Filed 10/30/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MANUEL SERRANO, B282975
Petitioner, (Los Angeles County
Super. Ct. No. PA087902)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
SHERIFF’S DEPARTMENT et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS in mandate.
Hilleri G. Merritt, Judge. Petition granted.
Kelly Emling, Acting Public Defender, Albert J. Menaster,
Mark G. Harvis and Rebecca L. Barnhart, Deputy Public
Defenders, for Petitioner.
No appearance for Respondent.
Fuentes & McNally, Raymond J. Fuentes and Sofia Sarin
for Real Parties in Interest.
________________________________
Defendant Manuel Serrano, charged with the sale and
transportation of a controlled substance, moved for in camera
review and pretrial disclosure of potential impeachment material
the district attorney informed him is contained in the personnel
file of the arresting deputy, who is expected to testify at Serrano’s
trial. The superior court denied the motion. Serrano petitioned
for writ of mandate. We grant the petition and direct the
superior court to vacate its order denying Serrano’s motion and
enter a new and different order granting the motion.
FACTUAL AND PROCEDURAL SUMMARY
A. Serrano’s Detention and Arrest
Los Angeles County Sheriff’s Deputy Adam Halloran was
driving his marked patrol vehicle northbound on Interstate 5
when he spotted a Jeep in the number 2 lane, hugging the left
side of the lane. 1 When the Jeep passed a semitrailer, the rear
tire crossed over the line into the next lane (an alleged violation
of Veh. Code, § 21658, subd. (a)). After the Jeep crossed over the
line into the next lane a second time, Halloran performed a traffic
stop. Halloran identified the Jeep’s driver as Serrano and the
sole passenger as Serrano’s cousin, Homar Romero.
Halloran asserts in his report that he immediately noticed
Serrano appeared extremely nervous. Serrano was breathing
rapidly, and his hands trembled as he fumbled through his
vehicle paperwork. Halloran also noticed a FoodSaver box, which
his training taught him is used to vacuum seal narcotics.
Halloran informed Serrano of the reason for the stop and asked if
he had been drinking. Serrano replied that he had not.
1 This account does not represent adjudicated facts; rather,
it is drawn from Deputy Halloran’s December 14, 2016 incident
report, setting forth allegations against Serrano to which
Halloran could testify.
2
Halloran instructed Serrano to exit his vehicle and asked
where he had been coming from. Serrano said he had dropped off
his grandmother at his aunt’s house but was unable to remember
the name of the city where she lives. According to Halloran,
Serrano was squinting and his nervousness increased. When
asked how long he had been in Los Angeles, Serrano did not
respond directly and instead stated that he left Fresno at 4:00
a.m. Halloran observed that Serrano was so nervous that his
voice began to crack, at which point Serrano, apparently
conscious of his nervous behavior, volunteered that he had just
consumed an energy drink.
Halloran concluded that while none of these behaviors
individually would indicate criminal activity, taken together and
considered in light of his law enforcement training and
experience, they led him to be “extremely suspicious that a crime
was occurring beyond a basic traffic violation.” Serrano denied
that there were any drugs or guns in the vehicle and refused
Halloran’s request for permission to search the vehicle. Halloran
placed Serrano in the backseat of his patrol car and radioed for a
K-9 unit. Up to that point Halloran had been operating alone,
but soon was joined by passing California Highway Patrol Officer
Smithson, who remained on the scene for officer safety.
When the K-9 unit arrived, the drug-sniffing dog alerted on
the car, and in particular on the FoodSaver box in the back.
Upon inspection, Halloran found the box contained a vacuum
sealer and plastic bags, but no narcotics. Halloran then found a
wrapped Christmas present in the backseat, which had a shape,
feel, and weight consistent with bulk narcotics packaging of
about one kilogram. Halloran unwrapped the present and found
approximately 2.5 pounds of what appeared to be cocaine
wrapped in foil and FoodSaver plastic material. Halloran also
seized two cell phones as evidence consistent with drug dealing.
3
After advising Serrano of his Miranda rights, 2 Halloran
told him he had found drugs and asked Serrano if Romero was
“in on it.” Serrano replied, “Nah.” Halloran said, “It’s just you
then?” Serrano nodded. Halloran asked Serrano, “You are
saying the drugs do not belong to him (pointing to [Romero]), they
belong to you?” Serrano replied, “Yes.” Halloran released
Romero at the scene and arrested Serrano and transported him
to the Santa Clarita station for booking.
