JEROME BERENSON

INNS OF COURT

GROUP 7

PITCHESS MOTIONS

Wendy Lascher
Gary Jacobs
Michael Morrow
Andy Viets
Benjamin Maserang
Iva Oza
 In 1974, the California Supreme Court issued its ruling in a case entitled Pitchess v. Superior
Court, 11 Cal.3d 531, a copy of which is included in the handout. The basic facts of that case are
as follows: Caesar Echeveria was charged with committing a battery on four Los Angeles County
deputy sheriffs. Echeveria’s primary defense was that he was acting in self-defense. A somewhat
curious procedural process then ensued. Echeveria requested, initially through the criminal
discovery process, evidence of the deputies’ “propensity for violence”, including internal affairs
investigation records regarding claims against them regarding the use of excessive force. The trial
court judge granted that request for criminal discovery, but the Los Angeles County Sheriff refused
to comply. Echeveria then served a subpoena duces tecum on the Sheriff. The Sheriff filed a motion
to quash which denied; in addition, the trial court ordered the Sheriff to produce not only the internal
affairs investigation records which were the subject of the subpoena, but any other records “relating
to any allegations by members of the public involving the alleged excessive use of force” by the
deputies.
The Appellate Court overturned the trial court’ decision, finding, based on an analysis of the
scope of civil subpoenas and evidentiary issues related to character evidence, that “a subpoena
commanding a law enforcement investigative bureau to produce the names of other complainants
against the arresting officer and to produce investigative reports about these other complaints is valid
only to the extent that these other complaints resulted in some determination favorable to the
complainant, i.e., imposition of discipline on the officer, adjudication of civil liability as a result of
his conduct, or specific court finding of the officer's use of excessive force”.
The matter was then appealed to the California Supreme Court, which found that the law
regarding civil subpoenas was inapplicable and that (1) the only showing necessary for a criminal
discovery is that “the requested information will facilitate the ascertainment of the facts and a fair
trial”, and (2) the most significant evidentiary issue was the application of Evidence Code §1040
regarding the “official information” privilege, i.e., the privilege for “information acquired in
confidence by a public employee in the course of his or her duty and not open, or officially disclosed,
to the public prior to the time the claim of privilege is made”. The court found that under the first
element, good cause had been established for production of the records, as Echeveria did not have
access to them. As to the second element, its application could result in the charges being dismissed,
depending on an analysis of Evidence Code §1042 regarding whether a criminal action can proceed
after the privilege is invoked, as the defendant would be denied access to relevant and potentially
exculpatory evidence.
The Supreme Court’s ruling opened the floodgates in criminal cases for what were
subsequently called “Pitchess Motions” in which criminal defendants sought portions of police
personnel records, primarily involving complaints regarding law enforcement officers’ use of
excessive force and lying. In 1978, three new Evidence Code sections were enacted which codified
the Pitchess Motion process – sections 1043, 1045 and 1046, copies of which are included in the
handout. Since then, there has been a plethora of Appellate and Supreme Court cases interpreting
these code sections.
 11 Cal.3d 531
Supreme Court of California,
In Bank.
Peter J. PITCHESS, as Sheriff, etc., Petitioner,
v.
The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;
Caesar ECHEVERIA, Real Party in Interest.
L.A. 30224.
May 23, 1974

Opinion
MOSK, Justice.

Petitioner, Sheriff of Los Angeles County, seeks a writ of mandate to compel respondent superior
court to quash its subpoena duces tecum requiring the production of certain documents sought by
Caesar Echeveria, real party in interest and defendant in a pending trial for multiple counts of battery
(Pen.Code, ss 242, 243). Petitioner contends the discovery at issue should not have been granted
because the motion to discover is procedurally defective and the requested information is not subject
to discovery. We conclude the trial court did not abuse its discretion in ordering discovery and
therefore deny the writ.

Defendant, together with others, was charged in March 1972 with committing battery against four
deputy sheriffs. Soon thereafter one charge was dismissed, and defendant now awaits trial on the
remaining three. Defendant asserts he intends at trial to establish that he acted in self-defense in
response to the use of excessive force by the deputy sheriffs. (People v. Curtis (1969) 70 Cal.2d 347,
356, 74 Cal.Rptr. 713, 450 P.2d 33.) To that end, he sought to discover evidence of the complaining
witnesses' propensity for violence. Specifically, he moved for the production of records of several
investigations conducted by the administrative services bureau, a sheriff's department internal unit
which inquires into citizen complaints of official misconduct. The investigations involved
accusations by various members of the public that the deputies allegedly attacked had themselves
used excessive force on previous occasions. The motion was granted by the trial court, and the
prosecution was ordered to secure the records from the sheriff. The commander of the administrative
services bureau, however, refused to cooperate, whereupon defendant obtained a subpoena duces
tecum directing the sheriff to produce the information. The sheriff declined to do so, and
unsuccessfully moved to quash the subpoena. Now he seeks mandate.

