The court today upholds two related portions of the statutory scheme that governs the discovery of citizen complaints against peace officers: (1) Evidence Code section 1045, subdivision (b)(1), which prohibits the disclosure of citizen complaints older than five years; and (2) Penal Code section 832.5, subdivision (b), which requires that citizen complaints “be retained for a period of at least five years” and, as interpreted today, allows for the destruction of such documents immediately after this five-year period. I respectfully dissent. I believe that the per se prohibition against disclosure of relevant citizen complaints simply because they are a day older than five years is arbitrary and violates due process. I also believe that the state-sponsored systematic destruction of relevant evidence runs afoul of both Davis v. Alaska (1974) 415 U.S. 308 [94 S.Ct. 1105, 39 *19L.Ed.2d 347] (Davis) and California v. Trombetta (1984) 467 U.S. 479 [104 S.Ct. 2528, 81 L.Ed.2d 413] (Trombetta). Finally, I believe that the majority’s attempt to harmonize the Pitchess scheme with a prosecutor’s obligation to disclose exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady) is constitutionally inadequate. I would therefore affirm the judgment of the Court of Appeal.
I.
Pitchess Scheme Background
In 1974, our Legislature enacted Penal Code section 832.5, which requires law enforcement agencies “to establish a procedure to investigate [citizen] complaints” against peace officers. In response to our decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305], where we held that such complaints are discoverable by a defendant in a criminal prosecution, the Legislature, in 1978, enacted a comprehensive statutory scheme (the Pitchess scheme) to regulate the dissemination of such discovery. Specifically, the Pitchess scheme added Evidence Code sections 1043-1045 and Penal Code sections 832.7 and 832.8. It also amended Penal Code section 832.5 by adding subdivision (b), the five-year retention requirement. (Stats. 1978, ch. 630, §§ 1-6, pp. 2082-2083.)
In City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83 [260 Cal.Rptr. 520, 776 P.2d 222] (City of Santa Cruz), we stated that the Pitchess scheme was a “veritable model of clarity and balance.” While this may have been true in 1989, in daily trial practice, the Pitchess pendulum has swung too far in favor of police privacy rights and against the disclosure of relevant evidence.
A. Pitchess Hurdles
Before Pitchess discovery is allowed, the defendant must submit an affidavit showing good cause for the discovery sought that sets forth the materiality of such discovery to the subject matter in the pending litigation. (Evid. Code, § 1043, subd. (b)(3).) If the trial court finds that good cause exists, it reviews the requested material in chambers in conformity with Evidence Code section 915. (Evid. Code, § 1045, subd. (b).) The custodian of records does not bring to court the officer’s entire personnel file, but only those documents that he or she deems “ ‘potentially relevant.’ ” (People v. Mooc (2001) 26 Cal.4th 1216, 1229 [114 Cal.Rptr.2d 482, 36 P.3d 21] (Mooc), quoting City of Santa Cruz, supra, 49 Cal.3d at p. 84.)
“[I]n determining [the] relevance” of those documents that are brought to the in-chambers hearing, the trial court, which has wide discretion, “shall *20exclude from disclosure” (1) “[information consisting of [citizen] complaints concerning conduct occurring more than five years before the event or transaction which is the subject of this litigation” (Evid. Code, § 1045, subd. (b)(1)); (2) “the conclusions of any officer investigating a [citizen] complaint” (Evid. Code, § 1045, subd. (b)(2)); and (3) “[f]acts sought to be disclosed which are so remote as to make disclosure of little or no practical benefit” (Evid. Code, § 1045, subd. (b)(3)).
Evidence Code section 1047 prohibits the disclosure of personnel records of police officers who were not present during the arrest or had no contact with the party seeking disclosure from the time of arrest until the time of booking. Section 1047 was enacted three months after our decision in People v. Memro (1985) 38 Cal.3d 658 [214 Cal.Rptr. 832, 700 P.2d 446], where we had held that such discovery was proper.