B. Serrano’s Pitchess Motion Seeking Brady
Material 3
On April 17, 2017, the People filed an information charging
Serrano with one count of sale and transportation of a controlled
substance, cocaine, in violation of Health and Safety Code section
11352, subdivision (a). On the same day, a deputy district
attorney informed Serrano’s appointed public defender that she
should file a discovery motion, and that by so recommending he
believed he was fulfilling his obligations under Brady, supra, 373
U.S. 83. The deputy district attorney explained he had learned
from the office’s online database of recurring witnesses that
Deputy Halloran’s personnel file contains potential Brady
material, although the entry did not disclose the nature of the
material.
On April 24, 2017, Serrano’s public defender filed a motion
for pretrial discovery, requesting the presentation to the court of
all potentially relevant documents in Halloran’s personnel file for
the court’s in camera review. Based on People v. Superior Court
(Johnson) (2015) 61 Cal.4th 696 (Johnson), Serrano asserted the
defense is not required to allege officer wrongdoing in order to
2 Miranda v. Arizona (1966) 384 U.S. 436.
3 Pitchess v. Superior Court (1974) 11 Cal.3d 531
(Pitchess); Brady v. Maryland (1963) 373 U.S. 83 (Brady).
4
obtain discovery. Instead, Serrano argued the defense need only
aver that there is Brady material in the officer’s personnel file
and explain how the officer’s credibility is relevant to the case.
Thus, in her declaration accompanying Serrano’s motion, the
public defender stated: “The credibility of the arresting deputy is
material to both a motion to suppress evidence and to trial. He is
the arresting officer and the sole witness for the prosecution on
all issues related to the stop of my client, including his
observations of my client’s driving; my client’s demeanor; what
was observed in my client’s vehicle; what was found in that
vehicle; and any statements made by my client.” The declaration
further asserted that, “[d]epending on the type of Brady evidence
in this officer’s personnel file, it may be used to impeach this
officer’s testimony and credibility at any hearing or trial.”
Real parties in interest Los Angeles County Sheriff’s
Department (LASD) and Deputy Halloran (sometimes collectively
LASD) opposed Serrano’s motion chiefly on the ground that
counsel’s declaration did not establish “good cause and
materiality for the production of the requested documents.”
LASD argued that under Pitchess, supra, 11 Cal.3d 531, and its
progeny, “the defense must allege . . . that the officer in question
did something wrong,” “must further show that this allegation of
officer misconduct is ‘plausible,’ i.e., one that ‘might or could have
occurred,’ ” and “the discovery sought must support a theory of
the defense that is logically related to the pending charges.”
C. Superior Court’s Hearing on Serrano’s Motion
At the May 17, 2017 hearing, the public defender
characterized Serrano’s motion as based on Brady and Johnson,
with Pitchess being “merely the mechanism to conduct the in
camera review of protected police information.” This, she argued,
distinguished it from a “pure” Pitchess motion because Serrano
5
was not alleging “particular officer misconduct such as to trigger
an in camera review for dishonesty or excessive force.”
LASD argued that the defense must follow Pitchess and
Evidence Code section “1043 and show good cause and
materiality by declaration and misconduct by the Deputy.” The
public defender conceded Serrano must show “good cause,” but,
quoting Johnson, supra, 61 Cal.4th at page 720, argued that “the
burden is not high. ‘Good cause for discovery exists when the
defendant shows both “ ‘materiality’ to the subject matter of the
pending litigation and a ‘reasonable belief’ that the agency has
the type of information sought.” ’ ”
The trial court concluded that a Pitchess motion requires
“defense counsel to state upon information and belief, or any
fashion in a declaration how Deputy Halloran engaged in acts of
misconduct in this case.” Because Serrano failed to allege officer
misconduct, the court denied the motion without prejudice.
D. Serrano’s Petition for Writ of Mandate
On June 7, 2017, Serrano filed a petition for writ of
mandate, directing the respondent court to vacate and set aside
its ruling denying his motion. Serrano contends the trial court
erred by denying his motion on the ground that he failed to allege
that Deputy Halloran engaged in acts of misconduct. Serrano
asserts that his counsel’s declaration, which showed that Deputy
Halloran’s credibility would be material to both a motion to
suppress evidence and at trial, was sufficient to trigger in camera
review of the officer’s personnel file. Serrano chiefly relies on the
statement in Johnson that when the defense has been notified
that an officer’s personnel file contains potential Brady material,
“[a] defendant’s providing of that information to the court,
together with some explanation of how the officer’s credibility
might be relevant to the proceeding, would satisfy the showing
6
necessary under the Pitchess procedures to trigger in camera
review.” (Johnson, supra, 61 Cal.4th at p. 721.)
