the statutory interpretation principle of avoiding difficult constitutional questions providesadditional support for our approach. (People v. Superior Court (Romero)(1996) 13 Cal.4th 497, 509; see also In re Smith (2008) 42 Cal.4th 1251, 1269 (“Our commonpracticeis to ‘construe[ ] statutes, when reasonable, to avoiddifficult constitutional questions.’ [Citation.]”]; People v. Smith (1983) 34 Cal.3d 251, 259 [“if _ reasonably possible the courts must construe a statute to avoid doubtsas toits constitutionality”’].) _*F, Petitioners’ Additional Arguments Regarding Section 832.7(a) Petitioners contend that interpreting Section 832.7(a) to permit the prosecutorto accessofficer personnelfiles would render superfluous the Pitchess proceduresin 0 Weare aware of no court that has approved routinely shifting the responsibility for performingthe initial Brady review from the prosecution to the court. That allocation of responsibility has long been a fundamental aspect of modern constitutional criminal procedure, andit is not to be altered lightly. 28 Sections 1043 and 1045. However, a Pitchess motion may beinitiated by a defendant, so a defendant can obtain any information from personnelfiles discoverable under the Pitchess scheme, regardless of whether the prosecutor concludes there is evidence that must be disclosed under Brady. Moreover, Brady and Pitchess “employ different standards of materiality.” (Brandon, supra, 29 Cal.Ath at p. 7.) “Unlike the high court’s constitutional materiality standard in Brady, which tests whether evidence is material to the fairness of trial, a defendant seeking Pitchess disclosure . . . need only show that the information soughtis material ‘to the subject matter involved in the pendinglitigation.’ (§ 1043, subd. (b)(3).) Because Brady’s constitutional materiality standard is narrower than the Pitchess requirements, any citizen complaint that meets Brady’s test of materiality necessarily meets the relevance standard for disclosure under Pitchess. (§ 1045, subd. (b).)” (Brandon,at p. 10; see also id. at p. 14.) Thus, because certain information that would not be deemed material under Brady would be deemed material under Pitchess, the Pitchess schemeis not rendered superfluous by ourinterpretation of Section 832.7(a). Moreover, despite petitioners’ arguments to the contrary, permitting direct access to officer personnelfiles will not “nullif[y]” the protections of the Pitchess scheme, because weconclude prosecutors must use motions under Section 1043 to disclose the Brady materials they identify to the defense. (See Part VII, post.) Petitioners also contend the decision in Fagan, supra, 111 Cal.App.4th 607 supports their position that Section 832.7(a) prohibits the district attorney from accessing officer personnel files for Brady purposes absent a motion under Section 1043. Fagan held the district attorney in that case properly obtained the results of the officer- defendants’ urinalysis tests from personnelfiles under the Section 832.7(a) investigation exception. (Fagan, at p. 610.) Fagan further held the results could not “be publicly disclosed or disseminated absent compliance with [Section 1043}, including a judicial determination of their admissibility [citation], relevancy [citations], and the need for a protective order [citation].” (Fagan, at p. 610.) In the course of its analysis, Fagan did state, “Where the exception affordedthe district attorney by [Section 832.7(a)] is inapplicable, he must proceed according to the provisions of [Section 1043].” (Fagan,at 29 p. 618.) However, because Fagan did not consider whether prosecutorial review for Brady purposes would, under Section 832.7(a), constitute disclosure in a criminal proceedingor breach the confidentiality of the officer personnelfiles, that statementis not properly treated as contrary authority; the same reasoning appliesto similar language in Gremminger, supra, 58 Cal.App.4th at page 407. (Alvarez, supra, 27 Cal.4th atp. 1176.) Notably, Fagan supports the distinction we make between prosecutorial access to a personnelfile to identify Brady material and public disclosure of that material: “The exception contained in section 832.7(a) affords the prosecution the ability to review confidential peace officer personnelfiles when investigating police misconduct without notice to the individuals involved. At the sametime,it requires the district attorney to maintain the nonpublic natureofthefiles absent judicial review of the relevance of the information to a criminalorcivil action.” (Fagan, supra, 111 Cal.App.4th at p. 618.) Similarly, our construction of Section 832.7(a) affords the prosecution the ability to review confidential peace officer personnelfiles in order to comply with its obligation to - identify Brady material in the possession of the prosecution team. And wefurther hold the District Attorney is required to maintain the nonpublic natureof the files and seek judicial review prior to any disclosure to the defendant through a motion under Section 1043. (See Part VII, post.) Citing Fagan, the People argue it would not save judicial resources to require the prosecution to perform theinitial Brady review, because “the [trial] court will still be required to review the same records itself before ordering disclosureto the defense, causingit the exact burden it sought to avoid in the initial in camera review.” (Bolding & italics omitted.) . However, that presupposesprosecutors will concludethatall of the potential Brady materials identified by the police department should be disclosed in all cases, which seems unlikely.” In any event, our decision that the prosecutor must a Defendant Johnson arguesthat the standard forpretrial disclosure is not the Brady materiality standard, because Penal Code section 1054.1, subdivision (e) “requires the prosecution to disclose ‘[a]ny exculpatory evidence,’ not just material exculpatory 30 perform theinitial materiality review is based not on the burdens such review would impose onthetrial court. Instead, our decision is based on the fundamentalconstitutional proposition that the Brady disclosure requirementis the prosecution’s obligation and our conclusion that