Filed 7/19/16
                                   CERTIFIED FOR PUBLICATION
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


CITY OF EUREKA,

         Plaintiff and Appellant,                                                     A145701

         v.                                                                           (Humboldt County
                                                                                      Super. Ct. No.
THE SUPERIOR COURT OF                                                                 JV140252)
HUMBOLDT COUNTY,

         Defendant and Respondent;

THADEUS GREENSON,

      Real Party in Interest and Respondent.
__________________________________________/

         The issue in this case is whether a video of an arrest captured by a patrol car’s
dashboard camera is a confidential “personnel record” under Penal Code sections 832.7
or 832.8.1 On the record before us, the answer is no. We conclude the juvenile court
properly determined the arrest video is not a personnel record protected by the Pitchess
statutes. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) We therefore
affirm the court’s order requiring the City of Eureka (City) to release a portion of the
video to local reporter and real party in interest, Thadeus Greenson.



1
         Unless noted, all further statutory references are to the Penal Code.
                                                             1
                   FACTUAL AND PROCEDURAL BACKGROUND
Arrest, Charges, and Internal Affairs Investigation
       In December 2012, Eureka Police Sergeant Adam Laird and other Eureka police
officers arrested H.M. (the minor). Sergeant Laird chased the minor, who “was pushed to
the ground, fell to the ground, or just gave up and laid on the ground.” Another police
officer arrived “in his patrol vehicle with its in-car video equipment activated[.]” The
patrol car’s mobile audio video (MAV) recording system produced several videos of the
arrest.2 The prosecution filed a Welfare and Institutions Code section 602 petition
against the minor, but later withdrew it.
       A citizen lodged a complaint regarding the officers’ “handling of the minor” and
the Eureka Police Department conducted an internal affairs investigation. The
prosecution charged Sergeant Laird with misdemeanor assault by a police officer without
lawful necessity (§ 149) and with making a false report (§ 118.1). Both the prosecution
and defense hired experts to review the evidence against Sergeant Laird. After reviewing
the evidence — including the arrest video — the experts determined Sergeant Laird did
not use excessive force during the arrest. The prosecution dismissed the charges against
Sergeant Laird in January 2014.
Greenson’s Request for Disclosure of the Arrest Video
       In July 2013 and January 2014, Greenson wrote articles in two local newspapers
about the arrest and subsequent litigation. In August 2014, Greenson filed a California
Public Records Act (Gov. Code, § 6250, et seq.) request with the City seeking disclosure
of the arrest video. The City denied the request, “citing discretionary exemptions for
personnel records and investigative files.”
       In November 2014, Greenson filed a request for disclosure (form JV-570) of the
arrest video pursuant to Welfare and Institutions Code section 827, which authorizes
public disclosure of confidential juvenile records under limited circumstances. Greenson

2
        On our own motion, we augmented the record with the unedited video described
as“EPD-3C12-10697, MAV 2025, Camera 1 from 12/6/12 23:53:35-23:55:40” (video or
arrest video).
                                              2
averred the video “formed the basis” for the charges against Sergeant Laird, but the
prosecution “later dismissed the charges with little, if any, explanation. [Sergeant]
Laird’s defense . . . was an allegation that he’d been singled out for arrest by the . . .
Police Department for exercising his First Amendment free speech rights and that the
[police department] deliberately withheld exculpatory evidence from prosecutors.”
According to Greenson, “the public has a right to know exactly what happened” during
the minor’s arrest “to evaluate the performance of both its police officers and prosecutors.
The public’s only avenue to that knowledge, and the only thing that will allow the public
to make that evaluation, is the video [of the] arrest.”
       The Humboldt County Probation Department (the County) objected, claiming
Greenson failed to demonstrate good cause for disclosure under Welfare and Institutions
Code section 827. As the County explained, “[p]ublic dissemination of the video is not
necessary to facilitate public scrutiny” of Sergeant Laird’s conduct because Greenson had
“already obtained court records and other public documents describing the events
depicted by the video and ha[d] previously published details of the incident . . . . Under
these circumstances, release of the video would serve only to prejudice the minor by
exposing his image, his actions, and his juvenile record to widespread public scrutiny.”
The County also noted Greenson had not served the police department with the disclosure
request. The City also urged the court to deny Greenson’s request. It argued the video
was a police officer “personnel record” and “[d]isclosure . . . would require a successful
Pitchess [m]otion,” which Greenson had not filed. The City also claimed disclosing the
video could be detrimental to the minor under Welfare and Institutions Code section 827.
       At a late January 2015 hearing, the court directed Greenson to serve the police
department and the City with the disclosure request and continued the matter to late
February 2015. Before the February 2015 hearing, Greenson filed a reply offering
additional information about the criminal case against Sergeant Laird and claiming the
case “called into question” the conduct of the “entire [police] department.” According to
Greenson, the public had “a right to evaluate the conduct of its officers and prosecutors”
and needed to know why criminal charges were filed against Sergeant Laird when

