Peace Officer Records are discoverable in 1172.6 Evidentiary Hearing

People v. Nuno (Cal. Ct. App., Oct. 17, 2024, No. H051205) 2024 WL 4512214, at *1

Summary:  The issue in this appeal was whether Nuno, under Penal Code section 1172.6, may obtain discovery of material, exculpatory evidence in peace officer personnel records under Brady v. Maryland (1963) 373 U.S. 83 (Brady) through a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

Nuno pleaded no contest to attempted murder (§§ 664, 187) and was sentenced to 30 years in prison.

In 2022, Nuno filed a petition to vacate his attempted murder conviction and be resentenced under former section 1170.95 (now section 1172.6). After the trial court found that Nuno made a prima facie showing for an evidentiary hearing, he filed a motion for discovery of peace officer personnel records. The motion sought disclosure of information concerning two former police officers who had testified at Nuno’s preliminary hearing and whose prior testimony was to be admitted at the impending evidentiary hearing. The court ordered disclosure of certain personnel information regarding each officer. Later, the court held the evidentiary hearing on Nuno’s section 1172.6 petition and denied it.

On appeal, Nuno asked the court to review the officers’ personnel records to ensure the correctness of the trial court’s ruling under Pitchess standards. Nuno did not argue for reversal of the trial court’s order denying his petition. He contended that if this court “finds that the [trial] court improperly applied the Pitchess standards, it should conditionally remand the case.” In his initial brief, the Attorney General did not object to Nuno’s request.

The Court of Appeal requested additional briefing on these issues: (1) whether Nuno’s appellate request for review of the trial court’s application of Pitchess standards included the Brady component of his discovery motion; (2) whether the state has a duty to disclose evidence under Brady in an evidentiary hearing under section 1172.6, subdivision (d); and (3) the appropriate remedy if the trial court may have erred in its review of the police personnel records for Brady information.

The Court of Appeal held that a petitioner may obtain disclosure of peace officer personnel information under Brady principles through Pitchess procedures in advance of a section 1172.6 evidentiary hearing. Here, the  record does not show whether the trial court considered Brady principles when ruling on Nuno’s discovery motion. The Court conditionally reversed the trial court’s order denying relief under section 1172.6 and remand for further proceedings on the motion.

Request for police personnel records

Nuno asked this court to review the police personnel records of Officers Aguayo and Yanez to determine whether the trial court correctly ruled on his discovery motion—specifically, whether the trial court properly “applied the Pitchess standards.”  Nuno did not mention the Brady component of his motion. The Courtasked for supplemental briefing on whether Nuno’s appellate request invoking Pitchess standards also encompassed his motion’s request that the trial court order disclosure of information favorable to him under Brady.

The parties agree that Nuno’s appellate request encompasses the Brady component of his discovery motion. The Pitchess process “ ‘ “operates in parallel with Brady” ’ ” and “all information that the trial court finds to be exculpatory and material under Brady must be disclosed, notwithstanding Evidence Code section 1045’s limitations.” (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720.) Therefore, Nuno’s original appellate request encompasses the principles applicable under both Pitchess and Brady.

The Court decided that Nuno’s motion is authorized in the context of the evidentiary hearing ordered by the trial court pursuant to section 1172.6. (See Eulloqui v. Superior Court (2010) 181 Cal.App.4th 1055, 1063–1068, (Eulloqui) [permitting disclosure under Brady through Pitchess procedures in connection with an evidentiary hearing in a habeas corpus proceeding];

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).

Section 1172.6

Senate Bill 1437 significantly changed the scope of murder liability for defendants who did not actually kill or intend to kill anyone, including those prosecuted on a felony-murder theory. The bill also altered murder liability under the natural and probable consequences doctrine.

“A section 1172.6 petition for resentencing is a continuation of the petitioner’s underlying criminal proceeding …. It does not permit ‘ “litigat[ing] anew” any trial issues or allowing “a petitioner to challenge any aspect of the factfinding from the original trial that [they] wish[ ] to revisit.” ’ [Citation.] It is not a ‘ “trial de novo on all the original charges.” …

Pitchess and Brady

In Pitchess,the California Supreme Court “recognized 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. By providing that the trial court should conduct an in camera review, the Legislature balanced the accused’s need for disclosure of relevant information with the law enforcement officer’s legitimate expectation of privacy in his or her personnel records.

Evidence Code section 1043, subdivision (a) provides in : “In any case in which discovery or disclosure is sought of peace or custodial officer personnel records or records maintained pursuant to [s]ection 832.5 … 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 that has custody and control of the records.”

“One special obligation that a prosecutor bears under our system pertains to the disclosure of evidence favorable to a defendant. That duty ‘trace[s] its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with [the United States Supreme] Court’s decision in Brady ….’ [Citation.] ‘Under Brady … and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence [(so-called “Brady material”)].’ [Citation.] ‘ “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 (2023) 14 Cal.5th 493, 504–505. (Jenkins).)

When a Pitchess motion involves a request for potential Brady material, a defendant must provide some explanation to the trial court regarding how the officer’s credibility might be relevant to the proceeding. (

“ ‘[T]rial courts are granted wide discretion when ruling on motions to discover police officer personnel records.’ ” (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019.) “On appeal, this court is required to review the ‘record of the documents examined by the trial court’ and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer’s personnel records.” (People v. Rodriguez (2011) 193 Cal.App.4th 360, 366. [“A trial court’s decision on the discoverability of material in police personnel files is reviewable under an abuse of discretion standard.”].)

“[T]he proper remedy when a trial court has erroneously rejected a showing of good cause for Pitchess discovery and has not reviewed the requested records in camera is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand.” (Gaines, supra, 46 Cal.4th at p. 180.)

A petitioner who seeks relief under section 1172.6 has previously been convicted at a presumptively fair trial proceeding. Nonetheless, once the trial court issues an order to show cause (OSC) and orders an evidentiary hearing on a section 1172.6 petition, the prosecution bears the burden of proving beyond a reasonable doubt petitioner’s guilt under murder/attempted murder law effected by Senate Bill 1437. In this respect, a section 1172.6 evidentiary hearing resembles a criminal trial. Petitioners who state a prima facie case for relief attain a significant interest in the potential vacatur of their murder or attempted murder conviction and reduction of their sentence following the evidentiary hearing. Disclosure of material exculpatory evidence in the evidentiary hearing protects that significant interest.

Here, the record does not disclose whether the trial court considered Brady principles in deciding Nuno’s discovery motion, a conditional reversal and remand are appropriate to allow for consideration of the Brady component of Nuno’s motion by the trial court.

Disposition

The order denying Nuno’s Penal Code section 1172.6 petition is conditionally reversed, and the matter is remanded to the trial court with directions to conduct a new, in camera review of the personnel records of Officers Aguayo and Yanez consistent with this opinion. If the court finds there is discoverable information that was not previously ordered disclosed, it shall determine whether Nuno was prejudiced by the denial of discovery. If the court confirms the lack of any additional discoverable information or finds that Nuno was not prejudiced by any denial of discovery, the order denying Nuno’s petition shall be reinstated.

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