Filed 3/3/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
VENTURA COUNTY DEPUTY 2d Civ. No. B300006
SHERIFFS’ ASSOCIATION, (Super. Ct. No. 56-2019-
00523492-CU-WM-VTA)
Plaintiff and Respondent, (Ventura County)
v.
COUNTY OF VENTURA et al.,
Defendants and Respondents;
CLAUDIA Y. BAUTISTA, as
Public Defender, etc.,
Intervener and Appellant.
INTRODUCTION
Senate Bill No. 1421 (SB 1421) went into effect on January
1, 2019. Among other things, it amended Penal Code section
832.71 to allow disclosure under the California Public Records Act
(CPRA) of records relating to officer-involved shootings, serious
use of force and sustained findings of sexual assault or serious
dishonesty.2 (§ 832.7, subd. (b)(1).) This statute renders the
records non-confidential and applies to “any file maintained
under [the] individual’s name by his or her employing agency.”
(§ 832.8, subd. (a).) Previously, these records could be accessed
only through a Pitchess3 motion pursuant to Evidence Code
sections 1043 and 1045.
1All statutory references are to the Penal Code unless
otherwise stated.
2 Specifically, section 832.7, subdivision (b)(1) applies to
records relating to the report, investigation or finding of the
following: “An incident involving the discharge of a firearm at a
person by a peace officer or custodial officer” (id., subd.
(b)(1)(A)(i)); “[a]n incident in which the use of force by a peace
officer or custodial officer against a person resulted in death, or
in great bodily injury” (id., subd. (b)(1)(A)(ii)); “an incident in
which a sustained finding was made by any law enforcement
agency or oversight agency that a peace officer or custodial officer
engaged in sexual assault involving a member of the public” (id.,
subd. (b)(1)(B)(i)); and “an incident in which a sustained finding
was made by any law enforcement agency or oversight agency of
dishonesty by a peace officer or custodial officer directly relating
to the reporting, investigation, or prosecution of a crime, or
directly relating to the reporting of, or investigation of
misconduct by, another peace officer or custodial officer,
including, but not limited to, any sustained finding of perjury,
false statements, filing false reports, destruction, falsifying, or
concealing of evidence” (id., subd. (b)(1)(C)).
3 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
2
The Ventura County Deputy Sheriffs Association (VCDSA)
sued the County of Ventura and Bill Ayub, Sheriff of Ventura
County (Sheriff), to enjoin section 832.7’s application to records
involving peace officer conduct and incidents occurring before
January 1, 2019, the statute’s effective date. The trial court
issued a preliminary injunction.
In the meantime, our colleagues in the First District issued
Walnut Creek Police Officers’ Assn v. City of Walnut Creek (2019)
33 Cal.App.5th 940 (Walnut Creek), which rejected the assertion
“that applying the 2019 amendments to compel disclosure of
records created prior to 2019 constitutes an improper retroactive
application of the new law.” (Id. at p. 942.) The court found the
“argument . . . without merit,” reasoning that “[a]lthough the
records may have been created prior to 2019, the event necessary
to ‘trigger application’ of the new law – a request for records
maintained by an agency – necessarily occurs after the law’s
effective date.” (Ibid; see Carlsbad Police Officers Assn v. City of
Carlsbad (2020) 49 Cal.App.5th 135, 144 & fn. 5 (Carlsbad).)
The trial court did not follow Walnut Creek. It concluded
section 832.7 applies prospectively only, entered judgment for
VCDSA and issued a permanent injunction. Claudia Y. Bautista,
in her capacity as Public Defender of Ventura County (Public
Defender), appeals.4
In the absence of a reason to depart from Walnut Creek,
and for reasons stated in Becerra v. Superior Court (2020) 44
4The appeal originally was filed by Todd Howeth, who was
then the Public Defender. Howeth recently retired and Bautista
succeeded him.
3
Cal.App.5th 897 (Becerra), we reverse the judgment and dissolve
the permanent injunction.
DISCUSSION
Standard of Review
We review statutory interpretation questions de novo.
(Jackson v. LegalMatch.com (2019) 42 Cal.App.5th 760, 767.)
“[O]ur primary goal is to determine and give effect to the
underlying purpose of the law. [Citation.] ‘Our first step is to
scrutinize the actual words of the statute, giving them a plain
and commonsense meaning.’ [Citation.] ‘“If the words of the
statute are clear, the court should not add to or alter them to
accomplish a purpose that does not appear on the face of the
statute or from its legislative history.”’ [Citation.] In other
words, we are not free to ‘give words an effect different from the
plain and direct import of the terms used.’ [Citations.] However,
‘“the ‘plain meaning’ rule does not prohibit a court from
determining whether the literal meaning of a statute comports
with its purpose or whether such a construction of one provision
is consistent with other provisions of the statute.”’ [Citation.] To
determine the most reasonable interpretation of a statute, we
look to its legislative history and background.” (Goodman v.
Lozano (2010) 47 Cal.4th 1327, 1332.)