We requested opposition. LASD contends that under
Warrick v. Superior Court (2005) 35 Cal.4th 1011 (Warrick)
Serrano was required to allege specific misconduct committed by
Deputy Halloran in this case and show how evidence of instances
of misconduct in Halloran’s personnel file would support
Serrano’s defense to the charges. On August 2, 2017, we ordered
the superior court to show cause why a peremptory writ should
not issue, directing the court to vacate its May 17, 2017 order
denying Serrano’s motion and to issue a new and different order
granting the motion.
DISCUSSION
Generally, we review a superior court’s decision on the
discoverability of material in police personnel files under an
abuse of discretion standard. (People v. Jackson (1996) 13
Cal.4th 1164, 1220−1221.) But when, as here, the trial court’s
ruling is premised on an asserted misinterpretation of a legal
principle or statute, we review such legal questions de novo.
(Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 390–391.)
I. The Prosecution Team’s Brady Obligations
In Brady, the United States Supreme Court held “that the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” (Brady, supra, 373 U.S. at
p. 87.) The high court has “since held that the duty to disclose
such evidence is applicable even though there has been no
request by the accused, [citation], and that the duty encompasses
impeachment evidence as well as exculpatory evidence, [citation].
Such evidence is material ‘if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of
7
the proceeding would have been different.’ ” (Strickler v. Greene
(1999) 527 U.S. 263, 280.) “Moreover, the rule encompasses
evidence ‘known only to police investigators and not to the
prosecutor.’ [Citation.] In order to comply with Brady, therefore,
‘the individual prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government’s behalf
in this case, including the police.’ ” (Id. at pp. 280−281.) “The
obligation under Brady . . . is the obligation of the government,
not merely the obligation of the prosecutor.” (U.S. v. Blanco (9th
Cir. 2004) 392 F.3d 382, 393.) Accordingly, “ ‘[e]xculpatory
evidence cannot be kept out of the hands of the defense just
because the prosecutor does not have it, where an investigating
agency does.’ ” (Id. at pp. 393−394.)
II. Statutory Pitchess Motion Procedures
Our Supreme Court’s decision in Pitchess “established that
a criminal defendant could ‘compel discovery’ of certain relevant
information in the personnel files of police officers by making
‘general allegations which establish some cause for discovery’ of
that information and by showing how it would support a defense
to the charge against him.” (Warrick, supra, 35 Cal.4th at
pp. 1018–1019.) “In 1978, the California Legislature codified the
holding of Pitchess by enacting Penal Code sections 832.7 and
832.8, as well as Evidence Code sections 1043 through 1045.
[Citations.] To initiate discovery, the defendant must file a
motion supported by affidavits showing ‘good cause for the
discovery,’ first by demonstrating the materiality of the
information to the pending litigation, and second by ‘stating upon
reasonable belief’ that the police agency has the records or
information at issue. [Citation.] This two-part showing of good
cause is a ‘relatively low threshold for discovery.’ ” (Warrick, at
p. 1019.) “If the trial court finds good cause for the discovery, it
reviews the pertinent documents in chambers and discloses only
8
that information falling within the statutorily defined standards
of relevance.” (Ibid.) Absent compliance with these procedures,
peace officer personnel records “are confidential and shall not be
disclosed in any criminal or civil proceeding.” (Pen. Code,
§ 832.7, subd. (a).)
III. The Use of Pitchess Motion Procedures to Obtain
Brady Material
The Pitchess procedure “ ‘operates in parallel with Brady
and does not prohibit the disclosure of Brady information.’ ” (City
of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 14.)
Accordingly, “all information that the trial court finds to be
exculpatory and material under Brady must be disclosed,
notwithstanding Evidence Code section 1045’s [bar on disclosure
of records more than five years old].” (Johnson, supra, 61 Cal.4th
at p. 720.)
“Although both Brady [citation] and its progeny, and the
statutory Pitchess procedures employ the terms ‘material’ or
‘materiality’ in describing what must be disclosed, these words
are not used in the same way. Under Brady, evidence is
‘material’ only if it is reasonably probable a prosecution’s outcome
would have been different had the evidence been disclosed.
[Citation.] By contrast, ‘[u]nder Pitchess, a defendant need only
show that the information sought is material “to the subject
matter involved in the pending litigation.” [Citation.] Because
Brady’s constitutional materiality standard is narrower than the
Pitchess requirements, any [information] that meets Brady’s test
of materiality necessarily meets the relevance standard for
disclosure under Pitchess. [Citation.]’ [Citation.] [¶] ‘This
procedural mechanism for criminal defense discovery, which
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
9
defendant’s right to a fair trial [citations], is now an established
part of criminal procedure in this state.’ ” (Johnson, supra, 61
Cal.4th at pp. 711−712.)
