PEOPLE v. S.C. (JOHNSON) (and consolidated case)Petitioner’s Petition for ReviewCal.September 18, 2014 S§221296 SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF Case No. L A, . Lo. CALIFORNI First Appellate District, eae Division Five Petitioner, No. A140767/ A140768 vs Consolidated Cases ° Superior Court No. 12029482 THE SUPERIOR COURT OF SCN 221362 CALIFORNIA, COUNTY OF SAN FRANCISCO STAY REQUESTED , On calendaron October 14, 2014 to set jury trial Respondent. Hon. Bruce Chan (415) 551-0322 oO DARYL LEE JOHNSON, SUPREME COURT Ful PP) RealParty in Interest. SEP 18 2014 PETITION FOR REVIEW Hon. Richard B. Ulmer,Jr. Frank A. McGuire Clerk Deput (415) 551-3846 epury GEORGE GASCON[SBN 182345] District Attorney of San Francisco JERRY P. COLEMAN[SBN 78744] Special Assistant District Attorney LAURA L. vanMUNCHING[SBN 142419] Managing Assistant District Attorney JAMESR. THOMPSON[SBN 191413] Assistant District Attorney ALLISON G. MACBETH[SBN 203547] Assistant District Attorney 850 Bryant Street, Rm. 322 _ San Francisco, California 94103 Telephone: (415) 553-1488 (Macbeth) (415) 551-9577 (vanMunching) FAX: (415) 575-8815 Attorneysfor Petitioner & Real Party in Interest The People of the State of California SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THESTATE OF Case No. CALIFORNIA, First Appellate District, Petitioner Division Five > No. A140767/ A140768 vs Consolidated Cases ° Superior Court No. 12029482 THE SUPERIOR COURT OF SCN 221362 ALIFORNIA, COUNTY OF SAN FOANCISCO STAY REQUESTED , On calendar on October 14, 2014 | to set jury trial Respondent. Hon. Bruce Chan (415) 551-0322 DARYL LEE JOHNSON, RealParty in Interest. PETITION FOR REVIEW Hon. Richard B. Ulmer,Jr. (415) 551-3846 GEORGE GASCON[SBN 182345] District Attorney of San Francisco JERRY P. COLEMAN[SBN 78744] Special Assistant District Attorney LAURA L. vanMUNCHING[SBN 142419] Managing Assistant District Attorney JAMES R. THOMPSON[SBN 191413] Assistant District Attorney ALLISON G. MACBETH[SBN 203547] Assistant District Attorney 850 Bryant Street, Rm. 322 San Francisco, California 94103 Telephone: (415) 553-1488 (Macbeth) (415) 551-9577 (vanMunching) FAX: (415) 575-8815 Attorneys for Petitioner & Real Party in Interest The People of the State of California TABLE OF CONTENTS Page TABLE OF CONTENTS 00...eessssssssesssecesceeesceeseeeeeeseenesecscenseeesseenssaesneaes i TABLE OF AUTHORITIESoo.ceesesesccesesceseeeseeseeesceseseneeseeeeeneaesnesnsnees iv ISSUES ON REVIEWuu... ecsceecsssessesecssensseceessecsceeecscnsnesecseneeeesneensaeseasneens 2 APPROPRIATENESSOF REVIEW ..0.....sessscssssscecceseesseeeeseeseeeeetseeneseeacees 3 FACTUAL AND PROCEDURAL BACKGROUND...eisssstsesteeeteees 3 ARGUMENT 0.0cceccsseessstccsctccencseeesesscesceessceasesenssaescsesseeessceessetacasenseneeas 8 I. REVIEW SHOULD BE GRANTED BECAUSE JOHNSONIS IN DIRECT CONFLICT WITH PUBLISHED DECISIONSLIMITING A PROSECUTOR’S ACCESS TO STATUTORILY PROTECTED PEACE OFFICER PERSONNELFILES FOR THE PURPOSE OF CONDUCTING BRADYREVIEWSOF OFFICER WITNESSES. . 8 A. GUTIERREZ, CONTRARY TO JOHNSON, HELD THAT THE PROSECUTION DOES NOT HAVE ACCESS TO PEACE OFFICER PERSONNEL FILES IN ORDER TO CONDUCTABRADYREVIEW.9 JOHNSONALSO CONFLICTS WITH ABATTI, WHICH CONCLUDED THAT THE PROSECUTION DOES NOT HAVE ACCESS TO REVIEW PEACE OFFICER PERSONNEL FILES FOR POTENTIAL BRADYMATERIAL.......ccccccccssssssssssccceccecsscecssssssscecesevsvssnvsnenees 10 THE DIRECT CONFLICT BETWEEN GUTIERREZAND ABATTI, ON THE ONE HAND, AND JOHNSON, ON THE OTHER, NECESSITATES REVIEW SO THAT THIS COURTMAY SETTLE AN IMPORTANT ISSUE FOR PROSECUTORS AND POLICE STATEWIDE..........sccsccsesscssscecesccssssscnsccecenseesssessscssescssesssssssenes 11 II. UI. TABLE OF CONTENTS,cont. Page REVIEW SHOULD BE GRANTED BECAUSE JOHNSON DISMISSES THE IMPORT OF THIS COURT’S STATEMENTS IN ALFORD, BRANDON, AND MOOC THAT OFFICER PERSONNEL FILES ARE NOT WITHIN THE POSSESSION OF THE PROSECUTION AND THUS THE PROSECUTION MUST COMPLY WITH SECTION1043 ETSEQ. INORDER TO REVIEW PEACE OFFICER PERSONNEL RECORDS OF OFFICER WITNESSES. 0.0...ec cccscsssscseeeceeneseeseacesaseeesaseaseseeseeeees 12 A. THIS COURT’S STATEMENTSIN ALFORD, BRANDONAND MOOC ARE NOTSO EASILY DISMISSED, AS RECOGNIZED BY GUTIERREZ, ABATTI, GARDEN GROVE, GREMMINGER, AND BECERRADA., vu. cssscccssecccesseecesseccessssesssecensasecesseceeesseesessesessacenses 17 B. ALFORD DISAGREES WITH THE AUTHORITY RELIED UPON BY JOHNSONTO CONCLUDE THAT THE PROSECUTION HAS ACCESS TO PEACE OFFICER PERSONNELFILES...............006+- 19 REVIEW IS NECESSARY TO ADDRESS THE IMPORTANT STATEWIDE ISSUE OF WHETHER THE “INVESTIGATION EXCEPTION” UNDER PENAL CODE SECTION832.7, SUBDIVISION (A) BROADLY PERMITS THE DISTRICT ATTORNEY TO REVIEW PEACE OFFICER PERSONNEL RECORDS OF OFFICER WITNESSES FOR POTENTIAL BRADY MATERIAL, EVEN THOUGH THEOFFICER IS NOT THE TARGET OF A CRIMINAL INVESTIGATION.......eee 21 A. REVIEW IS NECESSARY TO DETERMINE WHETHER OFFICER PERSONNEL RECORDS ARE CONFIDENTIAL VIS-A-VIS THE PROSECUTOR SEEKING BRADYINFORMATION OF OFFICER WITNESSES. .......ccccccccsssscecessssccssscecsesssecensccssescscsscesseessscsseseees 21 B. REVIEW IS NECESSARY TO DETERMINE WHETHER THE DISTRICT ATTORNEY EXCEPTIONIN SECTION 832.7, SUBDIVISION (A), APPLIES TO REVIEWS OF PERSONNELFILES OF OFFICER WITNESSES..........sccsssssssseseesscessceseeseeeeeseasensenees 24 il TABLE OF CONTENTS,cont. Page ITV. INITIAL JN CAMERA REVIEW BY THE COURT ENSURES CONFIDENTIALITY AND DUE PROCESS AND PRESERVES THE RECORD FOR APPELLATEREVIEW.....00....csecssseseeeeeees 27 CONCLUSION......ceceesescesessssesseeeesnesesasseeeseesccsseseeseseseaesesserseseeosessnasenes 28 CERTIFICATION OF COMPLIANCEoccccccssssesessseeeesestesseseaseeeenees 30 ORDER DENYING PETITION FOR WRIT (COURT OF APPEAL) IN PART ooocssteesesecescseseseeceeseceessesscseessescesseaseesseescessessesessoseseseeeseees 31 ili TABLE OF AUTHORITIES Page Cases Abatti v. Superior Court (2003) 112 Cal.App.4th39.00.passim Alford v. Superior Court (2003) 29 Cal4th 1033 oo... eeeeeeeeeeeeespassim Becerrada v. Superior Court (2005) 131 Cal.App.4th 409 ......... 17, 18, 19 Brady v. Maryland (1963) 373 US.83.......cessecseeseeecsseseeseetssessetsesensaavesoeees 2 City ofLos Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1....... secseseescensesecensensssseaseseneenessasasenseassseaseeesusssssssassaseesesssasesseses 12, 15, 16, 17, 18 City ofSan Jose v. Superior Court (1998) 67 Cal.App.4th 1135.0... 15 County ofSan Diego v. State ofCalifornia (1997) 15 Cal.4th 68 0.0... 24 Fagan v. Superior Court (2003) 111 Cal-App.4th 607.000...cess 25, 26 Garden Grove Police Dept. v. Superior Court (2001) 89 Cal.App.4th 430 beeen ence ene nee ene EERE EE EE ED EAE ACEO EO ESET EEA; E AEE SEES E RSH SHEE SEES 17, 18, 19 J.E. v. Superior Court (2014) 223 CalApp.4th 1329 occceesscseseeseeseeees 27 McCallum v. McCallum (1987) 190 Cal.App.3d 308........ ce ccesceeeseeeeeeees lt Michael v. Gates (1995) 38 Cal.App.4th 737 .....cceccssesesessseseees 19, 22, 23 People v. Gutierrez (2003) 112 Cal.App.4th 1463 oo...eeeeeeeeeeeepassim People v. Gwillim (1990) 223 Cal.App.3d 1254.00.escssesceeceeneeees 24, 26 People v. Hammon (1997) 15 Cal.4th L117oeceeeseesecesesesseseeeseeeseeees 28 People v. Jordan (2003) 108 Cal.App.4th 349 oooeecsseseseesenetees 10, 17 People v. Mooc (2001) 26 Cal.4th 1216..........ccccceceeeeeeeees 12, 15, 17, 28 People v. Reber (1986) 177 Cal.App.3d 523 oo... ce cecsesscsssesessessessesseeesneees 28 iv TABLE OF AUTHORITIES,cont. Page People v. Superior Court (Gremminger) (1997) 58 Cal. App.4th 397.passim People v. Superior Court (Johnson) (1st Dist. Aug. 11, 2014) 228 CalApp.4th 1046.00...csccscscsscsssessecssssscsssssssenecsseeseeseessressnnesesspassim Pitchess v. Superior Court (1974) 11 Cal.3d 531......... 0... cee ec eee ee enone es 12 San Diego Trolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083...... sessceeccecesceceseaseceesecesseessessesssescasesseasesssaseasaseseasssesesaeesesaseasaceasase coats 16, 26 United States v. Bagley (1985) 473 U.S. 667.......:cscccssscsssesccestetssersnesseeenes 15 Statutes Code of Civil Procedure section 1005..............ccecceeeeeeee eee ee eee ene eees22 Evidence Code section 1043 estuarineeeeaceeaeesaceeeeespassim Evidence Code section 1045 2.0... .... ccc cceeceeceeee cence eeneeneeeneeeees passim Evidence Codesection 1046 ............ sssesueessessssesessaessnassoseseneesasieesen 21 Penal Code section 273.5, subdivision (8)..........:ssscccsssseesstesesecsscesseeseneeeses 3 Penal Code section 591.5 wo.ssesscssscsensesscessessscssssesssseesessessstsoseesesees 3 Penal Code section 832.7............cceeseceeeeeectcteeeeeseeeeeseesessessssqPAssim Penal Code section 1054.1 .........cccccccccccssssseeeseceeeesseseceeeuaeeereeeass 18 Welfare & Institutions Code section 827 .............scceceseseeeeeseeneeeeeees26 Welfare & Institutions Code section 828 .............ccecece eee ee eee eeeeee tees 26 Other Authorities 66 Ops.Cal.Atty.Gen. 128 (1983)eeeeecesseessteeseseesssesseseeseeseseesseeeeseeneees 22 TABLE OF AUTHORITIES,cont. Page Rules California Rules of Court, rule 8.500...............ccsssssssescccceesssrsecesseseccessteeeeees 3 California Rules of Court, rule 8.504(d) .............cccccceeaceeeeneeneenseeees29 vi IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Petitioner, Vv. THE SUPERIOR COURT OF SAN FRANCISCO, Respondent, DARYL LEE JOHNSON, RealParty in Interest. PETITION FOR REVIEW Petitioner, the PEOPLE OF THE STATE OF CALIFORNIA,by and through their attorney GEORGE GASCON,District Attorney for the County of San Francisco, respectfully petitions this Court to review the order of the Court of Appeal, First Appellate District, Division Five,filed on August 11, 2014, denying the Petition for Writ of Mandamus and/or Prohibition to the extent that it affirms “the respondent superior court’s order requiring the SF Police Departmentto provide the prosecution access to officer personnel files to allow for identification of any Brady’ materials in those files.” A copy of the order is attached to this petition. The Court ofAppeal’s decision in this case affects every pending criminal case in the state. ISSUES ON REVIEW This case presents the following issues on review: 1. Whethera prosecutor has unfettered direct access to a peace officer’s personnelfile for purposes of routine Brady review when an officer is a mere witnessin a criminal case, even though casesincluding People v. Gutierrez (2003) 112 Cal.App.4th 1463, hold that the prosecution has no direct access. 2. Whether the Court of Appeal’s opinionis inconsistent with the confidentiality protections for peace officer personnelfiles recognized by this Court in Alford v. Superior Court (2003) 29 Cal.4th 1033. 3. Whetherthe “investigation exception” under Penal Code section 832.7, subdivision (a), broadly permits the prosecution to review personnelrecords ofpeace officer witnesses for potential Brady material, even thoughthe officer is not the target of a criminal investigation. // H / // ' Brady v. Maryland (1963) 373 U.S. 83. y) APPROPRIATENESS OF REVIEW Review of the Court of Appeal’s order should be granted, consistent with Rule 8.500, subdivision (b)(1) of the California Rules of Court, becauseit is necessary to secure uniformity of decision andto settle important questions of law. Reviewis necessary to: (1) settle a now-existing split of opinion regarding prosecutorial accessto statutorily protected peace officer personnelfiles for Brady review of officer witnesses; (2) clarify this Court’s decision in Alford in the context of prosecutorial access to statutorily protected peace officer personnel files because the Court of Appeal’s opinion creates a conflict in opinions interpreting Alford; and (3) resolve the important question of whether Penal Code section 832.7’s “investigation exception” applies to officers whoare notthe target of a criminal investigation. This Petition presents issues of statewide importanceforall parties involved in a criminal case: the prosecution; officers whoinvestigate the case; and defendants. FACTUAL AND PROCEDURAL BACKGROUND On November14, 2012, Petitioner, the San Francisco District Attorney’s Office (“SFDA”), filed a complaint charging defendant Johnson (“Johnson”) with a violation of Penal Code section 273.5, subdivision (a) (domestic violence), a felony, and a violation of Penal Code section 591.5 (injuring a wireless communication device), a misdemeanor. (People v. Superior Court Johnson) (ist Dist. Aug. 11, 2014) 228 Cal.App.4th 1046.) At the December 2013 preliminary hearing, San Francisco Police Department (“SFPD”) Officer Paul Domingueztestified that on November 11, 2012, he and Officer Antonio Carrasco responded to a 911 call from a residence. (Johnson, supra, 228 Cal.App.4th at p. 1058.) Johnson admitted 3 that he had hit the victim, but claimed that she had “‘[m]aced’” him. (/bid.) The victim showed Officer Dominguez a two-inch lump on the back of her head where Johnson hadstruck her, and also told the officer that Johnson had tried to prevent her from calling 911 by grabbing hercell phone and then a cordless phone out of her hands. (Jbid.) SFPD Legal Division notified SFDA that both reporting Officer Carrasco andhis partner Officer Dominguez have identified but unspecified Brady materials in their personnelfiles. Accordingly, petitioner SFDA filed a “Notice of Motion for Discovery of San Francisco Police Department Peace Officer Personnel Records Under Brady and Evidence Code Sections 1043 and 1045(e)” (“Brady Motion”’) in December 2013. (Johnson, supra, 228 Cal.App.4th at pp. 1058-1059.) Petitioner requested that the court: (1) conduct an in camera review of personnel records of Officers Dominguez and Carrasco to determine whether any items in their files were material under Brady and thus subject to disclosure; (2) disclose to the District Attorney’s Office and the defense any Brady materials located therein; and (3) issue a protective order. ([bid.) Petitioner’s Brady Motion was supported by a declaration from the assistant district attorney prosecuting the case. The declaration stated that Officers Dominguez and Carrasco are necessary and essential prosecution witnesses on virtually all of the issues and in both of the counts. (Johnson, supra, 228 Cal.App.4th at p. 1058.) The SFPD had informedthe prosecution that each officer had “material in his ... personnel file that may be subject to disclosure under’” Brady. (ital. in Johnson) (Ibid.) The records are, however, in the exclusive possession and control of the Police Department; the District Attorney does not haveactual or constructive possession of those records. (/d. at pp. 1058-1059.) Based on the representation from the SFPD that the files contained potential Brady material, the assistant district attorney ““believe[s]’ the officers’ personnel 4 files contain ‘sustained allegations of specific Brady misconduct,reflective 999of dishonesty, bias, or evidence of moral turpitude,” which, given the officers’ roles, would be constitutionally material under Brady. (Jd.at p. 1059.) Petitioner’s Brady Motion wasin line with the SFPD’s Bureau Order No. 2010-01 (“Bureau Order”). (Johnson, supra, 228 Cal.App.4th at p. 1059.) Based on the premise that the District Attorney cannotlegally access confidential officer personnelfiles absent a motion and court order under Evidence Code section 1043, the Bureau Order provides the SFPD’s procedures for disclosure ofBrady materials in employee personnelfiles. (Ibid.) The Bureau Order provides that the SFPD advises the SFDA on an ongoing basis of the namesof officers who have informationin their personnel files that may be subject to disclosure under Brady. (Ibid.) When the SFDA determinesthat a law enforcementofficer, identified by the SFPD as having possible Brady material in their personnelfile, is a material witness in a pending criminal case, the SFDA then makes a motion under Evidence Codesections 1043 and 1045 for in camera review ofthe records by the court and disclosure. (/d. at p. 1060.) The SFPD will not disclose material from officer personnel files to any party absenta trial court order for disclosure. (bid.) The “Bureau Order explains, ‘The purposeofthis procedure is to ensure that prosecutors and the defense receive sufficient information to comply with the constitutional requirements ofBrady while protecting the legitimate privacy rights of law enforcement witnesses.’” (Jbid.) In responseto the SFDA’s December 2013 Brady motion, defendant filed his own “Motion for Brady discovery.” (Johnson, supra, 228 Cal.App.4th at p. 1060.) Johnson requested in the alternative that the trial court: (1) conduct the requested in camera Brady review;(2) declare section 832.7, subdivision (a) unconstitutional and direct the SFPD to allow 5 the prosecutor to access the officer personnel files to perform a Brady review;or (3) dismiss the case for the prosecution’sfailure to comply with Brady. (Ibid.) The SFPDalsofiled a response to the SFDA’s motion. The SFPD generally agreed with the SFDA and urgedthetrial court to perform the in camera review asoutlined in the Bureau Order. (Johnson, supra, 228 Cal.App.4th at p. 1060.) On January 7, 2014, the superior court issued its “Order Re Brady Motions” following a hearing. (Johnson, supra, 228 Cal.App.4th at p. _ 1060.) The court concluded that the prosecution had not madea sufficient showing ofBrady materiality to justify court review of the records. (/d. at pp. 1060-1061.) The superior court also ruled that the Pitchess motion procedures found in section 1043 et seq. do not apply to motions seeking review of officer personnel records under Brady, and that section 832.7, subdivision (a) is unconstitutional to the extent it prevents the prosecution from obtaining access to officer personnel records in order to comply with its Brady obligations. (/d. at p. 1061.) The superior court denied the district attorney’s section 1043 motion for in camera Brady review and directed the San Francisco “Police Department‘to give the District Attorney access to the personnelfiles of officers Dominguez and Carrasco “so the prosecution can comply withits Brady mandate.””” (Johnson, supra, 228 Cal.App.4th at p. 1061.) According to the Order, once the District Attorney has reviewed the personnelfiles, he will be able to fulfill his constitutional duty to disclose to the Public Defender any Brady material. ([bid.) On January 17, 2014, Petitioners SFDA and SFPDeachfiled writ petitions. (Johnson, supra, 228 Cal.App.4th at p. 1061.) Petitioners sought a writ of mandate/prohibition ordering respondent superior court to vacate its January 2014 order denying the prosecution’s section 1043 6 motion, directing the SFPD to give the prosecution accessto officer personnelfiles, and declaring section 832.7, subdivision (a) unconstitutional. (/bid.) Petitioners further requested that the Court of Appeal direct respondent court to accept the officer personnel records proffered by the SFPD, review the records in camera, and disclose all Brady materials to both the prosecution and defense counsel subject to a protective order. (/d.) - TheFirst District Court of Appeal stayed the superior court’s January 2014 Order and Johnson’s trial, consolidated the two writ proceedings, and issued an order to show cause to respondentcourt. (Johnson, supra, 228 Cal.App.4th at p. 1061.) The Court of Appeal granted applications for leaveto file amicus curiae briefs supporting petitioners by the Appellate Committee of the California District Attorneys | Association, Ventura County District Attorney, Santa Clara County District Attorney, and the Police Officers’ Research Association of California. (/d. at pp. 1061-1062.) The Attorney Generalalso filed an amicus brief. (dd. at p. 1062.) On August 11, 2014, the Court of Appeal issued its opinion, certifying it for publication. The court “den[ied] the writ petitions to the extent they challenge the respondent superior court’s order requiring the SF Police Department to provide the prosecution access to officer personnel files to allow for identification of any Brady materials in those files.” (Johnson, supra, 228 Cal.App.4th at p. 1057.) The court concludedthat section 832.7, subdivision (a) “does not create a barrier between the prosecution and the performanceofits duty under Brady,” thus renderingit unnecessary to consider the constitutionality of barring prosecutorial access to officer personnelfiles for the purpose of identifying Brady materials in those files. (/d. at p. 1057.) The Court of Appeal “grant[ed] the writ petitions to the extent they challenge the respondent superior court’s refusal 7 to consider any request for disclosure ofBrady materials pursuant to a motion under Section 1043.” The court “conclude[d] 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.” ([bid.) | A petition for rehearing in the Court of Appeal was not sought because neither the facts nor the issues discussed in the opinion are disputed. Becauseofthe far-reaching statewide impact of the Court of Appeal’s opinion, this Petition for Review also requests this Court stay proceedings pending review by this Court. The defendant is out of custody. The case proceeds on a general time waiverbasis, and the matteris scheduled for October 14, 2014, in Department 22 of the San Francisco Superior Court to set the jury trial date. On August 14, 2014, the superior court issued an “Amended Order Modifying January 2014 Orders re Brady Motions,” ordering the SFPD to give the SFDAaccessto the personnel files of Officers Dominguez and Carrasco “within 10 days of the remittitur.” ARGUMENT I. REVIEW SHOULD BE GRANTED BECAUSE JOHNSONIS IN DIRECT CONFLICT WITH PUBLISHED DECISIONS LIMITING A PROSECUTOR’S ACCESS TO STATUTORILY PROTECTED PEACE OFFICER PERSONNEL FILES FOR THE PURPOSE OF CONDUCTING BRADYREVIEWS OF OFFICER WITNESSES. Review ofthe First District Court ofAppeal’s decision in Johnson is necessary to secure uniformity of decision because Johnson cannot be reconciled with decisions from both the Second and Fourth District Courts ofAppeal: “We therefore disagree with the decisions in Peoplev. Gutierrez (2003) 112 Cal.App.4th 1463, 1474-1475[cit. om.] and Abatti v. 8 Superior Court (2003) 112 Cal.App.4th 39, 56 [cit. om.], to the extent that they interpret Alford to hold that Section 832.7(a) prohibits the prosecution from accessing officer personnelfiles for Brady purposes.” (Johnson, supra, 228 Cal.App.4th at p. 1076; see also pp. 1086-1087 [“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 that Section 832.7(a) precludes prosecutorial access to officer personnel files for Brady purposes.”].) This lack of uniformity puts prosecutors and police departments in an untenable position. A. GUTIERREZ, CONTRARYTOJOHNSON, HELD THAT THE PROSECUTION DOES NOT HAVE ACCESS TO PEACE OFFICER PERSONNELFILES IN ORDER TO CONDUCT A BRADYREVIEW. In Gutierrez, the Second District considered the defendant’s claim that a prosecutor is obligated to review an officer’s personnel file for potential Brady material. (Gutierrez, supra, 112 Cal.App.4th at pp. 1474- 1475.) Gutierrez rejected the defendant’s claim that the prosecutor has direct access to review peace officer personnel files for potential Brady material. Rather, Gutierrez held that a prosecutor could only seek potential Brady information from an officer’s personnelfile by filing a motion pursuant to Evidence Code section 1043 et seg. because “‘peace officer 9999personnelrecords retain their confidentiality vis-a-vis the prosecution. (Id. at p. 1475, quoting Alford, supra, 29 Cal.4th at p. 1046. (emph. added [in Gutierrez}).) Gutierrez drew further support for its conclusion that prosecutors do not have direct access to peace officer personnelfiles for Brady purposes from People v. Jordan: “a ‘prosecutor’s duty under Brady to disclose material exculpatory evidence applies to evidence the prosecutor, or the prosecution team, knowinglypossesses or has the right to possess’ thatis 9 ‘actually or constructively in its possession or accessibleto it.’” (Gutierrez, supra, 112 Cal.App.4th at p. 1475, quoting People v. Jordan (2d Dist. 2003) 108 Cal.App.4th 349, 358 (ital. added [in Gutierrez]).) Ultimately, Gutierrez concluded that the prosecution has no obligation to perform routine reviews of peace officer personnel files for Brady material because a “prosecutor does not generally have the right to possess and does not have access to peaceofficer files[.]” (/d.) Johnson cited the very same authority relied upon by Gutierrez to reach the opposite conclusion — that the prosecution does have access to peace officer personnelfiles because the district attorney’s office and the police department “constitute a single prosecution team[.]” (Johnson, supra, 228 Cal.App.4th at p. 1072.) For example, Johnson quoted the same passage from Jordan, supra, 108 Cal.App.4th at p. 358 (i.e., prosecutor must disclose material exculpatory evidence possessed by the prosecution team), but reached the opposite conclusion to that reached by Gutierrez: (Johnson, supra, 228 Cal.App.4th at pp. 1076-1077; see also pp. 1067- 1069, 1072.) Johnson and Gutierrez are in direct conflict. B. JOHNSONALSO CONFLICTS WITH ABATTI, WHICH CONCLUDED THAT THE PROSECUTION DOES NOT HAVE ACCESS TO REVIEW PEACE OFFICER PERSONNEL FILES FOR POTENTIAL BRADYMATERIAL. In Abatti, the defendant sought potential Brady material contained within an officer’s personnelfile. (Abatti, supra, 112 Cal.App.4th at p. 42.) While Abatti recognized that the question before the court did not involve “the prosecutorial duty to disclose[,]” the Fourth District, relying upon Jordan, supra, 108 Cal.App.4th at p. 360, noted that peace officer personnelfiles are not “technically” part of the prosecution team because the Pitchess procedure is the sole means by which the prosecution may obtain and review potential Brady information from officer personnelfiles. 