Section 832.7(a) does not preclude prosecutorial access for Brady review. Finally, petitioners suggest a system that gives the prosecution accessto officer personnelfiles for Brady purposes would be problematic and impractical. For example, the District Attorney argues, “while the .. . system of maintaining a Bradyalertlist permits the files of only those officers whom [the SF Police Department] believes to have potential Brady [material] to be subject to court review,” an “open file policy would require every prosecutorin any trial at any time to examine personal personnel recordsto look for more recent potential Brady material.” The People also assert that “prosecutors will be duty bound . . . to examine the personnelfiles of every peace officer witness in’ every case to search for potential Brady material.” However, our decision does not prohibit police departments and district attorneys from designing orderly procedures to identify and provide materials for Brady review by prosecutors. Brady imposes the disclosure obligation on the prosecution, butit allows someflexibility in how the prosecution complies with that obligation. As a decision of this District recently explained,“District attorneys need some mechanism for ensuring that they learn of Brady material within their constructive possession. [Citation.] But the choice of that mechanism iswithin district attorneys’ broad ‘discretionary powersin the initiation and conductof criminal proceedings’. ... [Citation.]” (People v. Rose (2014) 226 Cal.App.4th 996, 1006 (Rose).) Indeed, it may be that the current procedures used to identify materials requiring a Brady materiality determination could continue to be evidence.” (Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.) That section of the Penal Code“illustrates the difference between beingentitled to relief for a Brady violation and being entitled merely to receive the evidence.” (Barnett, at p. 901.) Johnson argues the prosecution will be obligated to disclose any evidence from officer personnelfiles that meets that statutory standard for disclosure. The Penal Code section 1054.1, subdivision (e) disclosure requirements are notat issue in this writ proceeding, and nothingin this opinion is intended to address the scope of the prosecution’s obligations underthat statute. 31 employed, with the prosecutor performing the review ratherthan thetrial court. Of course, as always, the prosecution bearsthe risk of reversalif the adopted proceduresare inadequate and Brady material is not disclosed. (Rose, at p. 1007.) In any event, because | Brady requires that exculpatory evidence within officer personnelfiles be disclosed, petitioners’ position would notresult in any fewerfiles being reviewed; it would simply result in those files being reviewed by the court. | V. The Federal Cases Cited by Petitioners Do Not Support the Requested Shift in Responsibilityfor Performing Initial Brady Reviews _ As discussed above,petitioners seek to routinely shift responsibility for performingtheinitial Brady materiality review of officer personnelfiles from the prosecutor to the trial court. None of the cases cited by petitioners supports such a routine shift of the Brady obligationto trial courts. A. The Ritchie Decision | In Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie), the defendant, charged with molesting his daughter, served a subpoena seeking disclosure of confidential reports prepared by thechild protective services agency that investigated the charges. (Jd. at p. 43.) The agency refused to comply with the subpoenaon thebasis the records were privileged understate law. (Ibid.) As describedin Ritchie, the applicablestatute provided that child abuse reports “ ‘ shall be confidential and shall only be made available to’ ” specified entities, including “ ‘[a] court of competentjurisdiction pursuant to a court order.’ ” (Id. at p. 44, fn. 2.) The Pennsylvania Supreme Court held the defendant’s attorney wasentitled to review the files for relevant evidence. (Id. at p. 46.) The United States Supreme Court reversed. The court rejected the prosecution’s argumentthat the reports were not subjectto disclosure even if they were material within the meaning of Brady. (Ritchie, supra, 480 U.S. at p. 57.) Ritchie reasonedthat state law permitted disclosure pursuantto a court order, and, therefore, the reports could be disclosed “when a court of competentjurisdiction determines that the informationis ‘material’ to the defense of the accused.” (Id. at p. 58.) The court held the defendant “is entitled to have the [protective services agency] file reviewed bythetrial court to 32 determine whetherit contains information that probably would have changed the outcomeofhistrial. If it does, he must be given a new trial.” (Ibid.) However, Ritchie cautionedthat the defendant could not “require the trial court to search through the [agency’s] file without first establishing a basis for his claim that it contains material evidence.” (Id. at p. 58, fn. 15; see also Brandon, supra, 29 Cal.4th at p. 15.) The court also held the defendant’s “right to discover exculpatory evidence” under Brady did not require that his counsel be permitted to search through the protective services agency’s files. Ud. at p. 59.) Petitioner SF Police Departmentasserts Ritchie stands for the proposition that courts may be “enlisted to use in camera review tostrike the careful balance between a defendant’s access to Brady evidence andstate law protections for privacy or confidentiality.” However, Ritchie emphasizedthat, absent a specific request from the defendant, initial Brady materiality reviews are performedbythe prosecution alone. (Ritchie, supra, 480 U.S. at p. 60.) Thus, the court explained, “In the typical case where a defendant makesonly a general request for exculpatory material under [Brady], it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and bringsit to the court’s attention, the prosecutor’s decision on disclosure is final.” (Ritchie, at p. 59, fn. omitted.) It appears Ritchie ’s decision to remandfor in camera review bythetrial court was due to the fact that the defendant had made a motion requesting specific