As of 1998, a citizen complaint, or any portion of a complaint that is determined by the police officer’s employing agency to be frivolous, unfounded, or exonerated is removed from the officer’s general personnel file and kept in a separate file designated by the police agency. (Pen. Code, § 832.5, subd. (c).)
In addition, the court “shall” issue a protective order that any disclosure be limited to the pending litigation. (Evid. Code, § 1045, subd. (e).) The Attorney General has concluded “that the disclosure of peace officer personnel records in violation of Penal Code section 832.7 may constitute a crime under the provisions of Government Code section 1222 if the conditions of the latter statute are met.” (82 Ops.Cal.Atty.Gen. 246, 248-249 (1999).)1
Once disclosure is authorized, the defendant does not receive the citizen complaint or any report prepared investigating such complaint. Instead, discovery is limited to the names, addresses and telephone numbers of complainants and witnesses. As we stated in City of Santa Cruz: “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 (as the municipal court directed here) 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.” (City of Santa Cruz, supra, 49 Cal.3d at p. 84.)
*21B. Access to Pitchess Material Is Limited
The Pitchess procedure is the sole and exclusive means by which citizen complaints may be obtained. Recent decisions have rejected attempts to use other discovery procedures to obtain Pitchess records. For example, in Garden Grove Police Department v. Superior Court (2001) 89 Cal.App.4th 430 [107 Cal.Rptr.2d 642] (Garden Grove), the trial court granted a defense request for three officers to disclose their birth dates so that the prosecutor could conduct a criminal records check. The trial court based its order on Penal Code section 1054.1 and Brady, supra, 373 U.S. 83. (Garden Grove, supra, 89 Cal.App.4th at p. 432.) The Court of Appeal reversed, holding that the defendant’s motion “circumvented the Pitchess process .... We cannot allow [the 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 discovery motion.” (Id. at pp. 434-435, fns. omitted.)
In California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010 [101 Cal.Rptr.2d 379] (Highway Patrol), the trial court ordered production of certain documents from two officers’ personnel records, pursuant to People v. Wheeler (1992) 4 Cal.4th 284, 295-297 [14 Cal.Rptr.2d 418, 841 P.2d 938] )Wheeler), where we held that nonfelony conduct involving moral turpitude is admissible to impeach a witness in a criminal case. The Court of Appeal reversed. It stated: “To grant discovery of peace officer personnel records on the basis that Wheeler permits discovery of all personnel records reflecting officer misconduct involving moral turpitude, without requiring defendant to comply with the good cause requirement of Evidence Code section 1043, would have the effect of destroying the statutory scheme.” (Highway Patrol, supra, at p. 1024.) The Court of Appeal therefore denied defendant’s request for Pitchess discovery because the defendant’s claim, that officer credibility is always at issue in a criminal trial, failed to satisfy the Pitchess good cause requirement. (Ibid.)
Unless they are directly investigating the police officer, prosecutors, like defense attorneys, do not have any means independent of Pitchess to obtain police officer personnel records. As stated in City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1144, footnote 5 [79 Cal.Rptr.2d 624]: “ ‘[W]here the People seek discovery of the peace officer personnel records . . . the district attorney is not exempted under the 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 [67 Cal.Rptr.2d 910]).
Penal Code section 832.5, subdivision (a) requires that citizen complaints be investigated by the officer’s employing agency. Pitchess discovery motions generally seek records from an officer’s personnel file because that is *22the location where such complaints are maintained. (See, e.g., Mooc, supra, 26 Cal.4th 1216; City of Santa Cruz, supra, 49 Cal.3d 74; Highway Patrol, supra, 84 Cal.App.4th 1010.) The five-year period of Evidence Code section 1045, subdivision (b)(1) runs from the date of the event that is the subject of the current litigation to the date of the conduct that is the subject of the citizen complaint. But the complaint may not be placed in the officer’s personnel file until well after such conduct occurred, thus effectively shortening the five-year period.