10 (Abatti, supra, 112 Cal.App.4th at pp. 57-58.) Johnson reaches the opposite conclusion, that prosecutors have direct access to peace officer personnelfiles and any inquiry for Brady purposes does not breach the confidentiality afforded those files by Penal Code section 832.7, subdivision (a). (Johnson, supra, 228 Cal.App.4th at pp. 1067-1074.) C. THE DIRECT CONFLICT BETWEEN GUTIERREZ AND ABATTI, ON THE ONE HAND, AND JOHNSON, ON THE OTHER, NECESSITATES REVIEW SO THAT THIS COURT MAY SETTLE AN IMPORTANT ISSUE FOR PROSECUTORS AND POLICE STATEWIDE. The direct conflict between the district Courts of Appeal places prosecutors statewide in an untenable position. Gutierrez and Abatti direct prosecutors to follow the procedures enacted by Evidence Codesection 1043 et seq. in order to review potential Brady material located in peace officer personnelfiles, while Johnson effectively requires prosecutors to inspect all peace officer personnel files for potential Brady materialin the first instance without complying with the mandates of section 1043 et seq. The effect of this conflict creates disparate practices amongst prosecutors statewide: while some prosecutors take the position that peace officer personnel files are not part of the prosecution team under Gutierrez and Abatti, thus generating no obligation to review officer personnel files for potential Brady material, other prosecutors will follow Johnson and inspect the files for potential Brady materialin the first instance. This split in authority also permits trial courts to follow Gutierrez and Abatti or Johnson, which mayleadto splits in the same county. (See McCallum v. McCallum (1987) 190 Cal.App.3d 308, 315, fn. 4 [“As a practical matter a superior court ordinarily will follow an appellate opinion emanating from its own district even thoughit is not bound to do so. Superior Courts in 11 other appellate districts may pick and choose between conflicting lines of authority.”’].) Such disparate, yet legally sound practices require resolution. True, access presents a safer route for a prosecutor, but such a route directly conflicts with other binding case law and comesat the price ofan officer’s constitutionally and statutorily recognized rights ofprivacy and confidentiality in his or her personnel file. The conflict in authority will makeit difficult or impossible for the district attorney and police to agree upon “orderly proceduresto identify and provide materials for Brady review by prosecutors” endorsed by Johnson, supra, 228 Cal.App.4th atp. 1080. Theparties will not be able to agree upon anything when California law is in conflict as to the rights and responsibilities of each party. Review by this Court, therefore, is necessary to settle an important issue for prosecutors and police statewide. II. REVIEW SHOULD BE GRANTED BECAUSE JOHNSON DISMISSES THE IMPORT OF THIS COURT’S STATEMENTSINALFORD, BRANDON, AND MOOCTHAT OFFICER PERSONNEL FILES ARE NOT WITHIN THE POSSESSION OF THE PROSECUTION AND THUS THE PROSECUTION MUST COMPLY WITH SECTION1043 ET SEQ. INORDER TO REVIEW PEACE OFFICER PERSONNEL RECORDSOF OFFICER WITNESSES. In Alford, the California Supreme Court held that the prosecution is not entitled to the fruits of a defendant’s successful Pitchess” motion. (Alford, supra, 29 Cal.4th at p. 1046.) The high Court reasoned, “The Pitchess procedure is, . . . , in essence a special instance ofthird party discovery.” (Id. at p. 1045.) “Ina Pitchess hearing,the district attorney prosecuting the underlying criminal case represents neither the custodian of records nor their subject, and thus has no direct stake in the outcome.” ? Pitchess v. Superior Court (1974) 11 Cal.3d 531. 12 (Ibid.) The Court held, “Of course, the prosecution itself remains free to seek Pitchess disclosure by complying with the procedure set forth in Evidence Codesections 1043 and 1045. (fn.om.) Absent such compliance, ..., peace officer personnel records retain their confidentiality vis-a-vis the prosecution. (Pen. Code, § 832.7; see People v. Superior Court (Gremminger) (1997) 58 Cal. App.4th 397, 407.” (dd. at p. 1046 (emph. added; fns. om.).) If the Pitchess procedureis third party discovery,if the district attorney represents neither the custodian of records nor their subject, and if the prosecution must file its own section 1043 motion for Pitchess discovery, then the Supreme Court has effectively held that police personnelfiles are not in the possession of the prosecution. It would make no sense to concludethey are in the possession of the prosecution for the purposes ofBrady but not Pitchess,or, stated differently, that the prosecution has direct access to those records undersection 832.7 for Brady purposesbut not for Pitchess purposes, because both Brady and Pitchess seek evidence favorable to the defense, though employing different standards and subject to different limitations. Either the prosecution has direct access in both situations or it does not. Johnson’s, supra, 228 Cal.App.4th at p. 1076, acknowledgmentthat under Alford, supra, 29 Cal.4th at p. 1046, the prosecution has noright to participate in a defense-initiated Pitchess motion and discoverthe information disclosed to the defense but rather mustfile its own Pitchess motion, while at the same time concluding that the prosecution has direct access to those same personnelfiles under section 832.7 for Brady purposes is illogical. Query, why would a prosecutor botherfiling a Pitchess motion under Alford as Alford requires, if under Johnson the prosecution has direct access to the materials? The practical import ofJohnson’s reading of Alfordis to forgo the entire Pitchess scheme, for both the district attorney 13 and the defense, and haveall parties rely on the district attorney’s Brady right, per Johnson,to cull through every officer witness’ personnel file for potential impeachment material. The Supreme Court in A/ford could not have intended to dismantle the Legislatively-crafted post-Pitchess statutory scheme. | That officer personnel records are not in the possession of the prosecution does not mean that the prosecution does not have a means to access them. Wedo, by complying with the proceduresset forth in Evidence Code section 1043 et seq. when the officer is a witness. Indeed following the quote, “Absent such compliance, . . . , peace officer personnel records retain their confidentiality vis-a-vis the prosecution[,]” the Supreme Court in Alford, supra, 29 Cal.4th at p. 1046, cites to Penal Code section 832.7 and Gremminger, supra, 58 Cal.App.4th at p. 407. Penal Code section 832.7, subdivision (a) provides that peace officer personnel records are confidential and provides the means by and circumstances under which the prosecution can access those records, to wit a motion undersections 1043 and 1045 (or direct accessif the district attorney exemption [see infra SectionIII] is applicable). Similarly, in Gremminger, supra, 58 Cal.App.4th at p. 407, the court stated, “where the People seek discovery of the peace officer personnel records of a criminal defendant who was not employedas a police officer at the time the crime was allegedly committed, the district attorney is not exempted under the provisions of Penal Code section 832.7, subdivision (a), and must comply with the requirements of EvidenceCode sections 1043 et seq.” The conclusionsthat an officer’s personnelfiles are not within the possession of the prosecution and thus the prosecution must comply with section 1043 et seq. in order to review personnel recordsofofficer witnesses is further buttressed by the Supreme Court’s earlier statements in 14 People v. Mooc (2001) 26 Cal.4th 1216 and City ofLos Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th 1. This Court noted that for the last quarter century, trial courts have entertained Pitchess motions, screening law enforcement personnelfiles in camerafor evidence that may be relevant to a defendant’s defense. (Mooc, supra, 26 Cal.4th at p. 1225.) This Court directly linked Pitchess procedures to Brady discovery in Mooc: “This procedural mechanism for criminal defense discovery, which must be viewed against the larger backgroundofthe prosecution’s constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant’sright to a fair trial (cits.), is now an established part of criminal procedurein this state.” (/bid., citing United States v. Bagley (1985) 473 U.S. 667, 674-678; Brady, supra, 373 U.S. at p. 87, amongothers.) In Brandon,this Court stated, “‘the Pitchess process’ operatesin parallel with | Brady and doesnot prohibit the disclosure ofBrady information.’” (Brandon, supra, 29 Cal.4th at p. 14.) Justice Moreno in Brandon recognizedthat the prosecution does not actually or constructively possess peace officer personnel records. Asstated in City ofSan Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1144 [],: “‘[W]here the People seek discovery of the peace officer personnel records ... the district attorney is not exempted underthe provisions of Penal Code 832.7, subdivision (a), and must comply with the requirements of Evidence Code sections 1043 et seq.’” (Quoting People v. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397, 407 [fn.5] []). (Brandon, supra, 29 Cal.4th at p. 21 (Moreno,J. dis. opn.) (emph. added) (parallel cits. om., fn. added).) Johnson dismisses the import of this Court’s statements in Alford, Brandon, and Mooc. In Johnson, the court stated that the issues before the Supreme Court in A/ford concernedthe prosecution’sright to participate in 15 defense-initiated Pitchess motions and discover the information disclosed to the defense, not whether the prosecution could access officer personnel files in order to comply with its Brady obligations. (Johnson, supra, 228 Cal.App.4th at p. 1076.) Consequently, Johnson did “not understandthat brief passage in Alford [peace officer personnel records retaining their confidentiality vis-a-vis the prosecutor absent compliance with section 1043 et seq.] to have resolved, without so acknowledging, the precise constitutional dilemma Brandonso carefully delineated andleft open just monthsearlier [in footnote 2].” (bid.) In Brandon, this Court declined to reach the question of whether Penal Code section 832.7, which precludes disclosure of officer personnel records except by discovery pursuant to section 1043 et seq., “would be constitutional if it were applied to defeat the right of the prosecutor to obtain access to officer personnel records in order to comply with Brady.” (Brandon, supra, 29 Cal.4th at p. 12, fn. 2.) That danger doesnot, however, exist in the procedures followed by the SFDA and the SFPDat issue in these writ petitions because neither agency seeks to use section 832.7 “to defeat the right of the prosecutor to obtain accessto officer personnel records in order to comply with Brady.” Rather, both agencies seek to use the proceduresset forth in 832.7 and 1043 et seq. to secure access to the personnel files in order to comply with our Brady mandate, while at the same time respecting an officer’s constitutional right ofprivacy in his or her records.’ Contrary to Johnson, the conclusion that peace officer personnel files are not in the possession of the prosecution does not 3 See San DiegoTrolley, Inc. v. Superior Court (2001) 87 Cal.App.4th 1083, 1097 [trolley operator’s “personnel records and employmenthistory are within the scope of the protection provided by both the state and federal Constitutions.”’]. 16 meanthat the prosecution cannot access them in a meansthat protects both a defendant’s right to due process and an officer’sright of privacy. A. THIS COURT’S STATEMENTSINALFORD, BRANDONAND MoocARE NOTSO EASILY DISMISSED, AS RECOGNIZED BY GUTIERREZ, ABATTI, GARDENGROVE, GREMMINGER, AND BECERRADA. Unless directly investigating the police officer for a crime, prosecutors do not have any means independent ofPitchess to obtain police officer personnel records. (Brandon, supra, 29 Cal.4th at p. 21 (Moreno,J. dis. opn.). Gutierrez, contrary to Johnson,held that the prosecutoris not obliged to routinely review the completefiles of all police officer witnesses because under Alford, supra, 29 Cal.4th at p. 1046, the prosecutor does not generally have the right to possess and does not have access to confidential peace officer files. (Gutierrez, supra, 112 Cal.App.4th at p. 1475, also citing Jordan, supra, 108 Cal.App.4th at p. 358.)* In Abatti, 112 Cal.App.4th 39, 43, 60, the Fourth District granted Abatti’s petition and directed the trial court to vacate its order denying Abatti’s hybrid Pitchess/Brady motion and to conduct an in camera review of the counseling memosin the officer’s personnel records to ascertain whether they contain information required to be disclosed under Brady. Abatti observed, “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. (Alford, supra, 29 Cal4th at p. 1046.).” (Abatti, supra, 112 Cal.App.4th at p. 56.) In reaching this conclusion, Abatti also referred to Justice Brown’s concurrence in City ofLos Angeles (Brandon), supra, 29 Cal.4th at p. 17: * This Court denied review in Gutierrez. (People v. Gutierrez (2003) 112 Cal.App.4th 1463, rev. denied, 2004 Cal. LEXIS 829 (Jan. 28, 2004).) 17 In Justice Brown’s concurring opinion in City ofLos Angeles, she noted that reliance on Ritchie for trial court in camera review of confidential peace officer records for Brady material would be misplacedif “a prosecutor, seeking to comply with Brady, to review the personnel recordsofa police officer who is a witnessin a criminal case,” were permitted access to such files under some exception to the Pitchess procedures. (Abatti, supra, 112 Cal.App.4th at p. 56.) Similarly, Garden Grove Police Dept. v. Superior Court (4th Dist. 2001) 89 Cal.App.4th 430, 431-432 & fns. 1 & 2, 434, held that the trial court abused its discretion whenit ordered the police department to disclose birth dates of three officers to the district attorney so that the district attorney could run criminal record checks under Penal Code section 1054.1, subdivisions (d) and (e) and Brady. “We cannot allow [defendant] to make an end run on the Pitchess process by requesting the officers’ personnel records under the guise of a Penal Code section 1054.1 and Brady [fn. 6] discovery motion.” (/d. at p. 435 & fn. 6 [Brady, supra, 373 U.S. 83].) In Gremminger, supra, 58 Cal.App.4th at p. 407, the Sixth District stated, “where the People seek discovery of the peace officer personnel records of a criminal defendant who wasnot employedas a police officer at the time the crime wasallegedly committed, the district attorney is not exempted underthe provisions of Penal Code section 832.7, subdivision (a), and must comply with the requirements of Evidence Code sections 1043 et seq.” Becerrada v. Superior Court (2d Dist. 2005) 131 Cal.App.4th 409, 412, 415, held that a limited release to an officer of information contained in his own personnelfile would notdisturb the balance between a defendant’sright to a fair trial and the officer’s right to privacy. Alford’s footnote 7 [prosecutor may be able to learn of impeachment material against the officer by interviewing him] did not, however, establish the 18 right of the prosecution to obtain material disclosed to the defense without filing its own Pitchess motion. (Id. at p. 415, citing Alford, supra, 29 Cal.4th at p. 1046 fn.7.) “To hold that Alford confers a right on the prosecution ignores the privacy rights of the officer that A/ford expressly protected: ‘Absent such compliance [with Pitchess] ... peace officer personnel records retain their confidentiality vis-a-vis the prosecution.’” (Ibid., quoting Alford, supra, 29 Cal.4th at p. 1046.) A conflict exists between Johnson andall five other published decisions (Gutierrez, Abatti, Garden Grove, Gremminger, and Becerrada) over the meaning of this Court’s statements in Alford. This Court should grant review to decide whether the prosecution must follow the procedures set forth in section 1043 et seg. when seeking access to officer personnel records for Brady review. Given the split in appellate authority on the point, any definitive discussion of the Supreme Court’s meaningofits Alford opinion should come from this Court. B. ALFORD DISAGREES WITH THE AUTHORITY RELIED UPON By JOHNSONTO CONCLUDE THAT THE PROSECUTION HAS ACCESS TO PEACE OFFICER PERSONNELFILES. Johnsonrelies in part upon Michael v. Gates (1995) 38 Cal.App.4th 737, to support its conclusion that the prosecution hasaccessto officer personnelfiles. (Johnson, supra, 228 Cal.App.4th at pp. 1068-1070.) In Gates, supra, 38 Cal.App.4th at pp. 744-745, the Second District stated that it would be “absurd”to require the prosecuting attorney to make a motion under section 1043 and obtain court permission prior to viewing officer personnel records sought in a defense-initiated Pitchess motion. However,to the extent the appellate court stated in 1995 that it would be “absurd” to require the prosecutionto file its own Pitchess motion in order to review an officer’s records, in 2003 both this Court in Alford and the 19 Second District itself in Gutierrez disagreed. (Alford, supra, 29 Cal.4th at p. 1046; Gutierrez, supra, 112 Cal.App.4th at p. 1475.) Evidence Codesection 1043, subdivision (a), by its very terms, applies “in any case in which discovery or disclosure is sought of peace... officer personnel records.” (emph. added.) This includes cases in which a party seeks Brady material contained in the personnelfiles of officer witnesses, as the Second and Fourth Districts have acknowledged, contrary to Johnson. Johnson, supra, 228 Cal.App.4th at p. 1076, concluded that Alford, supra, 29 Cal.4th at p. 1046, did not require the prosecution to comply with Evidence Code sections 1043 and 1045 when seeking access to peace officer personnelfiles in order to comply with Brady. Johnson, supra, 228 Cal.App.4th at p. 1077, went so far as to say that “[u]nder Gutierrez’s reasoning, the prosecution arguably has no obligation under Brady to devise procedures to uncover exculpatory evidencein officer personnel files because those materials are outside the Brady disclosure requirements[,]” a conclusion contrary to well-established, federal constitutional law. Johnson continues, “petitioner’s interpretation of section 832.7(a), which relies on Gutierrez, raises serious constitutional questions because it would interfere with the disclosure of exculpatory evidence in police files, contrary to Brady and its progeny.” (Ibid.) Petitioner, the SFDA,did not and does not argue that the prosecution has no obligation to devise procedures to uncover exculpatory evidence in officer personnelfiles. We have used section 832.7(a), in conjunction with sections 1043 and 1045 in order to review police personnelfiles for exculpatory material, while at the same time protecting the confidential nature ofthe files and officers’ privacy rights in their files. 20 Ill. REVIEW IS NECESSARY TO ADDRESS THE IMPORTANT STATEWIDE ISSUE OF WHETHER THE “INVESTIGATION EXCEPTION” UNDER PENAL CODE SECTION832.7, SUBDIVISION (A) BROADLY PERMITS THEDISTRICT ATTORNEY TO REVIEW PEACE OFFICER PERSONNEL RECORDS OF OFFICER WITNESSES FOR POTENTIAL BRADYMATERIAL, EVEN THOUGH THE OFFICERIS NOT THE TARGET OF A CRIMINAL INVESTIGATION. Penal Code section 832.7, subdivision (a) provides, Peaceofficer ... personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal ... proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers ..., conducted by a grandjury, a district attorney's office, or the Attorney General's office. A. REVIEW IS NECESSARY TO DETERMINE WHETHER OFFICER PERSONNEL RECORDS ARE CONFIDENTIAL VIS- A-VIS THE PROSECUTOR SEEKING BRADYINFORMATION OF OFFICER WITNESSES. Thefirst sentence of section 832.7, subdivision (a) reiterates that officer personnel records are confidential, and that information from those records shall not be disclosed except by discovery through the procedures set forth in Evidence Codesections 1043 and 1046. Confidentiality and the use of the proceduresset forth in section 1043 et seq. are the norm. District attorney access in the second sentenceis the exception, an exception thatis limited by both statute and case law. Johnson concludes that becausethe district attorney’s office and police department constitute a single prosecution team and because the police departmentacts as the prosecutor’s “agent” with respect to retention ofBrady material, an inspection by the head of the prosecution team for Brady purposes would not involve disclosure outside the prosecution team, 21 and therefore is not prohibited by section 832.7. (Johnson, supra, 228 Cal.App.4th at pp. 1072, 1074.) Johnsonrelies, in part, on a construction of the term “confidential” in a 1983 Attorney General Opinion. According to the Attorney General, ‘confidential’ information”is “‘not publicly disseminated,’” and disclosure to the district attorney would not compromise the confidentiality of the files. (Johnson, supra, 228 Cal.App.4th at p. 1073, citing 66 Ops.Cal.Atty.Gen. 128, 129 fn. 3, 130 (1983).) The Attorney General concluded““‘as long as the district attorney is duly investigating “the conductofpeace officers or a police agency”as specified in section 832.7, he need notfirst obtain a court order for access to the records in question.’” (Ibid., quoting 66 Ops.Cal.Atty.Gen., supra, at p. 128.) First, Johnson and the Attorney Generalare in conflict with the Supreme Court. (Alford, supra, 29 Cal.4th at p. 1046.) Second, Johnson, supra, 228 Cal.App.4th at pp. 1068-1069, 1073, finds that there is no “discovery”or “disclosure” among members ofthe same prosecution team based in part on reliance on Gates, supra, 38 Cal.App.4th at p. 743. As discussed above, Gates is inconsistent with Alford. (See Section IIB infra.) Johnson’s conclusion is also contradicted by the very language of section 832.7, subdivision(a). Section 832.7, subdivision (a) provides that the “records ... are confidential and shall not be disclosed in any criminal ... proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.” Evidence Codesection 1043, subdivision (a) clearly states, “in any case in which discovery or disclosure is sought ofpeace ... officer personnel records ..., the party seeking the discovery or disclosure shall file a written motion ....” (ital. added.) Section 1043, subdivision (a) also provides that the written notice must be in compliance with the time provisions set forth in subdivision (b) of Section 1005 of the Code of Civil Procedure, in other 22 words, 16 court days’ notice of the motion, with an additional 5 calendar days’ notice if the motion is mailed. Section 1043, subdivision (a) further requires that “the government agency served shall immediately notify the individual whose records are sought.” Prior to Johnson, andin line with Gutierrez and Abatti, section 1043, subdivision (a) afforded the officer notice that the district attorney was seeking to disclose his or her personnel file even before the prosecutor reviewed the file and disseminatedit to the defense. Prior to Johnson, the officer, who is a witness in a case, had the rights to a filed motion, notice, and an opportunity to be heard before his or herfile is reviewed. Section 1043, subdivision (c) makesthis clear: “No hearing upon a motion for discovery or disclosure shall