At the threshold we observe that the case comes to us by a somewhat convoluted route. The trial
court ordered the prosecution to obtain the records from the sheriff. When the sheriff refused to
produce the information, the prosecutor should have invoked process of the court; instead, the
burden of so moving was imposed upon the defendant, here the real party in interest. Nevertheless
the trial court found the burden had been met and therefore issued a subpoena duces tecum, the
sheriff moved to quash, and the motion was denied. Thus the matter is now in a justiciable posture
on the sheriff's request for mandate. On the motion to quash, and petition for mandate after denial
of the motion, the burden shifts to the moving party, the sheriff, to demonstrate an abuse of
discretion by the trial court. As will appear we find he has not met that burden.
Petitioner initially urges that the affidavits in support of the subpoena duces tecum are insufficient
to justify discovery because they fail to demonstrate ‘good cause’ with adequate specificity as
required by Code of Civil Procedure sections 1985 and 2036.1 The contention is premised on the
erroneous assumption that the statutory provisions governing discovery in civil actions apply to
criminal proceedings.

Unlike the statutory development of civil discovery in California, the right of an accused to seek
discovery in the course of preparing his defense to a criminal prosecution is a judicially created
doctrine evoling in the absence of guiding legislation. (Ballard v. Superior Court (1966) 64 Cal.2d
159, 176, fn. 12, 49 Cal.Rptr. 302, 410 P.2d 838; Louisell & Wally, Modern Cal. Discovery (2d ed.
1972) pp. 847—848.) A defendant's motion to discover is addressed solely to the sound discretion
of the trial court, which has inherent power to order discovery when the interests of justice so
demand. (Hill v. Superior Court (1974) 10 Cal.3d 812, 816, 112 Cal.Rptr. 257, 518 P.2d 1353;
People v. Terry (1962) 57 Cal.2d 538, 560—561, 21 Cal.Rptr. 185, 370 P.2d 985; Powell v. Superior
Court (1957) 48 Cal.2d 704, 708, 312 P.2d 698; Vetter v. Superior Court (1961) 189 Cal.App.2d
132, 134, 10 Cal.Rptr. 890.) Allowing an accused the right to discover is based on the fundamental
proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and
reasonably accessible information. (Hill v. Superior Court (1974) supra, 10 Cal.3d at p. 816, 112
Cal.Rptr. 257, 518 P.2d 1353; Cash v. Superior Court (1959) 53 Cal.2d 72, 75, 346 P.2d 407; Powell
v. Superior Court (1957) supra, 48 Cal.2d at pp. 707, 709, 312 P.2d 698; People v. Riser (1956) 47
Cal.2d 566, 586, 305 P.2d 1; Louisell & Wally, Modern Cal. Discovery (2d ed. 1972) supra, pp.
881—882.)

In accordance with these principles, it has long been held that civil discovery procedure has no
relevance to criminal prosecutions. (Powell v. Superior Court (1957) supra, 48 Cal.2d 704,
707—708, 312 P.2d 698; Yannacone v. Municipal Court (1963) 222 Cal.App.2d 72, 74—75, 34
Cal.Rptr. 838; Clark v. Superior Court (1961) 190 Cal.App.2d 739, 742—743, 12 Cal.Rptr. 191;
People v. Wilkins (1955) 135 Cal.App.2d 371, 377—378, 287 P.2d 555; People v. Ratten (1940) 39
Cal.App.2d 267, 271, 102 P.2d 1097; Gonzales v. Superior Court (1935) 3 Cal.2d 260, 263, 44 P.2d
320.) Chief Justice Traynor reaffirmed this dichotomy in Shively v. Stewart (1966) 65 Cal.2d 475,
479, 55 Cal.Rptr. 217, 220, 421 P.2d 65, 68, when he wrote: ‘We are committed to the wisdom of
discovery, by statute in civil cases (Code Civ.Proc., ss 2016—2036), and by common law in criminal
cases.’ Legislative silence on criminal discovery, he noted, means that it has left to the courts the
adaptation of common law concepts. More recently this court in Hill unequivocally declared that
criminal discovery is an inherent power of the court ‘in the absence of legislation’ (10 Cal.3d at p.
816, 112 Cal.Rptr. 257, 518 P.2d 1353). While civil discovery in general is as old as our Code of
Civil Procedure, Witkin observes that the ‘California law of discovery in criminal cases is a creation
of the courts dating back only a few years.’ (Witkin, Cal. Criminal Procedure (1963) p. 265.)
Nothing in the legislative history of the current version of the civil discovery act (Code Civ.Proc. s
2016 et seq.) discloses an intention to expand its province to incorporate criminal matters. (See
Committee on Administration of Justice, Report on Discovery (1956) 31 State Bar J., 204—209,
227; Comment, Depositions, Proceedings to Perpetuate Testimony, Interrogatories to Parties: The
Federal Rules and the California Law (1956) 44 Cal.L.Rev. 909.) Indeed, civil discovery in
California is now virtually co-extensive with the federal practice, which clearly does not embrace
criminal proceedings. (See Fed.Rules Crim.Proc.)

