by Sam Rutherford

The California Court of Appeal, Sixth District, held that defendants are entitled to obtain exculpatory or impeaching evidence under Brady v. Maryland, 373 U.S. 83 (1963), from police officer personnel files in advance of an evidentiary hearing on their Cal. Penal Code § 1172.6 petitions through a motion pursuant to Pitchess v. Superior Court, 522 P.2d 305 (Cal. 1974), and related statutes.

Background

Juan Nuno pleaded no contest to one count of attempted murder and admitted to several enhancements, resulting in a 30-year prison sentence in 2010. In 2022, he filed a petition to vacate his conviction and sentence under former § 1170.95, which is now § 1172.6.

As CLN has previously reported, that statute permits defendants convicted of certain homicide-related offenses under the felony murder or natural and probable consequences doctrines to have their homicide-related convictions vacated and be resentenced on underlying non-homicide offenses. [See: CLN Dec. 2023, pg. 44; May 2024, pg. 24. People v. Arellano, 550 P.3d 1073 (Cal. 2024), contains a detailed discussion of this statute and its procedural requirements.]

The Monterey County Superior Court found that Nuno’s § 1172.6 petition stated a prima facie case for relief and ordered an evidentiary hearing. Nuno sought discovery of two police officer personnel records, both of whom were scheduled to testify at the § 1172.6 hearing and whose credibility would be crucial in determining whether Nuno was entitled to relief. Nuno asserted that he was entitled to any “evidence of the officers’ custom and habit of falsifying police reports” and attached to his discovery motion “media accounts detailing the officers’ misbehavior.”

The trial court granted Nuno’s discovery motion in part, reviewing the officers’ personnel files in camera. However, the court did not specify the criteria it relied on while evaluating the records. It ultimately denied Nuno’s § 1172.6 petition, and he timely appealed.

Analysis

In Pitchess, the California Supreme Court held that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer’s personnel file that is relevant to the defendant’s ability to defend against a criminal charge. In 1978, the California Legislature codified this holding in Cal. Penal Code §§ 832.7 and 832.8, and Cal. Evid. Code §§ 1043 through 1045. These statutes now require the trial court to conduct an in camera review to balance the defendant’s need for relevant information against the officer’s right to privacy in personnel records. Motions brought pursuant to these statutes have become known as “Pitchess motions.” People v. Mooc, 36 P.3d 21 (Cal. 2001).

Defendants pursuing a Pitchess motion must establish “good cause” for the disclosure, “setting forth the materiality thereof to the subject matter involved in the pending litigation.” Cal. Evid. Code § 1043(b)(3). Defense counsel must show how the discovery sought may lead to relevant evidence or may itself be admissible as direct or impeachment evidence that would support proposed defenses. Warrick v. Superior Court, 112 P.3d 2 (Cal. 2005). But this standard is “relatively relaxed” and is intended to ensure production for inspection of “all potentially relevant documents.” Young v. Superior Court, 79 Cal. App. 5th 138 (2022). Once good cause is established, the court must review the personnel files in camera and disclose to the defense information “relevant to the subject matter involved in the pending litigation.” Mooc.

Under Brady, the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires the prosecution “to disclose to the defense material exculpatory evidence, including potential impeaching evidence…. The obligation is not limited to evidence the prosecutor’s office itself actually knows of or possesses, but includes evidence known to the others acting on the government’s behalf in the case, including the police.” In re Jenkins, 525 P.3d 1057 (Cal. 2023). Evidence is favorable if it helps the defense or hurts the prosecution; it is material if there is a reasonable probability that had it been disclosed to the defense, the result of the proceeding would have been different. Association for Los Angeles Deputy Sheriffs v. Superior Court, 447 P.3d 234 (Cal. 2019).

A Pitchess motion may be used to obtain Brady material contained in a police officer’s confidential personnel file. Because such motions operate in tandem with Brady, trial courts must disclose all information that is favorable and material under Brady “notwithstanding Evidence Code section 1045’s limitations.” People v. Superior Court (Johnson), 377 P.3d 847 (Cal. 2015).

The Court explained that the issue it must resolve is “whether Brady principles apply in the context of a motion for discovery of police personnel records filed in connection with an evidentiary hearing under section 1172.6, subdivision (d).”

The Court first concluded that the trial court in Nuno’s case did not abuse its discretion in limiting disclosure of the two police officer’s personnel files under Evid. Code § 1045 but nonetheless held that the record did not conclusively show that the court also reviewed their files with the Brady standard in mind. Although acknowledging that Brady is “essentially a trial right” designed to ensure a fair trial, United States v. Ruiz, 536 U.S. 622 (2002), California courts have nevertheless held that the prosecution’s obligation to disclose Brady evidence is “ongoing, even postjudgment,” People v. Davis, 226 Cal. App. 4th 1353 (2014). Thus, the Court determined that the prosecution has a continuing duty to disclose Brady evidence during a prisoner’s state habeas proceeding. Jenkins.

The Court saw no reason not to extend this same obligation to § 1172.6 hearings, particularly because the Legislature had extended certain procedural protections that apply during a criminal trial to such hearings. For example, the prosecution bears the burden of proof beyond a reasonable doubt and only evidence admissible under the Evidence Code may be relied on at § 1172.6 hearings. Thus, the Court ruled that because a § 1172.6 hearing “reassembles a criminal trial,” the People must honor its Brady obligations during such hearings.

The Court therefore concluded that “principles of fundamental fairness require disclosure of material exculpatory evidence (including potential impeaching evidence) that exists in a peace officer’s personnel file upon a sufficient motion filed under Brady, Pitchess, and its statutory progeny after the trial court has ordered an evidentiary hearing under section 1172.6, subdivision (d).” Because the record did not establish that the trial court considered Brady principles when deciding Nuno’s discovery motion, the Court ordered a “conditional remand” for it to do so in the first instance.

The Court instructed: “If, after reviewing the personnel records, the trial court decides that nothing more need be disclosed to Nuno under Brady principles, it should state its reasons and reinstate its order denying Nuno’s section 1172.6 petition. On the other hand, if the trial court determines that additional information must be disclosed to Nuno under Brady principles, the court should order disclosure, allow Nuno an opportunity to demonstrate prejudice, and order a new section 1172.6 evidentiary hearing if there is a reasonable probability the outcome would have been different had the information been disclosed.”

Conclusion

Accordingly, the Court vacated the trial court order denying Nuno’s § 1172.6 petition and remanded the case for further proceedings consistent with its opinion. See: People v. Nuno, 105 Cal. App. 5th 1030 (2024).

Writer’s note: The Second District Court of Appeal recently cited Nuno with approval, holding that (1) an evidentiary hearing on a § 1172.6 petition is not limited to the facts presented at trial; (2) the trial court erred in quashing a subpoena to the police department seeking contact information for witnesses because § 1172.6 allows for postconviction discovery; and (3) issuance of a subpoena duces tecum is permissible because a resentencing proceeding is not a criminal case. Garcia v. Superior Court, 106 Cal. App. 5th 1005 (2024).

Editor’s note: Anyone with an interest in the issues under consideration in Nuno is strongly encouraged to read the Court’s full opinion, which contains an extensive discussion of the intricate procedural history of the case and detailed analyses of the various issues involved that go well beyond what’s possible in this brief summary of the Court’s opinion.  

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