                                               3
“experts determined [his] use of force was justified[.]” Greenson also argued releasing
the arrest video would not harm the minor, because he did not oppose disclosure and
because the arrest had been “widely reported on[.]” Finally, Greenson claimed the video
was not a personnel record protected by the Pitchess statutes.
       At a February 2015 hearing, the minor “waive[d] his right to confidentiality” of
the arrest video and consented to disclosure. The County and the City, however,
continued to oppose the video’s release. As relevant here, the City argued the police
department had conducted an internal affairs investigation and the video was “part of that
[investigation]” and could not be released “without a successful Pitchess motion.”
According to the City, a Pitchess motion could not be filed because “[t]here are no cases
pending, no charges have been filed. Nothing is pending at this point.” The court
indicated its inclination to review the video in camera and to determine whether there was
a “compelling need . . . for . . . the public to have that . . . information.”
       Pursuant to the court’s order, the County provided the court with “an unedited
version” of the arrest captured by the MAV “units from the various patrol units
involved.” The court reviewed the videos in camera. In a May 2015 written order, the
court ordered disclosure of the arrest video. It concluded the video was not a confidential
police personnel record protected by the Pitchess statutes, explaining the arrest was “both
the subject of a delinquency investigation and potentially actions which could result in
confidential internal personnel proceedings. [Greenson] is not requesting what might
otherwise be the subject of a Pitchess type motion such as confidential citizen complaints
and the resulting investigation or outcomes of those investigations. He is requesting only
that information which would form the basis of the original criminal complaint against
[Sergeant Laird] or delinquency proceedings against the minor.”
       As required by Welfare and Institutions Code section 827, the court considered the
public interest in disclosure, including “the interest of transparency of juvenile court
proceedings[,]” and the “minor’s consent to disclosure[.]” The court ordered the City to
release the video pursuant to a protective order removing the minor’s name and redacting
or blurring his identifying features to conceal his identity. Finally, the court concluded

                                                4
the remainder of the MAV videos were redundant or irrelevant and declined to disclose
them; it set a June 2015 hearing to review the redacted video.
       The day before the June 2015 hearing, the City filed writ petition seeking to vacate
the court’s May 2015 ruling. (City of Eureka v. Superior Court, A145288). This court
denied the City’s writ petition. The City appealed from the court’s May 2015 order.
                                       DISCUSSION
                                              I.
                         Welfare and Institutions Code Section 827
                                 and the Pitchess Statutes
       The City contends the court erred by ordering disclosure of the arrest video, which
is part of the minor’s case file. (Welf. & Inst. Code, § 827, subd. (e); see also Hoffstadt,
California Criminal Discovery (5th ed. 2015) § 12.13(a)(vii), pp. 332-333 [describing
contents of “juvenile ‘case file’”].) In general, juvenile court records are confidential.
(In re Keisha T. (1995) 38 Cal.App.4th 220, 230 (Keisha T.).) But “this policy of
confidentiality is not absolute.” (Id. at p. 231.) Welfare and Institutions Code section
827 “governs the release of such records” (Pack v. Kings County Human Services Agency
(2001) 89 Cal.App.4th 821, 827 (Pack)) and “enumerates a list of persons who may
inspect a juvenile case file without a court order; in addition, a juvenile case file may be
inspected by ‘[a]ny other person who may be designated by court order of the judge of
the juvenile court upon filing a petition.’” (People v. Thurston (2016) 244 Cal.App.4th
644, 670-671, fn. omitted, quoting Welf. & Inst. Code, § 827, subd. (a)(1)(P).) Under
appropriate circumstances, a juvenile court may order the release of juvenile court
records to the press. (Keisha T., supra, 38 Cal.App.4th at p. 236 [newspaper publisher];
Pack, supra, 89 Cal.App.4th at p. 828 [newspapers and press representatives].)
       “When such a petition is presented, the juvenile court’s duty is to ‘balance the
interests of the child and other parties to the juvenile court proceedings, the interests of
the petitioner, and the interests of the public.’ [Citation.] To do so, the court ‘must take
into account any restrictions on disclosure found in other statutes, the general policies in
favor of confidentiality and the nature of any privileges asserted, and compare these

