RECENT PITCHESS DISCOVERY CASES
            In the last three months California appellate courts have issued three new decisions in the area of Pitchess discovery law.  This update will familiarize you with these recent decisions.

People v. Gonzalez
(November 13, 2006)
2006 Cal.App. Unpub.
Lexis 10238

In an unpublished decision issued by the Fourth District Court of Appeal in Riverside, the issue of the defendant seeking information from the internal affairs investigation generated from his own complaint filed with the arresting agency on the matter that led to his arrest and subsequent criminal charges was discussed. 
Jesse Gonzalez was charged with multiple criminal charges, including battery on a peace officer and resisting arrest. 
Gonzalez made his own complaint to the Riverside Sheriff’s Department which then opened an internal affairs investigation conducted by the administrative investigations unit.  (“AIU”). 
In pretrial proceedings the defendant served an informal discovery request on the district attorney’s office asking for any and all reports and interviews of witnesses done by the AIU in conjunction with Gonzalez’s own complaint investigation.  Appropriately, the Riverside County Sheriff’s Department AIU declined to comply with the district attorney’s request to provide information from the investigation, and invited either of the parties to file a Pitchess motion.
Instead, the defendant filed a motion to compel discovery of the requested materials with the trial court, relying upon the Brady v. Maryland case.  The People filed a written opposition to the motion, asserting that the Riverside County Sheriff’s Department AIU was not a member of the prosecution team and, therefore, they did not have access to the internal affairs investigation concerning Gonzalez’s complaint.  The trial court granted the motion to compel the discovery and the people filed a writ of mandate in the appellate court.
The People argued that the trial court abused its discretion in ruling that the prosecutor was required to provide the discovery or materials obtained by the AIU.  The Court of Appeal, in an unpublished decision, ruled that despite the prosecution’s duty to provide discovery, California courts have consistently held that use of the Pitchess procedure is a criminal defendant’s only means of obtaining discovery from peace officer’s personnel records.  The court held this request was essentially the same type of “end run” around the Pitchess requirement that was already decided in the Garden Grove Police Department v. Superior Court case in 2001.  In that case the trial court granted a motion to compel the production of the birth dates of the arresting officers so that the prosecutor could run a criminal record check on the arresting officers.  The Fourth District Court of Appeal held that if birth dates of the officers were disclosed, a Pitchess motion needs to be run
The Appeals Court cited People v. Guiterrez, which we have used many times for the proposition that Brady does not trump the Pitchess requirement.  Both can peacefully coexist with one another. 
Moreover, as stated in Alford v. Superior Court, the prosecution in a situation like this does not have access to the materials in the internal affairs investigation.  In fact, the only way the prosecution may get access to that information is if it filesits own Pitchess motion.
The court held that the reports and investigative materials prepared by the AIU were confidential.  This was no less true just because the investigative materials prepared by the AIU were regarding the same subject matter as the situation that led to the filing of criminal charges.
The court also did not require that the prosecution prepare and submit its own Pitchess motion in order to comply with the reciprocal discovery rules under Penal Code section 1054.  Essentially, the appellate court ruled that the exclusive means by which the defense obtains discovery of information from his or her own complaint investigation is by utilizing the exclusive means provided in Evidence Code section 1043. 

Slayton v. Superior Court
(December 26, 2006)
146 Cal. App. 4th 55

In this published decision the court revisits the issue of when a Pitchess motion is required, if at all, in a family law matter.
A few years ago we reported to you the decision made by a Los Angeles Court of Appeal in a matter involving a police officer by the last name of Williamson.  In that matter the court ruled that a Pitchess motion is not required in a family law case where the sole request is for wage and benefit information.  Even though wage and benefit information is certainly contained in the confidential peace officer’s personnel file, in a family law matter, the fiduciary duty that is present between divorcing spouses trumps the Pitchess motion requirement and, thus, no Pitchess motion is required if a request is simply seeking wage and benefit information.
This case presented a slightly different issue.  At issue in this family law proceeding was not just the wage and benefit information of the law enforcement officer who was divorcing his spouse.  The divorcing spouse found out that the law enforcement officer she was divorcing was on administrative leave from the sheriff’s department and they were considering terminating him due to allegations made by third parties which placed at issue his conduct toward some women in the community.  His divorcing spouse filed a Pitchess motion asking for information from his personnel file, including his disciplinary history and complaints made against him.  The court denied the motion and an appeal followed.
The Court of Appeal explained the Williamson decision by saying that the sole issue on appeal in that case was the financial information contained in the officer’s personnel record.  When the request is solely for financial information or financial records from a law enforcement officer’s file, no Pitchess motion is required.  Here the situation was different.  Here the petitioner claimed that the law enforcement officer from whom she was divorcing was abusive during their marriage, was convicted of stalking her after they separated, and also presented evidence that his current employment situation might have evolved from investigations of complaints involving his interaction with women.  Since one of petitioner’s allegations was that he was abusive to her during their marriage and convicted of stalking her after they separated, any  other complaints made by women against this officer which could include evidence of violence or brutality, could bolster the petitioner’s claims of domestic violence, and otherwise reflect on his fitness as a parent.  That evidence, should it be forthcoming, would be relevant to determine the appropriate custody arrangement of their children.  Therefore, the trial court should have handled the matter as any other Pitchess motion and conducted an in camera review of the personnel records to see if anything was relevant and material.
Thus, the law is now that when the divorcing spouse of a law enforcement officer wants information that is purely financial information from an officer’s personnel file, no Pitchess motion is required.  However, if the intention is to seek material other than purely financial information or financial records and it seeks information from complaints or internal affairs investigations that may or may not be relevant to issues present in the family law case, a Pitchess motion and good cause requirement is mandatory.

