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Court of Appeal, Sixth District, California.

CITY OF SANTA CRUZ, Petitioner, v. The MUNICIPAL COURT of Santa Cruz County, Respondent; Howard KENNEDY, Real Party in Interest.

No. H004380.

Decided: June 22, 1988

Atchison & Anderson, John G. Barisone, Santa Cruz, for petitioner. No appearance for respondent. Biggam, Christensen & Minsloff, Diana L. August, Santa Cruz, for real party in interest.

Petitioner, the City of Santa Cruz (City) seeks a writ of mandate to protect the confidentiality of police personnel records which the respondent municipal court ordered produced for an in camera examination in response to Kennedy's criminal discovery “Pitchess ” motion.   That motion was based on defense counsel's declaration on information and belief.   We have previously held that privileged police records may not be released on such a showing.   (City of Santa Cruz v. Superior Court (Rush) (1987) 190 Cal.App.3d 1669, 236 Cal.Rptr. 155, hg. den. May 28, 1987 [hereafter, “Rush ”].)

But the municipal court was persuaded by other appellate decisions holding to the contrary.1  The superior court denied City's petition for writ of mandate to overturn the municipal court's decision.   As the municipal court ruled on a matter of law, the superior court owed no deference to the lower court's holding, just as we independently review that of the superior court.  (Leslie Salt Co. v. San Francisco Bay Conservation etc. Com. (1984) 153 Cal.App.3d 605, 611, 200 Cal.Rptr. 575.)   For reasons which follow, we shall issue the writ.


Defendant Kennedy is charged with resisting arrest.   He was arrested for brandishing a knife near the Santa Cruz downtown mall.   The police report indicates that the victim, named Bei, called the police and told them someone had brandished a knife at him.   The circumstances were that the suspect had been beating a tree and acting strange;  Bei circled around him at a distance;  the suspect asked Bei “How about if I stick this in your ribs,” showing a knife with a four inch blade.   When the police responded to the call and Bei pointed out the suspect, the latter was not cooperative, refused to obey the police or allow a pat down.   They wrestled him to the ground, handcuffed him, arrested him.   Two independent witnesses substantially corroborated this version and said the officers appeared to use the correct amount of force.

In support of his Pitchess motion, counsel for Kennedy submitted a conclusory declaration of the type that we found insufficient in Rush.   Counsel stated on information and belief that based on information in the police report and obtained from the defendant, the officers used excessive force to arrest the defendant.   Further counsel stated, again on information and belief, that the officers grabbed Kennedy and handcuffed him;  then grabbed his hair and threw him to the ground;  then one officer stepped on his head and the other twisted his arm behind his back.  (The declaration does not explain how the police officer managed to twist one of the suspect's arms behind his back while he was handcuffed.)   Further, the attorney believes that complaints of use of excessive force by the officer “may have been filed” by members of the public which will tend to show a propensity to use violence.


Under our Rush decision, supra, permitting this discovery would violate Penal Code section 832.7 and Evidence Code sections 1043, subdivision (b)(3) and 1045, statutes which cumulatively protect the confidentiality of peace officer personnel records except upon a factually particularized showing of good cause for disclosure.

We begin our analysis of the problem with the California Supreme Court holding in Pitchess.  (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305.)   That decision, filed in 1974, made these basic points:  (1) criminal discovery is not controlled by civil discovery statutes but is a creation of judicial discretion;  (2) the right to discovery in a criminal case derives from and protects the right to a fair trial and an intelligent defense “in light of all relevant and reasonably accessible information;”  (3) in criminal practice the law does not require compliance with provisions of the Code of Civil Procedure regarding discovery because Fifth Amendment problems could develop in many instances;  (4) “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.’ ”  (Id. at pp. 535–537, 113 Cal.Rptr. 897, 522 P.2d 305.)

In the Pitchess case, the affidavits were filed by the defendant and stated that two named persons had filed complaints concerning the deputy sheriffs there involved and these persons were unavailable for interview.   Two additional witnesses who had previously reported misconduct of the deputies were available but had forgotten the details of the events, and needed the sheriff's records to refresh their recollection.   Finally, defendant alleged he needed this evidence as character evidence of the deputies' tendency to violence to support his theory of self-defense.  (Id., p. 537, 113 Cal.Rptr. 897, 522 P.2d 305.)

It is immediately apparent that the Pitchess decision itself did not involve conclusory affidavits based on information and belief as we have here.   The decision did, however, pronounce general governing principles which we are bound to observe.