Specifically, peace officers are protected by the Public Safety Officer’s Procedural Bill of Rights Act (Gov. Code, §§ 3300-3311), and are guaranteed various procedural safeguards during the investigation of a citizen complaint (Gov. Code, § 3303),2 as well as the right to respond to a citizen complaint before it is placed in their personnel file. (See Aguilar v. Johnson (1988) 202 Cal.App.3d 241, 249-250 [247 Cal.Rptr. 909] [under Gov. Code, §§ 3305 and 3306, peace officer must be given notice and opportunity to respond to citizen complaint before the same is placed in officer’s personnel file].) Thus, even when a citizen complaint is lodged against an officer on the same date as the alleged misconduct, because it may take months, if not years, for that complaint’s investigation to be completed, such complaint may not be available for discovery until well after the five-year period begins to run.3
II.
The Majority Opinion
A. Evidence Code Section 1045, Subdivision (b)(1)
Against this backdrop, the majority first concludes that Evidence Code section 1045, subdivision (b)(l)’s five-year limitation on disclosure of citizen complaints does not violate a defendant’s constitutional right to due *23process because no “fundamental principles of justice are implicated.” (Maj. opn., ante, at p. 11.) I disagree. Section 1045, subdivision (b)(1) establishes a per se rule that precludes the disclosure of citizen complaints older than five years, regardless of the materiality of the complaint. The fundamental right at stake here is not the right to pretrial discovery,4 but a defendant’s Sixth Amendment right to confront and cross-examine the witnesses against him. As stated by the high court in Davis, supra, 415 U.S. at page 316 [94 S.Ct. at p. 1110]: “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. . . . [T]he cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness.”
But the high court has made clear that “ ‘[T]he right to present relevant testimony is not without limitation. The right “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” ’ [Citations.] We have explained, for example, that ‘trial judges retain wide latitude’ to limit reasonably a defendant’s right to cross-examine a witness .... [10 ... [1|] [But] [Restrictions on a criminal defendant’s rights to confront adverse witnesses and to present evidence may not be ‘arbitrary or disproportionate to the purposes they are designed to serve.’ ” (Michigan v. Lucas (1991) 500 U.S. 145, 149-151 [111 S.Ct. 1743, 1746-1747, 114 L.Ed.2d 205].) “In applying its evidentiary rules a State must evaluate whether the interests served by the rule justify the limitation imposed . . . .” (Rock v. Arkansas (1987) 483 U.S. 44, 56 [107 S.Ct. 2704, 2711, 97 L.Ed.2d 37].)
The question before this court, then, is what interests are served by a rule that justifies the limitation imposed, here, the per se nondisclosure of citizen complaints older than five years. In Mooc, we justified this limitation in the Pitchess scheme in the following manner: “Pitchess . . . and its statutory progeny are based on the premise that evidence contained in a law enforcement officer’s personnel file may be relevant to an accused’s criminal defense and that to withhold such relevant evidence from the defendant would violate the accused’s due process right to a fair trial. [The statutory scheme] also recognize [s] that the officer in question has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily. ... In this manner the Legislature has attempted to protect the defendant’s right to a fair trial and the officer’s interest in *24privacy to the fullest extent possible. [Citation.]” (Mooc, supra, 26 Cal.4th at p. 1227.)
There are two ways to interpret this pronouncement in Mooc. Under the first interpretation, the five-year nondisclosure rule appears to assume that conduct described in a citizen complaint that is one day older than five years is irrelevant to a prosecution. The majority suggests this may be the case: “The . . . five-year period[] may well reflect legislative recognition that after five years a citizen’s complaint of officer misconduct has lost considerable relevance.” (Maj. opn., ante, at p. 11.)
However, prior acts of dishonesty, as alleged here, have probative value where officer credibility is an issue, even when such acts are older than five years, and especially where there are multiple incidents of dishonesty. As seen in Wheeler, supra, 4 Cal.4th at pages 295-297, nonfelony conduct involving moral turpitude is ordinarily admissible to impeach any other type of witness in a criminal trial, subject only to the court’s discretion under Evidence Code section 352 to exclude evidence if its probative value is substantially outweighed by the probability of its undue prejudicial effect.