exculpatory evidence that he had reasonto believe existed, thus making the case unlike the “typical case[.]” . (Ibid.) Aspertinent to the present case, we understand Ritchie to support at most only the proposition that it may be appropriate for a court to conduct in camera Brady review of confidential files for specific exculpatory evidence requested by a defendant. This is the understanding adopted by Brooks, supra, 966 F.2d 1500, which concludedthat, under Ritchie, “prosecutorial review of possible Brady materials”is “normally sufficient,” and in camera review is reserved “for cases where the defense had become‘awarethat... exculpatory evidence was withheld’, [citations].” (Brooks, at p. 1505; see also U.S.v. 33 Caro-Muniz(1st Cir. 2005) 406 F.3d 22, 30 [“When a defendantfails to present a narrowlytailored and specific request, Brady places the burden of disclosing evidence favorable to the defendant on the government, not on the court.”].) U.S. v. Prochilo (Ast Cir. 2011) 629 F.3d 264, 268, adopted the same understanding of Ritchie, summarizing the rule as follows: “The governmentis primarily responsible for deciding what evidence it must disclose to the defendant under Brady. [Citation.] And at least where a defendant has made only a general request for Brady material, the government’s decision about disclosure is ordinarilyfinal—unless it emergeslater that exculpatory evidence was not disclosed. [Citation.] When the defendant seeks access to specific materials that the government maintains are not discoverable under Brady, however, a trial court may in some instances conduct an in camera review of the disputed materials. [Citations.] To justify such a review, the defendant must make some showingthat the materials in Accordingly, nothing in Ritchie suggests that, merely because informationis of a question could contain favorable, material evidence. [Citations.].” sensitive nature, the prosecution may compela trial court to conduct the review for Brady materials in the first instance, particularly where the prosecution may accessthosefiles and conduct its own review for Brady materials. In other words, Ritchie is a case. regarding a defendant’s motion to obtain discovery of specific, identified potential Brady materials; it is not a case about procedures for the prosecution to comply with its own Brady obligations. B. Petitioner’s Additional Federal Cases Petitioners cite a handful of federal cases, which the District Attorney asserts _ demonstrate that “[nJumerous courts, including the United States Supreme Court, have also recognized that an in camera hearing is the appropriate vehicle to review documents for Brady material.” As the court in Application ofStorer Communications, Inc. (6th Cir. 1987) 828 F.2d 330 (Storer), explained, “Several courts of appeals have approvedthe practice of prosecutors submitting possible Brady materials in camera to the trial court in order to obtain a pretrial determination of whetherdisclosure is required. [Citations.]” (Storer, at p. 334, citing United States v. Tucker (7th Cir.1985) 773 F.2d 136, 141; United 34 States v. Dupuy (9th Cir.1985) 760 F.2d 1492, 1501 (Dupuy); and United States v. Holmes, supra, 722 F.2d at p. 41.) Similarly, in United States v. Agurs (1976) 427 U.S. 97 (Agurs), the United States Supreme Court stated in passing, “Althoughthere is, of course, no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor, if the subject matter of such a request is material, or indeed if a substantial basis for claiming materiality exists, it is reasonable to require the prosecutor to respond either by furnishing the information or by submitting the problem to the trial judge.” (Agurs, at p. 106,italics added.) Petitioners’ federal decisions do not support their request for an initial judicial Brady materiality review. Some of the cases involve defendant-initiated requests for particular exculpatory evidence (U.S. v. Kiszewski (2d Cir. 1989) 877 F.2d 210; U.S. v. Phillips (7th Cir. 1988) 854 F.2d 273),” which, as explained previously, is not the same as a scheme under whichthe prosecution routinely submits potential Brady materials for trial court review. Other cases have suggested that court review is particularly appropriate where confidentiality issues are involved. For example, in Dupuy, supra, 760 F.2d at page 1501, the prosecutor took notes of separate plea negotiations with two co- defendants. The prosecutor promised the negotiations would remain confidential, but she subsequently decided the notes contained potential Brady material. (Dupuy, at p. 1501.) She submitted the issue to the trial court, which Dupuy stated “satisfied her duty to disclose exculpatory material.” (Ibid.; but see id. at p. 1504, Ferguson,J., concurring [““The constitutional duty to disclose articulated in [Brady], however, never shifts from the prosecution to the court.”].) Dupuy proceededto hold the trial court erred in failing to _ conduct an in camera review ofthe notes. (/d. at p. 1502.) Dupuy commented, “fcjonsultation with the judge is particularly appropriate when the Government has legitimate reasons for protecting the confidentiality of the material requested, for thetrial judge can then weigh the Government’s need for confidentiality against the defendant’s 22 Brooks, supra, 966 F.2d 1500, described Kiszewski as a case in which in camera review wasjustified because “the defense had become‘awarethat . . . exculpatory evidence was withheld’, [citations].” (Brooks, at p. 1505.) 35 need to use the material in order to obtain a fair trial.” (/d. at p. 1501; see also Phillips at p. 278.)”