be held withoutfull compliance with the notice provisionsofthis section except upon a showing” of good cause or a waiver. (ital. added) (Evid. Code § 1043, subd. (c).) Johnson denies the officer notice and procedural due process when [s]he is a witnessin a case. In addition, Johnson, supra, 228 Cal.App.4th at pp. 1068-1069 relies upon Gates, supra, 38 Cal.App.4th at pp. 743-745, for the conclusion that the joint operation of the police department anddistrict attorney’s office is a sufficiently analogousrelationship to that between the city attorney and police to justify treating the prosecutor’s review of officer personnel records in the same mannerand outside the definition of “disclosure” in ~ 832.7(a). Such reliance is questionable. The district attorney, who is temporarily the head of a created legal construct that includes both the | prosecutor and all membersofagencies that give even limited assistance to the prosecutor, is doubtfully in the sameposition relative to an officer’s personnelfile as the city attorney whois the legal representative of the agency that created the files and has unlimited accessto thosefiles for any legitimate purpose. Alford, supra, 29 Cal.4th at p. 1045,instructs that in section 1043 hearings, “the district attorney prosecuting the underlying 23 criminal case represents neither the custodian of records northeir subject....”” Review by this Court is, therefore, necessary to determine whetherofficer personnel records are confidential vis-a-vis the prosecutor when seeking Brady information of officer-witnesses. B. REVIEW IS NECESSARY TO DETERMINE WHETHER THE DISTRICT ATTORNEY EXCEPTIONIN SECTION 832.7, SUBDIVISION (A), APPLIES TO REVIEWS OF PERSONNEL FILES OF OFFICER WITNESSES. If prosecutorial access to officer personnel records for Brady purposes were deemedto be a disclosure or a breach of confidentiality, Johnson, supra, 228 Cal.App.4th at pp. 1074, 1075, alternatively concludes that the “investigation exception” of section 832.7, subdivision (a) grants the district attorney direct access to personnel files of officer witnesses for potential Brady material. In reaching this conclusion, Johnson agrees with the Attorney General. (/d. at pp. 1074, 1075 & fn. 18; see also p. 1073 & fn. 16.) We acknowledge that the Attorney General’s Opinion,in the absence of controlling authority, is persuasive because courts presumethat the Legislature was aware of the Attorney General’s construction and would havetaken corrective action if it disagreed with that construction. (County ofSan Diego v. State ofCalifornia (1997) 15 Cal.4th 68, 103-104.) Werespectfully, however, disagree with the Attorney General’s Opinion because Courts of Appeal in Gutierrez and Abatti took corrective action 20 years after the Opinion. Petitioner asserts that a district attorney conducts “investigations and proceedings concerning the conduct ofpeace officers” whenthe officer is a suspect in an investigation or target of a criminal prosecution for conduct that occurred while employedas an officer. This was the case in the cases interpreting section 832.7’s exception. (See, e.g. People v. Gwillim (1990) 24 223 Cal.App.3d 1254, 1269, 1270 [prosecution had right under 832.7 to obtain defendantofficer’s immunized statements in personnelfile when officer charged with crimes against another officer while on duty]; Faganv. Superior Court (2003) 111 Cal.App.4th 607, 610, 618-619 [prosecution properly obtained urinalysis results placed in personnel files of off-duty officers arrested and charged following a street fight]; Gremminger, supra, 58 Cal.App.4th at p. 407 [investigation exception rejected because prosecution sought discovery of officer personnel records of a criminal defendant who was not employedas an officer at the time the murder was committed].) In the limited circumstance wherethe officer is being investigated for possible criminal prosecution, it makes sense that the district attorney’s exemption should apply in orderto facilitate the investigation. A noticed motion could slow the investigation, alert the suspect officer to the criminal investigation, and potentially hinderits effectiveness. In that circumstance, the district attorney needs unfettered access to the officer’s personnel records. In contrast, in a routine criminal case where officers are only witnesses, the focus of the district attorney’s investigation and proceedings is the defendant. The district attorney is not conducting an investigation or proceeding oftheir officer witness any more than they are conducting an investigation or proceeding of a civilian witness. Johnson reasons, “when a prosecutor conducts a Brady review ofan officer’s personnelfile, the prosecutor is investigating that officer’s conduct to determine whetherthere is any evidence that could be used to impeach him orherattrial.” (Johnson, supra, 228 Cal.App.4th at p. 1075 (ital. added).) But taken toits logical extreme, Johnson’s rationale could permit the district attorney to root through personnel files of civilian employee witnesses of public agencies (e.g., Medical Examiner and Crime Lab), which are protected by 25 both the state and federal Constitutions (San Diego Trolley, supra, 87 Cal.App.4th at p. 1097), to see if any impeachment (Brady) material might possibly be containedtherein. | Johnson acknowledgesthat in Gremminger, Gwillim, and Fagan, the investigation exception was considered in cases where the officer was the target of a criminal investigation, but nonetheless concludes that none of those cases expressly excludes other types of investigations of officer conduct from the scope of the district attorney exemption. (Johnson, supra 228 Cal.App.4th at p. 1075.) In addition, “Neither does section 832.7(a) contain any such limiting language;it does not, for example, limit the application of the exception to investigation of the conduct of police officers who are defendants or suspects.” (Ibid.(ital. in Johnson).) To interpret the district attorney exemption in section 832.7 to mean that the district attorney has unrestricted access to officer personnelfiles would render superfluousthe limiting languageofthat exception. Had the Legislature intended to authorize district attorneys to have unlimited access to otherwise confidential officer personnel records when the officer is the target of a criminal investigation, when the prosecution seeks Pitchess information, or when the prosecution conducts a Brady review,it could easily have done so bynot including the phrase “investigations or proceedings concerning the conduct ofpeace officers or custodialofficers, [...], conducted by”.” That would be very similar to the languagein Welfare and Institutions Code section 827, subdivision (a)(1)(B), which gives the district attorney direct access to juvenile files. Section 827, subdivision (a)(1) provides, “Except as provided in Section 828, a case file maybe inspected only by the following: (B) Thedistrict attorney, a city *TIn that case, the statute would read, “This section shall not apply to the grand jury, a district attorney’s office, or the Attorney General’s office.” 26 attorney, or city prosecutor authorized to prosecute criminal or juvenile cases understate law.” The Legislature did not so draft section 832.7. Howthe exception carved out in section 832.7, subdivision (a) is interpreted affects both prosecutors and police statewide. For prosecutors, Johnson’s interpretation of the “investigation exception” would provide direct access to privileged peace officer personnelfiles, in direct conflict with Gutierrez and Abatti. For police, Johnson’s interpretation of the “investigation exception” would expandrather than limit prosecutorial access thereby obviating the need for an exceptionin thefirst place. Reviewis, therefore, required to address this important issue of law. IV. INITIAL IN CAMERA REVIEW BY THE COURT ENSURES CONFIDENTIALITY AND DUE PROCESS AND | PRESERVES THE RECORD FOR APPELLATE REVIEW. JE. v. Superior Court (2014) 223 Cal.App.4th 1329, 1339, held that a juvenile is entitled to a court’s in camera Brady review upon a showing that there is a reasonable basis to believe exculpatory or impeachment evidence exists in the confidential dependencyfiles. /.E. pragmatically noted, which Johnson acknowledged though declined to adopt, that in camerareviewbythe court forestalls litigation brought by the defense over whether the prosecution has complied with its Brady obligations. (/.E., supra, 223 Cal.App.4th at p. 1339; Johnson, supra, 228 Cal.App.4th atp. 1085.) In camera review preserves the record for appellate review by the defense, helps eliminate habeaslitigation years later over what records the police department provided to the district attorney for review, and protects officers’ interest in confidentiality of the files. JE. is closely analogousto the instant situation: long-established statutory privileges limiting access to records must be balanced against defendants’ right to due processattrial, should such records be material. In 27 such a landscape of competingrights’itis precisely a court’s job to be the “locus of decisionmaking.” (Mooc, supra, 26 Cal.4th at p. 1229.) Wedo notseek to shift our Brady responsibility to the trial court, but ratherto enlist the trial court’s traditional neutralrole, court-reported proceedings, and balancing-of-competing-rights power to conduct Brady reviewsofthis limited class of protected officer personnel records. Only such in camera review can truly serve due processforall the parties: the People, the defendant, andthe peaceofficers. CONCLUSION For the foregoing reasons,the People ofthe State of California requestthat this Court grant review of these issues. We further request that this Court stay proceedings pending review by this Court. Date: September 18, 2014 Respectfully submitted, GEORGE GASCON District Attorney Fe fF Ole— Jerry P. Cofeman Special Assistant District Attorney Hf Hf ° See also People v. Hammon (1997) 15 Cal.4th 1 117; People v. Reber (1986) 177 Cal.App.3d 523, overruled in part, People v. Hammon (1997) 15 Cal.4th 1117, 1123. 28 Laura vanMunching Managing Assistant District Attorney Allisoh~G-tfacbeth Assistant District Attorney 29 CERTIFICATION OF COMPLIANCE I certify that the attached Petition for Review uses a 13 point Times New Roman font and 1.5 line spacing and, according to Microsoft Word, contains 7938 words. (California Rules of Court, rule 8.504(d).) Z—=— Laura vanMunchiing 30 ORDER DENYING PETITION FOR WRIT (COURT OF APPEAL) IN PART 31 oe Cited As of: September 18, 2014 12:03 PM EDT People v. Superior Court (San Francisco) Court ofAppeal of California, First Appellate District, Division Five August 11, 2014, Opinion Filed A140767 , A140768 Reporter 228 Cal. App. 4th 1046; 2014 Cal. App. LEXIS 722; 2014 WL 3896138 THE PEOPLE,Petitioner, v. THE SUPERIOR COURT [3]-Because it was the prosecutor's duty to identify and OF THE CITY AND COUNTY OF SAN FRANCISCO, disclose material evidence favorable to the defense, the Respondent; DARYL LEE JOHNSON,Real Party in trial court had no obligation to undertake an in camera Interest.CITY AND COUNTY OF SAN FRANCISCO review under Evid. Code, § 1045, to identify such ex rel. THE SAN FRANCISCO POLICE DEPARTMENT, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLEet al., Real Parties in Interest. . Prior History: [**1] Superior Court of San Francisco City and County, No. 12029482, Richard B. Ulmer, Jr., Judge. Core Terms disclosure, personnel file, materials, confidential, trial court, discovery, district attorney, files, records, police department, prosecutorial, in camera, disclose, personnel records, investigating, purposes, superior court, procedures, officer's, requires, exculpatory evidence, Sections, prosecution's, Citations, police officer, criminal proceeding, prosecution team, present case, exculpatory, cases Case Summary Overview HOLDINGS: [1]-The prosecution was not precluded under Pen. Code, § 832.7, subd. (a), from obtaining access to peace officer personnel files to conduct a preliminary review for material evidence favorableto the defense because such a review, which took place within evidence absent a preliminary review by the prosecution; [4]-Disclosure to the defense required the prosecution to file a motion under § /043. Outcome Petitions denied in part and granted in part. LexisNexis® Headnotes Criminal Law & Procedure > ... > Standards of Review > De Novo Review > Conclusions ofLaw HNI Where resolution of the issues in a proceeding turns onthe interpretation ofstatutes, review is de novo. Governments > Legislation > Interpretation HIN2 In any case involving statutory interpretation, the court's fundamental task is to determine the Legislature's intent so as to effectuate the law's purpose. The court begins by examining the statutory language, giving it a plain and commonsense meaning. The court does not, however, consider the statutory language in isolation; rather, the court looks to the statute's entire substance in order to determine its scope and purposes. Thatis, the court construes the words in question in context, keeping in mind the statute's nature and obvious purposes. The court must harmonize the statute's various parts by considering it in the context of the statutory framework as a whole. If the statutory language is unambiguous, the prosecution team and informed the exercise of then its plain meaning controls. If, however, the language prosecutorial discretion under Gov. Code, § 26500, did supports more than one reasonable construction, then the not constitute either disclosure under Evid. Code, § 1043, court may look to extrinsic aids, including the ostensible or a breach of confidentiality; [2]-Alternatively, the objects to be achieved and the legislative history. investigation exception allowed such access; Laura vanMunching Page 2 of37 228 Cal. App.4th 1046, *1046; 2014 Cal. App. LEXIS 722, **1 Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > Brady Claims HINS The United States Supreme Court has unambiguously assigned the duty to disclose exculpatory HIN3 The suppression by the prosecution of evidence evidence solely and exclusively to the prosecution; those favorable to an accused upon request violates due process assisting the government's case are no more than its where the evidence is material either to guilt or to agents. By necessary implication, the duty is punishment, irrespective of the good faith or bad faith of nondelegable at least to the extent the prosecution the prosecution. The duty to disclose such evidence exists remains responsible for any lapse in compliance. Since even though there has been no request by the accused, the prosecution must bear the consequences of its own encompasses impeachment evidence as well as failure to disclose, a fortiori, it must be charged with any exculpatory evidence, and extends even to evidence known only to police imvestigators and not to the prosecutor. 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. Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > Brady Claims HIN4 Responsibility for Brady compliance lies exclusively with the prosecution. The scope of this disclosure obligation extends beyond the contents of the 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. Courts have thus consistently declined to draw a distinction between different agencies under the same government, focusing instead upon the prosecution team, which includes both investigative and prosecutorial personnel. Thus, an 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. This is because Brady places on the prosecution an affirmative duty to disclose evidence favorable to a defendant, and procedures and regulations can be established to carry the prosecutor's burden and to insure communication ofall relevant information on each case to every lawyer who deals with it. Since the prosecutor has the means to discharge the government's Brady responsibility if he will, any argument for 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, as the final arbiters of the government's obligation to ensure fair trials. Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > Brady Claims negligence on the part of other agencies acting in its behalf. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > Scope ofDisclosure ING The California Supreme Court has held criminal defendants havea right to discover citizen complaints of misconduct found in peace officer personnel files. The holding was an extension of judicially created doctrine evolving in the absence of guiding legislation, based on the fundamental proposition that an accused is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. A defendant may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial. The requisite showing may be satisfied by general allegations which establish some cause for discovery other than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime. Although these 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 right to a fair trial, the decision itself did not actually rely on the prosecutor's obligations under Brady as a basisforits holding. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > Scope ofDisclosure HN7 The California Legislature has codified the privileges and procedures for discovery of citizen complaints ofmisconduct in peace officer personnelfiles through the enactment of Pen. Code, §§ 832.7, 832.8, and Evid. Code, §§ 1043 through 1045. The Penal Code provisions define personnel records in § 832.8 and provide that such records are confidential and subject to discovery only pursuant to the Laura vanMunching 228 Cal. App. 4th 1046, *1046; 2014 Cal. App. LEXIS 722, **1 procedures set forth in the Evidence Code. § 832.7. Sections 1043 and 1045 set out the procedures for discovery in detail. Section 1043, subd. (a), requires a written motion and notice to the governmental agency which has custody of the records sought, and § /043, subd, (b)(2), (3), provides that such motion shall include, inter alia, a description of the type of records or information sought; and affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has such records or information from such records. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > Scope ofDisclosure INS A finding of good cause under Evid. Code, § 1043, subd. (b), is only the first hurdle in the discovery process. Once good cause for discovery has been established, Evid. Code, § 1045, provides that the court shall then examine the information in chambers in conformity with Evid. Code, § 915 (i.e., out of the presence ofall persons except the person authorized to claim the privilege and such other persons as he or she is 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 make disclosure oflittle or no practical benefit. ¢ 1045, subd. (b). The statutory scheme thus carefully balances two directly 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 under § 1043, subd. (b}—1materiality to the subject matter of the pendinglitigation and a reasonable belief that the agency has the type of information sought—insure the production for inspection of all potentially relevant documents. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > Scope ofDisclosure HINS The in camera review procedure and disclosure guidelines set forth in Evid. Code, § 1045, guarantee a balancing ofthe officer's privacy interests against the Page 3 of37 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 number of any prior complainants and witnesses and the dates of the incidents in question. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > General Overview HIN10 See Pen. Code, § 832.7, subd. (a). Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > General Overview HIN11 in complying with Brady with respect to materials in peace officer personnelfiles, there are two analytically distinct stages, identification and disclosure. The first requires access to officer personnel files to identify materials that must be disclosed under Brady. The second stage is disclosure of Brady materials to the defendant in a criminal proceeding. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > General Overview HN12 Evid. Code, § 1043, applies to any case in which discovery or disclosure ofpeace officer personnel records is sought. The statutes 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. But the legislative intent to balance a litigant's need to present a case and a peace officer's right to 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 the inspection of documents and other materials in the possession or control of an adverse party in litigation, a process which has as its principal purpose the elimination of the game element of litigation. An agency which reviews its own records with its attorney has not engaged in discovery. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > General Overview HINI3 Where a governmental agency and its attorney conduct a contained and limited review ofpeace Laura vanMunching Page 4 of37 228 Cal. App.4th 1046, *1046; 2014 Cal. App. LEXIS 722,**1 officer personnel files within the custody and control of the agency, for some relevant purpose, there is no disclosure under the statutes governing discovery or disclosure of suchfiles. The statutory scheme is designed to protect peace officers’ just claim to confidentiality and to regulate the use of peace officer personne! records in civil and criminal proceedings. It was not intended to, and does not, create substantive or procedural obstacles to a police agency's review ofits own files. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > General Overview Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > General Overview HINI4 Under Gov. Code, § 26500, a district attorney is the public prosecutor in a criminal prosecution, representing the People of the State of California. The district attorney leads a prosecution team, which includes both investigative and prosecutorial personnel. Due to the close working relationship between the police and prosecutors, courts in the Brady context have consistently declined to distinguish between separate agencies of the same government that are part of the prosecution team. Even though the district attorney in a criminal prosecution is not the attorney for the police department, the joint operation of the agencies as a prosecution team is a sufficiently analogous relationship, justifying the same result under Pen. Code, § 832.7, subd. (a). Therefore, a prosecutorial inspection of an officer's personnel file for Brady purposesis not a disclosure of the file within the criminal proceeding. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > General Overview HNIS5 The word "confidential" in Pen. Code, § 832.7, subd. (a), has independent significance. Interpreting the word "confidential" as establishing a general condition of confidentiality and interpreting the phrase "shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code" as creating a limited exception to the general principle of confidentiality gives meaning to both clauses of the provision. The term "confidential" is undefined in the statute and ambiguous. Clearly the term prohibits public disclosure of information from officer personnel files, but it is otherwise unclear what limits it sets on access. It does not create an absolute bar to access, because presumably members ofa police departmentthat have legitimate reasons for accessing officer personnel files do not thereby breach the confidentiality ofthe files. It also seems safe to assumethat designating the files as confidential means that government employees both inside and outside the police department that do not have a legitimate basis for accessing officer personnel files cannot do so. Governments > Legislation > Interpretation HNI6 Where a statute is ambiguous, a court may consider a variety of extrinsic aids, including legislative history, the statute's purpose, and public policy. The court must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences. Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > General Overview Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > General Overview HNI7 The district 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 of potential Brady material. For this reason, an inspection of officer personnelfiles by a prosecutor does not constitute disclosure of the files within the criminal proceeding. Similarly, such an inspection does 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, as provided in Gov. Code, § 26500, and information about importantofficer witnesses may be necessary to the informed exercise of that discretion. An inspection by the head of the prosecution team for Brady purposes does not involve any disclosure outside the prosecution team, much less public disclosure of information from the files. It is consistent with the Legislature's intent to restrict discovery of the files, while preserving the prosecutor's ability to comply with its constitutional obligations. Laura vanMunching Page 5 of37 228 Cal. App. 4th 1046, *1046; 2014 Cal. App. LEXIS 722, **1 Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > General Overview Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > General Overview #INI8 An inspection of an investigatory agency's peace officer personnel files for Brady materials by the prosecutor does not constitute a breach of the confidentiality of the files under Pen.. Code, § 832.7, subd. (a). Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > General Overview Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > General Overview HNI9 If prosecutorial Brady review constitutes disclosure in a criminal proceeding or breach of the confidentiality of officer personnel files within the meaning of Pen. Code, § 832.7, subd. (a), then the investigation exception applies and permits such review. Governments > Courts > Judicial Precedent IN20 Cases are not authority for propositions not considered. Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > Duty ofDisclosure Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > Brady Claims IN21 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 agencies and personnel. The prosecution must disclose evidence that is actually or constructively in its possession or accessible to it. Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > Duty ofDisclosure HIN22 Well established, federal constitutional law obligates the prosecution to learn of any evidence favorable to the defendant known tothepolice, including impeachment evidence. Impeachment evidence in officer personnel files cannot constitutionally be excluded from the prosecution's Brady disclosure obligations. The prosecutor is in the best position to evaluate whether evidence must be disclosed becauseit is materially favorable to the defense. The prosecutor is the only person with access to the entire landscape of evidence that will or could be presented against the defendantat trial. At the pretrial stage, the trial court's knowledgeofthe details of the case is often very limited. Although the significance of much impeachment evidence would likely be obvious to all, the import of other information might be clear to the prosecutor but not to the trial court. The Brady materiality standard looks at the suppressed evidence considered collectively, not item by item. Therefore, the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of reasonable probability is reached. Thetrial court cannot analyze the cumulative impact of nondisclosure of a piece of exculpatory—but not itself material—evidence in an officer's personnelfile. Constitutional Law > .. > Case or Controversy > Constitutional Questions > Necessity ofDetermination IN23 The commonpractice is to construe statutes, when reasonable, to avoid difficult constitutional questions. If reasonably possible the courts must construe a statute to avoid doubts as to its constitutionality. Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > Brady Claims Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > Scope ofDisclosure HN24 A Pitchess motion may be initiated by a defendant, so a defendant can obtain any information from personnel files 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. Unlike the high court's constitutional materiality standard in Brady, which tests whether evidence is material to the fairness oftrial, a defendant seeking Pitchess disclosure need Laura vanMunching Page 6 of37 228 Cal. App.4th 1046, *1046; 2014 Cal. App. LEXIS 722, **1 only show that the information sought is material to the subject matter involved in the pending litigation. Evid. Code, § 1043, subd. (b)(3). Because Brady's constitutional materiality standard is narrower than the Pitchess requirements, any citizen complaint that meets Brady's test of materiality necessarily meets the relevance standard for disclosure under Pitchess. Evid. Code, § 1045, subd. (b). Criminal Law & Procedure >.... > Discovery & Inspection > Brady Materials > Duty ofDisclosure HN25 Brady imposes the disclosure obligation on the prosecution, but it allows some flexibility in how the prosecution complies with that obligation. District attorneys need some mechanism for ensuring that they leam of Brady material within their constructive possession. But the choice of that mechanism is within district attorneys’ broad discretionary powers in the initiation and conduct of criminal proceedings. Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > General Overview HIN26 Absent a specific request from the defendant, initial Brady materiality reviews are performed by the prosecution alone. Thus, in the typical case where a defendant makes only 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 brings it to the court's attention, the prosecutor's decision on disclosure is final. It may be appropriate for a court to conduct in camera Brady review of confidential files for specific exculpatory evidence requested by a defendant. Prosecutorial review of possible Brady materials is normally sufficient, and in camera review is reserved for cases where the defense has become aware that exculpatory evidence was withheld. Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > General Overview HIN27 The government is primarily responsible for deciding what evidence it must disclose to the defendant under Brady. And at least where a defendant has made only a general request for Brady material, the government's decision about disclosure is ordinarily final—aunless it emerges later that exculpatory evidence was not disclosed. 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. To justify such a review, the defendant must make some showingthat the materials in question could contain favorable, material evidence. Accordingly, nothing suggests that, merely because information is of a sensitive nature, the prosecution may compel a trial court to conduct the review for Brady materials in the first instance, particularly where the prosecution may access those files and conduct its own review for Brady materials. Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > General Overview HIN28 That there may be somerole forthetrial court in assisting prosecutors to make difficult determinations about the materiality of specific items of evidence, particularly where there are confidentiality concerns, does not mean prosecutors may obligate thetrial court to perform an extensive initial Brady review, as opposed to reviewing particular documents identified by the prosecutor. The responsibility for performing an initial Brady review remains with the prosecution. A trial court has no obligation to conduct a general Brady-rule in camera search through the files of the prosecutor when the prosecutor has assured the court that all possibly exculpatory material has been produced. Governments > Legislation > Interpretation HIN29 Languageofa statute should not be given literal meaning if doing so would result in absurd consequences which the Legislature did not intend. Criminal Law & Procedure > ... > Discovery & Inspection > Brady Materials > Duty ofDisclosure Criminal Law & Procedure > ... > Discovery by Defendant > Tangible Objects > Scope ofDisclosure HIN30 Although the prosecution has the obligation to identify evidence in officer personnel files that meets the Brady materiality standard, a motion under Evid. Code, § 1043, is required to disclose the Brady material to the defendant. Laura vanMunching Page 7 of37 228 Cal. App. 4th 1046, *1046; 2014 Cal. App. LEXIS 722, **1 Headnotes/Syllabus Summary CALIFORNIA OFFICIAL REPORTS SUMMARY Denying the prosecution's request (Evid. Code, § 1043) to perform an in camera review (Evid. Code, § 1045), the trial court ordered a police department to give the prosecution access to officer personnel files to allow for identification of any material evidence favorable to the defense that might be contained in those files. (Superior Court of the City and County of San Francisco, No. 12029482, Richard B. Ulmer, Jr., Judge.) The Court of Appeal denied in part and granted in part petitions for writ of mandate/prohibition filed by the San Francisco District Attorney and the San Francisco Police Department, and directed the trial court to modify its order to provide for the prosecution's filing of a motion for disclosure (Evid. Code, § 1043) if the prosecution identified evidence to be disclosed to the defense. The prosecution was not precluded (Pen. Code, 832.7, subd. (a)) from obtaining access to peace officer personnelfiles to conduct a preliminary review for exculpatory evidence because such a review, which takes place within the prosecution team and informs the exercise of prosecutorial discretion (Gov. Code, § 26500), does not constitute either disclosure or a breach of confidentiality. Alternatively, the investigation exception allows such access. Because it is the prosecutor's duty to identify and disclose material evidence favorable to the defense, the trial court had no obligation to undertake an in camera review to identify such evidence absent a preliminary review by the prosecution. (Opinion by Simons, Acting P. J., with Needham and Bruiniers,JJ., concurring.) Headnotes CALIFORNIA OFFICIAL REPORTS HEADNOTES CA(D(1) Statutes § 29 > Construction > Language > Legislative Intent > Effectuating Purpose. In any case involving statutory interpretation, the court's fundamental task is to determine the Legislature's intent so as to effectuate the law's purpose. The court begins by examiningthe statutory language, giving it a plain and commonsense meaning. The court does not, however, consider the statutory language in isolation; rather, the court looks to the statute's entire substance in order to determine its scope and purposes. That is, the court construes the words in question in context, keeping in mindthe statute's nature and obvious purposes. The court must harmonize the statute's various parts by considering it in the context of the statutory framework as a whole. If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then the court may look to extrinsic aids, including the ostensible objects to be achieved andthe legislative history. CA(2) (2) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Materiality. 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. The duty to disclose such evidence exists even though there has been no request by the accused, encompasses impeachment evidence as well as exculpatory evidence, and extends even to evidence known only to police investigators and not to the prosecutor. 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. CA(3) (3) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Prosecution Team. Responsibility for Brady compliance lies exclusively with the prosecution. The scope of this disclosure obligation extends beyond the contents of the 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. Courts have thus consistently declined to draw a distinction between different agencies under the same government, focusing instead upon the prosecution team, which includes both investigative and prosecutorial personnel. Thus, an individual prosecutor has a duty to learn ofany favorable Laura vanMunching Page 8 of37 228 Cal. App. 4th 1046, *1046; 2014 Cal. App. LEXIS 722, **1 evidence known to the others acting on the government's behalf in the case, including the police. This is because Brady places on the prosecution an affirmative duty to disclose evidence favorable to a defendant, and procedures and regulations can be established to carry the prosecutor's burden and to insure communication ofall relevant information on [*1048] each case to every lawyer who deals with it. Since the prosecutor has the means to discharge the government's Brady responsibility ifhe or she will, any argument for excusing a prosecutor from disclosing what he or she does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials. CA(4) (4) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Nondelegable. The United States Supreme Court has unambiguously assigned the duty to disclose exculpatory evidence solely and exclusively to the prosecution; those assisting the government's case are no more than its agents. By necessary implication, the duty is nondelegableat least 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, a fortiori, it must be charged with any negligence on the part of other agencies acting in its behalf. CA(5) (5) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > PersonnelFiles. The California Supreme Court has held criminal defendants have a right to discover citizen complaints of misconduct found in peace officer personnel files. The holding was an extension of judicially created doctrine evolving in the absence of guiding legislation, based on the fundamental proposition that an accused is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. A defendant may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and fair trial. The requisite showing may be satisfied by general allegations which establish some cause for discovery other than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime. Although these 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 right to a fair trial, the decision itself did not actually rely on the prosecutor's obligations under Brady as a basisfor its holding. CA(6) (6) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > PersonnelFiles. The California Legislature has codified the privileges and procedures for discovery of citizen complaints of misconduct in peace officer personnel files through the enactment of Pen. Code, §§ 832.7, 832.8, and Evid. Code, §& 1043 through 1045. The [*1049] Penal Code provisions define personnel records (§ 832.8) and provide that such records are confidential and subject to discovery only pursuant to the proceduresset forth in the Evidence Code (§ 832.7). Sections 1043 and 1045 set out the procedures for discovery in detail. Section 1043 subd. (a), requires a written motion and notice to the governmental agency which has custody of the records sought, and § 1043, subd. (b)(2), (3), provides that such motion shall include, inter alia, a description of the type of records or information sought; and affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has such records or information from such records. CA(7) (7) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > PersonnelFiles. A finding of good cause under Evid. Code, § 1043, subd. (), is only the first hurdle in the discovery process. Once good cause for discovery has been established, Evid. Code, § 1045, provides that the court shall then examine the information in chambers in conformity with Evid. Code, § 915 (i.e. out of the presence of all persons except the person authorized to Laura vanMunching Page 9 of37 228 Cal. App. 4th 1046, *1049; 2014 Cal. App. LEXIS 722, **1 claim the privilege and such other persons as heorsheis 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 make disclosure oflittle or no practical benefit (§_/045, subd. (b)). The statutory scheme thus carefully balances two directly conflicting interests: the peace officer's just claim to confidentiality, and the criminal defendant's equally compelling interest in all information pertinent to his or her defense. The relatively relaxed standards for a showing of good cause under § 1/043, subd. (b}— materiality to the subject matter of the pendinglitigation and a reasonable belief that the agency has the type of information sought—insure the production for inspection ofall potentially relevant documents. CA(8) (8) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > Personnel Files. The in camera review procedure and disclosure guidelines set forth in Evid. Code, § 1045, guarantee 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 number of any prior complainants and witnesses and the dates of the incidents in question. CAY) (9) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Peace Officer Personnel Files. In complying with Brady with respect to materials in peace officer personnel files, there are two analytically distinct stages, identification and disclosure. Thefirst requires access to officer personnel files to identify materials that must be disclosed under Brady. The second stage is disclosure ofBrady materials to the defendant in a criminal proceeding. CA(10) (10) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > Personnel Files > Preliminary Review by Prosecutor. Evid. Code, § 1043, applies to any case in which discovery or disclosure ofpeace officer personnel records is sought. The statutes 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. But the legislative intent to balance a litigant's need to present a case and a peace officer's right to 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 the inspection of documents and other materials in the possession or control of an adverse party in litigation, a process which has as its principal purpose the elimination of the game element oflitigation. There is no suggestion that the Legislature intended any other meaning here. An agency which reviews its own records with its attorney has not engaged in discovery. CA(I}) (11) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > Personnel Files > Preliminary Review by Prosecutor. Where a governmental agency andits attorney conduct a contained and limited review of peace officer personnel files within the custody and control of the agency, for some relevant purpose, there is no disclosure under the statutes governing discovery or disclosure of such files. The statutory scheme is designed to protect peace officers’ just claim to confidentiality and to regulate the - use Of peace officer personnel records in civil and criminal proceedings. It was not intended to, and does not, create substantive or procedural obstacles to a police agency's review ofits own files. CA(12) (12) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > Personnel Files > Preliminary Review by Prosecutor. Under Gov. Code, § 26500, a district attorney is the public prosecutor in a criminal prosecution, representing the People of the State of California. [*1051] The district attorney leads a prosecution team, which includes both investigative and prosecutorial Laura vanMunching Page 10 of37 228 Cal. App. 4th 1046, 1051; 2014 Cal. App. LEXIS 722,**1 personnel. Due to the close workingrelationship between with the apparentintentofthe Legislature, with a view to the police and prosecutors, courts in the Brady context promoting rather than defeating the general purpose of have consistently declined to distinguish between the statute, and avoid an interpretation that would lead to separate agencies of the same governmentthat are part of absurd consequences. the prosecution team. Even though the district attorney in a criminal prosecution is not the attorney for the police department, the joint operation of the agencies as a prosecution team is a sufficiently analogous relationship, justifying the same result under Pen. Code, § 832.7, subd.(a). Therefore, a prosecutorial inspection of an The:district attorney's office and police department officer's personnel file for Brady purposes is not a constitute a single prosecution team in any given criminal CA(I5) (15) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Peace Officer Personnel Files > Preliminary Review by Prosecutor. disclosure ofthe file within the criminal proceeding. CA(13) (13) Discovery § 42.6 > Criminal Cases > By Defendant > Law case, and the police department acts as the prosecutor's agent with respect to the [*1052] retention of potential Brady material. For this reason, an inspection of officer personnel files by a prosecutor does not constitute Enforcement Officers > Personnel Files > Confidentiality. : _. — . disclosure of the files within the criminal proceeding. The word “confidential” in Pen. Code, § 832.7, subd. (a), Similarly, such an inspection does not breach the has independent significance. Interpreting the word confidentiality of the files. The district attorney has the “confidential” as establishing a general condition of discretion to initiate and conduct on behalf of the people confidentiality and interpreting the phrase “shall not be all prosecutions for public offenses (Gov. Code, § 26500) disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code” as creating a limited exception to the general principle of confidentiality gives meaning to both clauses of the provision. The term “confidential” is undefined in the statute and ambiguous. 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 members of a police department who have legitimate reasons for accessing officer personnel files do not thereby breach the confidentiality of the files. It also seems safe to assume that designating the files as confidential means that government employees both inside and outside the police department who do not have a legitimate basis for accessingofficer personnelfiles cannot do so. CA(14) (14) Statutes § 42 > Construction > Aids. Where statute is ambiguous, a court may consider a variety of extrinsic aids, includinglegislative history, the statute's purpose, and public policy. The court must select the construction that comports most closely and information about important officer witnesses may be necessary to the informed exercise of that discretion. An inspection by the head of the prosecution team for Brady purposes does not involve any disclosure outside the prosecution team, much less public disclosure of information from the files. It is consistent with the Legislature's intent to restrict discovery ofthe files, while preserving the prosecutor's ability to comply with its constitutional obligations. CA(16) (16) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > Personnel Files > Preliminary Review by Prosecutor > Confidentiality. An inspection of an investigatory agency's peace officer personnel files for Brady materials by the prosecutor does not constitute a breach of the confidentiality of the files under Pen. Code, § 832.7, subd. (a). CAC7) (17) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > Personnel Files > Investigation Exception. If prosecutorial Brady review constitutes disclosure in a criminal proceeding or breach ofthe confidentiality Laura vanMunching Page 11 of37 228 Cal. App. 4th 1046, *1052; 2014 Cal. App. LEXIS 722, **1 of officer personnel files within the meaning of Pen. Code, § 832.7, subd. (a), then the investigation exception applies and permits such review. CA(18) (18) Courts § 38 > Stare Decisis. Cases are not authority for propositions not considered. CA(19) (19) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Prosecution Team. 