Were a court to require strict adherence to the provisions of Code of Civil Procedure sections 1985
and 2036, subdivision (a), it is likely that Fifth Amendment problems would develop in many
instances. Therefore, in contrast to the formal requirements ***901 **309 for civil discovery, an
accused in a criminal prosecution may compel discovery by demonstrating that the requested
information will facilitate the ascertainment of the facts and a fair trial. (Cash v. Superior Court
(1959) supra, 53 Cal.2d 72, 75, 346 P.2d 407; *537 Powell v. Superior Court (1957) supra, 48 Cal.2d
704, 707, 312 P.2d 698.) The requisite showing may be satisfied by general allegations which
establish some cause for discovery other than ‘a mere desire for the benefit of all information which
has been obtained by the People in their investigation of the crime.’ (People v. Cooper (1960) 53
Cal.2d 755, 770, 3 Cal.Rptr. 148, 157, 349 P.2d 964, 973; see also Joe Z. v. Superior Court (1970)
3 Cal.3d 797, 804, 91 Cal.Rptr. 594, 478 P.2d 26; Ballard v. Superior Court (1966) supra, 64 Cal.2d
159, 167, 49 Cal.Rptr. 302, 410 P.2d 838; People v. Terry (1962) 57 Cal.2d 538, 561, 21 Cal.Rptr.
185, 370 P.2d 985; People v. Lane (1961) 56 Cal.2d 773, 785—786, 16 Cal.Rptr. 801, 366 P.2d 57;
People v. Valdez (1962) 203 Cal.App.2d 559, 565, 21 Cal.Rptr. 764; Louisell & Wally, Modern Cal.
Discovery (2d ed. 1972) supra, pp. 883—886.)

In the case at bar, the affidavits filed by defendant are clearly sufficient to justify discovery under
the foregoing standard. In the affidavits defendant indicates that two named persons who filed
complaints concerning the deputy sheriffs here involved are unavailable for interview. Accordingly,
their prior statements to the sheriff's investigators are necessary for effective cross-examination of
the deputies at trial. (People v. Shipp (1963) 59 Cal.2d 845, 849, 31 Cal.Rptr. 457, 382 P.2d 577.)
Defendant further states that two additional named witnesses who had previously reported
misconduct on the part of the deputies are available as witnesses, but cannot recall the details of the
events which transpired some time ago. The sheriff's records, therefore, are necessary to refresh their
recollection. (Cordry v. Superior Court (1958) 161 Cal.App.2d 267, 268, 326 P.2d 222.) Finally,
defendant alleges that the disciplinary records are necessary as character evidence of the deputies'
tendency to violence in support of his theory of self-defense. Such evidence is unquestionably
relevant and admissible under Evidence Code section 1130.2

On the face of the affidavits it is apparent that defendant could not ‘readily obtain the information
through his own efforts.’ (Traynor, Ground Lost and Found in Criminal Discovery (1964) 39
N.Y.U.L.Rev. 228, 244; see also Hill v. Superior Court (1974) supra, 10 Cal.3d 812, 819, 112
Cal.Rptr. 257, 518 P.2d 1353; Ballard v. Superior Court (1966) supra, 64 Cal.2d 159, 167, 49
Cal.Rptr. 302, 410 P.2d 838.) Though defendant was able to determine the identity of particular
individuals who lodged complaints against deputy sheriffs, he cannot be held responsible for their
unavailability or lack of memory, and he has no access to the sheriff's investigative records.
Furthermore, the information which defendant seeks may have considerable significance to the
preparation of his defense, and the documents have been requested with adequate specificity to
preclude the possibility that defendant is engaging in a ‘fishing expedition.’ We therefore conclude
that defendant demonstrated sufficient good cause under the appropriate standards of criminal
procedure, as developed in case authority, to warrant the trial court in compelling discovery.