° However, that there may be someroleforthe trial court in assisting prosecutors to makedifficult determinations about the materiality of specific items of evidence, particularly where there are confidentiality concerns, does not mean prosecutors may obligate the trial court to perform an extensiveinitial Brady review, as opposed to reviewing particular documents identified by the prosecutor. Oneof the cases petitioners cite, Holmes, supra, 722 F.2d 37, clarified the responsibility for performing aninitial Brady review remained with the prosecution, noting: “We:'add, however, that we think | that the district court was correct in ruling that it had no obligation to conduct a general Brady-rule in camera search throughthefiles of the prosecutor when the prosecutor had assured the district court that all possibly exculpatory material had been produced. Of course it would bethe prosecutor’s obligation to submit any material to the district court in camera if he had any doubts about whetherit might be exculpatory. The district court, however, generally does not know the government’s theory of the prosecution nor what possible defense might be available to defendants, and thusit is unlikely that it would recognize in a general incamera search anything but the most obviouslyexculpatory data.” (Holmes,at p. 41.) | VI. ‘The Other California Cases Cited by Petitioners Do Not Support the Requested Shift in Responsibilityfor Performing Initial Brady Reviews A. J.E. v. Superior Court The recent decision in J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, isa California case involving a Ritchie-type request by a defendant(in J.E., ajuvenile) for °3 It is unclear what confidentiality interest could justify the withholding of evidence that meets Brady’s materiality standard,but that is an issue we need notresolve in the present case. As Judge Ferguson explained in his concurrence in Dupuy, “the Brady decision has already identified where the Fifth Amendmenthasstruck the balance between the suppression or disclosure of material exculpatory information requested by the defendant. Brady teachesthat a trial in which the prosecution withholds material exculpatory information. . . is not a fair trial.” (Dupuy, supra, 760 F.2d at p. 1504, Ferguson,J., concurring.) 36 disclosure of specific, potentially exculpatory evidence. In J.E., a minor who wasthe subject of delinquency proceedings requested that the juvenile court conduct an in camera inspection of a prosecution witness’s juvenile dependencyfile for Brady material. (J.E., at p. 1332.) J.E.’s counsel “offered to provide specific information supporting the request ‘off the record or underseal.’ ” (Id. at p. 1333.) The request was made pursuant to Welfare and Institutions Code section 827, which allows a juvenile court to release information from juvenile files. The juvenile court refused, ruling the prosecutor should undertake the Brady review. (J.E., at p. 1332.) Thereafter, the prosecutor reviewed the records and informed the minor’s counsel there was no Brady material. (J.E., at pp. 1333-1334.)** The minor’s counsel renewed her request that the juvenile court conduct a Brady review,and the court again refused. (J.E., at p. 1334.) Citing Ritchie, the J.E. court issued a writ of mandate directing the juvenile court to conduct the requested Brady review “upon a showing there is a reasonable basis to believe exculpatory or impeachmentevidenceexists in” the juvenile records at issue. (J.E., at p. 1339.) J.E. stated that procedure made “practical sense” because it “eliminates the need for the prosecution to request court permission for disclosure after its Brady review, and forestalls litigation brought by the defense overwhether the prosecution has complied with its Brady obligations.” (J.E., supra, 223 Cal.App.4th at p. 1339.) Nevertheless, J.E., like Ritchie and unlike the present case, involved a request by a defendant(or juvenile) for judicial Brady review for specific exculpatory evidence.” Although J.E. held that a juvenile is entitled to judicial Brady review “upon a showingthere is a’ a4 The statutory scheme authorized the prosecutor to access juvenile records (Welf. & Inst. Code, § 827, subd. (a)(1)(B)), but prohibited the prosecutor from disclosing the information to an unauthorized person without a court order. (Welf. & Inst. Code, § 827, subd. (a)(4), (5); J-E., supra, 223 Cal.App.4th at p. 1337.) In the present case, Johnson filed a separate motion for Brady material, but petitioners do not argue Johnson soughtspecific exculpatory evidence the prosecution had failed to disclose. We need not and do not addressin the present case what showing a defendant would be required to makein order to obtain judicial Brady review of files in the possession of the prosecution team. (See J.E., supra, 223 Cal.App.4th at pp. 1333, 1339 [adopting “reasonable basis” test for such a request in the context ofjuvenile records].) 37 reasonable basis to believe exculpatory or impeachment evidenceexists in”the files (J.E., at p. 1339), J.E. did not suggest the prosecutor could compel the juvenile court to perform the initial Brady review. Instead, absent such a request from the juvenile, the prosecutor “request[s] court permission for disclosure after its Brady review.” (Ibid.) Although “policy and practical considerations”(id. at p. 1334) may have provideda justification for thejudicial Brady review in that case, it did not, unlike our case, involve any shifting of the prosecutor’s constitutional obligation to identify materials for disclosure under Brady. Because in any given case the prosecutoris in a better position to perform the Brady materiality review than thetrial court (see Part IV.E., ante), we do not believe that considerations of policy and pragmatism are a sufficient basis to support the shift in responsibility requested by petitioners, especially because reasonable policy arguments can be madein favor of both approaches. B. Other California Cases The California Supreme Court in Brandonheldthata trial court that conducts an in camera review of officer personnelfiles pursuant to a defendant’s motion under Section 1043 mayorder the disclosure of materialin thefiles that is discoverable under Brady but not under Pitchess. (Brandon, supra, 29 Cal.4th at p. 15.) In that case, the information at issue was a 10-year old citizen complaint against an officer. (Ibid.) Brandonheld the court “did not act improperly in evaluating” the complaint, but cautioned, “[w]e do not suggest that trial courts must routinely review informationthatis contained in peace officer personnelfiles and is more than five years old to ascertain whether Brady, supra, 373 U.S. 83, requires its disclosure.” (Brandon,at p. 15, fn. 3.) - Brandon did not