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 agencies and personnel. The prosecution must disclose evidence that is actually or constructively in its possession or accessibletoit. CA(20) (20) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Peace Officer Personnel Files > Materiality > Duty ofProsecutor. Well established, federal constitutional law obligates the prosecution to learn of any evidence favorable to the defendant known to the police, including impeachment evidence. Impeachment evidence in officer personnel files cannot constitutionally be excluded from the prosecution's Brady disclosure obligations. The prosecutor is in the best position to evaluate whether evidence must be disclosed because it is materially favorable to the defense. The prosecutor is the only person with access to the entire landscape of evidence that will or could be presented against the defendant at responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of reasonable probability is reached. The trial court cannot analyze the cumulative impact of nondisclosure of a piece of exculpatory—but not itself material—evidence in an officer's personnelfile. CA(2)) (21) Constitutional Law § 26 > Legislation > Construction in Favor ofConstitutionality. The common practice is to construe statutes, when reasonable, to avoid difficult constitutional questions. If reasonably possible the courts must construe statute to avoid doubtsas to its constitutionality. CA(22) (22) Discovery § 42.6 > Criminal Cases > By Defendant > Law Enforcement Officers > Personnel Files > Standards of Materiality. A Pitchess motion may be initiated by a defendant, so a defendant can obtain any information from personnel files 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. Unlike the high court's constitutional materiality standard in Brady, which tests whether evidence is material to the fairness oftrial, a defendant seeking Pitchess disclosure need only show that the information sought is material to the subject matter involved in the pending litigation (Evid. Code, § 1043, subd. (b)(3)). Because Brady's constitutional materiality standard is narrower than the Pitchess requirements, any citizen complaint that meets Brady's test of materiality necessarily meets the relevance standard for disclosure under Pitchess (Evid. Code, § 1045, subd. (b)). trial. At the pretrial stage, the trial court's knowledge of CA(23) (23) the details of the case is often very limited. Although the significance of much impeachment evidence would likely be obvious to all, the import of other information Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Procedures for Compliance. might be clear to the prosecutor but not to the trial court. Brady imposes the disclosure obligation on the The Brady materiality standard looks at the suppressed prosecution, but it allows some flexibility in how the evidence considered collectively, not item by item. prosecution complies with that obligation. District Therefore, the prosecution, which alone can know what attorneys need some mechanism for ensuring that they is undisclosed, must be assigned the consequent leam of Brady material within their constructive possession. Butthe choice ofthat mechanism is within Laura vanMunching Page 12 of37 228 Cal. App. 4th 1046, *1052; 2014 Cal. App. LEXIS 722, **1 district attorneys’ broad discretionary powers in initiation and conduct ofcriminal proceedings. the CA(24) (24) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Materiality > In Camera Review. Absent a specific request from the defendant, initial Brady materiality reviews are performed by the prosecution alone. Thus, in the typical case where a defendant makes only 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 brings it to the court's attention, the prosecutor's decision on disclosure is final. It may be appropriate for a court to conduct in camera Brady review of confidential files for specific exculpatory evidence requested by a defendant. Prosecutorial review of possible Brady materials is normally sufficient, and in camera review is reserved for cases where the defense has become aware that exculpatory evidence was withheld. CA(25) (25) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Materiality > In Camera Review. The government is primarily responsible for deciding what evidence it must disclose to the defendant under Brady. And at least where a defendant has made only a general request for Brady material, the government's decision about disclosure is ordinarily final—unless it emerges later that exculpatory evidence was not disclosed. 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. To justify such a review, the defendant must make some showingthat the materials in question could contain favorable, material evidence. Accordingly, nothing suggests that, merely because information is of a sensitive nature, the prosecution may compel a trial court to conduct the review for Brady materials in the first instance, particularly where the prosecution may access those files and conduct its own review for Brady materials. CA(26) (26) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Materiality > In Camera Review. That there may be some role for the trial court in assisting prosecutors to make difficult [*1055] determinations about the materiality of specific items of evidence, particularly where there are confidentiality concems, does not mean prosecutors may obligate the trial court to perform an extensive initial Brady review, as opposed to reviewing particular documents identified by the prosecutor. The responsibility for performing an initial Brady review remains with the prosecution.A trial court has no obligation to conduct a general Brady-rule in camera search through the files of the prosecutor when the prosecutor has assured the court that all possibly exculpatory material has been produced. CA(27) (27) Statutes § 30 > Construction > Absurd Consequences. Language of a statute should not be given a literal meaning if doing so wouldresult in absurd consequences which the Legislature did not intend. CA(28) (28) Discovery § 42.6 > Discovery > By Defendant > Law Enforcement Officers > Personnel Files > Evidence Favorable to Defendant. Although the prosecution has the obligation to identify evidence in officer personnel files that meets the Brady materiality standard, a motion under Evid. Code, § 1043, is required to disclose the Brady material to the defendant. CA(29) (29) Criminal Law § 140 > Discovery > Evidence Favorable to Defendant > Duty to Disclose > Peace Officer Personnel Files > Materiality > Duty ofProsecutor. The trial court did not err in refusing to undertake a Brady review of materials identified by a police department, where the prosecution had not undertaken such a review and identified for the court the documents it believed met Brady's materiality standard. Pen. Code, § 832.7, subd. (a), does not preclude prosecutorial access for Brady review, and Brady and Laura vanMunching Page 13 of37 228 Cal. App. 4th 1046, *1055; 2014 Cal. App. LEXIS 722, **1 its progeny allocate responsibility for compliance to the prosecution. Sedgwick and Michael L. Fox for Respondent. {Erwin et al., Cal. Criminal Defense Practice (2014) ch. Jeff Adachi, Public Defender, Matt Gonzalez, Chief 70, § 70.04] Attomey, and Christopher Gauger, Deputy Public Defender, for Real Party in Interest Daryl Lee Johnson. Counsel: George Gascon, District Attorney, Jerry P. Coleman, Laura vanMunching and Allison G. MacBeth, Judges: Opinion by Simons, Acting P. J., with Needham Assistant District Attorneys, for Petitioner and Real Party 20d Bruiniers, JJ., concurring. in Interest the People. Opinion by: Simons, Acting P.J. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Opinion Assistant Attorney General, Laurence K. Sullivan and . . j Seth K. Schalit, Deputy Attorneys General, for California SIMONS, Acting P. J—This case presents an issue of Attorney General as Amicus Curiae on behalf of first impression: In fulfilling its federal constitutional Petitioner and Real Party in Interest the People. [*1056] duty to disclose exculpatory evidence to a criminal defendant under Brady v. Maryland (1963) 373 U.S. 83 Gregory D.Totten, District Attorney (Ventura County) [/0 L. Ed. 2d 215, 83 S. Ct 1194] (Brady), is the and Michael D. Schwartz, Assistant District Attorney, as prosecution entitled to direct access to peace officer Amicus Curiae on behalf of Petitioner and Real Party in personnel files? In this consolidated writ proceeding, Interest the People. petitioners the San Francisco District Attorney and the San Francisco Police Department! [*1057} argue that Rains Lucia Stern and Michael L. Rains for Peace [**3] in this state such access is barred by Penal Code Officers’ Research Association of California (PORAC), section 832.7, subdivision (a) (Penal Code_ section The PORAC Legal Defense Fund and The San Francisco 37 7(a)). Section 832.7(a) is among the statutes adopted Police [**2] Officers' Association as Amici Curiae on py the Legislature to codify the decision in Pitchess v. behalfofPetitioner and Real Party in Interest the People. syperior Court (1974) 11 Cal.3d 531 [113 Cal. Rptr. 897, 522 P.2d 305] (Pitchess), regarding the discovery in criminal cases of citizen complaints against law enforcement witnesses. Section 832.7(a) provides, in part, that peace officer personnel records are confidential and may be disclosed in a criminal proceeding only pursuant to a motion under Evidence Code section 1043 Jeffrey F. Rosen, District Attorney (Santa Clara) and (Section 1043). Petitioners argue that, because section David A. Angel, Assistant District Attorney, as Amicus 932.7(a) bars direct prosecutorial accessto thesefiles, the Curiae on behalf of Petitioner and Real Party in Interest tial court is required, after a proper showing by the the People. prosecution, to conduct the Brady review ofthe files to identify materials that must be disclosed to the defendant. Dennis J. Herrera, City Attorney, and Christine Van Petitioners suggest the prosecution may obtain such a Aken, Deputy City Attorney, for Petitioner City and review and disclosure by filing a motion under Section County of San Francisco. 1043. Nancy E. O'Malley, District Attorney (Alameda County) and Jeff Rubin, Deputy District Attorney, for Appellate Committee of the California District Attorneys Association as Amicus Curiae on behalf ofPetitioner and Real Party in Interest the People. Nina D. Sariaslani for Petitioner San Francisco Police Department. 1 Onepetition (A140767) was filed in the nameofthe People ofthe State ofCalifornia, represented by the San Francisco District Attorney (hereafter referred to as the “People,” “District Attorney,”“prosecution,” or “prosecutor”). The other petition (A140768) was filed by the City and County ofSan Francisco through the San Francisco Police Department (referred to herein as the “SF Police Department”). Defendant Daryl Lee Johnsonisa real party in interest [**4] in both petitions, and the People are an additional real party in interest in the SF Police Department's petition. Laura vanMunching 228 Cal. App. 4th 1046, *1057; 2014 Cal. App. LEXIS 722, **3 Page 14 of37 Respondent Superior Court of the City and County of of felony domestic violence (Pen. Code, § 273.5, subd. San Francisco rejected petitioners’ contentions, concluding that Section 1043 does not apply to motions seeking review of peace 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 recordsin order to comply with Brady. The court directed the SF Police Department to give the District Attorney access to the relevant officer personnel files so that the District Attorney can comply with Brady's disclosure obligations. Wedeny the writ petitions to the extent they challenge the respondent superior court's order requiring the SF Police Department to provide the prosecution access to officer personnelfiles to allow for identification of any Brady materials in those files. We conclude that section 832.7(a), properly interpreted, does not create a barrier between the prosecution and the performance ofits duty under Brady; our construction of section 832.7(a) makes it unnecessary to consider the constitutionality of barring prosecutorial access to officer personnel files for the purposeofidentifying Brady materials therein. [**5] 2 On the other hand, we grant 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 defendant of any Brady material identified by the District Attorney, the prosecution must seek an order authorizing such disclosure under Section 1043. {*1058] BACKGROUND The two petitions for writ of mandate/prohibition involved in the present proceeding arise from a felony domestic violence case, People v. Johnson (Super. Ct. S.F. City and County, No. 12029482). On November 14, 2012, the District Attorney filed a complaint charging defendant Johnson with one count (a)), and one count of misdemeanorinjuring a wireless communication device (Pen. Code, § 591.5). At the December 2013 preliminary hearing, Police Officer Paul Dominguez [**6] testified regarding an incident on November 11, 2012, during which he and Police Officer Antonio Carrasco responded to a 911 call from a residence in San Francisco. Johnson admitted he hit the victim, a female minor; Johnson claimed the minor had “[mJaced” him. The victim showed Officer Dominguez a two-inch lump on the back of her head where Johnson struck her. She also told the officer Johnson had tried to prevent her from calling 911 by grabbing her cell phone and then a cordless phoneoutofher hands. The District Attorney's Motion for in Camera Brady Review In December 2013, the prosecution filed a “Notice of Motion for Discovery of San Francisco Police Department Peace Officer Personnel Records Under Brady and Evidence Code Sections 1043 and 1045(e).” The motion requested that the court conduct an in camera review of personnel records of Officers Dominguez and Carrasco to determine whether any items in their files were material under Brady and therefore subject to disclosure.3 It also requested that the court “disclose to the District Attorney's Office and the defense any Brady material located in the personnel files, and ... issue a protective order to protect the officers’ statutory right of privacy in their personnel [**7] files.” 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 ofthe officers had “materialin 2 In City ofLos Angeles v. Superior Court (Brandon) (2002) 29 CalAth 1 [124 Cal. Rptr. 2d 202, 52 P.3d 129] (Brandon), the Califomia Supreme Court reserved “the question ofwhether Penal Code section 832.7, which precludes disclosure ofofficer records ‘except by discovery pursuantto Sections 1043 and 1046 of the Evidence Code,’ would beconstitutional if it were applied to defeat the right ofthe prosecutorto obtain access to officer personnel records in order to comply with Brady.” (Brandon, at p. 12, fn. 2.) 3 Thetrial court previously denied a similar prosecutorial motion with respect to Officer Carrasco only. Thetrial court's order following the December 2013 motionis the order at issue in this proceeding. Laura vanMunching Page 15 of37 228 Cal. App. 4th 1046, *1058; 2014 Cal. App. LEXIS 722, **7 his ... personnel file 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” [*1059] possession of the 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 [**8] 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 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 Order is that the District Attorney cannotlegally access confidential officer personnelfiles absent a trial court order obtained pursuant to a motion under Section 1043. The Bureau Order explains its purpose as follows: Because “[rJepetitive requests by the District Attorney that the [SF Police] Department check employee personnel files of Department employees who may be witnesses create unnecessary [**9] paperwork and personnel costs ... the Department is adopting a procedure under which the Department advises the District Attorney's Office of the names of employees who have information in their 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 contemplates that 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 personnel files 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 conduct at issue, and the documents and information for potential disclosure. Thereafter, a departmental “‘Brady Committee’” meets to review the synopsis and recommendto the chief of police [**10] whether the employee's name should be disclosed [*1060] to the District Attorney.5 The chief of police approves or disapproves the committee's recommendation. If disclosure of an officer's name is approved, the District Attorneyis notified only that the officer “has material in his or her personnel file that may be subject to disclosure under” Brady. The Bureau Order contemplates that the District Attorney “will create a list of Department employees who have potential Brady material in their personnel files.” It further contemplates that, “When the District Attorney's office deems that a law enforcementofficer,identified by the Department as having possible Brady material in their personnel file, 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 personnel files [**11] to any party absent a trial court order for disclosure. In its conclusion, the Bureau Order explains, “The purpose of this procedure is to ensure that prosecutors and the defense receive sufficient information to comply with the constitutional requirements ofBrady while 4 The Bureau Order relates to both police officer and civilian personnel records, but we refer herein only to officer personnel records. 5 This committee consists ofthe assistant chief ofthe office of chief ofstaff, the director ofrisk management, the head ofthe legal division, the director ofstaff services, the author ofthe synopsis, and retiredjudge with criminal law experience. Laura vanMunching Page 16 of37 228 Cal. App. 4th 1046, #1060; 2014 Cal. App. LEXIS 722, **11 protecting the legitimate privacy rights of law enforcement witnesses.” Defendant Johnson's and the SF Police Department's Responses Defendant Johnson responded to the prosecutor's December 2013 motion with his own “Motion for Brady discovery.” Johnson requested that the trial court either conduct the requested in camera Brady review; declare section 832.7(a) unconstitutional and direct the SF Police Department to 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. Johnson indicated his belief that he could not himself obtain disclosure of the material in the personnelfiles, stating, “defendant knowsonly that those files contain potential Brady material, but cannot move for it specifically because ... he does not know whatitis, or howit might impact his defense.” The SF Police Department responded to the prosecutor's {**12] motion, generally expressing agreement with the positions taken by the prosecutor and urging the 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 [*1061] not made a sufficient showing of Brady materiality to justify court review of the records.6 The court also concluded that the Pitchess motion procedures (¢ 1043 et seg.) 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. The trial court denied the prosecution's Section 1043 motion for in camera Brady review and directed the SF Police Department “to give the District Attorney [**13] access to the personnel files of officers Dominguez and Carrasco ‘so the prosecution can comply with its 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 documents by the trial 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 vacate its January 2014 order denying the prosecution's Section 1043 motion, directing the SF Police Department to give the prosecution access to 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 [**14] Brady materials to both the prosecution and defense counsel, subject to a protective order.7 This court stayed the January 2014 order andtrial in defendant Johnson's criminal case, consolidated the two writ proceedings, and directed the respondent court to show cause why the relief 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’ [*1062] Research Association of California et al. This court also granted the respondent superior court's , 666 6 The prosecution argued it only needed to make someplausible showing” the personnelfiles contain Brady material and the showing could be madeby informing the trial court that the officers were critical witnesses and the SF Police Department had indicated thefiles had potential Brady material. 7 In his briefing in this writ proceeding, defendant andreal party in interest Johnson does not object to the relief sought by petitioners, involving in camera Brady review bythetrial court. Laura vanMunching Page 17 of37 228 Cal. App.4th 1046, #1062; 2014 Cal. App. LEXIS 722, **14 request to file a response to the petitions, and the Attorney General filed an amicus curiae brief.8 DISCUSSION This case is 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, 1] Cal.3d_531, (Brandon, supra, 29 Cal.4th at p. 7.) “In Brady, the high court announced a mile, founded on the due process guarantee of the federal Constitution, that requires the prosecution to disclose evidence that is favorable and ‘material’ to the defense.” (lbid.) The Pitchess procedures include, among others, the key statutory provisions at issue in the present case, section 832.7(a), Section 1043, and Evidence Code_section 1045 (Section 1045).9 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 1043.10 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 [260 Cal. Rptr. 520, 776 P.2d 222] (City ofSanta Cruz).) At issue in this case is whether the prosecution may routinely require the trial court to conduct the initial Brady materiality review ofdocuments 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 personnel files absent a motion under [*1063] Section 1043. They contend the trial court erred in denying the prosecution's request under Section /043 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 contend the trial court erred in concluding that section 832.7(a) is 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 personnel files of two officer witnesses, so that the prosecution could identify any materials required [**17] to be disclosed under Brady. Weconclude that, properly construed, section _832.7(a) does not preclude prosecutorial access to officer personnel files for Brady purposes. Thus, we need not reach the constitutionality issue addressed by the trial court and reserved [**18] 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 prosecution as the “first stage” of the Brady disclosure process. We further conclude that, prior to disclosing the identified Brady material to the | defendant, the prosecution must file a motion for such disclosure under Section 1043. We refer to this request for disclosure as the “second stage” of the Brady disclosure process. This resolution is consistent with the statutory language, the 8 On April 21, 2014, respondent superior court filed a motion forjudicial notice ofthe “Budget Snapshot”for the court's 2014-2015 fiscal year. Because the budgetary constraints faced by the court are [**15] not relevantto the issues oflaw we decide in this writ proceeding, the motion forjudicial notice is denied. 9 Unless otherwise indicated, all further undesignated statutory references are to the Evidence Code. 10 Section 832.7(a) also [**16] references section 1046, but that provision is not relevant in the present case. Section 1046 contains special requirements applicable to requests for disclosure involvingallegations ofexcessive force. 1 Petitioners may take issue with our suggestion that they seek to “routinely”shift review to the trial court. However,their position essentially would shift the responsibility for identifying Brady material in officer personnelfiles to the trial court; such a categorical change is properly characterized as mandatingroutine trial court review for those materials. The prosecution informed thetrial 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 ofthe requested trial court review as the “initial” Brady materiality review, because they seek for the court to review a poolofpotential 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 be thefirst true Brady review. Laura vanMunching Page 18 of37 228 Cal. App.4th 1046, *1063; 2014 Cal. App. LEXIS 722, **18 Legislature's intent for a judicial role in disclosure to protect officer privacy, and the prosecution's federal constitutional obligations under Brady. I. Standard of Review and Statutory Interpretation Principles HNI Resolution of the issues in this writ proceeding turns on the 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 [158 Cal. Rptr. 3d 21, 302 P.3d 211].) CA(D) (1) “‘As HN2 in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose.’ [Citation.] The well-established rules for performingthis task require us to begin by examining the statutory language, giving it a plain and commonsense meaning. [Citation.] We do not, however, consider [**19] the statutory languagein isolation; rather, we look to the statute's entire substance in order to determine its scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mindthestatute's nature and obvious purposes. [Citation.] We must harmonize the statute's various parts [*1064] by considering it 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 language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history. [Citation.]” (Los Angeles County Metropolitan Transportation Authority _v. Alameda Produce Market, LLC (2011) 52 Cal4th 1100, 1106- 1107 [133 Cal. Rptr. 3d 738, 264 P.3d 579].) fl. The Prosecution's Disclosure Obligations Under Brady CA(2) (2) “In Brady, the United States Supreme Court impeachment evidence as well as exculpatory evidence [citation], and that the duty extends even to evidence known only to police investigators and not to 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 [29 Cal. Rptr. 3d 16, 112 P.3d 14].) HIN4 CA(3) (3) “Responsibility for Brady compliance lies exclusively with the prosecution ... .” (in_re Brown (1998) 17 Cal.4th 873, 878 [72 Cal. Rptr. 2d 698, 952 P.2d_ 715] (Brown).) “The scope of this disclosure obligation extends beyond the contents of the 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 thus consistently ‘decline[d] “to draw a distinction between different agencies under the same government, focusing instead upon the ‘prosecution team’ whichincludes both investigative and prosecutorial personnel.”’ [Citation.]” (/d._at p. 879; see 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 [**21] government's behalf in the case, including the police.” (Kyles v. Whitley (1995) 514 U.S. 419, 437 [131 L. Ed. 2d 490, 115 S. Ct. 1555] (Kyles); accord, Youngblood v. West Virginia (2006) 547 U.S. 867, 869— 870 [165 L. Ed. 2d 269, 126 S. Ct. 2188]; People v. Whalen (2013) 56 Cal.4th 1, 64 [152 Cal. Rptr. 3d 673, 294 P.3d 915]; Brandon, supra, 29 Cal.4th at p. 8.) This is because Brady places on the prosecution an “affirmative duty to disclose evidence favorable [*1065] to a defendant” (Kyles, at p. 432), and “‘procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant held ‘that HN3 the suppression by the prosecution of information on each case to every lawyer who deals with 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 {**20] it ...” (citation]” (id. at p. 438). Kyles continued, “Since, then, the prosecutor has the means to discharge the government's Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know aboutboils down to a plea to substitute the police for the prosecutor, and Laura vanMunching Page 19 of37 228 Cal. App. 4th 1046, *1065; 2014 Cal. App. LEXIS 722, **21 even for the courts themselves,as the final arbiters ofthe government's obligation to ensure fair trials.” (Kyles, at p. 438; accord, Brown, at p. 881.) CA(4) (4) As the California Supreme Court emphasized in Brown, HNS “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 than its agents. [Citations]. By necessary implication, the duty is nondelegable at least to the extent the prosecution remains responsible for any lapse in compliance. Since {**22] 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 agencies acting in its behalf [citations].” (Brown, supra, 17 Cal.4th at p. 881.) Ili. The Pitchess Decision and Its Codification in Statutory Law CA(5) (5) In Pitchess, supra, 11 Cal.3d 531, HING the California Supreme Court held criminal defendants have a right to discover citizen complaints of misconduct found in peace officer personnel files. Specifically, the court permitted the defendant, charged with battery on sheriffs deputies, to discover any complaints of excessive force in the deputies' personnel files. (/d_at p. 534.) The holding was an extension of “judicially created doctrine evolving in the absence of guidinglegislation... based on the fundamental proposition that [the accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.” Ud. at p. 535, citations omitted.) The court explained that a defendant “may compel discovery by demonstrating that the requested information will facilitate the ascertainmentofthe facts and a fair trial.” (/d._at p. 536.) “The requisite showing may be satisfied by general allegations which establish some cause for discovery other than ‘a mere desire {**23] for the benefit of all information which has been obtained by the People in their investigation of the crime.’ [Citations.]” (/d._at p. 537.) Although the 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 right to a fair trial” (People v. Mooc (2001) 26 Cal.4th 1216, 1225 [114 Cal. Rptr. 2d 482, 36 P.3d 21] (Mooc)), the Pitchess decisionitselfdid not actually rely on the prosecutor's obligations under Brady as a basis forits holding. [*1066] CA(®) (6) In 1978, HN7 the California Legislature “codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ ... through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.” (City of Santa Cruz, supra, 49 Cal.3d at p. 81, fn. omitted.) City ofSanta Cruz described the statutory schemeas follows: “The Penal Code provisions define ‘personnel records’ (Pen. Code, § 832.8) and provide that such records are ‘confidential’ and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, § 832.7.) ... [SJections 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 [**24] include, inter alia, ‘(2) A description of the type of records or information sought; and [4] (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 of Santa Cruz, at pp. 81-83.) CA(?) (7) City ofSanta Cruz continued: HN8 “A finding of ‘good cause’ under section 1043, subdivision (b) is only thefirst 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.¢., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), 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 make disclosure oflittle 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.4th Laura vanMunching Page 20 of37 228 Cal. App. 4th 1046, *1066; 2014 Cal. App. LEXIS 722, **24 1033, 1039 [130 Cal. Rptr. 2d 672, 63 P.3d_228] (A/ford).) “The statutory scheme thus carefully balances two directly conflicting [**25] 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 under section 1043 subdivision (b)—<‘materiality’ to the subject matter of the pending litigation and a ‘reasonable belief’ that the agency has the type of information sought—insure the production for inspection of all potentially relevant documents. HN9 CA(8) (8) The in camera review procedure and disclosure guidelines set forth in section /045 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 personnelfiles, ordering instead ... that the agency reveal only the name, [*1067] address and phone number of any prior complainants and witnesses and the dates ofthe incidents in question. [Citations.]” (City of Santa Cruz, at p. 84; see Mooc, supra, 26 Cal.4th at p. 1227.)12 IV. Section 832.7(a) Does Not Preclude Prosecutorial Access to Officer Personnel Filesfor Brady Purposes Section 832.7(a) provides: HNIO “Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grandjury, 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 purpose ofthe bill that resulted in the enactment ofsection 832.7(a) and Sections 1043 and 1045 was ““to give the peace officer and his or her employing agency the right to refuse to disclose any information concerning the officer or complaints or investigations of the officer [**27] in both criminal and civil proceedings. ... Personnel files of peaceofficers ... are deemed confidential and not subject to disclosure or discovery except as provided in this bill.”” (Assem. Com. on Criminal Justice, Analysis of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) as amended Aug. 7, 1978; see County of Los Angeles v. Superior Court (1990) 219 Cal.App.3d 1605, 1609 [269 Cal. Rptr. 187].) HINI1 CA(Q) (9) In complying with Brady with respect to materials in peace officer personnelfiles, there are two analytically distinct stages: identification and disclosure. The first requires access to officer personnel files to identify materials that must be disclosed under Brady. The second stage is disclosure of Brady materials to the defendant in a criminal proceeding. Petitioners contend that section §832.7(a), by effectively precluding prosecutorial access to the personnel files, requires, at the first stage, that the trial court make the decision as to what must be disclosed under Brady without identification 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 procedures for the second stage disclosure of Brady [*1068] materials in criminal proceedings (see pt. VIL, post), it does not prohibit the prosecutor, as the head [**28] of the prosecution team, from performing the constitutionally mandated role of identifying Brady materials in the personnel files. In particular, when a prosecutor acting as the head of a prosecution team inspects officer personnel files, or portions thereof, for Brady purposes, that inspection does not constitute disclosure of the files in a criminal proceeding, or otherwise breach the confidentiality of the files. A. Prosecutorial Access to Personnel Recordsfor Brady Purposes Does Not Constitute Disclosure of the Files in a Criminal Proceeding 12 Dueto this limitation on discovery under Pitchess, the potential material for disclosure under Brady may be much more extensive than the potential material for disclosure under Pitchess. In the present [**26] case, for example, the prosecution indicated that a previous Pitchess motion resulted in the disclosure ofsix pages; in contrast, there were 505 pages ofpotential Brady material. Laura vanMunching Page 21 of37 228 Cal. App. 4th 1046, *1068; 2014 Cal. App. LEXIS 722, **28 In determining whether prosecutorial access to officer personnel files constitutes a disclosure prohibited by section 832.7(a), the decision in Michael v. Gates (1995) 38 Cal.App.4th_737 [45 Cal. Rptr. 2d 163] (Gates) provides guidance. There, in an earlier proceeding, a police department permitted a deputy city attorney to review the personnel records 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. Ud_at p. 740.) No evidence from the personnel records was actually introduced in the case. (/bid.) Subsequently, the former officer sued members of the police department and city attorney's office, alleging, [**29] 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, atp. 743.) CA(1@) (10) In holding that the officer's claims failed, Gates focused on the language in section 832.7(a) directing that officer personnel records “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 was no “discovery or disclosure’ of[the officer's] records within the meaning of the statutes.” (Gates, supra, 38 Cal.App.4th_at_p. 743.) The court reasoned: HNI2 “Section 1043] applies to ‘any case in which discovery or disclosure’ of peace officer personnel records is sought. The statutes 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 any litigation.” (Gates, at p. 743.) Butthe legislative intent “to balance a litigant's need to present a case and a peace officer's right to privacy ... [{] ... would not be advanced by extending the procedural [**30] 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 the inspection of [*1069}] documents and other materials in the possession or control of an adverse party in litigation, a process which has as its principle purpose the elimination of the ‘game’ element of litigation. [Citation.] There is no suggestion that the Legislature intended any other meaning here. An agency which reviewsits own records with its attorney has not engaged in discovery.” (/d. at p. 744, citation omitted.) CA(II) (11) Gates stated its holding as follows: “Thus, we hold that HNI3 where, as here, a governmental agency andits attorney conduct a contained andlimited review ofpeace officer personnelfiles within the custody and control of the agency, for some relevant purpose, there is no disclosure under the statutes. The statutory scheme is designed to protect peace officers’ ‘just claim to confidentiality’ and to regulate the use ofpeace officer personnel records in civil and criminal proceedings. [Citation.] It was not intended to, and does not, create substantive or procedural obstacles to a police agency's review ofits own files.” (Gates, supra, 38 Cal.App.4th at p. 745.) CA(12) (12) The present [**31] case is not materially distinguishable. HN14 Under Government Code section 26500, the District Attorney is the public prosecutor in a criminal prosecution, representing the People ofthe State of California. (Dix_v. Superior Court (1991) 53 Cal.3d 442, 451 [279 Cal. Rptr. 834, 807 P.2d 1063].) 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 fn. 3, quoting U.S. v. Brooks (D.C. Cir. 1992) 296 U.S. App.D.C. 219 [966 F.2d 1500, 1503] (Brooks)), courts in the Brady context have “consistently” declined to distinguish between separate agencies of the same government that are part of the prosecution team (Brown, at p. 879; see id. at p. 881 {‘“those assisting the government's case are no more than its agents”]). Even though the District Attorney in a criminal prosecution is not the attorney for the SF Police Department in the same sense as in Gates, the joint operation of the agencies as a prosecution team is a sufficiently analogous relationship, justifying the same result under section 832.7(a). “ Laura vanMunching Page 22 of37 228 Cal. App. 4th 1046, *1069; 2014 Cal. App. LEXIS 722, **31 We therefore conclude the reasoning of Gates is ‘establish[ing] a general condition of confidentiality’ applicable in the present case.l3 In particular, a [citation], and interpreting the phrase ‘shall not be prosecutorial inspection of an officer's personnel file for disclosed in any criminal or civil proceeding except by Brady purposes is not a disclosure of the file within the discovery pursuant to Sections 1043 and 1046 of the criminal proceeding. [*1070] Evidence Code’ [citation] as ‘creat[ing] a limited exception to the general principle of confidentiality,’ we B. Prosecutorial Access to Personnel Recordsfor Brady ‘give[] meaning to both clauses’ of the provision in Purposes Would Not Breach the Confidentiality of the question. [Citation.]” (Copley, at p. 1285.) Because the Files A separate issue not directly addressed in Gates is the significance of section 832.7(a)'s designation of officer personnelfiles as “confidential.” (¢ 832.7(a) [records are “confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 ofthe Evidence Code’’|.) CA(13) (13) In Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1279 [48 Cal. Rptr. 3d 183, 141 P.3d 288] (Copley), the California Supreme Court held that HNIS5 the word “confidential” in section 832.7(a has independent significance. There, the court considered a newspaper publisher's request under the California [**33] Public Records Act (Gov. Code, § 6250 et seg.) for records relating to a peace officer'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 criminal or civil 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 define procedures for disclosure in criminal andcivil proceedings,it could have done so bystating that the records “shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 ofthe Evidence Code ... 5Without also designating the information “confidential.” [Citation.]’ [Citations.] interpreting the word ‘confidential’ Thus, by {citation] as personnel files were “confidential,” they were exempt from disclosure [**34] under the public records act (Gov. Code, § 6254, subd. (k)).'4 (Copley, at p. 1283; see Long Beach Police Officers Assn. v. City ofLong Beach (2014) 59 Cal.4th 59, 67 [325 P.3d_ 460]; City ofRichmond vy. Superior Court (1995) 32 Cal.App.4th 1430, 1440 [38 Cal. Rptr. 2d 632].) Although the officer personnel files within the scope of section 832.7(a) are confidential and may not be disclosed publicly pursuant to the public records [*1071] 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 personnel files in the possession of another member ofthe 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 : known only to 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 personnel files, but it is otherwise unclear what limits it sets on access. It does not create an absolute bar to access, because presumably members of a police department who have [**35] legitimate reasons for accessing officer personnelfiles do not thereby breach the confidentiality of the files. It also seems safe to 13 [**32] The authors ofthe treatise California Criminal Discovery reach the same conclusion, stating: “When thedistrict attorney (or Attorney General) prosecutes a criminal case arising outofan investigation by a law enforcement agency, the investigating law enforcement agencyis part ofthe ‘prosecution team,” the district attomeyis the attorney for the ‘prosecution team,’ and the disclosure to the district attorney ofthe contents ofthe personnel records ofa police officer employed by that investigating law enforcement agency does not constitute ‘disclosure’ of the personnel records within the meaning of Penal Code section 832.7(a).” (Pipes & Gagen, Cal. Criminal Discovery (4th ed. 2008) § 10:20.3.1, p. 964.) 14 Government Code section 6254, subdivision (k) exempts from disclosure “[rlecords, the disclosure of which is exempted or prohibited pursuantto federal or state law, including, butnotlimited to, provisions ofthe Evidence Coderelating to privilege.” Laura vanMunching 228 Cal. App. 4th 1046, *1071; assume that designating the files as confidential means that government employees both inside and outside the police department who do nothave legitimate basis for accessing officer personnel files cannot do so. However, the scope ofthe confidentiality is otherwise unclear. HNI6 CA(14) (14) Where a “statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute's purpose, and public policy. [Citation.]” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126 [77 Cal. Rptr. 3d 569, 184 P.3d 702].) ““We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose ofthe statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]” (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal. Rptr. 2d 77, 906 P.2d 1232].) The Legislature's intent in enacting the statutory Pitchess procedures has been summarized as follows: “The report by the Senate Committee on the Judiciary indicates that the main purpose of the 1978 legislation (Sen. Bill No. 1436) was to curtail the practice of record shredding and discovery abuses which allegedly occurred in the wakeofthe [**36] [Pitchess] decision ... . [[] The analysis of Senate Bill No. 1436 prepared for the Assembly Committee on Criminal Justice notes that ‘[t]he thrust of this 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 and civil 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 evidenced its purpose to provide retention of relevant records while imposing limitations upon their discovery and dissemination.” (San Francisco Police Officers’ Assn. v. Superior Court (1988) 202 Cal.App.3d_183, 189-190 [248 Cal. Rptr. 297], citation omitted; accord, Berkeley Police Assn. v. City ofBerkeley (2008) 167 Cal.App.4th 385, 393 [84 Cal. Rptr. 3d_130]; see Assem. Com. on Criminal Justice, Analysis of [*1072] Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 18, 1978, p. 2 [“Discovery of police personnel files is limited to those instances set forth in Section 1043 of the Evidence Code as added by this bill.” (italics added)}.) Page 23 of37 2014 Cal. App. LEXIS 722, **35 Thus, the Legislature's intent was to protect officer personnel files from public disclosure, and to specify a procedure for discovery of information in such files. The committee reports associated with the enactment never make any reference to Brady, or [**37] express concern with prosecutorial access to personnel files. (See Neri, Pitchess v. Brady: The Need for Legislative Reform of California's Confidentiality Protection for 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 and officer privacy rights.”].) The legislative history does not support a construction that would deem prosecutorial inspection of officer personnel files for Brady purposes a breach of confidentiality within the meaning ofsection 832.7(a). HNI7 CA(15) (15) The district 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 of potential Brady material. (Brown, supra, 17 Cal.4th at pp. 879, 881.) For this reason, we determined abovethat an inspection of officer personnel files by a prosecutor would not constitute disclosure of the files within the criminal proceeding. Similarly, such an inspection would not breach the confidentiality of the files. The district attorney has the discretionto “initiate [**38] 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 ofthat discretion. An inspection by the head of the prosecution team for Brady purposes would not involve any disclosure outside the prosecution team, muchless public disclosure of information from thefiles. 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 personnel files privileged under the _ public records act. Thus, our conclusion that designating the personnel files as “confidential” does not prohibit prosecutorial access Laura vanMunching Page 24 of37 228 Cal. App. 4th 1046, *1072; 2014 Cal. App. LEXIS 722, **38 for Brady purposes does not render the word lives of individuals. [Citations.] The latter have been meaningless. Finally, recognizing that prosecutors are not treated as ‘confidential’ so as to protect the right of prohibited from accessing officer personnel files for privacy.” (/d_at p. 129, fn. omitted.) “‘Confidential’ Brady purposes is consistent with the apparent access information,” the Attorney General observed, is “‘not prosecutors have to other confidential information, such publicly disseminated.’”” (/d. at fn. 3.) The Attorney as police investigation reports (Rackauckas v. Superior General further reasoned that disclosure to the district Court (2002) 104 _Cal.App.4th 169, 174-177 [128 Cal. attorney would not compromise the confidentiality of the Rptr. 2d 234]) and the identities of confidential [**39] informants (People v. Hobbs (1994) 7 Cal.4th 948, 957— 964 [30 Cal. Rptr. 2d 651, 873 P.2d 1246]). [*1073] As the head of the prosecution team, the prosecutor has access to a range of materials otherwise considered to be confidential.15 This construction of the term “confidential” in section 832.7(a) is also supported by a 1983 Attorney General opinion, the relevant reasoning ofwhich was approved in Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 617-618 [4 Cal. Rptr. 3d 239] (Fagan).\6 The Attorney General had been asked to consider “whatrestrictions are placed upon a district attorney in obtaining access to the personnel records of a police officer ... .” (66 - Ops.Cal.Atty.Gen. 128 (1983) (1983 Attorney General Opinion).) [**40] Applying an exception for investigations of officer conduct (see pt. IV.C., post), the Attorney General concluded that “as long as the district attorney is duly investigating ‘the conduct of police officers or a police agency’ as specified in section 832.7, he need not first obtain a court order for access to the records in question.” (66 Ops.Cal.Atty.Gen., supra, at p. 128.) In the course of reaching that conclusion, the Attorney General considered what it meant forthe files to be confidential. The Attorney General noted that “the Legislature and the courts have generally allowed public files. @d. 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 contained in confidential peace officer personnelfiles in investigating off-duty criminal conduct by theofficers. (Fagan, supra, lll Cal.App.4th at pp. 610, 615.) As pertinent in the present case, the court further held that the district attommey's access to the tests did not mean that the tests were no longer [*1074] confidential. (/d_at pp. 617-618.) After discussing the 1983 Attorney General Opinion, Fagan concluded that, while the district attorney properly accessed the test results, the district attorney was obligated “to maintain the nonpublic nature of the files absent judicial review of the relevance’ of the information” through a motion under Section 1043. (111 Cal.App.4th at p. 618.) CA(16) (16) For the above reasons, we conclude that HNI8an inspection of an investigatory agency's peace officer personnelfiles for Brady materials by the [**42] prosecutor would not constitute a breach of the confidentiality ofthe files under section 832.7(a). C.In the Alternative, the Exceptionfor District Attorney Investigations ofOfficer ConductIs Applicable access to governmentfiles relating to the conduct of Appearing as amicus curiae in this proceeding, the official business but not to those files relating to the personal Attorney General encourages this court to conclude the investigation exception applies to Brady review of 15 Wehold only that such Brady reviewsofofficer personnel files do not breach the confidentiality ofthe 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 we do not address whether other disclosures to other governmental entities for other purposes are permissible under section 832.7(a). Furthermore, our decision does not prohibit a police departmentanddistrict attorney from fashioning procedures to identify a pool ofpotential Brady materials for scrutiny by the prosecutor, much like a pool of such materials was identified for review bythetrial court in the present case (see pt. IV.F., post). 