IV. LASD’s “Brady List” of Deputies Whose
Personnel Files Contain Founded Allegations of
Misconduct
In October 2016, an LASD panel concluded its review of
deputy personnel files and “identified approximately 300
individual deputies who had administratively founded allegations
of misconduct involving moral turpitude, conduct which might be
used to impeach the deputy’s testimony in a criminal
prosecution.” (Association for Los Angeles Deputy Sheriffs v.
Superior Court (2017) 13 Cal.App.5th 413, 423, review granted
Oct. 11, 2017, S243855 (ALADS).) The 11 “categories of
misconduct upon which the panel based its decisions were
administratively founded violations of various sections of the
Sheriff's Manual of Policy and Procedures.” 4 (Ibid.)
In November 2016, the Association for Los Angeles Deputy
Sheriffs, the union representing LASD’s nonsupervisory deputies,
filed an action seeking to enjoin LASD’s compilation of the
“Brady list” and LASD’s dissemination of the list to prosecutors,
4 The 11 categories are listed in ALADS as follows:
“(1) immoral conduct (§ 3-01/030.07), (2) bribes, rewards, loans,
gifts, favors (§ 3-01/030.75), (3) misappropriation of property
(§ 3-01/040.40), (4) tampering with evidence (§ 3-01/040.65),
(5) false statements (§ 3-01/040.70), (6) failure to make
statements and/or making false statements during departmental
internal investigations (§ 3-01/040.75), (7) obstructing an
investigation/influencing a witness (§ 3-01/040.76), (8) false
information in records (§ 3-01/100.35), (9) policy of equality—
discriminatory harassment (§ 3-01/121.20), (10) unreasonable
force (§ 3-01/030.10), and (11) family violence (§ 3-01/030.16).”
(ALADS, supra, 13 Cal.App.5th at p. 423, review granted.)
10
alleging that the practice violated the confidentiality protections
of the Pitchess statutes. (ALADS, supra, 13 Cal.App.5th at
pp. 424−425, review granted.) The trial court preliminarily
enjoined LASD from “disclosing the identity of any individual
deputy on the Brady list to any party outside the LASD, except a
relevant prosecutorial agency, and then only if the deputy is a
potential witness in a pending criminal prosecution.” (Id. at
p. 428.)
In February 2017, the union filed a petition for writ of
mandate, seeking an immediate stay and reversal of that part of
the trial court’s preliminary injunction that permitted LASD to
compile the Brady list and to inform prosecutors when individual
deputies on the list are potential witnesses in a pending criminal
prosecution. (ALADS, supra, 13 Cal.App.5th at pp. 428−429,
review granted.) On February 15, 2017, the Court of Appeal
issued a stay and ordered the trial court to show cause why the
union should not be granted the relief it sought. (Id. at p. 429.)
On July 11, 2017, the majority ruled: “The language in the
injunction that allows the LASD, or any real party, to disclose the
identity of any individual deputy on the Brady list to any agency
or individual outside the LASD, absent a properly filed and
granted Pitchess motion and corresponding court order, even if
the affected deputy is a potential witness in a filed criminal
prosecution, must be stricken.” (Id. at p. 439 (maj. opn. of
Sortino, J., 5 Bigelow, P. J., conc.); but see id. at pp. 448–458
(conc. & dis. opn. of Grimes, J.).) The majority reasoned that
because the Pitchess statutes broadly protect the confidentiality
of all information contained in personnel records, “the identity of
5 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
11
a peace officer that is derived from his or her personnel file, to
the extent it connects that officer to administrative disciplinary
proceedings or complaints of misconduct also contained within
the protected personnel file, may not be disclosed absent
compliance with the Pitchess procedures.” (ALADS, supra, 13
Cal.App.5th at p. 433 (maj. opn.), review granted.)
In her dissent, Justice Grimes disagreed with the majority
that a series of cases involving claims by media organizations
under the California Public Records Act (Gov. Code, § 6250
et seq.) for release of information from officers’ personnel files to
the general public applied in the Brady context. (ALADS, supra,
13 Cal.App.5th 413 at pp. 451−452 (conc. & dis. opn. of Grimes,
J.), review granted.) “The disclosure the trial court permitted . . .
is entirely different from the disclosure prohibited in [the media
cases]. As we have seen, the disclosure is from a law enforcement
member of the prosecution team to the prosecutor in a pending
criminal proceeding, not a disclosure to the general public.” (Id.
at p. 453.) Justice Grimes expressed concern that the practical
effect of the majority’s decision was to require prosecutors to file
Pitchess motions in every case, yet prosecutors would be unable
to make the “ ‘good cause’ ” showing necessary to trigger an in
camera review without having foreknowledge that the deputy’s
personnel file contains Brady material. (Id. at p. 454.)
