Vol. 16 No. 11- People V. Mooc

December 28, 2001

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer



The California Supreme Court gave a well deserved, and most appropriate, Christmas present to peace officers throughout the State of California, on December 24, 2001. The Court overruled a Court of Appeal decision in the case of People v. Mooc and held that a law enforcement agency is not required to produce the entire personnel file of a peace officer in response to a “Pitchess” motion. Pitchess v. Superior Court (1974) 11 Cal. 3d 531, provides for the screening of law enforcement personnel records by a judge, in camera, to determine if there is evidence within a file which may be relevant to the defense of a criminal defendant. The California Supreme Court stated that “this procedural mechanism for criminal defense discovery, which must be viewed against the larger background of the prosecution’s constitutional obligation to disclose to a defendant material exculpatory evidence so as not to infringe the defendant’s right to a fair trial (citations), is now an established part of criminal procedure in this state.”

The Court stated that both the Pitchess decision, and Evidence Code Sections 1043 through 1047, ” … recognize that the officer in question has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily.” As a result, the court ruled that, “to the extent the Court of Appeal suggested the custodian of records must always produce the entire personnel file in response to a Pitchess motion, … the appellate court overstated the custodian’s obligation under Pitchess and Evidence Code Sections 1043 and 1045. Pursuant to Evidence Code Section 1043, subdivision (b)(2), the defendant in his or herPitchess motion is required to identify the “type” of records or information sought.” The Supreme Court then states that, “the custodian’s obligation, therefore, was not to produce Officer Garcia’s entire file, but only those documents in his file that were potentially responsive to defendant’s specific request.” (Emphasis added ).

My colleague, Mike Capizzi, and I had the honor of preparing and presenting an amicus brief on behalf of the California State Sheriffs’ Association (CSSA), the California Police Chiefs’ Association (CPCA) and the California Peace Officers’ Association (CPOA), supporting the City of Santa Ana in its efforts to have the decision of the California Court of Appeal reversed. We are obviously pleased to have been asked to provide assistance in a matter which we consider, in our role as special counsel to law enforcement, to be of significant importance.

The ability, and the necessity, to prevent personal and, in many cases, irrelevant information about a peace officer from being disclosed publicly is an ongoing effort. It is extremely important to ensure that all the statutory protections regarding privacy are provided to the men and women of law enforcement.

The California Court of Appeal ruled that the entire personnel file of a peace officer must be produced in response to a “Pitchess” motion. The primary rationale by the court, although not explicitly stated, was that it did not trust the Santa Ana Police Department representatives, nor the City Attorney of the City of Santa Ana, to bring information which is responsive to that set forth in the “Pitchess” motion.

Among several points in our amicus brief, we posed the following for the Supreme Court to consider:

“The Court below and the Respondent imply that in camera review of POPR (Peace Officer Personnel Records) is necessary because the agency holding the records, aided by their attorney, cannot be trusted to provide the specific documents that contain information the Court has determined to be material. The Court of Appeal’s decision that requires such a procedure reveals a cynical and jaundiced attitude toward law enforcement administrators and their legal representatives that is unjustified. If an attorney, who is an officer of the court, represents the agency, he or she can surely be trusted to provide the court with the documents deemed material. If legal counsel cannot be trusted in this respect, then must we also suspect that the entire personnel file will not be brought to court? Will we then require the judge to personally conduct a search of every nook and cranny of the agency’s premises to be assured all records are being examined? The answer must be to respect the good faith of the agency and its counsel to provide for in camera review only the documents identified in Evid. Code § 1045(a) that contain the specific information which the court has determined is material.”

The California Supreme Court specifically commented on the points we raised, in Footnote number 4, where it states in part:

” … whether or not the department’s obligation is to provide the entire personnel file or just that portion of the record it deems potentially responsive to a defendant’s Pitchess motion, an unscrupulous custodian could always remove evidence that reflected unfavorably on a peace officer.”

The court also concurred with our observations regarding the status of the attorneys who appear before a court by stating “(w)e also agree that attorneys in the Santa Ana City Attorney’s office are officers of the court …. ”

There was an undercurrent in the Court of Appeal decision that its apparent distrust of the Police Department’s representatives, and/or associates of the City Attorney, was based upon the Court of Appeal concluding that information had been deliberately withheld in response to the Pitchessmotion. The California Supreme Court addressed this innuendo directly:

“We have before us the complete personnel file of Officer Garcia, and we may assume the trial court examined some subset of the complete file. Although the Court of Appeal found “more than one reference … in the complete file which a court could deem to be potentially relevant” to defendant Mooc’s claim of self defense, after independently examining the same record, we respectfully disagree. Our examination of the complete personnel record reveals only one item that is even remotely responsive to the language of defendant’s Pitchess motion. Because the incident is largely irrelevant to a potential claim of self defense, we believe the trial court likely would have abused its discretion had it ordered such information disclosed.”

As we have reported to you for the past year and a half a number of matters are currently pending before the California Supreme Court regarding peace officer personnel files and information contained therein (Mooc was one of them). There are constant challenges to the protections that provide for the confidentiality of such personnel records. There are no such protections established for the personnel records of other public sector employees – only peace officers. There is obviously a reason that. This case reiterates the importance that the procedures established be applied, and the confidentiality of peace officer personnel information be protected.

It is imperative that when a law enforcement agency is served with a “Pitchess” motion it reaches out to consult with counsel, knowledgeable in this area of the law, for advice, guidance and representation, throughout the process. This would include the decision-making process regarding what documents should be provided to the court. In the instant case an accusation was made that the City Attorney’s office deliberately withheld responsive material. The California Supreme Court disagreed and found that what the City Attorney brought to the court was responsive to the motion. That attorney obviously understood the “Pitchess” process and its requirements.

The Court identifies errors at the Superior Court level, in addition to errors at the appellate court level. For example, a court reporter was not present at the in camera review of the file, nor did the judge make any record of what he reviewed. As such, when the matter went to the Court of Appeal it lacked a part of the record necessary for it to determine whether or not the trial court acted properly in denying disclosure of documents. The Supreme Court stated that, “a court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record.”

The Supreme Court went on to articulate the process that a trial court should follow in order to avoid this issue arising in the future. “The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined.”


People v. Mooc cites to many cases which have impacted upon the rules to be applied in attempting to discovery information from the personnel file of a peace officer. The initial decision in Pitchess v. Superior Court has gone through a multitude of interpretations; it seems to be going through a constant process of challenge. It is now, perhaps more than ever, imperative that a department be represented by legal counsel knowledgeable and proficient in the field of police personnel records and discovery requirements. This is an extremely narrow field of law and requires the same level of experience and expertise as one finds in many other areas of the law (e.g. worker’s compensation, tax law, redevelopment law, election law, etc.).

We urge that you consult with such legal counsel from the moment you are served with the “Pitchess” motion. There are untold numbers of times when we have merely returned a motion because it did not allow for the requisite numbers of days for proper service. By working with counsel from the moment you are served, you are not only protecting the state created rights of privacy for your officers, you are carrying out the responsibility of the employer to ensure that those rights are protected.

As always, we urge that you take no action in the legal arena without first conferring with your department’s legal advisor. As to the material discussed above, or any details of the Mooc matter itself, please feel free to call either Martin J. Mayer or Michael R. Capizzi at (714) 446-1400 or via E-mail at mjm@jones-mayer.com or mrc@jones-mayer.com.

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]


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