Even upon a showing of good cause, however, the right of an accused to obtain discovery is not
absolute. ‘In criminal cases, the court retains wide discretion to protect against the disclosure of
information which might unduly hamper the prosecution or violate some other legitimate
governmental interest.’ (Joe Z. v. Superior Court (1970) supra, 3 Cal.3d 797, 804, 91 Cal.Rptr. 594,
598, 478 P.2d 26, 30; see also Hill v. Superior Court (1974) supra, 10 Cal.3d 812, 817, 112 Cal.Rptr.
257, 518 P.2d 1353; People v. Lopez (1963) 60 Cal.2d 223, 246—247, 32 Cal.Rptr. 424, 384 P.2d
16; Jones v. Superior Court (1962) 58 Cal.2d 56, 59, 22 Cal.Rptr. 879, 372 P.2d 919; Powell v.
Superior Court (1957) supra, 48 Cal.2d 604, 707—708, 312 P.2d 698; People v. Riser (1956) supra,
47 Cal.2d 566, 586, 305 P.2d 1.) In the case before us, petitioner claims the information compiled
by the administrative services bureau is not subject to discovery because of the asserted
governmental interest in preserving its confidentiality.

Evidence Code section 1040 now provides public entities with a formal privilege to refuse to divulge
official information when the need to maintain its secrecy is greater than the need for disclosure in
the interests of justice. The privilege is conditional: ‘The judge must determine in each *539 instance
the consequences to the public of disclosure and the consequences to the litigant of nondisclosure
and then decide which outweighs the other.’ (Assem. Com. on Judiciary, comment to Evid.Code,
s 1040.)

The privilege attaching to official information clearly encompasses the documents which defendant
wishes to discover. The records of the sheriff's department were compiled on the basis of statements
made in confidence to members of the administrative services bureau, and investigations conducted
pursuant thereto. Nevertheless, at the hearing below and in the presentation to this court petitioner
expressly refrained from invoking the governmental protections afforded him by the privilege. He
candidly explains that he did so in order to avert the potentially adverse consequences which may
accompany an exercise of official privilege, i.e., a dismissal of the charges or a directed verdict
against the prosecution on the issue to which the excluded material relates. (See United States v.
Reynolds (1953) 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727; Price v. Superior Court (1970) 1 Cal.3d
836, 842—843, 83 Cal.Rptr. 369, 463 P.2d 721; Honore v. Superior Court (1969) 70 Cal.2d 162,
167—168, 74 Cal.Rptr. 233, 449 P.2d 169; People v. McShann (1958) 50 Cal.2d 802, 806—811,
330 P.2d 33; People v. Superior Court (Biggs) (1971) 19 Cal.App.3d 522, 533, 97 Cal.Rptr. 118;
Evid.Code, s 1042, subd. (a).)

In lieu of the privilege, petitioner relies on the above-cited California cases which recognize the
discretion of the trial court to prevent the disclosure of governmental information when the public
interest so requires. However, in the wake of the enactment of the Evidence Code in 1967, no such
common law privilege of confidentiality currently exists.5

The Legislature has declared that the Evidence Code generally ‘establishes the law of this state
respecting the subject to which it relates.’ (Evid.Code, s 2.) The statutory scheme is regarded as the
sole and authoritative arbiter of all matters which come within its purview. With respect to the
subject of privileges, the code states specifically that ‘(t)he provisions of Division 8 (commencing
with Section 900) relating to privilege shall govern any claim of privilege made after December 31,
1966.’ (Evid.Code, s 12, subd. (c).) Thus, the Legislature has codified, revised, or supplanted any
privileges previously available at common law: the courts are no longer free to modify existing
privileges or to create new privileges. (See generally McDonough, California Evidence Code: A Pre
cis (1966) 18 Hastings L.J. 89.)