Upon granting LASD’s petition for review, the California
Supreme Court instructed the parties to “brief the following
issue: When a law enforcement agency creates an internal Brady
list (see Gov. Code, § 3305.5), and a peace officer on that list is a
potential witness in a pending criminal prosecution, may the
agency disclose to the prosecution (a) the name and identifying
number of the officer and (b) that the officer may have relevant
exonerating or impeaching material in his or her confidential
personnel file, or can such disclosure be made only by court order
12
on a properly filed Pitchess motion? (See Brady[, supra, 373 U.S.
83; Johnson, supra, 61 Cal.4th 696; Pitchess, supra,] 11 Cal.3d
531; Pen. Code, §§ 832.7−832.8; Evid. Code, §§ 1043−1045.)”
(Association for Los Angeles Deputy Sheriffs v. Superior Court,
S243855, Supreme Ct. Mins., Oct. 11, 2017.) Our high court’s
decision in ALADS will not affect this case because Serrano has
already been informed there is potential Brady material in
Deputy Halloran’s personnel file, but it will determine how often
the issue we address here arises in the future.
V. Obtaining Brady Material Known to Exist in a
Peace Officer’s Personnel File
A. Serrano’s showing was sufficient under
Johnson
Serrano and LASD agree that this case is governed by our
Supreme Court’s decision in Johnson, supra, 61 Cal.4th 696. In
Johnson, as occurred here, the prosecution informed the
defendant that the arresting officers’ personnel files contained
potential Brady material. Our Supreme Court granted review to
determine how disclosure of such Brady material could be
obtained and by whom.
In Johnson, the San Francisco Police Department informed
the district attorney that the confidential personnel records of
two peace officers who were potential witnesses in the case might
contain exculpatory information. (Johnson, supra, 61 Cal.4th at
p. 705.) The prosecution filed a Pitchess motion under Evidence
Code sections 1043 and 1045, seeking the trial court’s in camera
review of the officers’ personnel files for exculpatory material
under Brady and disclosure of that material to the prosecution
and the defense. (Johnson, supra, 61 Cal.4th at p. 706.)
The motion was supported by a declaration of the
prosecutor, which “stated that, based on police department
representations that the files contained potential Brady material,
13
she believed the officers’ personnel files contain ‘sustained
allegations of specific Brady misconduct, reflective of dishonesty,
bias, or evidence of moral turpitude. I believe on these case facts,
and given the officers’ roles, that such misconduct would be
constitutionally material to the instant case in the Brady sense.’
The declaration further stated 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.’ ” (Johnson, supra, 61 Cal.4th at p. 706.)
In response, the defense filed its own motion, asking “the
court to (1) conduct the requested review, (2) declare Penal Code
section 832.7 (which limits review of peace officer personnel
records) unconstitutional and order the police department to
allow the prosecutor to review the officer personnel files for
Brady material, or (3) dismiss the case due to the prosecutor’s
failure to comply with Brady.” (Johnson, supra, 61 Cal.4th at
pp. 707−708.) Defense counsel “stated his belief that he could not
himself obtain disclosure of the material in the personnel files
because he ‘knows only that those files contain potential Brady
material, but [he] cannot move for it specifically because . . . he
does not know what it is, or how it might impact his defense.’ ”
(Id. at p. 708.)
The superior court “issued an order concluding that the
prosecution had not made a sufficient showing to warrant court
review of the records, that the Pitchess motion procedures did not
apply to motions seeking review of peace officer personnel records
under Brady, and that Penal Code section 832.7 is
unconstitutional to the extent it bars the prosecution from
gaining access to officer personnel records in order to comply with
Brady. The court denied the prosecution’s motion for in camera
Brady review, and ordered the police department ‘to give the
14
District Attorney access to the personnel files of [the officers] “so
the prosecution can comply with its Brady mandate.” ’ The order
stated, ‘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.’ ” (Johnson, supra, 61 Cal.4th at p. 708.)
The district attorney and the police department filed
separate petitions for writ of mandate and/or prohibition in the
Court of Appeal, challenging the superior court’s order. The
Court of Appeal “held that, to satisfy its constitutional duty, the
prosecution may and, before the court becomes involved, should
itself review the personnel files of peace officer witnesses for
Brady material. It directed the superior court to modify its . . .
order ‘to provide that, if the San Francisco District Attorney
identifies any evidence in the San Francisco Police Department
personnel files for [the officers] that should be disclosed to [the]
defendant . . . under Brady [citation], the District Attorney shall
file a motion under Evidence Code section 1043 to obtain such
disclosure.’ ” (Johnson, supra, 61 Cal.4th at pp. 708−709.)
