                  TO BE PUBLISHED IN THE OFFICIAL REPORTS

                       OFFICE OF THE ATTORNEY GENERAL
                                 State of California

                                 DANIEL E. LUNGREN
                                   Attorney General



                                             :
                 OPINION                     :                  No. 98-204
                                             :
                     of                      :              December 30, 1998
                                             :
          DANIEL E. LUNGREN                  :
            Attorney General                 :
                                             :
         GREGORY L. GONOT                    :
         Deputy Attorney General             :
                                             :




         THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY,
COUNTY OF VENTURA, has requested an opinion on the following question:

              Prior to the filing of a criminal complaint, may law enforcement agencies
destroy interview notes containing witness statements that have been transferred to a formal
report?


                                     CONCLUSION

              Prior to the filing of a criminal compliant, law enforcement agencies may
destroy interview notes containing witness statements that have been transferred to a formal
report.



                                             1                                       98-204
                                               ANALYSIS

               The question presented for resolution concerns recent changes in California’s
criminal discovery statutes (Pen. Code, §§ 1054-1054.7)1 and case law holding that interview
notes of witness statements are subject to discovery (Thompson v. Superior Court (1997) 53
Cal.App.4th 480). Prior to the filing of a criminal complaint, may law enforcement agencies
destroy their notes of witness statements that have been transferred to formal reports? We
conclude that the new discovery statutes do not prohibit the destruction of interview notes
in the circumstances presented.

              Comprehensive criminal discovery reforms were enacted when the voters
approved an initiative measure, Proposition 115, on June 5, 1990. The purposes of the
reforms are set forth in section 1054:

             “This chapter shall be interpreted to give effect to all of the following
       purposes:

               “(a) To promote the ascertainment of truth in trials by requiring timely
       pretrial discovery.

              “(b) To save court time by requiring that discovery be conducted
       informally between and among the parties before judicial enforcement is
       requested.

              “(c) To save court time in trial and avoid the necessity for frequent
       interruptions and postponements.

             “(d) To protect victims and witnesses from danger, harassment, and
       undue delay of the proceedings.

              “(e) To provide that no discovery shall occur in criminal cases except
       as provided by this chapter, other express statutory provisions, or as mandated
       by the Constitution of the United States.”



The materials and information subject to discovery by each side in a criminal proceeding are
described in sections 1054.1 and 1054.3. Section 1054.1 states with respect to necessary


       1
           All references hereafter to the Penal Code are by section number only.

                                                      2                                   98-204
disclosures by the prosecuting attorney:

                “The prosecuting attorney shall disclose to the defendant or his or her
        attorney all of the following materials and information, if it is in the possession
        of the prosecuting attorney or if the prosecuting attorney knows it to be in the
        possession of the investigating agencies:

               “(a) The names and addresses of persons the prosecutor intends to call
        as witnesses at trial.

                “(b) Statements of all defendants.

               “(c) All relevant real evidence seized or obtained as a part of the
        investigation of the offenses charged.

               “(d) The existence of a felony conviction of any material witness whose
        credibility is likely to be critical to the outcome of the trial.

                “(e) Any exculpatory evidence.

                “(f) Relevant written or recorded statements of witnesses or reports of
        the statements of witnesses whom the prosecutor intends to call at the trial,
        including any reports or statements of experts made in conjunction with the
        case, including the results of physical or mental examinations, scientific tests,
        experiments, or comparisons which the prosecutor intends to offer in evidence
        at the trial.”2

Section 1054.3 provides with respect to necessary disclosures by defense counsel:

               “The defendant and his or her attorney shall disclose to the prosecuting
        attorney:

               “(a) The names and addresses of persons, other than the defendant, he
        or she intends to call as witnesses at trial, together with any relevant written
        or recorded statements of those persons, or reports of the statements of those


        2
            We will assume, without deciding, that the only notes or reports of witness statements that are
discoverable are “of witnesses whom the prosecutor intends to call at the trial” (see § 1054.3, subd. (a)) and
that the notes in question here would be reflective of the statements of witnesses whom the prosecutor intends
to call at the trial.