Thus the five-year limitation is invalid for two reasons: (1) it exalts police officer testimony over all other witness testimony since relevant impeachment evidence can be excluded, as to police officers only, solely on the basis of the age of the evidence; and (2) it establishes an arbitrary limit on discovery that is unrelated to the materiality of the evidence. For example, where the prosecution is for resisting arrest, a sustained citizen complaint against the arresting officer for excessive force that occurred four years 11 months and 30 days ago has the same relevance as a second sustained complaint against the same officer for excessive force that occurred five years and one day earlier, yet the complaint that is five years and one day old is excluded from discovery.
Under the second interpretation of our pronouncement in Mooc, we assume that the Legislature knew that the five-year rule would exclude relevant evidence. In such a case, the rule must not be disproportionate to the purpose it is designed to serve; namely, protecting the officer’s privacy interest in the nondisclosure of his personnel records. (See Mooc, supra, 26 Cal.4th at p. 1227.) No one would dispute that much of what is contained in a police officer’s personnel file is entitled to great privacy; under Mooc, however, irrelevant personnel documents are removed by the custodian of records before the in-chambers review. The custodian brings to court only documents that are “ ‘potentially relevant.’ ” (Id. at p. 1229.)
The potentially relevant documents sought in a Pitchess motion include citizen complaints of officer misconduct that the officer’s own agency has *25sustained as true.5 Such a complaint likely contains admissible impeachment evidence under Wheeler, supra, 4 Cal.4th at pages 295-297. As stated by the Attorney General, “The Legislature, through the adoption of [Penal Code] section 832.5, has indicated its desire that complaints filed with a law enforcement agency are to be encouraged. [Citation.] The Legislature contemplated that when police misconduct was discovered in such investigations, appropriate disciplinary action would be taken; the purpose of the statute is to have the agency ‘investigate and remedy wrongdoing.’ [Citations.]” (79 Ops.Cal.Atty.Gen. 163, 163-164 (1996).)
An officer’s interest in shielding this type of document from public view is arguably illegitimate. The state, too, has no legitimate reason to prohibit the disclosure of a sustained citizen complaint. Certainly, any legitimate interest in destroying such a document is disproportionate to the purpose it is designed to serve. On balance then, any privacy interest an officer, his police agency, or the state has in the nondisclosure of a sustained citizen complaint must yield to the defendant’s constitutional right to effectively cross-examine a prosecution witness with relevant impeachment evidence.
Davis, supra, 415 U.S. 308, is on point. There, the defendant was on trial for stealing a safe. The key prosecution witness was a juvenile who was on probation for burglary. The defense sought to impeach the juvenile with his burglary probation to show his bias, prejudice and motive to lie. (Id. at p. 311 [94 S.Ct. at pp. 1107-1108].) The state claimed such impeachment would conflict with its asserted interest in preserving the confidentiality of juvenile adjudications of delinquency. (Id. at p. 309 [94 S.Ct. at p. 1107].) The Alaska Supreme Court agreed with the state, but the high court reversed: “The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness. The State *26could have protected [the juvenile] from exposure of his juvenile adjudication in these circumstances by refraining from using him to make out its case; the State cannot, consistent with the right of confrontation, require the petitioner to bear the full burden of vindicating the State’s interest in the secrecy of juvenile criminal records.” (Id. at p. 320 [94 S.Ct. at p. 1112].)
The principles announced in Davis control here. Any privacy right an officer has in the confidentiality of a sustained citizen complaint “cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.” (Davis, supra, 415 U.S. at p. 320 [94 S.Ct. at p. 1112].)
B. Brady Considerations in Light of Penal Code Section 832.5
The majority counters the above argument by holding that the Pitchess process operates in parallel with Brady, and that citizen complaints older than five years that the superior court finds to be exculpatory, as defined by Brady, after in-chambers review, may be subject to disclosure, “notwithstanding the five-year limitation” in Evidence Code section 1045, subdivision (b)(1). (Maj. opn., ante, at p. 14.)