Evidence Code section 1040, therefore, represents the exclusive means by which a public entity may
assert a claim of governmental privilege based on the necessity for secrecy. Evidence Code section
1042, subdivision (a), in turn, codifies the due process demand recognized by the United States
Supreme Court that the prosecution cannot commence criminal proceedings ‘and then invoke its
governmental privileges to deprive the accused of anything which might be material to his defense.'6
(United States v. Reynolds (1953) supra, 345 U.S. 1, 12, 73 S.Ct. 528, 534, 97 L.Ed. 727; also see
Jencks v. United States (1957) 353 U.S. 657, 672, 77 S.Ct. 1007, 1 L.Ed.2d 1103; Roviaro v. United
States (1957) 353 U.S. 53, 60—61, 77 S.Ct. 623, 1 L.Ed.2d 639.) In concert, the two provisions
create an orderly and fair procedure designed to safeguard the legitimate interests of both the
government and criminal defendants. By purporting to rely on the superseded common law rather
than the statute, petitioner attempted to avoid the potential liabilities of the statutory scheme, but in
so doing waived its benefits as well.
It follows that petitioner is not entitled on the theory asserted to an order quashing the subpoena
duces tecum. He may now seek to establish the applicability of the conditional privilege declared in
Evidence Code section 1040, but the decision on the propriety of such a motion and its possible
attendant consequences under Evidence Code section 1042, subdivision (a), will remain in the sound
discretion of the trial court according to the standards hereinabove delineated.
The alternative writ of mandate is discharged and the peremptory writ denied.

WRIGHT, C.J., and McCOMB, TOBRINER, BURKE, and SULLIVAN, JJ., concur.

CLARK, Justice (concurring).

I concur, but wish to emphasize that dismissal of the charges in Not the price of claiming the
privilege for official information in the circumstances of this case.

Evidence Code section 1042, subdivision (a), provides that if a claim of privilege is sustained in a
criminal proceeding, ‘the presiding officer shall make such order or finding of fact adverse to the
public entity bringing the proceeding as is required by law upon any issue in the proceeding to which
the privileged information is material.’ As the information sought here is material solely to the issue
of use of excessive force on specified previous occasions, sustaining a claim of privilege should only
result in a finding of fact adverse to the People on that collateral issue.

Footnotes
1 - Section 1985 provides in part: ‘An application before trial for a subpoena duces tecum shall be,
or contain, an affidavit showing good cause for the production of the matters and things described
in such subpoena and shall specify the exact matters or things desired to be produced, shall set forth
in full detail the materiality thereof to the issues involved in the case, and shall state that the witness
has the desired matters or things in his possession or under his control.’
Section 2036 subdivision (a), provides: ‘A party required to show ‘good cause’ to obtain dicsovery
under any provision of Chapter 2 (commencing with Section 1985) or of Article 3 (commencing with
Section 2016) of Chapter 3 of this title shall show specific facts justifying discovery and mere proof
of the relevance of the information sought to the subject matter of the action shall not be sufficient.'
2 - Section 1103 provides: ‘In a criminal action, evidence of the character or a trait of character (in
the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the
victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section
1101 if such evidence is: (a) Offered by the defendant to prove conduct of the victim in conformity
with such character or trait of character. (b) Offered by the prosecution to rebut evidence adduced
by the defendant under subdivision (a).’
3 - We note parenthetically that the petitioner himself does not always preserve confidentiality. In
an affidavit Robert D. Campbell, captain assigned to the administrative division of the sheriff's
department, conceded that the ‘purpose of these investigations is to enable the Department to
ascertain the existence or non-existence of misconduct on the part of Sheriff's deputies . . .. The final
results of these investigations and the information acquired from them are used in appropriate cases
by the Office of the County Counsel as attorneys for the County of Los Angeles in connection with
defending civil suits arising out of the incident investigated.’
4- Section 1040 provides: ‘(a) As used in this section, ‘official information’ means information
acquired in confidence by a public employee in the course of his duty and not open, or officially
disclosed, to the public prior to the time the claim of privilege is made.
‘(b) A public entity has a privilege to refuse to disclose official information, and to prevent another
from disclosing such information, if the privilege is claimed by a person authorized by the public
entity to do so and:
‘(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state;
or
‘(2) Disclosure of the information is against the public interest because there is a necessity for
preserving the confidentiality of the information that outweighs the necessity for disclosure in the
interest of justice; but no privilege may be claimed under this paragraph if any person authorized to
do so has consented that the information be disclosed in the proceeding. In determining whether
disclosure of the information is against the public interest, the interest of the public entity as a party
in the outcome of the proceeding may not be considered.’
5 - Petitioner's rationale for not claiming the statutory privilege is ironic in view of the fact that the
trial court is equally compelled to dismiss a prosecution when material evidence is withheld from
a defendant on a common law claim of governmental confidentiality. This doctrine is made clear in
Reynolds, Price, Honore, and McShann, among numerous other authorities.
6 - Section 1042, subdivision (a), states: ‘Except where disclosure is forbidden by an act of the
Congress of the United States, if a claim of privilege under this article by the state or a public entity
in this state is sustained in a criminal proceeding, the presiding officer shall make such order or
finding of fact adverse to the public entity bringing the proceeding as is required by law upon any
issue in the proceeding to which the privileged information is material.’
 EVIDENCE CODE SECTIONS