After Pitchess came the decision in Caldwell v. Municipal Court (1976) 58 Cal.App.3d 377, 129 Cal.Rptr. 834.  Caldwell involved a declaration by defense counsel on information and belief that was nakedly conclusory.   Declarant said on information and belief that the charges of battery on police officers and related offenses arose out of an incident in which the officers used “excessive force, aggressive conduct and/or violence,” and also that declarant “believed” that the officers had used excessive force on other occasions.   Defense counsel then demanded a long list of information about the officers and all records of complaints against them or similar information in their personnel files.  (Id. at p. 379, 129 Cal.Rptr. 834.)   The discovery request in Caldwell was the functional equivalent of a request for production of the officer's files upon demand supported only by a representation that excessive force by the officers was in issue.   On this showing, the court compelled disclosure of the information, saying that to require more would violate the Fifth Amendment.  (Id., at p. 380, 129 Cal.Rptr. 834.)

That was the status of the law when Senate Bill 1436 was introduced in 1978 to add Evidence Code sections 1043, 1044 and 1045, to amend Penal Code section 832.5 and to add Penal Code sections 832.7 and 832.8.   The meaning of that statute (which, because it spans two codes and a number of sections, we will refer to as SB 1436) and its effect on procedures theretofore developed for discovery of police personnel records is the basic issue in this case.

The recent decision of City of Redding v. Municipal Court (1988) 200 Cal.App.3d 1181 stated at pages 1185–1186, 246 Cal.Rptr. 417:  “As explained in People v. Municipal Court (Hayden) (1980) 102 Cal.App.3d 181, 185, [162 Cal.Rptr. 347], it may be inferred the Legislature was aware of the Pitchess–Caldwell analysis;  by directing in section 1045, subdivision (a) that the statute shall not be construed to affect discovery of relevant investigatory records of transactions in which an officer participated, the Legislature inferentially intended to adopt the holding of Caldwell that an affidavit in support of a Pitchess motion may be made on information and belief.   A number of recent appellate decisions have adopted the view expressed in Hayden that a Pitchess motion may be made on information and belief.  (Jalilie v. Superior Court (1987) 195 Cal.App.3d 487, 489–490, [240 Cal.Rptr. 662], review den. Jan. 21, 1988;  Larry E. v. Superior Court (1987) 194 Cal.App.3d 25, 31 [239 Cal.Rptr. 264], review den. Nov. 12, 1987;  Pierre C. v. Superior Court (1984) 159 Cal.App.3d 1120, 1123, fn. 2 [206 Cal.Rptr. 82] [dictum];  Arcelona v. Municipal Court (1980) 113 Cal.App.3d 523, 531 [169 Cal.Rptr. 877] [dictum].)”

With respect, we suggest that a court need resort to inference with regard to legislative intent only where that intent is unclear.   As to SB 1436, there can be no doubt that the Legislature was aware of the Pitchess–Caldwell analysis and intended not to adopt the holding of Caldwell but to repudiate it.

The archive records, of which we take judicial notice, disclose the following facts:  The Attorney General requested a bill to protect peace officer personnel records from discovery and his office actually drafted it;  it was introduced by Senator Dennis Carpenter as SB 1436 in the 1977–1978 Regular Session of the California Legislature.  (See Sen.Com. on Judiciary Rep. on Records, Citizens' Complaints & Peace Officer Personnel Records (1977–1978).)   The digest of the bill stated “This bill is an attempt to cope with alleged law enforcement reaction [of shredding records to prevent discovery] to the California Supreme Court holding in Pitchess v. Superior Court ․” and also specified the bill creates a new governmental privilege relating to peace officer personnel records which are to be confidential and privileged from disclosure.  (Atty. General's Dig., Sen.Bill No. 1436, prepared April 14, 1978, p. 2.)   The Senate Committee on Judiciary analysis states that the purpose of the bill is to “protect peace officer personnel records from discovery in civil or criminal proceedings.”  (Sen.Com. on Judiciary Rep., supra, at page 1.)   The same language appears in the Assembly analysis of the bill.  (Assem.Com. on Criminal Justice, Rep. on Privilege to Prevent Disclosure of Police Personnel Records (August 7, 1978) at p. 2.)   Further, the Senate Report, giving background information, states the purpose of the bill:  “What problems or deficiency under existing law does this bill seek to remedy?”   Answer:  “Further protection of police officers personnel records.”  (Sen.Com. on Judiciary, Background Information, ¶ 2.)   Attorney General Evelle J. Younger wrote a letter to Governor Edmund G. Brown, Jr. urging him to sign the bill, in which he said this:  “Senate Bill 1436 protects the privacy of law enforcement officers in California by establishing procedures which prevent unreasonable and bad faith efforts to obtain access to a peace officer's personnel file.   Under existing case law, defendants in criminal cases are authorized to have access to such records, and have repeatedly misused this authority to engage in harassment of peace officers involved in their cases.”  (Letter, Attorney General Younger to Governor Brown, included in Enrolled Bill Memorandum to Governor dated September 12, 1978, Sen. Bill No. 1436.)   Younger also pointed out that “Senate Bill 1436 was drafted by my office in order to assist law enforcement officers throughout the State of California.   It has the unanimous support of every major law enforcement association in California, and represents a substantial step forward in protecting the rights of law enforcement officers in this state.”  (Ibid.)  A similar letter in support of the bill was written by Deputy Attorney General Michael Franchetti to Senator Alfred Song supporting the bill “because there is presently a legislative vacuum in criminal discovery.   Criminal defendants encouraged by recent court decisions are using motions to discover citizens' complaints in peace officer personnel records as a vehicle for dismissal.   For example, in a case involving an assault with a deadly weapon against a peace officer, a defendant can, without committing himself to any particular defense, go on a fishing expedition by merely alleging that he wants to look at the peace officer personnel record for prior citizens' complaints.”  (Letter, March 8, 1978, Franchetti to Song.)   And further:  “The situation has become critical.   When police officers cannot perform their constitutional duties to enforce the laws and at the same time have their constitutional right to privacy protected, justice will suffer a serious blow.”  (Ibid.)