suggest the prosecution could require the trial court to undertake an initial Brady materiality review under Sections 1043 and 1045. Petitioners are also mistakenin suggesting the California Supreme Court’s decision in People v. Hammon (1997) 15 Cal.4th 1117 supports the requested judicial. Brady review. In Hammon, the Supreme Courtheld thetrial court properly quashed a subpoena duces tecum the defendantserved on the victim’s psychotherapists, without first conducting an in camera review of the material. (Hammon,at p. 1119.) The court 38 held “the trial court was not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the handsof third party psychotherapy providers.” (Ibid.) Hammonalso rejected the defendant’s claim the information he sought was “in the government’s possession within the meaning of” Ritchie and Brady. (Hammon,at p. 1125, fn. 3.) In essence, Hammon is a case about a defendant’s request for pretrial discovery from a third party; the decision includes no broad pronouncements abouttherole of the trial court in the Brady review or disclosure process. Noneofpetitioners’ other cases compelthis court to rule in favor of the judicial Brady review petitioners seek. As we explained previously, we disagree with Gutierrez, supra, 112 Cal.App.4th 1463, and Abatti, supra, 112 Cal.App.4th 39, to the extent they conclude Section 832.7(a) precludes prosecutorial access to officer personnelfiles for Brady purposes.”° Neither Garden Grove Police Department v. Superior Court (2001) 89 Cal.App.4th 430, 433-435 (Garden Grove) nor Eulloqui v. Superior Court (2010) 181 Cal.App.4th 1055, 1068 (Eulloqui) holds that Section 832.7(a) precludes prosecutorial accessto officer personnelfiles, or that prosecutors may shift to the trial court the responsibility for identifying Brady materials in such files. Garden Grove supports a conclusion that Section 1043 should be usedto obtain disclosure to the defense of Brady materials in officer personnel files, which is the issue to which we now turn.”’ *6 Wealso disagree with Gutierrez’s assertion that, “if a defendant meets the good cause requirementfor Pitchess discovery, any Brady material in an officer’s file will necessarily be included.” (Gutierrez, at p. 1474.) Gutierrez fails to consider certain respects in which Pitchess discovery of officer personnelfiles is narrower than Brady discovery. (See Neri, supra, 43 McGeorge L.Rev. at pp. 312-314.) For example, Pitchess discovery does not encompass “complaints concerning conduct occurring more than five years before”the events underlying the criminal case (§ 1045(b)(1)), while Brady discoveryis not so time limited. (Brandon, supra, 29 Cal.4th at p. 14.) Furthermore, under Pitchess courts have generally required only the disclosure of“the name, address and phone numberof any prior complainants and witnesses and the dates of the incidents in question.” (City ofSanta Cruz, supra, 49 Cal.3d at p. 84.) The Brady disclosure obligation has no such limitation. 7 ‘In People v. Davis (2014) 226 Cal.App.4th 1353, 1361, thetrial court granted the prosecutor’s postjudgment motion under Sections 1043 and 1045 for in camera Brady 39 VII. The Prosecution Must File a Motion Under Section 1043 To Disclose Brady Materialin Officer PersonnelFiles to a Defendant ' Having decided that Section 832.7(a) does not prevent the prosecutor from . complying with its constitutional obligation to identify Brady material in officer personnelfiles, we address the secondissue: is the prosecution permitted to disclose the. Brady material without seeking permission from thetrial court, or must the prosecution file a motion under Section 1043 to obtain court authorization for the disclosure to the defense? In its order, the trial court concluded flatly that “Evidence Code § 1043 et seq. does not apply to Brady.” (Bolding omitted.) The court directed the SF Police Department to give the District Attorney access to the relevant officer personnel files, and indicated a willingness to conduct an incamera review only “[i]f a close question nonetheless remains as to whether information in a specific document or documents should be disclosed under Brady[.)* Onthe other hand,the petitioners argue that . disclosure of information from personnel files may only be made through a motion under Section 1043. | The plain language of Section 832.7(a) and Section 1043 compels the conclusion that any disclosure to the defendant mustbe pursuantto a motion under Section 1043. The relevant language in Section 832.7(a) is that peace officer personnel records “shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046ofthe Evidence Code.”” No party suggests any reasonable construction of that language under which disclosure of Brady material from a personnel file to a criminal defendantis not a disclosure of personnelrecords in a criminal review ofa police officer’s personnel file. However, the issue in the case was whether the defendant could appeal from thetrial court’s determination there were no Brady materials in the file (id. at p. 1365); the propriety of the prosecutor’s motion wasnot at _ issue. , 8 The superior court’s return appears to take the same position. The return several times identifies the issue narrowly as whether Sections 1043 and 1045 mandate the court “to search through police officer files for ‘Brady materials.’ ” But elsewhere it asserts morebroadly that “the procedures of [Sections 1043 and 1045] do not apply to a motion made under Brady.” ” Evidence Code section 1046 is not applicable. (See page 9, fn. 10, ante.) 40 proceeding. The relevant language in Section 1043, subdivision (a) (Section 1043(a)) requires a motion underthe section “[i]n any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuantto Section 832.5 of the Penal Code or information from those records[.]” Again, no party suggests any reasonableconstruction ofthat language under which disclosure of Brady material from an officer personnel file to a criminal defendant is not a disclosure within the scope of Section 1043(a). Accordingly, the relevant language in Section 832.7(a) and Section 1043(a) is not ambiguous, and “its plain meaningcontrols.” (Los Angeles County Metropolitan Transportation Authority v. Alameda Produce Market, LLC (2011) 52 Cal.4th 1100, 1107.) Werecognize, of course, that “ ‘ “language of a statute should not be given a literal meaning if doing so would result in absurd consequences whichthe Legislature did not intend.” ’” (People v. Ledesma (1997) 16 Cal.4th 90, 95.) We also recognize that Section 1043 is in some ways an awkward fit with a motion to disclose Brady material. For example, Section 1043, subdivision (b)(3) requires the movantto provide an affidavit “showing good causefor the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pendinglitigation and stating upon - reasonable belief that the governmental agencyidentified has the records or information from the records.” That standard of materiality—materiality “to the subject matter involved in the pendinglitigation”—is broader than the Brady standard. The “narrower” Brady standard tests “whether evidence is materialto the fairness oftrial[.]” (Brandon, supra, 29 Cal.4th at p. 10.) Nevertheless, we do notread that language as requiring the trial court to use the Pitchess materiality standardin resolving a motion for disclosure of Brady materials; the Brady materiality standard would apply inestablishing “good cause.” Anotherprovision thatfits imperfectly with Brady disclosure is to be found in Section 1045. As noted previously, Section 1043 operates in conjunction with Section 1045: Section 1043 is “only the first hurdle in the discovery process,” and Section 1043’s “relatively low” discovery threshold is “offset” by the “protective provisions” in 41 Section 1045. (City ofSanta Cruz, supra, 49 Cal.3d at p. 83.) Section 1045, subdivision (b)(1) requiresthetrial court to exclude from disclosure records concerning conduct occurring more than five years before the events underlying the criminal case. In contrast, Brady does not exempt conductolder than five years from its disclosure obligations. (Brandon, supra, 29 Cal.4th at pp. 14-15.) Nevertheless, Brandon concludedthe provision wasnot “an absolute bar to disclosure” of older Brady materials. (Brandon,at p. 13.) There, the court heldthat a trial court considering a defendant’s Section 1043 discovery motion could order disclosure of a ten-year-old record of police misconductthat is material under Brady, despite Section 1045, subdivision (b)(1). (Brandon,at pp. 13-15.) In reaching that conclusion, Brandon expressed agreement with the Attorney General’s contentionthat “the ° “Pitches process” operates in parallel with Brady and doesnotprohibit the disclosure of Brady information.’ ” (Brandon,at p. 14; see also Gutierrez, supra, 112 Cal.App.4th at pp. 1473-1474; Abatti, supra, 112 Cal.App.4th at p. 43;Garden Grove, supra, 89 Cal.App.4th at pp. 434-435.) Other provisions in the Pitchess schemethat are protective of officer privacy are consistent with a motion for disclosure of Brady material. Section 1043(a) requires that the officer whose records are sought receive notice of the motion for disclosure. (See also Abatti, supra, 112 Cal.App.4th at p. 56.) Furthermore, Section 1045 contains provisionsfor optional and mandatoryprotective orders. Thus, Section 1045, subdivision (d) authorizes the court, upon motion, to “make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.”*” And Section 1045, subdivision (e) requires thetrial court to “order that the records disclosed or discovered may not be used for any purpose other than a court *0 Section 1045, subdivision (d) providesin full: “Upon motion seasonably made by the governmental agency which has custody or control of the records to be examined or by the officer whose records are sought, and upon good cause showingthe necessity thereof, the court may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassmentor oppression.” 42 proceeding pursuantto applicable law.””! (See also Alford, supra, 29 Cal.4th at pp. 1039-1043.) These provisions provide added protection for officer privacy by regulating the use and further disclosure of materials disclosed pursuant to a Section 1043 motion. In particular, Section 1045, subdivision (e)’s mandatory protective order “carefully balances peace officers’ privacy interests in their personnel records against defendants’ rights of access to information relevantto their defense[.]” (Alford,at p. 1042.) Weconcludethat, despite the awkwardfit between some language in Sections 1043 and 1045 and a request for disclosure of Brady materials, giving effect to the plain statutory language requiring a Section 1043 motionto obtain disclosure of information from officer personnel files in a criminal proceeding does not produce an absurd result contrary to Legislative intent. (People v. Ledesma, supra, 16 Cal.4th at p. 95.) As explained previously (Part IV.B., ante), the Legislature’s intent in enacting the statutory Pitchess procedures wasto protect officer personnel files from public disclosure, and to specify a procedure for discovery of information in such files: (See San Francisco Police Officers’ Assn. v. Superior Court, supra, 202 Cal.App.3d at pp. 189-190.) Although there is no indication the Legislature specifically had in mind disclosures required under Brady, extending the privacy protections provided in Section 1043 andSection 1045 to Brady disclosure is wholly consistent with the Legislature’s intent.” Ourconclusion that the prosecution mustfile a motion under Section 1043 to | disclose to the defendant the Brady materials it has identified should not be construed to meanthat it would be properfor a trial court to decline to disclose materials that must be 3 Section 1045, subdivision (e) providesin full: “The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or custodial officer records requested pursuant to Section 1043, order that the records disclosed or discovered may not be usedfor any purposeother than a court proceeding pursuantto applicable law.” % In Alford, the California Supreme Court concluded the prosecution did not have a right to receive Pitchess materials disclosed pursuant to a defendant’s Pitchess motion. (Alford, supra, 29 Cal.4th at p. 1046.) Alford did not, however, preclude the possibility that a party could file a Section 1043 motion for disclosure of materials from personnel files to all parties in the case. Neither does the language of Section 1043 preclude such a motion. 