The California Supreme Court granted review and
“requested the parties to brief the question of whether ‘the
prosecution’s obligation under Brady [citation] and its progeny
[would] be satisfied if it simply informs the defense of what the
police department has informed it (that the two officers’
personnel files might contain Brady material), which would allow
the defense to decide for itself whether to seek discovery of that
material pursuant to statutory procedures.’ ” (Johnson, supra, 61
Cal.4th at p. 709.)
The Supreme Court reversed the Court of Appeal,
concluding that police personnel records are confidential even vis-
à-vis the prosecution, and therefore “prosecutors, as well as
defendants, must comply with the Pitchess procedures if they
15
seek information from confidential personnel records.” (Johnson,
supra, 61 Cal.4th at p. 714.) The Supreme Court concluded:
“Because criminal defendants and the prosecution have equal
ability to seek information in confidential personnel records, and
because such defendants, who can represent their own interests
at least as well as the prosecution and probably better, have the
right to make a Pitchess motion whether or not the prosecution
does so, we also conclude that the prosecution fulfills its Brady
duty as regards the police department’s tip if it provides the
defense the information it received from the police department,
namely, that the specified records might contain exculpatory
information. That way, defendants may decide for themselves
whether to bring a Pitchess motion. The information the police
department has provided, together with some explanation of how
the officers’ credibility might be relevant to the case, would
satisfy the threshold showing a defendant must make in order to
trigger judicial review of the records under the Pitchess
procedures.” (Johnson, at pp. 705−706.)
LASD relies on statements in Johnson mandating
compliance with Pitchess procedures, but overlooks that Johnson
addressed two distinct situations. First, the court reviewed the
threshold showing courts have required a defendant to make
when counsel merely suspects there may be material evidence in
an officer’s personnel file. Addressing the concern that the
showing required by Pitchess was “too high . . . to obtain
exculpatory material from personnel records” (Johnson, supra, 61
Cal.4th at p. 720), the court stated that “a defendant must show
good cause, but the burden is not high. ‘Good cause for discovery
exists when the defendant shows both “ ‘materiality’ to the
subject matter of the pending litigation and a ‘reasonable belief’
that the agency has the type of information sought.” (City of
Santa Cruz v. Municipal Court [(1989)] 49 Cal.3d 74, 84.) A
16
showing of good cause is measured by “relatively relaxed
standards” that serve to “insure the production” for trial court
review of “all potentially relevant documents.” (Ibid.)’ (People v.
Gaines (2009) 46 Cal.4th 172, 179.) The defense only needs to
demonstrate ‘ “a logical link between the defense proposed and
the pending charge” and describe with some specificity “how the
discovery being sought would support such a defense or how it
would impeach the officer’s version of events.” ’ (Id. at p. 182,
quoting Warrick v. Superior Court[, supra,] 35 Cal.4th 1011,
1021; see Warrick, at pp. 1024–1025 [the defense proposed may,
‘depending on the circumstances of the case, . . . consist of a
denial of the facts asserted in the police report’].) ‘This specificity
requirement excludes requests for officer information that are
irrelevant to the pending charges.’ (Warrick, at p. 1021.) But if
the defendant shows that the request is relevant to the pending
charges, and explains how, the materiality requirement will be
met.” (Johnson, supra, 61 Cal.4th at pp. 720−721.)
The three cases Johnson cites for these well-established
standards—City of Santa Cruz, Gaines, and Warrick—involved
pure Pitchess motions. In none of them had the prosecution
notified the defendant that the officer’s personnel file contained
potential Brady material. Thus, these cases addressed a
defendant’s right to conduct statutory criminal discovery under
Pitchess, rather than a defendant’s use of the Pitchess motion
procedures to access potential Brady material known to be
contained in an officer’s personnel file.
After describing the threshold showing usually required to
trigger in camera review under Pitchess, Johnson separately
addressed what was required of the defendant, Daryl Johnson,
who had been notified of the existence of Brady material in the
officers’ personnel files: “In this case, the police department has
laudably established procedures to streamline the Pitchess/Brady
17
process. It notified the prosecution, which in turn notified the
defendant, that the officers’ personnel records might contain
Brady material. A defendant’s providing of that information to
the court, together with some explanation of how the officer’s
credibility might be relevant to the proceeding, would satisfy the
showing necessary under the Pitchess procedures to trigger in
camera review.” (Johnson, supra, 61 Cal.4th at p. 721.)