§1043. Peace or custodial officer personnel records; discovery or disclosure; procedure

(a) In any case in which discovery or disclosure is sought of peace or custodial officer personnel
records or records maintained pursuant to Section 832.5 of the Penal Code or information from those
records, the party seeking the discovery or disclosure shall file a written motion with the appropriate
court or administrative body upon written notice to the governmental agency which has custody and
control of the records. The written notice shall be given at the times prescribed by subdivision (b)
of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency
served shall immediately notify the individual whose records are sought.

(b) The motion shall include all of the following:

(1) Identification of the proceeding in which discovery or disclosure is sought, the party seeking
discovery or disclosure, the peace or custodial officer whose records are sought, the governmental
agency which has custody and control of the records, and the time and place at which the motion for
discovery or disclosure shall be heard.
(2) A description of the type of records or information sought.
(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality
thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that
the governmental agency identified has the records or information from the records.

(c) No hearing upon a motion for discovery or disclosure shall be held without full compliance with
the notice provisions of this section except upon a showing by the moving party of good cause for
noncompliance, or upon a waiver of the hearing by the governmental agency identified as having the
records.

§1045. Peace or custodial officers; access to records of complaints, investigations of complaints,

or discipline imposed; relevancy; protective orders

(a) Nothing in this article shall be construed to affect the right of access to records of complaints, or
investigations of complaints, or discipline imposed as a result of those investigations, concerning
an event or transaction in which the peace officer or custodial officer, as defined in Section 831.5
of the Penal Code, participated, or which he or she perceived, and pertaining to the manner in which
he or she performed his or her duties, provided that information is relevant to the subject matter
involved in the pending litigation.

(b) In determining relevance, the court shall examine the information in chambers in conformity with
Section 915, and shall exclude from disclosure:
(1) Information consisting of complaints concerning conduct occurring more than five years before
the event or transaction that is the subject of the litigation in aid of which discovery or disclosure is
sought.
(2) In any criminal proceeding the conclusions of any officer investigating a complaint filed pursuant
to Section 832.5 of the Penal Code.
(3) Facts sought to be disclosed that are so remote as to make disclosure of little or no practical
benefit.

(c) In determining relevance where the issue in litigation concerns the policies or pattern of conduct
of the employing agency, the court shall consider whether the information sought may be obtained
from other records maintained by the employing agency in the regular course of agency business
which would not necessitate the disclosure of individual personnel records.

(d) Upon motion seasonably made by the governmental agency which has custody or control of the
records to be examined or by the officer whose records are sought, and upon good cause showing
the necessity thereof, the court may make any order which justice requires to protect the officer or
agency from unnecessary annoyance, embarrassment or oppression.

(e) The court shall, in any case or proceeding permitting the disclosure or discovery of any peace or
custodial officer records requested pursuant to Section 1043, order that the records disclosed or
discovered may not be used for any purpose other than a court proceeding pursuant to applicable law.

§1046. Allegation of excessive force by peace or custodial officer; copy of police or crime report

In any case, otherwise authorized by law, in which the party seeking disclosure is alleging excessive
force by a peace officer or custodial officer, as defined in Section 831.5 of the Penal Code, in
connection with the arrest of that party, or for conduct alleged to have occurred within a jail facility,
the motion shall include a copy of the police report setting forth the circumstances under which the
party was stopped and arrested, or a copy of the crime report setting forth the circumstances under
which the conduct is alleged to have occurred within a jail facility.
Penal Code §832.7. Personnel records; confidentiality; discovery; exceptions; records relating
to discharge of firearm, sexual assault, or dishonesty by peace officer or custodial officer
available for public inspection; complaint disposition notification

(a) Except as provided in subdivision (b), the personnel records of peace officers and custodial
officers and records maintained by any state or local agency pursuant to Section 832.5, or
information obtained from these records, are confidential and shall not be disclosed in any criminal
or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.
This section shall not apply to investigations or proceedings concerning the conduct of peace officers
or custodial officers, or an agency or department that employs those officers, conducted by a grand
jury, a district attorney's office, or the Attorney General's office.