16 “Opinions ofthe Attorney General, while not binding, are entitled to great weight. [Citations.] In the absence [**41] of controlling authority, these opinions are persuasive “since the Legislature is presumed to be cognizantofthat construction ofthe statute.” [Citation.]” (California Assn. ofPsychology Providers v. Rank (1990) 51 Cal.3d 1, 17 [270 Cal.Rptr. 796, 793 P.2d 2].) It can be presumed that, ifan 66. opinion were a misstatementofthelegislative intent, “some corrective measure would have been adopted.””” (/bid.) Laura vanMunching Page 25 of37 228 Cal. App. 4th 1046, *1074; 2014 Cal. App. LEXIS 722, **42 officer personnel files. That exception, contained in the seek discovery ofthe peace officer personnel records ofa second sentence of section 832.7(a) and referenced just criminal defendant who was not employed as a police above, provides, “This section shall not apply to officer at the time the crime was allegedly committed, the investigations or proceedings concerning the conduct of district attorney is not exempted under the provisions of peace officers or custodial officers, or an agency or [section 832.7(a)], and must comply with the department that employs those officers, conducted by a requirements of [Section 1043] et seg.” (Gremminger, at grand jury, a district attorney's office, or the Attorney p. 407.) ~ General's office.”!7 Petitioners contend the exception applies only “when the officer is a suspect in an investigation or target of a criminal prosecution for conduct that occurred while employed as an officer.” We agree with the Attorney General and concludethat, even ifprosecutorial accessto officer personnelfiles for Brady purposes were deemed to be a disclosure in a criminal proceeding or breach of the confidentiality of the files, the investigation exception is applicable. [**43}] People vy. Superior Court (Gremminger) (1997) 58 Cal.App.4th 397 [67 Cal. Rptr. 2d 910] (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 of the files, and Gremminger denied the prosecution's petition for writ of mandate, concluding the investigation exception did not apply. (/d. at p. 404.) Gremminger reasoned in part, “the People cannot reasonably contendthat the district attorney seeks to review [the defendant's] ... police officer personnel records in order to investigate his [*1075] conduct as 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.” (Id. at p. 406.) Gremminger [**44] held, “where the People In contrast to Gremminger, when a prosecutor conducts a Brady review ofan officer's personnelfile, the prosecutor is investigating that officer's conduct to determine whether there is any evidence that could be used to impeach him or her at trial. 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 excludes other types of investigations of officer conduct from the scope 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 conduct of police officers who are defendants or suspects. (See Pipes & Gagen, Cal. Criminal Discovery, supra, § 10:20.3.3, p. 966.) HNI9 CA(17) (17) If prosecutorial Brady review constitutes disclosure in a criminal proceeding or breach of the confidentiality of officer personnel files within [**45] the meaning of section 832.7(a), then the investigation exception applies and permits such review.18 D. Alford Does Not Preclude Our Construction of Section 832.7(a CA(I8) (18) As noted in a footnote at the outset of this decision, [**46] in Brandon the California Supreme Court reserved the question “whether Penal Code 17 Theinvestigation 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 [274 Cal, Rptr. 415] [under the exception, district attorney investigating an allegation of sexual assault by an officer could access a statementthe officer- defendant provided duringa police internal investigation].) 18 The amicuscuriaebrieffiled by the Attorney General takes the position that the investigation exception can be “reasonably construed to authorize direct access ofpersonnel records by a district attorney's office to satisfy the prosecutor's Brady obligation.” The Attorney General's briefdoes not directly address whether such a Brady review constitutes disclosure in a criminal proceeding or breach ofthe confidentiality of officer personnelfiles within the meaningofthefirst sentence of section 832.7(a). Nevertheless, the Attorney General generally supports the proposition that the Legislature would not have viewed prosecutorial access as a breach of confidentiality in stating, “the Legislature, aware that the prosecution is deemed to have constructive knowledgeofthe material exculpatory informationin thefiles ofthe prosecution team that must be disclosed under Brady to the defendantfor trial, could readily have concluded that there was no ‘just claim to confidentiality’ vis-a-vis the prosecution for such information.” Laura vanMunching Page 26 of37 228 Cal. App. 4th 1046, *1075; 2014 Cal. App. LEXIS 722, **46 section 832.7, which precludes disclosure of officer records ‘except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code,’ would be constitutional if it were applied to defeat the right of the prosecutor to obtain [*1076] access to officer personnel records in order to comply with Brady.” (Brandon, supra, 29 Cal.4th at p. 12, fn. 2.) Just six months later, the court stated in Alford, without elaboration, that “peace officer personnelrecords retain their confidentiality vis-a-vis the prosecution” absent compliance with Sections 1043 and 1045. (Alford, supra, 29 Cal.4th at p. 1046.) The issues before our high court in A/ford involved the prosecution's right 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 disclosure obligations. We do not understand that 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 [6 Cal. Rptr. 3d_ 138] (Gutierrez), and Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 56 [4 Cal. Rptr. 3d 767] (Abatti), to the extent they interpret Alford to hold that section 832.7(a) prohibits the prosecution from accessing officer [**47] personnel files for Brady purposes. In any event, neither A/ford, nor Gutierrez, nor Abatti considered the particular issues of statutory interpretation addressed in the present case, and “it is axiomatic that HN20 cases are not authority for propositions not considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176 [119 Cal. Rpir. 2d 903, 46 P.3d 372] (Alvarez).) E. Petitioners'Interpretation ofSection 832.7(a) Presents Avoidable Constitutional Questions HN21 CA(19) (19) 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 agencies and personnel. [Citations.] The prosecution must disclose evidence that is actually or constructively in its possession or accessible to it. [Citation.]” (People v. Jordan (2003) 108 Cal.App.4th 349, 358 [133 Cal. Rptr. 2d 434] (Jordan); see People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315 [96 Cal. Rptr. 2d 264] [“[t]he scope of the prosecutorial duty to disclose encompasses exculpatory evidence possessed by investigative agencies to which the prosecutor has reasonable access”’].) CA(20) (20) In Gutierrez, after concluding the prosecution could not access officer personnel files absent a motion under Section 1043, the court relied on Jordan in concluding [**48] that officer personnel files were outside the scope of the prosecution's Brady disclosure obligation. (Gutierrez, supra, 112 Cal.App.4th at pp. 1474-1475.) The court rejected the defendant's contention “that the [*1077] prosecutor was obliged to conduct a review ofthe files of ‘all significant police officer witnesses’ and disclose any Brady material.” (Ibid.) Gutierrez reasoned, “Because under Alford the prosecutor does not generally have the right to possess and does not have access to confidential peace officer files, Gutierrez's argument for routine review of the complete files of all police officer witnesses in a criminal proceeding necessarily fails.” Wd_at p. 1475.) Under Gutierrez's reasoning, the prosecution arguably has no obligation under Brady to devise procedures to uncover exculpatory evidence in officer personnel files, because those materials are outside the Brady disclosure requirements.!9 But that conclusion, which rests on an overly expansive reading of Alford, seems contrary to HIN22 well-established, federal constitutional law obligating the prosecution to leam of any evidence favorable to the defendant known to the police (Kyles, supra, 514 US. at p. 437), including impeachment evidence (People v. Salazar, supra, 35 Cal.4th at_p. 1042). (See Youngblood v. West Virginia, supra, 547 U.S. at p. 870.) That is, impeachment evidence in officer personnel files cannot [**49] constitutionally be excluded from the prosecution's Brady disclosure 19 The People embrace this holding in Gutierrez, expressing dismaythat, if section 832.7(a) does not preclude prosecutorial access to personnel files 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 argumentlater in the decision. (See pt. IV-F., post.) Laura vanMunching Page 27 of37 228 Cal. App. 4th 1046, *1077; 2014 Cal. App. LEXIS 722, **49 obligations. (See Neri, supra, 43 McGeorge L.Rev. at p. 3/0 [asserting Gutierrez “violates the federal Supremacy Clause by redefining prosecutors' federal Brady duty to exclude peace-officer personnel files, and is an improper attempt to subordinate a federal constitutional right to state privacy interests” (fn. omitted)].) Thus, petitioner's interpretation of section 832.7(a), which relies on Gutierrez, raises serious constitutional questions because it would interfere with the disclosure of exculpatory evidence in police files, contrary to Brady and its progeny. Interpreting section 832.7(a) to shift the Brady review from the prosecutor to the trial court raises additional constitutional concerns. The prosecutor is “in the best position to evaluate whether evidence must be disclosed because it is materially favorable [**50] to the defense.” (Villasana v. Wilhoit (8th Cir. 2004) 368 F.3d 976, 979; see U.S. v. Holmes (4th _Cir._ 1983) 722 F.2d 37, 41 [pointing outthat the trial court “generally does not know the government's theory of the prosecution nor what possible defense might be available to defendants, and thus it 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 access to the entire landscape of evidence that will or could be presented against the defendantattrial. At the pretrial stage, the trial court's knowledge of the details of the case is often very limited. Although the significance of much impeachment evidence would [*1078] likely be obvious to all, the import of other information might be clear to the prosecutor but not to the trial court. This is particularly true because the Brady materiality standard looks at 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 what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of ‘reasonable probability’ is reached.” (Jd. at _p. 437.) The trial court cannot analyze the cumulative [**51] impact ofnondisclosure ofa piece of exculpatory—butnot itself material—evidence in an officer's personnelfile.20 CA(21) (21) 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 provides additional support for our approach. (People _yv. Superior Court (Romero) (1996) 13 Cal.4th 497, 509 [53 Cal. Rptr. 2d 789, 917 P.2d_ 628]; see HN23 In_re Smith (2008) 42 Cal.4th 125], 1269 [73 Cal. Rptr. 3d 469, 178 P.3d 446] [“Our common practice is to ‘construe[] statutes, when reasonable, to avoid difficult constitutional questions.’ [Citation.]”]; People v. Smith (1983) 34 Cal.3d 251, 259 [193 Cal. Rptr. 692, 667 P.2d 149] [“if reasonably possible the courts must construe a statute to avoid doubts as to its constitutionality”].) F. Petitioners' Additional Arguments Regarding Section 832.7(a) CA(22) (22) Petitioners contend that interpreting section 832.7(a) to permit the prosecutor to access officer personnel files would render superfluous the Pitchess procedures in Sections 1043 and 1045. However, HN24 a Pitchess motion may be initiated by a defendant, so a defendant can obtain any information from personnel files [**52] 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.4th 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 sought is 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 id. at p. 14.) Thus, because certain information that [*1079] would not be 20 Weare aware ofnocourt that has approved routinely shifting the responsibility for performing the initial Brady review from the prosecution to the court. That allocation ofresponsibility has long been a fundamental aspect ofmodern constitutional criminal procedure, andit is not to be altered lightly. Laura vanMunching Page 28 of37 228 Cal. App. 4th 1046, *1079; 2014 Cal. App. LEXIS 722, **52 deemed material under Brady would be deemed material under Pitchess, the Pitchess scheme is not rendered superfluous by our interpretation 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 we conclude prosecutors must use motions under Section 1043 to disclose the |**53] Brady materials they identify to the defense. (See pt. VIL, post.) Petitioners also contend the decision in Fagan, supra, lll 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 personnel files under the section 832.7(a) investigation exception. material: “The exception contained in section 832.7[(a)] affords the district attorney the ability to review confidential peace officer personnel files when investigating police misconduct without notice to the individuals involved. At the same time, it requires the district attorney to maintain the nonpublic nature of the files absent judicial review of the relevance of the information to a criminalor civil action.” (Fagan, supra, ill Cal.App.4th at p. 618.) Similarly, our construction of section 832.7(a) affords the prosecution the ability to review confidential peace officer personnel files in order to comply with its obligation to identify Brady material in the possession ofthe prosecution team. And we further hold the District Attorney is required to maintain the nonpublic nature of the files and seek judicial review prior to any disclosure to the defendant through a motion under Section 1043. (See pt. VIL, post.) [*1080] (Fagan, at p. 610.) Fagan further held the results could Citing Fagan, the People argue it would not savejudicial not “be publicly disclosed or disseminated absent resources to require the prosecution to perform theinitial compliance with [Section 1043], including a judicial Brady review, because “the [trial] court will still be 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 afforded the district attorney by [section 832.7(a)] is inapplicable, he must proceed according to the provisions of [Section 1043].” (Fagan, at p. 6/8.) However, because Fagan did not consider whether prosecutorial review for Brady purposes would, under section _832.7(a), constitute disclosure in a criminal proceeding or breach the confidentiality of the officer personnel files, that statement is not properly treated as contrary authority; the same reasoning applies to similar language in Gremminger, supra, 58 Cal.App.4th at page 407. (Alvarez, supra, 27 Cal.4th at p. 1176.) Notably, [**54] Fagan supports the distinction we make between prosecutorial access to a personnel file to identify Brady material andpublic disclosure ofthat required to review the samerecords itself [**55] before ordering disclosure to the defense, causing it the exact burden it sought to avoid in the initial in camera review.” (Boldface & italics omitted.) However, that presupposes prosecutors will conclude that all of the potential Brady materials identified by the police department should be disclosed in all cases, which seems unlikely.2! In any event, our decision that the prosecutor must perform the initial materiality review is based not on the burdens such review would impose on the trial court. Instead, our decision is based on the fundamental constitutional proposition that the Brady disclosure requirement is the prosecution's obligation and our conclusion that section 832.7(a) does not preclude prosecutorial access for Brady review. 21 Defendant Johnson argues that the standard for pretrial disclosure is not the Brady materiality standard, because Penal Code section 1054.1 subdivision (e) “requires the prosecution to disclose ‘[a]ny exculpatory evidence,’ notjust material exculpatory evidence.”(Barnett v. Superior Court (2010) 50 Cal.4th 890, 901 [114 Cal. Rptr. 3d 576, 237 P.3d 980].) That section ofthe Penal Code “illustrates the difference between being entitled to relief for a Brady violation and being entitled merely to receive the evidence.” (Barneit, at p. 901.) Johnson argues the prosecution will be obligated to disclose any evidence from [**56] officer personnelfiles that meets that statutory standard for disclosure. The Penal Codesection 1054.1, subdivision (e) disclosure requirements are notat issue in this writ proceeding, and nothing in this opinion is intended to address the scope ofthe prosecution's obligations under thatstatute. Laura vanMunching Page 29 of37 228 Cal. App. 4th 1046, *1080; 2014 Cal. App. LEXIS 722, **55 Finally, petitioners suggest a system that gives the prosecution access to officer personnel files for Brady purposes would be problematic and impractical. For example, the District Attorney argues, “while the ... system of maintaining a Brady alert list permits thefiles 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 prosecutor in any trial at any time to examine personal personnel records to look for more recent potential Brady material.” The People also assert that “prosecutors will be duty bound ... to examine the personnel files of every peace officer witness in every case to search for potential Brady material.” CA(23) (23) However, our decision does not prohibit police departments and district attorneys from designing orderly procedures to identify and provide materials for materiality review of officer personnel files from the prosecutor to the trial court. None of the cases cited by petitioners supports such a routine shift of the Brady obligation to trial courts. A.The Ritchie Decision In Pennsylvania v. Ritchie (1987) 480 U.S. 39 [94 L. Ed. 2d 40, 107 S. Ct. 989] (Ritchie), the defendant, charged with molesting his daughter, served a subpoena seeking disclosure of confidential reports prepared by the child protective services agency that investigated the charges. (Id. at p. 43.) The agency refused to comply with the subpoena on the basis the records were privileged under state law. ([bid.) As described in Ritchie, the applicable statute provided that child abuse reports “‘shall be confidential and shall only be made available to’” specified entities, including “‘[a] court of competent Brady review by prosecutors. HN25 Brady [**57] jurisdiction pursuant to a court order.”” (/d. at p. 44, fn. imposesthe disclosure obligation on the prosecution, but it allows some flexibility 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 ofBrady material within their constructive possession. [Citation.] But the choice of that mechanism is within district attorneys' broad ‘discretionary powers in the initiation and conduct of criminal proceedings ...’. ... [Citation.]” (People v. Rose (2014) 226 Cal.App.4th 996, {*1081] 1006-1007 {172 Cal. Rptr. 3d 516] (Rose).) Indeed, it may be that the current procedures used to identify materials requiring a Brady materiality determination could continue to be employed, with the prosecutor performing the review rather than the trial court. Of course, as always, the prosecution bears the risk of reversal if the adopted procedures are inadequate and Brady material is not disclosed. (Rose, at p. 1007.) In any event, because Brady requires that exculpatory evidence within officer personnel files be disclosed, petitioners' position would not result in any fewer files being reviewed; it would simplyresult in those files being reviewed bythe court. V. The Federal Cases Cited by Petitioners Do Not Support the Requested Shift in Responsibility |**58] for Performing Initial Brady Reviews As discussed above, petitioners seek to routinely shift responsibility for performing theinitial Brady 2.) The Pennsylvania Supreme Court held the defendant's attorney was entitled to review the files for relevant evidence.(Jd. at p. 46.) The United States Supreme Court reversed. The court rejected the prosecution's argument that the reports were not subject to disclosure even if they were [**59] material within the meaning of Brady. (Ritchie, supra, 480 U.S. at p. 57.) Ritchie reasoned that state law permitted disclosure pursuant to a court order, and, therefore, the reports could be disclosed “when a court of competent jurisdiction determines that the information is ‘material’ to the defense of the accused.” (/d. at p. 58.) The court held the defendant “is entitled to have the [protective services agency] file reviewed by the trial court to determine whether it contains information that probably would have changed the outcomeofhistrial. If it does, he must be given a newtrial.” (bid.) However, Ritchie cautioned that the defendant could not “require the trial court to search through the [agency's] file without first establishing a [*1082] basis for his claim that it contains material evidence.” (Vd. at p. 58, fn. 15; see 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. (Ritchie, at p. 59.) CA(24) (24) Petitioner SF Police Department. asserts Ritchie stands for the proposition that courts may be Laura vanMunching Page 30 of37 228 Cal. App. 4th 1046, *1082; 2014 Cal: App. LEXIS 722, **59 “enlisted to use in camera review to strike the careful balance between a defendant's access to Brady evidence and state law protections [**60] for privacy or confidentiality.” However, Ritchie emphasized that, HIN26 absent a specific request from the defendant, initial Brady materiality reviews are performed by the prosecution alone. (Ritchie, supra, 480 U.S. at p. 60.) Thus, the court explained, “In the typical case where a defendant makes only 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 brings it 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 remand for in camera review bythetrial court was dueto the fact that the defendant had made a motion requesting specific exculpatory evidence that he had reason to believe existed, thus making the case unlike the “typical case.” (bid.) CA(25) (25) As pertinent 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 concluded that, under Ritchie, “prosecutorial review [**61] of possible Brady materials”is “normally sufficient,” and in camera review is reserved “for cases where the defense had become ‘aware that ... exculpatory evidence was withheld,’ [citations].” (Brooks, at p. 1505; see U.S. v. 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 (1st Cir. 2011) 629 F.3d 264, 268, adopted the same understanding of Ritchie, summarizing the rule as follows: HN27 “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 ordinarily final—aunless 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 showing that the materials in question could contain favorable, material evidence.[**62] [Citations.]”