43 disclosed under Brady in reliance on limitations on disclosure in Sections 1043 or 1045. As explained previously, under Brandon, supra, 29 Cal.4th at pages 13-15, the five-year limitation on Pitchess disclosure does not preclude broader Brady disclosure. Eulloqui, supra, 181 Cal.App.4th at page 1065, construed Brandon to support the broader proposition that “if materiality under the more stringent Brady standard is shown, the statutory restrictions pertaining to the Pitchess procedureare inapplicable[citation]; but if the defendant only shows materiality under the less stringent Pitchess standard, the statutory limitations apply [citation].” We agree. The SupremeCourthas also characterized Sections 1043 and 1045 as guaranteeing “a balancing of the officer’s privacy interests against the defendant’s need for disclosure.” (City ofSanta Cruz, supra, 49 Cal.3dat p. 84,italics added; accord Alford, supra, 29 Cal.4th at p. 1039.) The disclosure of Pitchess materials may involve such a balancing, but we are aware of no authority that exculpatory material in officer personnelfiles subject to disclosure under Brady’s federal constitutional requirements may be exempted from disclosure due to privacy considerations. (See Dupuy, supra, 760 F.2d at p. 1504, Ferguson, J., concurring.) For example, in Ritchie, supra, 480 U.S.at . page 58, the United States Supreme Court held, despite the conditional privilege accorded child abuse reports, the defendant wasentitled to receive any information that met the Brady materiality standard; the court did not suggest there was any need to balance the defendant’s need for the information with the privacy interests involved. Accordingly, in the Brady context, the main practical consequenceof requiring a Section 1043 motion for disclosure appears to be the provision of notice to the impacted officers and an opportunity for the issuance of appropriate protective orders. The disclosure determination does notitself require a balancing of officer privacy interests.*° 3 Becausewedo notconstrue Sections 1043 or 1045 as precluding disclosure of evidence that meets Brady’s materiality standard, we need not address whether the Legislature could constitutionally prohibit disclosure of such material based on considerations such as privacy. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 509; In re Smith, supra, 42 Cal.4th at p. 1269.) 44 In sum, although the prosecution has the obligation to identify evidencein officer personnelfiles that meets the Brady materiality standard, a motion under Section 1043 is required to disclose the Brady material to the defendant. VII. Conclusion Thetrial court did noterr in refusing to undertake a Brady review of the materials identified by the SF Police Department, where the prosecution had not undertaken such a review andidentified for the court the documents it believed met Brady’s materiality standard. Section 832.7(a) does not preclude prosecutorial access forBrady review, and Brady andits progenyallocate responsibility for compliance on the prosecution. As emphasized by our high court in Brown, supra, 17 Cal.4th at page 883, “Although rigorous, we do notperceive the duty imposed by Brady as too onerous. [Citation.] ‘Obviously some burden is placed on the shoulders of the prosecutor when heis required to be responsible for those persons whoare directly assisting him in bringing an accused to justice. But this burdenis the essence of dueprocess of law. It is the State that tries a man, andit is the State that must insure thatthe trial is fair.” [Ciation.] This obligation serves ‘to justify trust in the prosecutor as “the representative . . . of a sovereignty . . whoséinterest . . . in a criminal prosecutionis not that it shall win a case,but that justice shall be done.” ’ [Citations.] It also tends ‘to preserve the criminaltrial, as distinct from the prosecutor’s private deliberations [or some other agency’s independent assessmentof materiality], as the chosen forum for ascertaining the truth about criminal accusations. [Citations.]’ [Citations.]” We do notdecide that the prosecution must conduct a review .of the personnelfile of every officer witness. And, as noted previously, we do not preclude the District Attorney and the SF Police Department from devising their own 4 Petitioners devote a substantial portion of their briefing in this writ proceeding to the contention that the trial court imposed the wrong “good cause”standard for obtaining in camera review under Section 1043. We need notreach that issue, becausethetrial court correctly determined Section 832.7(a) did not bar prosecution accessto the personnelfiles for Brady purposes. That initial prosecutorial review may render immaterial any future dispute regarding the good cause standard, because the prosecution, having seen the documentsit seeks to disclose, should be able to make the required showing regardless of the standard. 45 procedures for Brady compliance, including a process similar to the current process, but with the prosecutor utilizing the pool of documents selected by the SF Police Department to identify Brady materials. (See Rose, supra, 226 Cal.App.4th at pp. 1006-1007.) Of course, regardless of the procedure devised, the prosecutor remains ultimately responsible for complying with Brady. (Rose, at p. 1007.) Prosecutorial access to officer personnelfiles for Brady purposes does not threaten the privacy interests protected by Section 832.7(a), where the officer witnesses are membersof the prosecutorial team led by the prosecutor directing the review, and the review itself does not entail disclosure of information from the files outside the prosecution team. Thelegislative history showsclearly that the Legislature was concerned with public disclosure of information from officer personnelfiles. We are aware of nothing in the legislative history suggesting the Legislature intended to prevent prosecutors from inspecting officer personnel files for Brady purposes or to otherwise dictate the manner in