(b)(1) Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code,
or any other law, the following peace officer or custodial officer personnel records and records
maintained by any state or local agency shall not be confidential and shall be made available for
public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code):
(A) A record relating to the report, investigation, or findings of any of the following:
(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.
(ii) An 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.
(B)(i) Any record relating to 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.
(ii) As used in this subparagraph, “sexual assault” means the commission or attempted initiation of
a sexual act with a member of the public by means of force, threat, coercion, extortion, offer of
leniency or other official favor, or under the color of authority. For purposes of this definition, the
propositioning for or commission of any sexual act while on duty is considered a sexual assault.
(iii) As used in this subparagraph, “member of the public” means any person not employed by the
officer's employing agency and includes any participant in a cadet, explorer, or other youth program
affiliated with the agency.
(C) Any record relating to 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.
(2) Records that shall be released pursuant to this subdivision include all investigative reports;
photographic, audio, and video evidence; transcripts or recordings of interviews; autopsy reports;
all materials compiled and presented for review to the district attorney or to any person or body
charged with determining whether to file criminal charges against an officer in connection with an
incident, or whether the officer's action was consistent with law and agency policy for purposes of
discipline or administrative action, or what discipline to impose or corrective action to take;
documents setting forth findings or recommended findings; and copies of disciplinary records
relating to the incident, including any letters of intent to impose discipline, any documents reflecting
modifications of discipline due to the Skelly or grievance process, and letters indicating final
imposition of discipline or other documentation reflecting implementation of corrective action.
(3) A record from a separate and prior investigation or assessment of a separate incident shall not
be released unless it is independently subject to disclosure pursuant to this subdivision.
(4) If an investigation or incident involves multiple officers, information about allegations of
misconduct by, or the analysis or disposition of an investigation of, an officer shall not be released
pursuant to subparagraph (B) or (C) of paragraph (1), unless it relates to a sustained finding against
that officer. However, factual information about that action of an officer during an incident, or the
statements of an officer about an incident, shall be released if they are relevant to a sustained finding
against another officer that is subject to release pursuant to subparagraph (B) or (C) of paragraph (1).
(5) An agency shall redact a record disclosed pursuant to this section only for any of the following
purposes:
(A) To remove personal data or information, such as a home address, telephone number, or identities
of family members, other than the names and work-related information of peace and custodial
officers.
(B) To preserve the anonymity of complainants and witnesses.
(C) To protect confidential medical, financial, or other information of which disclosure is
specifically prohibited by federal law or would cause an unwarranted invasion of personal privacy
that clearly outweighs the strong public interest in records about misconduct and serious use of force
by peace officers and custodial officers.
(D) Where there is a specific, articulable, and particularized reason to believe that disclosure of the
record would pose a significant danger to the physical safety of the peace officer, custodial officer,
or another person.
(6) Notwithstanding paragraph (5), an agency may redact a record disclosed pursuant to this section,
including personal identifying information, 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.
(7) An agency may withhold a record of an incident described in subparagraph (A) of paragraph (1)
that is the subject of an active criminal or administrative investigation, in accordance with any of the
following:
(A)(i) During an active criminal investigation, disclosure may be delayed for up to 60 days from the
date the use of force occurred or until the district attorney determines whether to file criminal
charges related to the use of force, whichever occurs sooner. If an agency delays disclosure pursuant
to this clause, the agency shall provide, in writing, the specific basis for the agency's determination
that the interest in delaying disclosure clearly outweighs the public interest in disclosure. This
writing shall include the estimated date for disclosure of the withheld information.
(ii) After 60 days from the use of force, the agency may continue to delay the disclosure of records
or information if the disclosure could reasonably be expected to interfere with a criminal
enforcement proceeding against an officer who used the force. If an agency delays disclosure
pursuant to this clause, the agency shall, at 180-day intervals as necessary, provide, in writing, the
specific basis for the agency's determination that disclosure could reasonably be expected to interfere
with a criminal enforcement proceeding. The writing shall include the estimated date for the
disclosure of the withheld information. Information withheld by the agency shall be disclosed when
the specific basis for withholding is resolved, when the investigation or proceeding is no longer
active, or by no later than 18 months after the date of the incident, whichever occurs sooner.
(iii) After 60 days from the use of force, the agency may continue to delay the disclosure of records
or information if the disclosure could reasonably be expected to interfere with a criminal
enforcement proceeding against someone other than the officer who used the force. If an agency
delays disclosure under this clause, the agency shall, at 180-day intervals, provide, in writing, the
specific basis why disclosure could reasonably be expected to interfere with a criminal enforcement
proceeding, and shall provide an estimated date for the disclosure of the withheld information.
Information withheld by the agency shall be disclosed when the specific basis for withholding is
resolved, when the investigation or proceeding is no longer active, or by no later than 18 months
after the date of the incident, whichever occurs sooner, unless extraordinary circumstances warrant
continued delay due to the ongoing criminal investigation or proceeding. In that case, the agency
must show by clear and convincing evidence that the interest in preventing prejudice to the active
and ongoing criminal investigation or proceeding outweighs the public interest in prompt disclosure
of records about use of serious force by peace officers and custodial officers. The agency shall
release all information subject to disclosure that does not cause substantial prejudice, including any
documents that have otherwise become available.
(iv) In an action to compel disclosure brought pursuant to Section 6258 of the Government Code,
an agency may justify delay by filing an application to seal the basis for withholding, in accordance
with Rule 2.550 of the California Rules of Court, or any successor rule thereto, if disclosure of the
written basis itself would impact a privilege or compromise a pending investigation.
(B) If criminal charges are filed related to the incident in which force was used, the agency may delay
the disclosure of records or information until a verdict on those charges is returned at trial or, if a
plea of guilty or no contest is entered, the time to withdraw the plea pursuant to Section 1018.
(C) During an administrative investigation into an incident described in subparagraph (A) of
paragraph (1), the agency may delay the disclosure of records or information until the investigating
agency determines whether the use of force violated a law or agency policy, but no longer than 180
days after the date of the employing agency's discovery of the use of force, or allegation of use of
force, by a person authorized to initiate an investigation, or 30 days after the close of any criminal
investigation related to the peace officer or custodial officer's use of force, whichever is later.
(8) A record of a civilian complaint, or the investigations, findings, or dispositions of that complaint,
shall not be released pursuant to this section if the complaint is frivolous, as defined in Section 128.5
of the Code of Civil Procedure, or if the complaint is unfounded.