The Trial Court Erred by Declining to Apply
Section 832.7 Retroactively
The briefs filed by the parties and amici curiae raise a
number of issues but focus primarily on retroactivity. VCDSA
contends SB 1421’s statutory amendments do not retroactively
divest its members of their prior-acquired right to confidentiality
in records documenting conduct and incidents occurring before
4
January 1, 2019. The Public Defender and amici argue
otherwise.5
The concept of retroactivity is not always easy to apply to a
given statute. (Landgraf v. USI Film Products (1994) 511 U.S.
244, 268 [128 L.Ed.2d 229]; Quarry v. Doe I (2012) 53 Cal.4th
945, 955.) Courts must consider the nature and extent of the
change in the law and the degree of connection between the
operation of the new rule and a relevant past event. (Quarry, at
p. 955.) Familiar considerations of fair notice, reasonable
reliance and settled expectations offer sound guidance for
determining whether a particular application of the statute is
retroactive. (Id. at pp. 955-956.) Generally, a law has retroactive
effect when it functions to change the legal consequences of a
party's past conduct by imposing new or different liabilities based
upon such conduct. (Id. at p. 956.)
“[T]he critical question for determining retroactivity
usually is whether the last act or event necessary to trigger
application of the statute occurred before or after the statute’s
effective date. [Citations.] A law is not retroactive ‘merely
because some of the facts or conditions upon which its application
depends came into existence prior to its enactment.’ [Citation.]”
(People v. Grant (1999) 20 Cal.4th 150, 157 (Grant).)
The Public Defender and amici contend the trial court was
bound by Walnut Creek. (See Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455 [“Decisions of every division of
the District Courts of Appeal are binding upon all the . . .
5The County of Ventura and its Sheriff “take no position
regarding the merits of this appeal or the claims and arguments
made by any other party hereto and intend to comply with the
law, however it is construed.”
5
superior courts of this state”].) VCDSA claims Walnut Creek is
non-binding because it was a summary denial of petitions for writ
of supersedeas. We agree the decision is procedurally atypical,
but the court did analyze and decide the same issue presented
here.
In denying the supersedeas petitions, Walnut Creek
explained: “The appeals center around amendments enacted this
year to Penal Code section 832.7 that expand public access to
certain peace officer records maintained by a state or local
agency. (See Pen. Code, § 832.7, subd. (b)(1).) Appellants assert
that applying the 2019 amendments to compel disclosure of
records created prior to 2019 constitutes an improper retroactive
application of the new law. For the reasons stated by the trial
court, appellants’ argument is without merit. Although the
records may have been created prior to 2019, the event necessary
to ‘trigger application’ of the new law – a request for records
maintained by an agency – necessarily occurs after the law’s
effective date. ([Grant, supra,] 20 Cal.4th [at p.] 157 [‘[T]he
critical question for determining retroactivity usually is whether
the last act or event necessary to trigger application of the
statute occurred before or after the statute's effective date’].) The
new law also does not change the legal consequences for peace
officer conduct described in pre-2019 records. (See ibid.
[application of new law is retroactive ‘only if it attaches new legal
consequences to, or increases a party’s liability for, an event,
transaction, or conduct that was completed before the law’s
effective date’].) Rather, the new law changes only the public’s
right to access peace officer records.” (Walnut Creek, supra, 33
Cal.App.5th at p. 942.)
6
In Carlsbad, the trial denied a petition for writ of mandate
involving the same issue, concluding that SB 1421 applies to
records of events occurring before January 1, 2019. (Carlsbad,
supra, 49 Cal.App.5th at p. 144, fn. omitted.) The issue on appeal
concerned attorney fees, but the Court of Appeal noted the trial
court’s ruling was consistent with Walnut Creek. (Carlsbad, at
p. 144, fn. 5.)
Although Becerra does not address retroactivity, it broadly
construed section 832.7 to “require[] disclosure of all responsive
records in the possession of the [custodian agency], regardless [of]
whether the records pertain to officers employed by [that agency]
or by another public agency and regardless [of] whether the
[custodian agency] or another public agency created the records.”
(Becerra, supra, 44 Cal.App.5th at p. 910, italics added.) The
court emphasized that the CPRA “must be ‘broadly construed’
because its statutory scheme ‘furthers the people’s right of
access.’ (Cal. Const., art 1, § 3, subd. (b)(2).” (Becerra, at p. 913.)
The legislation also “balances the dual concerns for privacy and
disclosure by providing for various exemptions that permit public
agencies to refuse disclosure of certain public records. (Gov.
Code, §§ 6254-6255.)” (Id. at p. 914.) These “exemptions are
narrowly construed . . . , and the agency opposing disclosure
bears the burden of proving an exemption applies.” (Ibid.)
Becerra reiterated that “section 832.7 reflects continuing
legislative concern for certain privacy and safety interests and
competing public interests.” (Becerra, supra, 44 Cal.App.5th at
p. 916.) Among other things, it allows a responding agency to
redact records “to remove personal data or information outside
the name and work-related information of the officers; to
preserve the anonymity of complainants and witnesses; to protect
7
confidential medical, financial, or other information whose
disclosure is specifically prohibited by federal law or would cause
an unwarranted invasion of personal privacy that outweighs the
public’s interest in the records; and where there is reason to
believe that disclosure of the record would pose a significant
danger to the physical safety of the officer or another person.