                                              5
factors to the justification offered by the applicant’ in order to determine what
information, if any, should be released to the petitioner. [Citation.]” (People v. Superior
Court (2003) 107 Cal.App.4th 488, 492; see also Cal. Rules of Court, rule 5.552(e).)
“The juvenile court has both ‘the sensitivity and expertise’ to make decisions about
access to juvenile court records and is in the best position to consider any other statutes
or policies which may militate against access.” (Pack, supra, 89 Cal.App.4th at p. 827,
italics added, quoting In re Maria V. (1985) 167 Cal.App.3d 1099, 1103.)
       The City contends the Pitchess statutes militate against Greenson’s access to the
arrest video. According to the City, the video “is a confidential personnel record”
protected from disclosure “pursuant to Pitchess law” and Welfare and Institutions Code
section 827 cannot be used to “circumvent Pitchess procedure.” Under Pitchess, “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
the privileges and procedures surrounding what had come to be known as ‘Pitchess
motions’ . . . through the enactment of . . . sections 832.7 and 832.8 and Evidence Code
sections 1043 through 1045.”’ [Citation.] ‘Traditionally, Pitchess motions seek
information about past complaints by third parties of excessive force, violence,
dishonesty, or the filing of false police reports contained in the officer’s personnel file.’
[Citation.]” (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 710.)
       Section 832.7, subdivision (a) provides that “[p]eace officer . . . personnel records
. . . 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.” (See Johnson, supra, 61 Cal.4th at p. 710.) “As employed
in the Pitchess statutes, the term ‘personnel records’ refers to any file maintained under
an individual’s name by his or her employing agency and containing records related to
‘[e]mployee advancement, appraisal, or discipline,’ ‘[c]omplaints, or investigations of
complaints, concerning an event or transaction in which he or she participated, or which
he or she perceived, and pertaining to the manner in which he or she performed his or her

                                               6
duties,’ and ‘[a]ny other information the disclosure of which would constitute an
unwarranted invasion of personal privacy.’” (Pasadena Police Officers Assn. v. Superior
Court (2015) 240 Cal.App.4th 268, 285 (Pasadena POA), quoting § 832.8, subds. (d)-
(f).)
                                              II.
                   The Arrest Video Is Not a “Personnel Record” under
                                 Sections 832.7 and 832.8
        The court determined the video was not a confidential police personnel record
protected by the Pitchess statutes. As it explained, Greenson was “not requesting what
might otherwise be the subject of a Pitchess type motion such as confidential citizen
complaints and the resulting investigation or outcomes of those investigations. He is
requesting only that information which would form the basis of the original criminal
complaint against [Sergeant Laird] or delinquency proceedings against the minor.” We
review the court’s construction of sections 832.7 and 832.8 de novo. (Pasadena POA,
supra, 240 Cal.App.4th at p. 285.)
        We need not decide whether Welfare and Institutions Code section 827 would
authorize disclosure of Pitchess material in a juvenile case file because we conclude the
City has not demonstrated the arrest video is a “personnel record” under sections 832.7
and 832.8. The arrest video does not come within section 832.8, subdivision (d), which
defines “personnel records” as those relating a police officer’s “advancement, appraisal,
or discipline.” Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th
59 (LBPOA) supports our conclusion. There, our high court considered a public records
act request for the identities of police officers involved in various shootings. (Id. at p.
71.) The California Supreme Court concluded the information was not covered by the
Pitchess statutes, explaining: “Although the Pitchess statutes limit public access to
personnel records [citation], including officer names if they are linked to information in
personnel records [citation], many records routinely maintained by law enforcement
agencies are not personnel records. For example, the information contained in the initial
incident reports of an on-duty shooting are typically not ‘personnel records’ as that term

                                              7
is defined in . . . section 832.8. It may be true that such shootings are routinely
investigated by the employing agency, resulting eventually in some sort of officer
appraisal or discipline. But only the records generated in connection with that appraisal
or discipline would come within the statutory definition of personnel records [citation.]
We do not read the phrase ‘records relating to . . . [¶] . . . [¶] . . . [e]mployee . . .
appraisal[ ] or discipline’ [citation] so broadly as to include every record that might be
considered for purposes of an officer’s appraisal or discipline, for such a broad reading of
the statute would sweep virtually all law enforcement records into the protected category
of ‘personnel records’ [citation].” (Ibid.)
       Here as in LBPOA, the City has not demonstrated the arrest video was “generated
in connection” with Sergeant Laird’s appraisal or discipline. The video is simply a visual
record of the minor’s arrest. (LBPOA, supra, 59 Cal.4th at p. 72.) Adopting the City’s
broad reading of section 832.8, subdivision (d) would improperly “sweep virtually all
[MAV recordings] into the protected category of ‘personnel records’ [citation].”
(LBPOA, supra, 59 Cal.4th at p. 71.) We conclude the arrest video is akin to
“information contained in the initial incident reports” of an arrest, which “are typically
not ‘personnel records’ as that term is defined in . . . section 832.8.” (Ibid.)
       At oral argument, the City claimed dashboard camera videos come within section
832.8, subdivision (d) because the police department might eventually use the videos to
evaluate whether to initiate disciplinary proceedings against a peace officer. We are not
persuaded. That officers involved in an incident might face an internal affairs
investigation or discipline at some unspecified point in the future does not transmute
arrest videos into disciplinary documentation or confidential personnel information.3