Also, it is interesting to note what the bill's opponents thought it would accomplish.   The American Civil Liberties Union wrote to Senator Carpenter saying “In our view, the effect of SB 1436 is to preserve such records at the price of sealing them off forever from any public review.”  (Letter, Brent A. Barnhart, Legislative Advocate, A.C.L.U., to Senator Carpenter, dated March 30, 1978.)   Similarly, the California Attorneys for Criminal Justice wrote to Senator Carpenter in opposition saying that “The bill would effectively preclude defendants from obtaining information which, even under the terms of the bill, may be relevant to the presentation of a defense.”   (Letter, Donald C. Green, Legislative Advocate for California Attorneys for Criminal Justice, to Senator Carpenter, dated April 4, 1978.)

Thus, even allowing for some hyperbole on the part of the bill's opponents, those who considered the bill understood that it constituted a significant restriction on the defendant's right of access to peace officer personnel records.   Neither side of the controversy was in any doubt as to the purpose of the bill.   It was supported by the California District Attorneys Association, the California Peace Officers Association, of course the Attorney General, and the Peace Officers Research Association of California (PORAC).   It was opposed by the State Public Defender, the American Civil Liberties Union and the California Attorneys for Criminal Justice.   Given this lineup, it is extremely difficult to infer from SB 1436 a legislative purpose to give criminal defendants access to peace officer personnel records on demand, as was done in Caldwell, supra.   The bill was intended to put a stop to that practice.   There is no evidence to support the “inference” drawn in Hayden, supra, and in other decisions, that the legislature enacted this bill to implement the Pitchess–Caldwell approach to criminal discovery.

The core of the statute is found in two provisions.

First, it created a privilege for peace officer personnel records and specified that they must not be disclosed except by discovery pursuant to Evidence Code section 1043 (Pen. Code § 832.7).   Prior thereto, such records were protected only by the conditional privilege for official information set forth in Evidence Code section 1040 which required the trial judge to weigh the need for confidentiality against the adverse consequences to the litigant whenever the court was confronted with a demand for disclosure.   (Pitchess v. Superior Court, supra, 11 Cal.3d 531, 538–539, 113 Cal.Rptr. 897, 522 P.2d 305.)   Thus, prior to SB 1436, the holding in Caldwell was justifiable, not because a declaration on information and belief had any evidentiary force, but because the mere representation of counsel that excessive force of the officer was in issue would trigger the weighing process under section 1040 which the Caldwell court directed the trial judge to undertake.

The second key provision in the statute was the legislative employment of the word “affidavit.”   We note that the lawmakers, in their wisdom, could have gone in the opposite direction;  they could have approved and even expanded Caldwell by directing that an officer's personnel file must be submitted to a judge for in camera scrutiny upon the demand of criminal defense counsel who represents that an officer's penchant for violence is material to a pending charge of assault or the voluntariness of a confession or whatever;  and that if the file contains matters bearing upon that character trait, such information must be turned over to the defendant.  (See Evid. Code § 1103.)   But the wording and legislative history of SB 1436 previously detailed simply do not admit of such construction.