(§ 832.7, subd. (b)(5)(A)-(D).)” (Ibid.) The statute also permits
redaction of a record “where on the facts of the particular case,
the public interest served by not disclosing the information
clearly outweighs the public interest served by disclosure of the
information.” (§ 832.7, subd. (b)(6); Asimow et al., Cal. Practice
Guide: Administrative Law (The Rutter Group 2020) ¶¶
29:250.5-29:250.10, pp. 29-39 to 29-40; see also Gov. Code, § 6255,
subd. (a); Becerra, at pp. 923-929.)
The Legislature’s imposition of these safeguards undercuts
VCDSA’s argument that section 832.7 effectively eliminates an
officer’s privacy rights in records involving pre-January 1, 2019
conduct. To the contrary, the safeguards protect the officer’s
privacy when such protection is warranted. (See Gov. Code,
§ 6250 [The Legislature is “mindful of the right of individuals to
privacy”]; International Federation of Professional & Technical
Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th
319, 329.) It bears emphasis, however, that the records subject to
disclosure under section 832.7 involve instances of egregious
peace officer misconduct. The Legislature has determined the
public’s right to discover such misconduct generally overrides
privacy concerns. (Becerra, supra, 44 Cal.App.5th at p. 921.)
Specifically, the Legislature enacted SB 1421 in response to
its perception that California was “one of the most secretive
states in the nation in terms of openness when it comes to officer
8
misconduct and uses of force.” (Sen. Rules Com., Off. Of Sen.
Floor Analyses, Sen Bill No. 1421 (2017-2018 Reg. Sess.) as
amended August 23, 2018, p. 8.) As Becerra summarizes, “the
legislative intent behind SB 1421 was to provide transparency
regarding instances of an officer’s use of significant force and
sustained findings of officer misconduct by allowing public access
to officer-related records maintained either by law enforcement
employers or by any state or local agency with independent law
enforcement oversight authority. Moreover, in amending section
832.7, the Legislature sought to afford the public ‘the right to
know all about serious police misconduct,’ to stop concealing
incidents where an officer violated civilian rights, and to ‘address
and prevent abuses and weed out the bad actors.’ (Stats. 2018,
ch. 988, § 1 (Sen. Bill No. 1421); Assem. Com. on Public Safety
Rep., supra, p. 4.)” (Becerra, supra, 44 Cal.App.5th at p. 921.)
These legislative goals are best promoted by requiring disclosure
of all responsive records regardless of when they were created or
when the conduct occurred.
The Legislature also was aware when it enacted SB 1421
that it would be applied to pre-January 1, 2019 records. The
original committee report highlighted law enforcement concerns
about its application to those records: “[O]ur reading of Senate
Bill 1421 is that making the records of an officer’s lawful and in
policy conduct is retroactive in its impact. . . . [R]ecords are
available for public inspection irrespective of whether or not they
occurred prior to the effective date of SB 1421.” (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 1421 (2017-2018 Reg.
Sess.) Apr. 2, 2018.) By enacting SB 1421 without restricting its
application to post-January 1, 2019 records, conduct and
incidents, the Legislature expressed its intent to allow retroactive
9
application. (See Preston v. State Bd. of Equalization (2001) 25
Cal.4th 197, 222-223 [where Legislature was warned certain
language might be interpreted as applying the law retroactively,
and enacted the law without alteration, legislative history
evidenced intent to apply the law retroactively].)
Accordingly, we agree with Walnut Creek that section 832.7
does not attach new legal consequences to or increase a peace
officer’s liability for conduct that occurred before the statute’s
effective date. (Walnut Creek, supra, 33 Cal.App.5th at p. 942.)
Because the statute merely broadens the public’s right to access
records regarding that conduct, it applies retroactively. (Ibid.)
DISPOSITION
The judgment is reversed and the permanent injunction is
dissolved. In the interests of justice, the parties shall bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
10
Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Claudia Y. Bautista, Public Defender, Michael C.
McMahon, Senior Deputy Public Defender, for Intervener and
Appellant.
Rains Lucia Sterm St. Phalle & Silver, Richard A. Levine
and Brian P. Ross, for Plaintiff and Respondent.
Leroy Smith, County Counsel, Emily T. Gardner, Assistant
County Counsel, for Defendants and Respondents.
David E. Snyder; Sheppard, Mullin, Richter & Hampton,
James M. Chadwick, Tenaya Rodewald, Andrea Feathers, for
Amicus Curiae First Amendment Coalition.
Law Offices of Kelly A. Aviles, Kelly A. Aviles; Jeff Glasser
for Amici Curiae Los Angeles Times Communications, LLC, The
Associated Press, and Scripps NP Operating, LLC, publisher of
the Ventura County Star.
Allyssa Victory Villanueva, Amy Gilbert; Peter Bibring,
Melanie P. Ochoa, Rekha Arulanantham; Law Offices of Michael
Risher, Michael Risher; and Munger, Tolles & Olson, Jacob S.
Kreilkamp, for Amici Curiae American Civil Liberties Union of
Northern California and of Southern California.
11