While this holding may be tenable in theory, the majority ignores the stark reality that, as a practical matter, there will be no document older than five years available for an in-chambers review. This is so because the majority also upholds the leg of the Pitchess scheme (Pen. Code, § 832.5, subd. (b)) that, as interpreted by the majority, permits police agencies to routinely destroy every relevant Pitchess document over five years old: “The Pitchess procedures not only require law enforcement agencies to compile citizen complaints, but they also contemplate the destruction of such complaints after five years. [Citation.] Many if not most law enforcement agencies have a policy of routinely destroying citizen complaints after five years.” (Maj. opn., ante, at p. 11.)
Citing Trombetta, supra, 467 U.S. at page 488 [104 S.Ct. at page 2534], the majority concludes that such destruction does not violate due process because “[a] law enforcement agency’s destruction of a citizen’s complaint violates a defendant’s right to due process only when the complaint’s exculpatory value to a particular criminal case is readily apparent before its destruction. [Citation.] The mere ‘possibility’ that the complaint might be exculpatory in some future case is insufficient. [Citation.] Unless there is bad faith by the law enforcement agency, the destruction of records does not implicate a defendant’s constitutional right to a fair trial . . . .” (Maj. opn., ante, at pp. 11-12.) The majority concludes that the “routine destruction [of *27evidence] by a law enforcement agency ‘acting . . . “in accord with [its] normal practice” ’ tends to indicate ‘ “good faith.” ’ ” (Id. at p. 12.)
I disagree. Trombetta addressed the issue of “the government’s duty to take affirmative steps to preserve [physical] evidence . . . destroyed through prosecutorial neglect or oversight” (Trombetta, supra, 467 U.S. at p. 486 [104 S.Ct. at p. 2533]), in the specific context of whether the police were required to preserve breath samples in order to introduce an Intoxilyzer (breath-analysis) test. (Id. at p. 481 [104 S.Ct. at p. 2530].) The high court stated that the states’ duty to preserve evidence “must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id. at pp. 488-489 [104 S.Ct. at p. 2534], fn. omitted.)
Because the respondents sought to challenge the Intoxilyzer results, the high court concluded the breath samples themselves were of marginal relevance. (Trombetta, supra, 467 U.S. at p. 489 [104 S.Ct. at p. 2534].) First, the Intoxilyzer was routinely checked and two independent breath measurements were taken. (Id. at p. 490 [104 S.Ct. at pp. 2534-2535].) Moreover, the respondents had “alternate means” of demonstrating how the Intoxilyzer might malfunction, such as faulty calibration, extraneous interference with machine measurement, or operator error. (Ibid.) The high court thus held there was no constitutional error in the destruction of the breath samples.
Arizona v. Youngblood (1988) 488 U.S. 51 [109 S.Ct. 333, 102 L.Ed.2d 281] (Youngblood) addressed the negligent failure of police to preserve physical evidence “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” (Id. at p. 57 [109 S.Ct. at p. 337].) In this instance, the high court held that there is no due process violation unless the defendant could show bad faith on the part of the police. (Id. at p. 58 [109 S.Ct. at p. 337].)
Both Trombetta and Youngblood are inapposite to the instant case. Under the Pitchess scheme, our state systematically destroys relevant evidence contained in sustained citizen complaints that “might be expected to play a significant role in the suspect’s defense.” (Trombetta, supra, 467 U.S. at p. 488 [104 S.Ct. at p. 2533].) Moreover, once a sustained citizen complaint is destroyed, there is no alternate means of obtaining comparable evidence. In this manner too, the Pitchess scheme fails the Trombetta test.