Serrano did just that. His motion for pretrial discovery was
supported by his counsel’s declaration stating that the prosecutor
advised her to file a motion because Deputy Halloran’s personnel
file contains potential Brady material. Counsel’s declaration
explained that Halloran was the “sole witness for the prosecution
on all issues related to the stop of my client, including his
observations of my client’s driving; my client’s demeanor; what
was observed in my client’s vehicle; what was found in the
vehicle; and any statements made by my client.” Thus, counsel
asserted, Halloran’s credibility “is material to both a motion to
suppress evidence and to trial,” and “[d]epending on the type of
Brady evidence in [his] personnel file, it may be used to impeach
[his] testimony and credibility at any hearing or trial.” Under
Johnson, counsel’s declaration was sufficient to trigger in camera
review of Halloran’s personnel file, and it was error for the
superior court to deny Serrano’s motion on the ground that he
failed to allege specific officer misconduct.
B. Warrick does not apply where Brady
material is known to exist in an officer’s
personnel file
LASD reads our Supreme Court’s earlier decision in
Warrick to require a showing of officer misconduct, apparently in
every case. Relying on Warrick, LASD argues that Serrano has
not established “good cause” for disclosure because he “fails to
allege how the deputy’s credibility is material if the defense does
18
not allege that the deputy lied in any manner.” In support, LASD
points to the following statement in Warrick: “This court has long
required that the information sought must be described with
some specificity to ensure that the defendant’s request is not so
broad as to garner ‘ “all information which has been obtained by
the People in their investigation of the crime” ’ but is limited to
instances of officer misconduct related to the misconduct asserted
by the defendant.” (Warrick, supra, 35 Cal.4th at p. 1021.)
In Warrick, the defendant alleged that arresting officers
fabricated a report stating he scattered rock cocaine as he fled
from them. (Warrick, supra, 35 Cal.4th at p. 1016.) The
defendant claimed the drugs were discarded by a nearby drug
dealer from whom he had planned to buy rock cocaine for his own
use, and he ran from the police because he was on parole. (Id. at
p. 1017.) The Court of Appeal held that the defendant had not
made an adequate threshold showing to obtain in camera review
under Pitchess because the “specific factual scenario of police
misconduct” lacked a “ ‘ “plausible factual foundation.” ’ ” (Id. at
p. 1018.)
Our Supreme Court held the defendant’s factual scenario
was sufficient to establish “good cause for Pitchess discovery,
entitling him to the trial court’s in-chambers review of the
arresting officers’ personnel records relating to making false
arrests, planting evidence, fabricating police reports or probable
cause, and committing perjury.” (Warrick, supra, 35 Cal.4th at
p. 1027.) The court explained that a trial court may assess
whether a defendant has established “the materiality of the
requested information to the pending litigation[ by inquiring:]
Has the defense shown a logical connection between the charges
and the proposed defense? Is the defense request for Pitchess
discovery factually specific and tailored to support its claim of
officer misconduct? Will the requested Pitchess discovery support
19
the proposed defense, or is it likely to lead to information that
would support the proposed defense? Under what theory would
the requested information be admissible at trial?” (Id. at
pp. 1026–1027.)
We are not persuaded that Warrick applies here. The
defendant in Warrick had alleged officer misconduct and filed a
pure Pitchess motion to discover any evidence in the arresting
officers’ files showing they falsified police reports in other cases.
The issue before the court was whether the defendant’s
allegations of officer misconduct were sufficiently specific and
plausible to trigger criminal discovery. Of importance, the
defendant in Warrick had not requested Brady material, nor had
he been informed that potential Brady material was known to
exist in the arresting officers’ personnel files, as is the case here.
Warrick did not hold that every Pitchess motion must allege
officer misconduct. Nor could it. As Johnson later explained, the
“prosecution and the defense have equal access to confidential
personnel records of police officers who are witnesses in a
criminal case. Either party may file a Pitchess motion, and either
party must comply with the statutory procedures to obtain
information in those records.” (Johnson, supra, 61 Cal.4th at
p. 716, italics added.) It would be nonsensical to require the
prosecution to allege that an officer, who is part of the
prosecution team and an intended witness, engaged in specific
acts of misconduct. And requiring a defendant—but not the
prosecution—to allege misconduct would defeat Johnson’s
premise that defendants and prosecutors have “equal access” to
potential Brady material in an officer’s personnel file.
The requirement of identifying specific officer misconduct
may serve to limit fishing expeditions in cases where there is no
indication that the officer’s personnel file contains Brady
material or other relevant evidence. The requirement also makes
20
sense in cases where a defendant, or a plaintiff in a civil rights
case, is seeking evidence of a particular type of misconduct, such
as the use of excessive force. In such cases, specifically alleging
the misconduct at issue would help the trial court identify
relevant evidence during its in camera review of the officer’s
personnel file and also would help the custodian of records
identify what material is potentially relevant and should be
presented to the court for its review. But when the officer’s
personnel file is known to contain potential Brady material, the
defendant cannot be required to allege that the officer engaged in
misconduct.
