Chambers v. Appellate Division of the Superior Court

*684MORENO, J., Concurring.

I fully concur with the majority’s holding that derivative information developed through investigation after Pitchess disclosure (Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess)) in an earlier case is not generally subject to a protective order under Evidence Code, section 1045, subdivision (e),1 when a subsequent defendant files a Pitchess motion and receives the name of the same complainant to which the derivative information pertains. (Maj. opn., ante, at pp. 676-677.) I write separately to express my continuing disagreement with the notion that section 1045, subdivision (e), restricts “ ‘use of the disclosed information to the proceeding in which it was sought.’ ” (Maj. opn., ante, at p. 680, citing Alford v. Superior Court (2003) 29 Cal.4th 1033, 1042 [130 Cal.Rptr.2d 672, 63 P.3d 228] (Alford))

As I explained in my concurring and dissenting opinion in Alford, supra, 29 Cal.4th at pages 1057-1063, such a conclusion is neither prescribed by the plain language of section 1045, subdivision (e), nor is it supported by the legislative history. Both support the conclusion that Pitchess disclosure “may be used in any court proceeding pursuant to applicable law.” (Alford, supra, 29 Cal.4th at p. 1059 (conc. & dis. opn. of Moreno, J.).)

Nor was the court’s conclusion in Alford necessitated by the concededly legitimate privacy interests of law enforcement. The Pitchess process contains adequate safeguards if disclosed records were to be admitted in a subsequent proceeding. (Alford, supra, 29 Cal.4th at p. 1061 (conc. & dis. opn. of Moreno, J.).) As I noted in Alford, the screening process preceding the initial disclosure and the requirement that admission in a subsequent proceeding comport with various Evidence Code statutes (e.g., §§ 210 [relevance], 352 [prejudice]) sufficiently protect officers’ privacy. (Alford, supra, 29 Cal.4th at p. 1061 (conc. & dis. opn. of Moreno, J.).) Additionally, a trial court in a subsequent proceeding could order any records filed under seal pending its ruling on the records’ admissibility. (§ 1045, subd. (d).)

On the other hand, the court’s interpretation in Alford “forces defense attorneys, city attorneys and trial judges to ‘reinvent the wheel’ with each ‘new’ Pitchess request regarding the same peace officer—defense attorneys must write motions, city attorneys must scour records, and judges must conduct in-chambers hearings, simply to make the same Pitchess determination over and over again. . . . Repetitive Pitchess motions are an unnecessary and enormous waste of scant judicial and governmental resources.” (Alford, supra, 29 Cal.4th at pp. 1061-1062 (conc. & dis. opn. of Moreno, J.).)

*685Accordingly, I remain of the opinion that section 1045, subdivision (e) allows defendants to use Pitchess discovery in any “court proceeding pursuant to applicable law.”

All further unlabeled statutory references are to the Evidence Code.