Instead, the Legislature demanded an affidavit or its equivalent, the declaration under penalty of perjury.  “Affidavit” is a term of art.   It is the motion-practice equivalent of testimony and is tested by the same rules.   (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 359, 100 Cal.Rptr. 258;  6 Witkin Cal. Procedure (3d ed. 1985) Proceedings Without Trial, § 30, p. 346.)   Whenever the use of an affidavit is authorized by law, it is admissible as an exception to the hearsay rule.  (Evid. Code §§ 1200, subd. (b), 1043;  Code of Civ. Proc. § 2009.)   But in order to be admissible, the subject of the affidavit must be based on the personal knowledge of the declarant.  (People v. Pacific Land Research Co. (1977) 20 Cal.3d 10, 21–22, 141 Cal.Rptr. 20, 569 P.2d 125;  1 Jefferson California Evidence Benchbook (2d ed. 1982) § 18.8, and cases there cited.)  “Information and belief” is a pleading concept which has no place anywhere else.   An affidavit on information and belief is an anomaly, it is a contradiction in terms.  “ ‘An affidavit based on “information and belief” is hearsay and must be disregarded ․ and it is “unavailing for any purpose.”  ․ A ruling “of the court is to be based upon facts which may be presented to it, and not upon the belief of the affiant.”  ․ Such allegations on “information and belief” furnish ․ no proof of the facts stated.’  ․” (Thiebault v. Blue Cross of Indiana (1986) 178 Cal.App.3d 1157, 1161, 224 Cal.Rptr. 277;  accord, Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919, 225 Cal.Rptr. 845;  Star Motor Imports, Inc. v. Superior Court (1979) 88 Cal.App.3d 201, 204, 151 Cal.Rptr. 721.)   Thus, a motion for discovery buttressed by an affidavit of a declarant not competent to testify to the information he furnishes or by an affidavit on information and belief is supported by no evidentiary showing whatever;  it is, as a matter of law, a motion for discovery on demand.

And the rules governing admissibility of evidence are no different in a criminal action.  Penal Code section 1102 states:  “The rules of evidence in civil actions are applicable also to criminal actions, except as otherwise provided in this Code.”   The Evidence Code governs “proceedings in actions,” and “actions” include “a civil action and a criminal action.”  (Evidence Code §§ 12, subd. (a) and 105.)   Thus, as Witkin states, “there is no separate law of evidence for criminal trials.”  (1 Witkin Cal. Evidence (3d ed. 1986) § 19, p. 21; People v. Murphy (1963) 59 Cal.2d 818, 830, 31 Cal.Rptr. 306, 382 P.2d 346;  People v. Tostado (1988) 200 Cal.App.3d 1385, 246 Cal.Rptr. 573;  People v. Hewlett (1951) 108 Cal.App.2d 358, 374–375, 239 P.2d 150.)

Pitchess v. Superior Court, supra, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 is not to the contrary.   While holding that civil discovery procedure did not govern criminal discovery (id. at p. 536, 113 Cal.Rptr. 897, 522 P.2d 305), the Supreme Court certainly did not render the law of evidence inapplicable to criminal proceedings.   Indeed, as previously pointed out, the affidavits there involved were those of the defendant who deposed to facts within his knowledge.

It is an understatement that our view of the law is not widely shared.   The passage from City of Redding quoted above lists a number of decisions which have approved affidavits on information and belief in Pitchess motions.   Since we first articulated our position last year in City of Santa Cruz v. Superior Court (Rush), supra, 190 Cal.App.3d 1669, 236 Cal.Rptr. 155, three published opinions have expressly disagreed with us, Jalilie v. Superior Court, supra, 195 Cal.App.3d 487, 489–490, 240 Cal.Rptr. 662;  Larry E. v. Superior Court, supra, 194 Cal.App.3d 25, 31, 239 Cal.Rptr. 264 and City of Redding v. Municipal Court, supra, 200 Cal.App.3d 1181, 246 Cal.Rptr. 417.   A mélange of reasons for that disagreement has been advanced.   None, in our view, has much heft.

We have already addressed the first contention which is that City of Santa Cruz (Rush) relied only on civil cases;  the unstated—and false—premise of that argument is that there is a different law of evidence applicable to criminal cases.

Secondly, reliance is placed on Evidence Code section 1045, subdivision (a) which reads:  “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 such investigations, concerning an event or transaction in which the peace officer participated, or which he perceived, and pertaining to the manner in which he performed his duties, provided that such information is relevant to the subject matter involved in the pending litigation.”   An inference is drawn, without much explanation, that this language was designed to perpetuate the Caldwell procedure.