which Brady materials in an officer’s personnel files may be identified. (See Part [V.B., ante; Neri, supra, 43 McGeorge L. Rev. at pp. 304, 309.) The Legislature’s interests in protecting officer privacy are fully preserved by our _ conclusionthat the prosecution must bring a motion under Section 1043to disclose Brady material in officer personnel files to the defendant. DISPOSITION The petitions for writ of mandate/prohibition are denied in part and grantedin part. Let a peremptory writ of mandate issue, directing the San Francisco Superior Court to modify its January 7, 2014 “Order te Brady Motions”to provide that, if the San Francisco District Attorney identifies any evidencein the San Francisco Police Departmentpersonnelfiles for Officers Dominguez and Carrasco that should be disclosed to defendant Johnson under Brady v. Maryland (1963) 373 U.S. 83, the District Attorney shall file a motion under Evidence Codesection 1043 to obtain such disclosure. In all other respects, the writ petitions are denied. The previously imposedstayoftrial in defendant Johnson’s criminal case shall dissolve upon issuance of the remittitur. 46 Simons, Acting P.J. Weconcur: Needham,J. Bruiniers, J. A140767, A140768 47 Superior Court of the City and County of San Francisco, No. 12029482, Richard B. Ulmer,Jr., Judge. George Gascén, San Francisco District Attorney, Jerry P. Coleman, Laura vanMunching, Allison G. Macbeth, Assistant District Attorney for Petitioner and Real Party In Interest the People. Dennis J. Herrera, San Francisco City Attorney, Christine Van Aken for Petitioner City and County of San Francisco. Nina D. Sariaslani, SFPD Legal Division Attorney, for Petitioner San Francisco Police Department. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Seth K. Schalit, Supervising Deputy Attorney General, for California Attorney General as Amicus.Curiae on behalf of Petitioner and Real Party In Interest the People. Gregory D. Totten, District Attorney (Ventura County), Michael D. Schwartz, Special Assistant District Attorney as Amicus Curiae on behalf of Petitioner and Real Party In Interest the People. Rains Lucia Stern, Michael L. Rains for Peace Officers’ Research Association of California (PORAC), The PORAC Legal Defense Fund, and The San Francisco Police Officers’ Association as Amicus Curiae on behalf of Petitioner and Real Party In Interest the People. . | Nancy E. O’Malley, District Attorney (Alameda County), Jeff Rubin, Senior Deputy District Attorney for Appellate Committee of the California District Attorneys Association as Amicus Curiae on behalf of Petitioner.and Real Party In Interest the People. Jeffrey F. Rosen, District Attorney (Santa Clara), David A. Angel, Assistant District Attorney as Amicus Curiae for Petitioner and Real Party In Interest the People. Sedgwick, Michael L. Fox for Respondent. Jeff Adachi, Public Defender, Matt Gonzalez, Chief Attorney, Christopher Gauger, Deputy Public Defender for Real Party in Interest Daryl Lee Johnson. A140767, A140768 48 PROOF OF SERVICE I, HOLLY CHIN,declare as follows: I am a citizen of the United States, over the age of eighteen years and not a party to the above-entitled action. I am employedat the City Attorney’s Office of San Francisco, City Hall, 1 Dr. Carlton B. Goodlett Place, Room 234, San Francisco, CA 94102. On September 18, 2014, I served the following document(s): PETITION FOR REVIEW _ on the following persons at the locations specified: [PLEASE SEE ATTACHED SERVICELIST] in the mannerindicated below: XI BY UNITED STATES MAIL: Following ordinary business practices, I sealed true and correct copies of the above documents in addressed envelope(s) and placed them at my workplace for collection and mailing with the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's Office for collecting and processing mail. In the ordinary course of business, the sealed envelope(s) that I placed for collection would be deposited, postage prepaid, with the United States Postal Service that same day. BY ELECTRONIC MAIL: Based on a court order or an agreement ofthe parties to accept electronic service, I caused the documents to be sent to the person(s) at the electronic service address(es) listed above. Such document(s) were transmitted via ctronic mail from the electronic address: holly.chin@sfgov,org in portable document format ("PDF") Adobe Acrobator in Word document format. I declare underpenalty of perjury pursuant to the laws of the State of California that the foregoingis true and correct. Executed September 18, 2014, at San Francisco, California. AFL HOLLY CHIN PETITION FOR REVIEW n:\govlit\li2014\150248\00957834.doc SERVICE LIST Michael L. Fox, Esq. Sedgwick LLP 333 Bush Street, 30th Floor San Francisco, CA 94104-2834 Telephone: (415) 627-1450 Facsimile: (415) 781-2635 Email: Michael.fox@sedgwicklaw.com [Counsel for Respondent Superior Court] Office of the Public Defender Christopher Gauger Stephanie Lacambra Deputy Public Defenders 555 Seventh Street San Francisco, CA 94103-1221 [Counsel for Real Party in Interest Daryl Lee Johnson] First Appellate District Project 730 Harrison Street, Suite 201 San Francisco, California 94107 California Court of Appeal First Appellate District, Division 5 350 McAllister Street San Francisco, CA 94102 [Via E-Submission pursuant to CRC 8.44] PETITION FOR REVIEW George Gascon, District Attorney Jerry Coleman Special Assistant District Attorney Laura vanMunching ManagingAssistant District Attorney James R. Thompson Allison G. MacBeth AssistantDistrict Attorneys 850 BryantStreet, Suite 322 San Francisco, CA 94103 [Counsel for Petitioner People of the State of California] Kamala D. Harris Attorney General of California Gerald Engler - Seth Shalit Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 [Counsel for Real Party in Interest People of the State of California] NinaSariaslani San Francisco Police Department Legal Division 850 Bryant Street, Room 575 San Francisco, CA 94103 [Counsel for Petitioner San Francisco Police Department] _ Judge Richard B. Ulmer,Jr. San Francisco County Superior Court Hall of Justice 850 Bryant Street, Dept. 306 San Francisco, CA 94103 n:\govlit\i2014\1 50248\00957834.doc