The majority does not address the specific issue of destroying sustained citizen complaints. The majority concludes (maj. opn., ante, at p. 12) that *28“citizen complaints that are more than five years old and whose exculpatory value to a specific case is not readily apparent” may be destroyed because they fail to distinguish between complaints that have been determined to be without substance and those that have been sustained by the officer’s employing agency. But a sustained citizen complaint, which contains an allegation of misconduct that the officer’s own agency has found true, does possess an exculpatory value to any particular case in which that officer is a material witness. This exculpatory value, moreover, is apparent to both the prosecutor and defense attorney before the document is destroyed: it contains witness statements and other evidence gathered during that investigation that details such misconduct. Such a complaint, therefore, likely contains relevant impeachment evidence under Wheeler, supra, 4 Cal.4th at pages 295-291. Indeed, once a police agency sustains a citizen complaint, the government is on notice that it possesses an apparent exculpatory value within the meaning of Brady and thus may not be systematically destroyed after five years. Brady material includes exculpatory impeachment evidence. (See, e.g., Strickler v. Greene (1999) 527 U.S. 263, 282, in. 21 [119 S.Ct. 1936, 1948-1949, 144 L.Ed.2d 286] [‘‘Brady’s disclosure requirements extend to materials that . . . may be used to impeach a witness”].) The state-sponsored destruction of exculpatory documents constitutes bad faith. (Youngblood, supra, 488 U.S. at p. 58 [109 S.Ct. at p. 337].)
Moreover, recent Court of Appeal pronouncements have made it clear that prosecutors and defense attorneys cannot invoke Brady, Wheeler, or Penal Code section 1054.1 to obtain sustained citizen complaints. Instead, such documents must be obtained through the Pitchess scheme. (Garden Grove, supra, 89 Cal.App.4th 430, and Highway Patrol, supra, 84 Cal.App.4th 1010.) Thus, prosecutors and defense attorneys only receive such documents after a trial court’s in-chambers review. But the majority holds that sustained citizen complaints can be systematically destroyed after five years. Because they are in the control of the police agency, no one, not the prosecutor, defense attorney, or judge, can review these exculpatory documents prior to their destruction. But the Pitchess scheme must not trump a prosecutor’s obligations under Brady.
As we stated in In re Brown (1998) 17 Cal.4th 873, 879-880 [72 Cal.Rptr.2d 698, 952 P.2d 715]: “Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request (id. at p. 87 [83 S.Ct. at pp. 1196-1197]), a general request, or none at all (United States v. Agurs (1976) 427 U.S. 97, 107 [96 S.Ct. 2392, 2399, 49 L.Ed.2d 342] . . .). 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 *29known to the others acting on the government’s behalf . . . .’ (Kyles [v. Whitley (1995)] 514 U.S. [419,] 437 [115 S.Ct. [1555,] 1567, 131 L.Ed.2d 490] [(Kyles)]) Courts have thus consistently ‘decline[d] “to draw a distinction between different agencies under the same government, focusing instead upon the ‘prosecution team’ which includes both investigative and prosecutorial personnel.” ’ (United States v. Auten (5th Cir. 1980) 632 F.2d 478, 481.) . . . Thus, ‘whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government.’ (Giglio v. United States (1972) 405 U.S. 150, 154 [92 S.Ct. 763, 766, 31 L.Ed.2d 104]; Kyles, supra, 514 U.S. at p. 439 [115 S.Ct. at p. 1568].)
“As a concomitant of this duty, any favorable evidence known to the others acting on the government’s behalf is imputed to the prosecution. . . . The Supreme Court recently reiterated this principle: ‘whether the prosecutor succeeds or fails in meeting this obligation [to learn of favorable evidence] (whether, that is, a failure to disclose is in good faith or bad faith, [citation]), the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.’ (Kyles, supra, 514 U.S. at pp. 437-438 [115 S.Ct. at pp. 1567-1568].)” (Fn. omitted.)
Even though police agencies have dominion and control over sustained citizen complaints, the prosecutor, as spokesperson for the government, is required under Brady to disclose the same. Penal Code section 832.5, subdivision (b) requires that citizen complaints be retained for “at least five years.” For the majority to interpret section 832.5 as permitting the wholesale destruction of sustained citizen complaints, simply because they are older than five years, violates Brady, the constitutional right to confront and cross-examine witnesses, and the constitutional right to due process. As stated by the Attorney General: “We recognize, of course, that subdivision (b) of section 832.5 allows for a records retention period of longer than five years. As a matter of prudent policy, a law enforcement agency may determine that a longer period would promote greater public confidence in its procedures and practices.” (83 Ops.Cal.Atty.Gen. 103, 109 (2000).) The Constitution demands no less.