The purpose of that subsection is indeed puzzling.   We know that it was part of the original draft of the bill submitted by the Attorney General.   While the committee reports contain commentaries on and explanations of many provisions of the bill, nowhere is there any reference to that subsection.   We note that it says nothing about the showing necessary to obtain discovery.   And given the authorship of SB 1436 and the legislative intent as to the entire statute so clearly delineated, it is inconceivable that that clause could have been designed to vitiate everything that the enactment was meant to accomplish.   In context, section 1045, subdivision (a) can only mean that the statute shall not be construed to affect discovery of relevant investigatory records of transactions in which an officer participated, provided the preconditions set forth elsewhere in the statute are met.

Next, the argument is made that requiring a personal declaration from the defendant invades his privilege against self-incrimination.   The statute requires a factual showing in two categories:  1) the materiality of the discovery sought to an issue in the action, and 2) the existence of the information sought, i.e. the contents of the file.   As to the first, defense counsel can competently testify to the issues he proposes to raise in the lawsuit such as, for instance, excessive force on the part of the officer and the relevance of the officer's prior instances of misconduct to the establishment of his character trait of brutality (Evid. Code § 1103;  see People v. Memro (1985) 38 Cal.3d 658, 682, 214 Cal.Rptr. 832, 700 P.2d 446).   With regard to the contents of the file, we do not understand how talking about a policeman's conduct on other occasions and with reference to other persons could possibly have a tendency to incriminate the defendant in the pending prosecution.   But even if such an eventuality could arise, a defendant testifying at a hearing on a motion to suppress—and presumably by affidavit at a discovery motion—does not waive his privilege, and such pre-trial testimony is inadmissible at trial.  (Simmons v. United States (1968) 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247;  People v. Stanislawski (1986) 180 Cal.App.3d 748, 757, 225 Cal.Rptr. 770.)

Finally, the decisions opposed to ours make what is surficially the most appealing argument;  namely, the accused is placed in the catch–22 position of having to allege with particularity the very information he is seeking.   This point was also made by the Supreme Court in People v. Memro, supra, 38 Cal.3d 658, 684, 214 Cal.Rptr. 832, 700 P.2d 446, a case not involving affidavits on information and belief.   We repeat, parenthetically, that the difficulty imposed on a defendant by the statute is not an insuperable one, it was overcome by the Pitchess defendant.   But more importantly, unless constitutional considerations are engaged, legislative policy is none of a court's concern.   Just as the United States Supreme Court decided in Franks v. Delaware (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 that a motion to suppress the fruits of a search must not automatically be transformed into an attack on the officer who swore out the warrant, so the California Legislature in enacting SB 1436 was entitled to and did unquestionably decide that a trial on a charge of assaulting a policeman must not routinely turn into a trial of the policeman.

It may well be that the United States or California Supreme Court will someday decide that as a matter of constitutional due process a criminal defendant is entitled to have a policeman's personnel file opened on demand whenever the officer's conduct is placed in issue.   Compare Pennsylvania v. Ritchie (1987) 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40.   The creation of such a doctrine would of course have to surmount the barrier that in California, at least, the countervailing right to privacy is also of constitutional dimension (Cal. Constitution, art. I, § 1).   Be that as it may, as of now, there is no such law;  and it is entirely inappropriate for intermediate appellate courts to open police files on demand just because the courts may consider such a law to be desirable, and to accomplish that result by disregarding the legislative will and by standing the law of evidence on its head.

But whether our analysis is right or wrong, the fact remains that the decisions in this state are in irreconcilable conflict.   The scenario reflected in City of Redding and in this opinion is typical:  in every prosecution for assault on a policeman and, for all we know, in many other types of proceedings, the defendant seeks disclosure of the officer's personnel file through a discovery motion buttressed by “affidavits” which should be stricken if orthodox principles of evidence law govern but which are legally sufficient under the majority rule.   The governmental entities then resist the motion by reference to the cases emanating from this District.   The conflict cries out for resolution by the Legislature or Supreme Court.   We conclude with a respectful plea that those bodies undertake this task.


Real party in interest has been notified that a peremptory writ in the first instance could be issued here, and he has filed opposition.   The peremptory writ of mandate will issue in the first instance (Code Civ.Proc. § 1088;  Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–182, 203 Cal.Rptr. 626, 681 P.2d 893).

Let a peremptory writ of mandate issue to the municipal court of Santa Cruz County directing it to vacate its order granting defendant Howard Kennedy's discovery motion and instead to enter a different order denying that motion.


1.   We do not question the right of inferior courts to choose between competing precedents of equal rank.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321, 369 P.2d 937.)

BRAUER, Associate Justice.

AGLIANO, P.J., and CAPACCIOLI, J., concur.