(c) Notwithstanding subdivisions (a) and (b), a department or agency shall release to the complaining
party a copy of his or her own statements at the time the complaint is filed.

(d) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial
officers may disseminate data regarding the number, type, or disposition of complaints (sustained,
not sustained, exonerated, or unfounded) made against its officers if that information is in a form
which does not identify the individuals involved.

(e) Notwithstanding subdivisions (a) and (b), a department or agency that employs peace or custodial
officers may release factual information concerning a disciplinary investigation if the officer who
is the subject of the disciplinary investigation, or the officer's agent or representative, publicly makes
a statement he or she knows to be false concerning the investigation or the imposition of disciplinary
action. Information may not be disclosed by the peace or custodial officer's employer unless the false
statement was published by an established medium of communication, such as television, radio, or
a newspaper. Disclosure of factual information by the employing agency pursuant to this subdivision
is limited to facts contained in the officer's personnel file concerning the disciplinary investigation
or imposition of disciplinary action that specifically refute the false statements made public by the
peace or custodial officer or his or her agent or representative.

(f)(1) The department or agency shall provide written notification to the complaining party of the
disposition of the complaint within 30 days of the disposition.
(2) The notification described in this subdivision shall not be conclusive or binding or admissible
as evidence in any separate or subsequent action or proceeding brought before an arbitrator, court,
or judge of this state or the United States.

(g) This section does not affect the discovery or disclosure of information contained in a peace or
custodial officer's personnel file pursuant to Section 1043 of the Evidence Code.

(h) This section does not supersede or affect the criminal discovery process outlined in Chapter 10
(commencing with Section 1054) of Title 6 of Part 2, or the admissibility of personnel records
pursuant to subdivision (a), which codifies the court decision in Pitchess v. Superior Court (1974)
11 Cal.3d 531.

(i) Nothing in this chapter is intended to limit the public's right of access as provided for in Long
Beach Police Officers Association v. City of Long Beach (2014) 59 Cal.4th 59.