C. Pennsylvania v. Ritchie
The majority further seeks to support its Brady/Pitchess interpretation by pointing to the high court decision in Pennsylvania v. Ritchie (1987) 480 U.S. 39 [107 S.Ct. 989, 94 L.Ed.2d 40] (Ritchie) “as authorizing trial court review of information that (like police officer personnel records) enjoys a *30‘qualified statutory confidentiality’ to determine whether it includes material exculpatory evidence subject to disclosure under Brady . . . .” (Maj. opn., ante, at p. 14.) The Ritchie framework, however, is inapplicable to Pitchess documents that are over five years old. Specifically, Ritchie held that an in-chambers review of Children and Youth Services (CYS) privileged documents for Brady material was appropriate because the high court correctly assumed that CYS could provide the file for such an in-chambers review. (Ritchie, supra, 480 U.S. at pp. 57-60 [107 S.Ct. at pp. 1001-1003].) In this manner, the Ritchie review procedure is similar to the Pitchess review scheme as it relates to documents under five years old. (See Evid. Code, § 915.)
Ritchie, however, did not address the situation present here, where police agencies can destroy any relevant and material Pitchess document older than five years. And as such documents are systematically destroyed, the Ritchie scheme is effectively nullified because there is no method by which an in-chambers review can be conducted. The majority thus leaves the prosecutor in a classic Catch-22 situation: he is obligated to turn over documents that no longer exist. This constitutes a violation of Brady, the right to confront and cross-examine witnesses and the right to due process.6
D. The 1990 Citizen Complaint Was Material
Finally, the majority concludes that the 10-year-old citizen complaint was not Brady material: “Officer C.’s general veracity was called into question by the 1990 [incident], after denying the incident had occurred. Nonetheless, that dereliction—failure to report misconduct by a fellow officer—was similar in kind to the disclosed incident in 1996 when Officer C. failed to report an assault on a prisoner by a fellow officer. Neither incident involved coaching witnesses to fabricate evidence.” (Maj. opn., ante, at p. 16.)
I disagree. Not only did the officer fail to report these two incidents, it was noted by the Court of Appeal that the officer’s own agency found that he lied when he claimed these two incidents did not occur. Such conduct is not simply a case of “failure to report misconduct,” but more aptly a case of *31lying on two separate occasions. The defendant accused this officer of coaching witnesses to fabricate evidence against him. Past incidents of lying have direct bearing on the officer’s veracity and whether he would coach witnesses to fabricate. I would not disturb the trial court or Court of Appeal ruling holding the 1990 report admissible.
III.
Conclusion
I do not believe that my proposed holding would burden trial courts or police agencies in their handling of Pitchess disclosure motions. As noted, the Pitchess scheme contains several protections that insulate a police officer’s personnel records from disclosure. Moreover, even in the absence of the two 5-year rules, police officers are still afforded protection against the disclosure of stale information under Evidence Code section 1045, subdivision (b)(3), the Pitchess catchall provision, which prohibits disclosure of “[f]acts sought to be disclosed which are so remote as to make disclosure of little or no practical benefit.” Under my proposed holding, therefore, trial courts would still have wide latitude to prevent the disclosure of truly stale Pitchess documents.
The vast majority of law enforcement officers do their job remarkably well under adverse conditions. But the public’s confidence in its police force wanes with each new revelation of misconduct. The Pitchess scheme feeds this distrust because proven instances of officer misconduct are buried from public view. Ironically, jurors are routinely asked before a trial whether they can judge the credibility of police officer witnesses the same as any other witness who testifies. Yet the Legislature has enacted a scheme, ratified by the majority, that exalts police officers over all other witnesses who have committed misconduct. The latter are subject to Wheeler, but in the name of “privacy,” officers who have committed misconduct are presented to the trier of fact without this crucial impeachment evidence. The arbitrary destruction of this relevant evidence violates Brady, the constitutional right to confront and cross-examine witnesses, and the constitutional right to due process.