3
       At oral argument, Greenson’s counsel argued the focus of the Pitchess statutes is
protecting a peace officer’s reasonable expectation of privacy in his personnel records.
(See People v. Mooc (2001) 26 Cal.4th 1216, 1220 [in camera review balances “the
accused’s need for disclosure of relevant information with the law enforcement officer’s
legitimate expectation of privacy in his . . . personnel records”]; § 832.8, subd. (f)
[defining “personnel records” as including “[a]ny other information the disclosure of
which would constitute an unwarranted invasion of personal privacy”].) According to
                                                 8
       The City suggests the video is a “personnel record” under section 832.8,
subdivision (e), which encompasses “‘complaints, or investigations of complaints,
concerning an event or transaction in which he . . . participated, or which he . . .
perceived, and pertaining to the manner in which he . . . performed his . . . duties.’”
According to the City, the arrest video comes within section 832.8, subdivision (e)
because the police department “pulled a recording of the incident” during the internal
affairs investigation and the “video served as the backbone of the Internal Affairs
investigation and was intimately relied upon by the investigating officers.”
       We reject this argument because it is unsupported by evidence in the appellate
record. We have carefully reviewed the record and have found no evidence the “video
served as the backbone of the Internal Affairs investigation and was intimately relied
upon by the investigating officers.” (See Pasadena POA, supra, 240 Cal.App.4th at p.
291 [rejecting a similar “factually unsupported contention”].) Even if we assume for the
sake of argument the arrest video was considered or relied upon during the internal affairs
investigation, it would not transmute the video into confidential personnel information.
The arrest video “was generated independently and in advance of the administrative
investigation.” (Id. at pp. 291, 288 [“‘records about an incident’” triggering an internal
investigation not protected personnel records under Pitchess].)
       The City’s reliance on Berkeley Police Assn. v. City of Berkeley (2008) 167
Cal.App.4th 385 (Berkeley PA) does not alter our conclusion. That case considered
whether proceedings conducted by a police review commission fell within section 832.5,

Greenson’s counsel, Sergeant Laird had no expectation of privacy in the arrest video
because it took place on a public street. We agree. “A peace officer ordinarily has no
substantial interest in maintaining the confidentiality of his or her identity or the fact of
his or her employment as a peace officer.” (See Ibarra v. Superior Court (2013) 217
Cal.App.4th 695, 705 [peace officer’s official photograph not a personnel record under
section 832.8]; Commission on Peace Officer Standards & Training v. Superior Court
(2007) 42 Cal.4th 278, 297 [the public has a “legitimate interest in the identity and
activities of peace officers”].) On the record before us, there is no indication Sergeant
Laird “worked undercover or anticipate[d] working undercover in the future, [citation]
and no reason to believe that the disclosure [of the arrest video] would adversely impact
any privacy interest.” (Ibarra v. Superior Court, supra, 217 Cal.App.4th at p. 705.)
                                              9
which requires law enforcement departments to investigate complaints against their
personnel. A division of this court determined the police review commission proceedings
“fit the description of [a] section 832.5” proceeding, and the commission’s practice of
holding public hearings on citizen complaints against police officers violated section
832.7, subdivision (a) by disclosing confidential police officer personnel information.
(Berkeley PA, at pp. 402, 404-405.) Berkeley PA is inapposite. Greenson does not seek
disclosure of the investigative materials, reports, or findings made in connection with the
police department’s internal affairs investigation. (See, e.g., Pasadena POA, supra, 240
Cal.App.4th at p. 290.) He seeks disclosure of the arrest video, which preceded the
citizen complaint and internal affairs investigation. Berkeley PA is inapposite.
       We express no opinion on whether the arrest video is a public record under the
California Public Records Act, nor on the propriety of the court’s ruling under Welfare
and Institutions Code section 827 because the City did not raise these arguments on
appeal. “Issues do not have a life of their own: if they are not raised . . . , we consider
[them] waived.” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
                                       DISPOSITION
       The court’s May 20, 2015 order is affirmed. Thadeus Greenson is entitled to
recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)




                                              10
                                 _________________________
                                 Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




A145701


                            11
Superior Court of the County of Humboldt, No. JV140252, Christopher G. Wilson,
Judge.

Cyndy Day-Wilson, City Attorney, for Plaintiff and Appellant.

Mary Blair Angus, County Counsel, for Defendant and Respondent.

Paul Nicholas Boylan, for Real Party in Interest and Respondent.




A145701


                                           12