Serrano is not required to testify at trial, or even to put on
a defense, and has the right to defend himself simply by testing
the prosecution’s case. (See People v. Lewis (2009) 46 Cal.4th
1255, 1296, fn. 31 [“ ‘the defendant may choose to rely on the
state of the evidence and upon the failure, if any, of the People to
prove beyond a reasonable doubt every essential element of the
charge against him,’ ” quoting CALJIC No. 2.61].) Accordingly,
Serrano may elect to impeach Halloran’s credibility without
alleging any specific officer misconduct or factual account that
contradicts Halloran’s testimony.
C. The United States Supreme Court has held
that no particularized showing is required to
trigger in camera review for Brady material in
other confidential files
Requiring a defendant to allege officer misconduct to
trigger a court’s in camera review of potential Brady material
known to exist in an officer’s personnel file also would be contrary
to how the high court has applied Brady in like situations. In
Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie), the high
court considered the scope of the government’s obligation to
disclose impeachment materials contained in confidential agency
21
files protected from disclosure by a state statute. The defendant
had been denied access to material in the Children and Youth
Services (CYS) file of his minor daughter, whom he was convicted
of molesting. The Pennsylvania Supreme Court held that defense
counsel must be allowed to examine the confidential information.
The United States Supreme Court granted certiorari and
analyzed the issue under the due process framework of Brady
and its progeny.
Because the Pennsylvania statute protecting CYS files
permitted disclosure by court order, the court could not “conclude
that the statute prevents all disclosure in criminal prosecutions.”
(Ritchie, supra, 480 U.S. at p. 58.) Instead, “relevant
information” could be disclosed “when a court of competent
jurisdiction determines that the information is ‘material’ to the
defense of the accused.” (Ibid.) Ritchie partly reversed the
Pennsylvania Supreme Court because the defendant’s right to
discover exculpatory information “does not include the
unsupervised authority to search through the Commonwealth’s
files.” (Id. at p. 59.) Ritchie affirmed the Pennsylvania Supreme
Court’s remand for further proceedings because “Ritchie is
entitled to have the CYS file reviewed by the trial court to
determine whether it contains information that probably would
have changed the outcome of his trial. If it does, he must be
given a new trial.” (Id. at p. 58.)
The high court addressed the commonwealth’s argument
that Ritchie was “not entitled to disclosure because he did not
make a particularized showing of what information he was
seeking or how it would be material.” (Ritchie, supra, 480 U.S. at
p. 58, fn. 15.) The court stated: “Ritchie, of course, may not
require the trial court to search through the CYS file without
first establishing a basis for his claim that it contains material
evidence. See United States v. Valenzuela-Bernal, 458 U. S. 858,
22
867 (1982) (‘He must at least make some plausible showing of
how their testimony would have been both material and favorable
to his defense’). Although the obligation to disclose exculpatory
material does not depend on the presence of a specific request, we
note that the degree of specificity of Ritchie’s request may have a
bearing on the trial court’s assessment on remand of the
materiality of the nondisclosure.” (Ritchie, at p. 58, fn. 15.)
In Johnson, our Supreme Court relied on Ritchie for its
holding “that when confidential records might contain
exculpatory material, the trial court’s in camera review of those
records, followed by disclosure to the defense of any Brady
material that review uncovers, is sufficient to protect the
defendant’s due process rights.” (Johnson, supra, 61 Cal.4th at
p. 717.) Johnson also examined J.E. v. Superior Court (2014) 223
Cal.App.4th 1329, which rested its decision on Ritchie and held
that when the defense files a “ ‘petition requesting that the court
review a confidential juvenile file and provides a reasonable basis
to support its claim that the file contains Brady exculpatory or
impeachment material, the juvenile court is required to conduct
an in camera review.’ ” (Johnson, at pp. 717−718, quoting J.E. v.
Superior Court, at p. 1333.) Johnson concluded that “the
procedure used for confidential juvenile records in Ritchie
[citation] and J.E. v. Superior Court [citation] works just as well
for confidential personnel records.” (Johnson, at p. 718.)
Ritchie supports our conclusion here. The prosecutor’s
notice to Serrano that Deputy Halloran’s personnel file contains
potential Brady material, together with counsel’s declaration
explaining that Halloran is the prosecution’s sole witness to
many of the events leading to Serrano’s arrest, is sufficient to
establish his claim that Halloran’s file contains potential
impeachment evidence that may be material to his defense.
23
Nothing more is required to trigger the trial court’s in camera
review.
DISPOSITION
The petition for writ of mandate is granted. Let a
peremptory writ of mandate issue, directing the trial court to
vacate its May 17, 2017 order denying Serrano’s motion for
pretrial discovery and to issue a new and different order granting
same.
CERTIFIED FOR PUBLICATION
LUI, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
24