I respectfully dissent.
In Alford v. Superior Court, review granted August 8, 2001, S098233, we will consider whether disclosure under this provision is limited to the particular case, or whether such Pitchess information may be used in any other case where the police officer is a material witness. We will also consider, in Alford, whether a prosecutor has standing to be heard during a Pitchess motion.
Many larger cities have enacted their own comprehensive schemes governing the discipline of officers. (See generally Holcomb v. City of Los Angeles (1989) 210 Cal.App.3d 1560 [259 Cal.Rptr. 1] [discussing L.A. City Charter provisions]; and Caloca v. County of San Diego (1999) 72 Cal.App.4th 1209 [85 Cal.Rptr.2d 660] [discussing San Diego Co. Admin. Code provisions].)
See, e.g., Coloca v. County of San Diego, supra, 72 Cal.App.4th at pages 1215-1216 (Citizen Law Enforcement Review Board sustained findings of misconduct against three deputy sheriffs, issuing May 1995 report stemming from February 1992 incident; December 1995 report stemming from December 1991 incident; and May 1996 report stemming from October 1994 incident). The majority claims that I have a “basic misunderstanding” of Pitchess motions because pending complaints are available for discovery. (Maj. opn., ante, at p. 13.) I disagree. Because only those complaints that have been investigated by the police agency and responded to by peace officers are placed in an officer’s personnel file, the personnel file brought to superior court by the custodian of records (see Mooc, supra, 26 Cal.4th 1216, 1229) will not likely contain pending complaints. (Gov. Code, §§ 3305-3306.)
The majority correctly points out that the United States Supreme Court has stated that there is “ ‘no general constitutional right to discovery in a criminal case.’ ” (Maj. opn., ante, at p. 11, quoting Weatherford v. Bursey (1977) 429 U.S. 545, 559 [97 S.Ct. 837, 846, 51 L.Ed.2d 30].)
A citizen complaint is investigated by the police agency pursuant to Penal Code section 832.5, subdivision (a). Once the investigation is completed, such citizen complaint may fairly be categorized in five different ways: as frivolous, unfounded, or exonerated (Pen. Code, § 832.5, subd. (c)); or as unsustained or sustained (see, e.g., People v. Zamora (1980) 28 Cal.3d 88, 93 & &. 1 [167 Cal.Rptr. 573, 615 P.2d 1361]). Zamora was decided after our decision in Pitchess v. Superior Court, supra, 11 Cal.3d 531, and addressed citizen complaint destruction that occurred before the Pitchess scheme was enacted. There, the Los Angeles City Attorney’s Office destroyed citizen complaints against police officers, excepting only complaints found meritorious by police investigation. We held the destruction of unsustained complaints was improper. (Zamora, supra, 28 Cal.3d at p. 93.) Pitchess discovery thus encompasses all five categories of citizen complaints. An issue before the court is whether citizen complaints can be destroyed after five years. Because I believe that one category of citizen complaints, i.e., sustained citizen complaints, contains information that possesses an exculpatory value that is readily apparent (see Trombetta, supra, 467 U.S. at p. 489 [104 S.Ct. at p. 2534], and discussion, post, at pp. 26-28), my analysis addresses the constitutional issues as they relate to sustained citizen complaints.
In People v. Hammon (1997) 15 Cal.4th 1117 [65 Cal.Rptr.2d 1, 938 P.2d 986], “we decline[d] to extend the defendant’s Sixth Amendment rights of confrontation and cross-examination to authorize pretrial disclosure of privileged information. Of course, nothing we say here is intended to address the application at trial of the principles articulated in Davis.” (15 Cal.4th at p. 1128.) Nothing said in Hammon undermines the Davis holding as it pertains to the Pitchess scheme. First, the privilege addressed in Hammon was a minor’s psychotherapist/patient privilege. Here, the officer arguably has no legitimate privacy interest in a sustained citizen complaint of misconduct. Most importantly, the documents requested in Hammon would be available for trial. Under the Pitchess scheme, such documents are destroyed before trial.