People v. Guevara
(February 28, 2007)
Cal. App. Lexis 275

After being convicted of resisting and misdemeanor battery, the defendant appealed this conviction and asked the court of appeal to review the sealed transcript of the in camera review following his Pitchess motion to determine whether the court’s ruling that nothing was discoverable was correct. 
The Court of Appeal explained that at the in camera hearing of the defendant’s Pitchess motion, the custodian of records for the police department stated under oath that none of the involved officer’s personnel files contained any information that was potentially responsive to Guevara’s discovery request.  Remember, in People v. Mooc the custodian’s obligation is to bring all potentially responsive documents to the court for an in camera review.  In this matter the custodian simply testified under oath that the officer’s personnel file contained no potentially responsive documents.
Accordingly, no documents from the personnel files were submitted to the court for review, and on that basis the trial court determined that Guevara was not entitled to any discovery.  The city attorney apparently submitted a list for the four officers which explained what the custodian examined in order to show that nothing was relevant.  The in camera record did not reflect whether the court actually reviewed that list, the list was not kept for appellate review and subsequent efforts to locate that document were unsuccessful.
The Court of Appeal held that the sealed list contained information that was essential to the court’s evaluation of the Pitchess motion.  Although the custodian was required to only submit for the court’s review those documents that were potentially responsive to the discovery request, the Supreme Court also held in Mooc that the custodian should be state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record and why those were deemed irrelevant or otherwise non responsive to the defendant’s Pitchess motion, so that the court can be assured that the proper documents were brought for an in camera review. 
The court held that in cases such as this where the custodian does not produce the entire personnel file for the court’s review, he or she must establish on the record what document or category of documents were included in the complete personnel file and the custodian must explain his or her decision to withhold them from the court’s review.  Absent this information, says the Court of Appeal, the trial courts cannot adequately assess the completeness of the custodian’s review of the personnel files nor can it establish the legitimacy of the custodian’s decision to withhold documents contained therein.  Such a procedure is necessary to satisfy the Supreme Court’s pronouncement in People v. Mooc that “the locus of decision making” at a Pitchess hearing “is to be the trial court, not the prosecution or the custodian of the records.”  It is for the court to not only make that final evaluation but to also make a record that can be reviewed on appeal.
The court conditionally reversed the conviction, remanded the matter back to the trial court to hold a new in camera hearing on Guevara’s Pitchess motion in conformance with the opinion, and if discoverable materials are found, conduct further proceedings as are necessary and appropriate, which might lead to a new trial.

WHAT DO WE DO NOW?
            We have heard that in response to the case of People v. Mooc some city attorneys and county counsels were taking the position that they no longer need to actually bring any files for the court’s review so long as the custodian can testify under oath that he or she has reviewed the files and there’s nothing relevant and material contained therein.  When asked about this position, we had always expressed skepticism as to whether or not a Court of Appeal or the Supreme Court would sanction such a procedure in a Pitchess motion.  This court decision seems to validate that skepticism.
            I have always been of the opinion that we should bring more than necessary to an in camera review so that we could forestall and prevent the allegation that we didn’t bring enough.  I have always counseled the custodians with whom I work to bring the general peace officer’s personnel file to the in camera review so that if the court wants to review it to make sure that there is nothing relevant and material inside the file, it is available for that review.  I have always said that I would rather err on the side of bringing too much rather than not enough.      
            Following this case decision custodians should have a good working knowledge of all the contents of the personnel file and any internal affairs investigations that are contained within the personnel records of the officer so that the custodian can explain which items were brought to the court for the court’s review, which items were not brought to the court for the court’s review, and the reasons the custodian decided something was not relevant or non responsive to the request. 
            We have always suggested to our custodians that a brief summary (nor more than a paragraph or two) be prepared on every complaint or investigation of complaint that is contained within an officer’s file and that summary be brought to an in camera review.  In this way the actual documentation and the investigative file will likely not be copied and kept by the court for appellate review, but if the court wants to make a copy of the summary prepared by the custodian who, under oath, testifies that it is true and accurate, this would provide the proper record for appellate review if a Court of Appeal is asked to review what happened on a Pitchess motion by the trial court. 
This procedure provides a nice balance between the requirements of the court to keep a record so that appropriate appellate review can be had yet the actual documentation from the investigation remains in the custody of the police agency.  While the court does have the authority to copy each and every internal affairs investigation in complete form and keep it under seal in the court’s file in order to provide proper appellate review, I have always tried to gently resist such requests because it provides another copy of a confidential document over which we do not have control.  Providing a summary which has enough detail so that the court can make a determination as to relevance and materiality, and to keep that summary under seal in the court’s file for appellate review, achieves the purpose of allowing appropriate appellate review of what happened in an in camera review and safeguards the copy of the actual internal affairs investigation itself. 
            In light of this case, custodians should be prepared to testify as to the complete contents of the personnel file, including the internal affairs investigations or complaint investigations that were brought to the court and which were not brought to the court.  The custodian should be ready to explain the reason a particular investigation was not brought for the court’s review.  Be further prepared if you decide not to bring something to the court and the court overrules your reasons for not doing so, you may be ordered to go back to the police department and bring that investigation back to court.

Be sure to consult competent legal counsel before deciding how to proceed on any matter to which these cases may be applicable.