[*1083] Accordingly, nothing in Ritchie suggests that, merely because information is of a sensitive nature, the Prosecution may compel a 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 “[n]umerous 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 of Storer Communications, Inc. (6th_Cir._ 1987) 828 F.2d 330 (Storer), explained, “Several courts of appeals have approved the practice of prosecutors submitting possible Brady materials in camera to the trial court in order to obtain a pretrial determination of whether disclosure is required. [Citations.]” (Storer, at p. 334, citing U.S. v. Tucker (7th Cir. 1985) 773 F.2d 136, 141, U.S. v. Dupuy (9th Cir. 1985) 760 F.2d 1492, 1501 (Dupuy) and U.S. v. Holmes, supra, 722 F.2d at p. 41.) Similarly, in United States v. Agurs (1976) 427 U.S. 97 [49 L. Ed. 2d 342, 96 S. Ct. 2392] (Agurs), the United States Supreme [**63] Court stated in passing, “Although there 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 trialjudge.” (Agurs, at p. 106,italics added.) Laura vanMunching Page 31 of37 228 Cal. App. 4th 1046, *1083; 2014 Cal. App. LEXIS 722, **63 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),22 which, as explained previously, is not the same as a scheme under which the prosecution routinely submits potential Brady materials fortrial 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 codefendants. The prosecutor promised the negotiations would remain confidential, but she subsequently decided the notes contained potential Brady {*1084] material. (Dupuy,_at_p. /501.) She submitted the issue to the trial court, [**64] which Dupuy stated “satisfied her duty to disclose exculpatory material.” (Ibid.; but see id. at p. 1504 (conc. opn. of Ferguson, J.) [“The constitutional duty to disclose articulated in [Brady], however, never shifts from the prosecution to the court.”].) Dupuy proceeded to hold the trial court erred in failing to conduct an in camera review of the notes. Ud. at p. 1502.) Dupuy commented, “{cjonsultation with the judge is particularly appropriate when the Government has legitimate reasons for protecting the confidentiality of the material requested, for the trial judge can then weigh the Government's need for confidentiality against the defendant's need to use the material in order to obtain fair trial.” (/d. at p. 1501; see Phillips, at p. 278.)23 CA(6) (26) However, HN28 that there may be some role for the trial court in assisting prosecutors to make difficult 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 extensive initial Brady review, as opposed to reviewing particular documents identified by the prosecutor. One ofthe cases petitioners cite, U.S. v. Holmes, supra, 722 F.2d 37, clarified the responsibility for performing an initial 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 through the files of the prosecutor when the prosecutor had assured the district court that all possibly exculpatory material had been produced. Of course it would be the prosecutor's obligation to submit any material to the district court in camera if he had any doubts about [**66] whether it 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 thus it is unlikely that it would recognize in a general in camera search anything but the most obviously exculpatory data.” (Holmes,at p. 41.) VI. The Other California Cases Cited by Petitioners Do Not Support the Requested Shift in Responsibility for Performing Initial Brady Reviews A. JE. v. Superior Court The recent decision in /.E. v. Superior Court (2014) 223 Cal.App.4th 1329 [168 Cal. Rptr. 3d 67] (JE), is a California case involving a Ritchie-type [*1085] request by a defendant (in /.E., a juvenile) for disclosure of specific, potentially exculpatory evidence. In J.E., a minor who was the subject of‘delinquency proceedings requested that the juvenile court conduct an in camera inspection of a prosecution witness's juvenile dependency file for Brady material. V.E., at p. 1332.) J.E.'s counsel “offered to provide specific information supporting the request ‘off the record or underseal.’” (Jd. 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. 22 Brooks, supra, 966 F.2d 1500, described Kiszewski as a case in which in camera review was justified because “the defense had become ‘aware that ... exculpatory evidence was withheld’, [citations].” (Brooks, at p. 1505.) 23 It is unclear what confidentiality interest could justify the withholding ofevidence that meets Brady's materiality standard, but that is an issue we need not resolvein the present case. As Judge Ferguson explained in his concurrence in Dupuy, “the Brady decision has already identified where the Fifth Amendment has struck the balance between the suppression [**65] or disclosure ofmaterial exculpatory information requested by the defendant. Brady teachesthat trial in which the prosecution withholds material exculpatory information ... is not a fair trial.” (Dupuy, supra, 760 F.2d at p. 1504 (conc. opn. ofFerguson,J.).) Laura vanMunching Page 32 of37 228 Cal. App. 4th 1046, *1085; 2014 Cal. App. LEXIS 722, **66 VE. at p. 1332.) Thereafter, the [**67] prosecutor reviewed the records and informed the minor's counsel there was no Brady material. VE., at pp. 1333—1334.)24 The minor's counsel renewed her request that the juvenile court conduct a Brady review, and the court again refused. (U.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 impeachment evidence exists in” the juvenile records at issue. (LE., at p. 1339.) JE.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 over whether the prosecution has complied with its Brady obligations.” (LE., 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 ofpolicy and pragmatism are a sufficient basis to support the shift in responsibility requested by petitioners, especially because reasonable policy arguments can be made in favor ofboth approaches. B. Other California Cases The California Supreme Court in Brandon held that a trial court that conducts an in camera review ofofficer personnel files pursuant to a defendant's motion under Section 1043 may order the disclosure of material in the files 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. (/bid.) Brandon held the court “did not act improperly in evaluating” the complaint, but cautioned, “[w]e do not suggest that trial courts must routinely review information that is contained in peace officer personnel files and is more than five years old to ascertain whether Brady, supra, 373 U.S. 83, requires its disclosure.” (Brandon, at p. 15, evidence.25 Although J.E. held that a juvenile is entitled 3.) Brandon did not suggest the prosecution could to judicial Brady [**68] review “upon a showingthere is a reasonablebasis to believe exculpatory or impeachment evidence exists in” the files (ZE., at p. 1339), JE. 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. atp. 1334) may have provided a justification for the judicial 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 prosecutor is in a [*1086] better position to perform the Brady materiality review than thetrial court (see pt. IV.E., ante), we do not believe that considerations require the trial court to undertake an initial Brady materiality review under Sections 1043 and 1045. Petitioners are also mistaken in suggesting the California Supreme Court's decision in People v. Hammon (1997) 15 Cal.4th 1117 [65 Cal. Rptr. 2d 1, 938 P.2d 986] (**70] supports the requested judicial Brady review. In Hammon, the Supreme Court heldthe trial court properly quashed a subpoena duces tecum the defendant served on the victim's psychotherapists, without first conducting an in camera review of the material. (Hammon, at p. 1119.) The court held “the trial court was not required, at the pretrial stage of the proceedings, to review or grant discovery of privileged information in the hands of third party psychotherapy providers.” (/bid.) Hammon also rejected the defendant's claim the information he 24 Thestatutory scheme authorized the prosecutor to access juvenile records (Welf. & Inst. Code, § 827, subd. (a)(1)(B)), butprohibited the prosecutorfrom disclosing the information to an unauthorized person without a court order (Welf. & Inst. Code, § 827, subd. (a)(4), (5); AE, supra, 223 Cal.App.4th at p. 1337). 25 In the presentcase, Johnson filed a separate motion for Brady material, but petitioners do not argue Johnson soughtspecific exculpatory evidence the prosecution had failed to disclose. [**69] We need not and do not address in the present case what showing a defendant would be required to make in order to obtain judicial Brady reviewoffiles in the possession of the prosecution team. (SeeZ., supra, 223 Cal.App.4th at pp. 1333, 1339 [adopting “reasonable basis” test for such a request in the context ofjuvenile records].) Laura vanMunching Page 33 of37 228 Cal. App. 4th 1046, *1086; 2014 Cal. App. LEXIS 722, **70 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 about the role of the trial court in the Brady review or disclosure process. Noneofpetitioners’ other cases compel this 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 [*1087] prosecutorial access to officer personnel files for Brady purposes.26 Neither Garden Grove Police Department _y. Superior Court (2001) 89 Cal.App.4th 430, 433-435 _[107 Cal. Rptr. 2d 642] (Garden Grove) nor Eulloqui_v. Superior Court (2010) 181 Cal.App.4th 1055, 1068 [105 Cal. Rptr. 3d 248] (Eulloqui) holds that section 832.7(a) precludes prosecutorial access to officer personnel files, or that prosecutors may shift to thetrial court the responsibility Having decided that section 832.7(a) does not prevent the prosecutor from complying with its constitutional obligation to identify Brady material in officer personnel files, we address the second issue: is the prosecution permitted to disclose the Brady material without seeking permission from the trial court, or must the prosecution file a motion under Section 1043 to obtain [**72] 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.” (Boldface 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 in camera review only “[i]f a close question nonetheless remains as to whether information in a specific document or documents should be disclosed under Brady.”28 On the other hand, petitioners argue that disclosure of information from personnel files may only be made through a motion under Section 1043. [*1088] Theplain language of section 832.7(a) and Section 1043 for identifying Brady materials in such files. Garden CO™pels the conclusion that any disclosure to the Grove supports a conclusionthat Section 1043 should be defendant must be pursuant to a motion under Section used to obtain disclosure to the defense of Brady 1043. The relevant language in section832.7(a) is that materials in officer personnelfiles, which is the issue to Peace officer personnel records “shall not be disclosed in which we now turn.27 any criminal or civil proceeding except by [**73] discovery pursuant to Sections 1043 and 1046 of the VII. The Prosecution Must File a Motion Under Section Evidence Code.”29 No party suggests any reasonable 1043 to Disclose Brady Material in Officer Personnel construction of that language under which disclosure of Files to a Defendant Brady material from a personnelfile to a criminal 26 Wealso disagree with Gutierrez's assertion that, “if a defendant meets the good cause requirement for Pitchess discovery, any Brady material in an officer's file will necessarily be included.”(Gutierrez, supra, 112 Cal.App.4th at p. 1474.) Gutierrez fails to consider certain respects in which Pitchess discovery ofofficer 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 [**71] more than five years before”the events underlying the criminal case (§ 1045, subd. (b)(1)), while Brady discovery is not so time limited. (Brandon, supra, 29 Cal4th at p. 14.) Furthermore, under Pitchess courts have generally required only the disclosure of“the name, address and phone number ofany prior complainants and witnesses andthe datesofthe incidents in question.” (City ofSanta Cruz, supra, 49 Cal.3d at p. 84.) The Brady disclosure obligation has no such limitation. 27 In People v. Davis (2014) 226 Cal.App.4th 1353, 1361 [172 Cal. Rptr. 3d 714],the trial court granted the prosecutor's postjudgment motion under Sections 1043 and 1045 for in camera Brady reviewofa police officer's personnelfile. However, the issue in the case was whether the defendant could appeal from thetrial court's determination there were no Brady materials in thefile (id.at p. 1365); the propriety ofthe prosecutor's motion was notat issue. 28 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 more broadlythat “the procedures of [Sections 1043 and 1045] do not apply to a motion made under Brady.” 29 Section 1046 is not applicable. (See p. 1062,fn. 10, ante.) Laura vanMunching Page 34 of37 228 Cal. App. 4th 1046, *1088; 2014 Cal. App. LEXIS 722, **73 defendant is not a disclosure of personnel records in a criminal proceeding. The relevant language in Section 1043, subdivision (a) (Section 1043(a)) requires a motion under the section “[i]n any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to Section 832.5 of the Penal Code or information from those records.” Again, no party suggests any reasonable construction of that language under which disclosure of Brady material from an officer personnel file to a criminal defendantis 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 meaning controls.” (Los_Angeles County Metropolitan Transportation Authority _v. Alameda Produce Market, LLC (QO011) 52 Cal.4th 1100, 1107 [133 Cal. Rptr. 3d 738, 264 P.3d 579].) CA(27) (27) We recognize, of course, that HN29 ““Janguage of a statute should not be given literal meaning if doing so wouldresult in absurd consequences which the Legislature did not intend.”’” (People _v. Another provision that fits imperfectly with Brady disclosure is to be found in Section _1045. As noted previously, Section 1043 operates in conjunction [*1089] 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 Section 1045. (City ofSanta Cruz, supra, 49 Cal.3d_ at p. 83.) Section 1045, subdivision _(b)(1) requires the trial court to exclude from disclosure records concerning conduct occurring more than five years before the events underlying the criminal case. In contrast, Brady [**75] does not exempt conduct older than five years from its disclosure obligations. (Brandon, supra, 29 Cal.4th at pp. 14-15.) Nevertheless, Brandon concluded the provision was not “an absolute bar to disclosure” of older Brady materials. (Brandon,at p. 13.) There, the court held that a trial court considering a defendant's Section 1043 discovery motion could order disclosure of a 10-year-old record of police misconduct that is material under Brady, despite Section 1045 subdivision (b)(1). (Brandon, at pp. 13-15.) In reaching Ledesma (1997) 16 Cal.4th 90, 95 [65 Cal. Rptr. 2d 610, 939 P.2d 1310].) We also recognize that Section 1043. is in some ways an awkwardfit with a motion to disclose Brady material. For example, Section 1043, subdivision ()G3) requires the movant to provide an affidavit “showing good cause [**74] 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.” That standard of materiality—materiality “to the subject matter involved in the pending litigation”—is broader than the Brady standard. The “narrower” Brady standard tests “whether evidence is material to the fairness oftrial.” (Brandon, supra, 29 Cal.4th at p. 10.) Nevertheless, we do not read that language as requiring the trial court to use the Pitchess materiality standard in resolving a motion for disclosure ofBrady materials; the Brady materiality standard would apply in establishing “good cause.” that conclusion, Brandon expressed agreement with the Attorney General's contention that “the ‘““Pitchess process” operates in parallel with Brady and does not prohibit the disclosure ofBrady information.”” (Brandon, at p. 14; see 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 scheme that are protective of officer privacy are consistent with a motion for disclosure ofBrady material. Section 1043(a) requires that the officer whose records are sought receive notice of the motion for disclosure. (See Abatti, supra, 112 Cal.App.4th_at_p. 56.) Furthermore, Section 1045 contains provisions for optional and mandatory protective 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.”30 And Section 1045, subdivision (e) requiresthetrial court to “order that the records disclosed or discovered may not be used 30 Section 1045, subdivision (d) provides in full: [**76] “Upon motion seasonably made by the governmental agency which has custody or control ofthe records to be examined or by the officer whose records are sought, and upon good cause showingthe necessity thereof, the court may makeany order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassmentor oppression.” Laura vanMunching Page 35 of37 228 Cal. App. 4th 1046, *1089; 2014 Cal. App. LEXIS 722, **75 for any purpose other than a court proceeding pursuantto applicable law.”3! (See 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 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 1043 motion. In particular, Section 1045, subdivision (e)'s mandatory protective order “carefully balances peace officers'privacy [*1090] interests in their personnel records against defendants' rights of access to information relevant to their defense.” (Alford, at_p. 1042.) Weconclude that, despite the awkward fit 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 motion to 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 (pt. IV.B., ante), the Legislature's intent in enacting the statutory Pitchess procedures was to protect officer personnel files from public disclosure, and to specify a [**77] 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 and Section 1045 to Brady disclosure is wholly consistent with the Legislature's intent.32 Our conclusion that the prosecution must file a motion under Section 1043 to disclose to the defendant the Brady materials it has identified should not be construed to mean thatit would be proper for a trial court to decline to disclose materials that must be disclosed under Brady in reliance on limitations on disclosure in Section 1043 or to support the broader proposition that “if materiality [**78] under the more stringent Brady standard is shown, the statutory restrictions pertaining to the Pitchess procedure are inapplicable {citation}; but if the defendant only shows materiality under the less stringent Pitchess standard, the statutory limitations apply [citation].” We agree The Supreme Court has also characterized Sections 1043 and /045 as guaranteeing “a balancing of the officer's privacy interests against the defendant's need for disclosure.” (City of Santa Cruz, supra, 49 Cal.3d at p. 84, italics added; accord, Alford, supra, 29 Cal.4th at p. 1039.) The [*1091] disclosure of Pitchess materials may involve such a balancing, but we are aware of no authority that exculpatory material in officer personnel files 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 (conc. opn. of Ferguson, J.).) 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 was entitled 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 consequence [**79] of requiring a Section 1043 motion for disclosure appears to be the provision of notice to the impacted officers and an opportunity for the issuance ofappropriate protective orders. The disclosure 31 Section 1045, subdivision (e) provides in 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 used for any purpose other than a court proceeding pursuantto applicable law.” 32 In Afford,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, precludethe possibility that a party could file a Section 1043 motion for disclosure ofmaterials from personnelfiles to al! parties in the case. Neither does the language of Section 1043 preclude such a motion. Laura vanMunching Page 36 of37 228 Cal. App. 4th 1046,#1091; 2014 Cal. App. LEXIS 722, **79 determination does not itself require a balancing of noted previously, we do not preclude the District officer privacy interests.33 CA(28) (28) In sum, HN3@ although the prosecution has the obligation to identify evidence in officer personnel files that meets the Brady materiality standard, a motion under Section _1043 is required to disclose the Brady material to the defendant.34 VII. Conclusion CA(29) (29) The trial court did not err 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 and identified for the court the documents it believed met Brady's materiality standard. Section 832.7(a) does not preclude prosecutorial access for Brady review, and Brady and its progeny allocate 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 not perceive the duty imposed by Brady as too onerous. [Citation.] ‘Obviously some burden is placed on the shoulders of the prosecutor when he is required to be responsible for those persons who are directly assisting him [*1092} in bringing an accused to justice. But this burden is the essence ofdue processoflaw.It is the State that tries a man, and it is the State that must insure that the trial is fair.” [Citations.] This obligation serves ‘to justify trust in the prosecutor as “the representative .. a sovereignty ... whose interest ... in a criminal prosecution [**81] is not that it shall win a case, but that justice shall be done.”’ [Citations.] It also tends ‘to preserve the criminal trial, as distinct from the prosecutor's private deliberations [or some other agency's independent assessment of materiality], as the chosen Attorney and the SF Police Department from devising their own 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 personnel files for Brady purposes does not threaten the privacy interests protected by section 832.7(a}), where the officer witnesses are members of the prosecutorial team led by the prosecutor directing the review, and the review itself does not entail disclosure of information [**82] from the files outside the prosecution team. The legislative history shows clearly that the Legislature was concerned with public disclosure of information from officer personnel files. 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 pt. IV.B., ante; Neri, supra, 43 McGeorge L.Rev. at pp. 304, 309.) The Legislature's interests in protecting officer privacy are fully preserved of by our conclusion that the prosecution must bring a motion under Section 1043 to disclose Brady material in officer personnel files to the defendant. DISPOSITION The petitions for writ of mandate/prohibition are denied in part and granted in part. Let a peremptory writ of forum for ascertaining the truth about criminal mandate issue, directing the San Francisco Superior accusations. [Citations.]’ [Citations.]” (Fn. omitted.) We Court to modify its January 7, 2014 “Order re Brady do not decide that the prosecution must conduct a review Motions”to provide that, if the San Francisco ofthe personnelfile ofevery officer witness. And, as 33 Because we do notconstrue Section 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 ofsuch 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.) 34 Petitioners devote a substantial portion oftheir briefing in this writ proceedingto the contention that thetrial court imposed the wrong “good cause”standard for obtaining in camera review under Section 1043. We need notreach that issue, because thetrial court correctly determined section 832.7(a) did not bar prosecution access to the personnelfiles for Brady purposes. That initial prosecutorial review may render immaterial any future dispute regarding the good cause standard, [**80] because the prosecution, having seen the documents it seeks to disclose, should be able to make the required showing regardless ofthe standard. Laura vanMunching ‘Page 37 of37 228 Cal. App. 4th 1046, *1092; 2014 Cal. App. LEXIS 722, **82 District Attorney identifies any evidence in the San other respects, the writ petitions are denied. The Francisco Police Department personnel files for Officers previously imposed stay oftrial in defendant Johnson's Dominguez and Carrasco that should be disclosed to criminal case shall dissolve upon issuance of the defendant Johnson under Brady v. Maryland, supra, 373 remittitur. U.S. 83, the District Attorney shall file [**83] a motion under [*1093] Evidence Code section 1043 to obtain such Needham,J., and Bruiniers, J., concurred. disclosure.In all Laura vanMunching DECLARATIONOF SERVICE I, Allison G. Macbeth, am overthe age of eighteen years and not a party to this action. My business address is 850 Bryant Street, Room 322, San Francisco, California, 94103. On the date entered below, I served the within: PETITION FOR REVIEW; REQUEST FOR STAY by personally serving (except where noted) a true and accurate copy thereof to the following at the following addresses: NinaSaraislani San Francisco Police Department Legal Division 850 Bryant Street, Room 575 San Francisco, California 94103 Jeremy Goldman Deputy City Attorney City Attorney’s Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, California 94102- 4682 Christopher Gauger Stephanie Lacambra Deputy Public Defenders 555 Seventh Street San Francisco, California 94103 Clerk of the Superior Court San Francisco Superior Court, Criminal Division 850 Bryant St., Dept. 22 San Francisco, CA 94103 Diana Herbert Clerk of the Court First District Court ofAppeal First Appellate District 350 McAllister St. San Francisco, CA 94102 [Via E-File as well] Hon. Richard B. Ulmer,Jr. Judge of the Superior Court Civic Center Courthouse 400 McAllister St, Dept. 306 San Francisco, California 94102 Michael L. Fox Sedgwick LLP 333 Bush Street, 30th Floor San Francisco, California 94104-2834 [Via U.S. Mail and Email: Michael.fox@sedgwicklaw.com] Kamala D. Harris Attorney General State of California 555 Golden Gate Avenue, Suite 11000 San Francisco, California 94102 Attn: Gerald Engler, Seth Shalit First Appellate District Project 730 Harrison Street, Suite 201 San Francisco, California 94107 [U.S. Mail only] 32 I declare under penalty of perjury that the foregoing is true and correct. Executed September 18, 2014, at San Francisco, California. ( Allison G beth 33