                                                      3                                              98-204
      persons, including any reports or statements of experts made in connection
      with the case, and including the results of physical or mental examinations,
      scientific tests, experiments, or comparisons which the defendant intends to
      offer in evidence at the trial.

              “(b) Any real evidence which the defendant intends to offer in evidence
      at the trial.”

Section 1054.5 governs when discovery rights may be asserted and how they may be
enforced:

              “(a) No order requiring discovery shall be made in criminal cases
      except as provided in this chapter. This chapter shall be the only means by
      which the defendant may compel the disclosure or production of information
      from prosecuting attorneys, law enforcement agencies which investigated or
      prepared the case against the defendant, or any other persons or agencies
      which the prosecuting attorney or investigating agency may have employed to
      assist them in performing their duties.

              “(b) Before a party may seek court enforcement of any of the
      disclosures required by this chapter, the party shall make an informal request
      of opposing counsel for the desired materials and information. If within 15
      days the opposing counsel fails to provide the materials and information
      requested, the party may seek a court order. Upon a showing that a party has
      not complied with Section 1054.1 or 1054.3 and upon a showing that the
      moving party complied with the informal discovery procedure provided in this
      subdivision, a court may make any order necessary to enforce the provisions
      of this chapter, including, but not limited to, immediate disclosure, contempt
      proceedings, delaying or prohibiting the testimony of a witness or the
      presentation of real evidence, continuance of the matter, or any other lawful
      order. Further, the court may advise the jury of any failure or refusal to
      disclose and of any untimely disclosure.




             “(c) The court may prohibit the testimony of a witness pursuant to
      subdivision (b) only if all other sanctions have been exhausted. The court
      shall not dismiss a charge pursuant to subdivision (b) unless required to do so



                                            4                                           98-204
        by the Constitution of the United States.”3

               In Thompson v. Superior Court, supra, 53 Cal.App.4th 480, defense counsel
disclosed to the prosecution certain investigation reports of interviews of two defense
witnesses but refused to deliver the interview notes upon which the reports were based. (Id.,
at pp. 482-483.) The court ruled that the interview notes were discoverable if they were still
in existence and if they did not contain the attorney’s work product or other privileged
material. (Id., at p. 485.) With respect to whether the interview notes had to be preserved
in order to be turned over to opposing counsel, the court merely noted a 1981 case holding
that the preservation of the notes was not required:

                “See In re Gary G. (1981) 115 Cal.App.3d 629, 639-642 (prosecution
        investigator’s raw notes used to prepare a formal written report given to the
        defense should be disclosed if in existence when a discovery order entered,
        but, if destroyed before entry of the order, no discovery violation); . . .” (Id.,
        at p. 485, fn. 3.)

               This single reference in Thompson would seemingly answer the question
presented here. The Thompson court’s reference to the holding of the Gary G. case reflects
longstanding criminal discovery policy in this state. Prior to the enactment of sections 1054-
1054.7, California law did not require law enforcement agencies to retain for purposes of
discovery notes of witness statements that had been transferred to a formal report. (See, e.g.,
People v. Von Villas (1992) 10 Cal.App. 4th 201, 248; People v. Garcia (1986) 183
Cal.App.3d 335, 348-350; People v. Angeles (1985) 172 Cal.App.3d 1203, 1211-1217;
People v. Tierce (1985) 165 Cal.App.3d 256, 261-265; People v. Seaton (1983) 146
Cal.App.3d 67, 75-76; People v. Savage (1982) 129 Cal.App.3d 1, 2-4; In re Gary G. (1981)
115 Cal.App.3d 629, 639-642; People v. Dickerson (1969) 270 Cal.App.2d 352, 358-360.)
In language often quoted, the court in People v. Dickerson, supra, 270 Cal.App.2d at 360,
rejected the argument that all interview notes must be preserved for purposes of discovery:


               “. . . To support such a contention the defense must mean that in
        connection with any investigation of an alleged crime, everybody carrying on
        such an investigation must preserve rough notes made for the purpose of
        ensuring accuracy of their official reports and deliver them upon request to


        3
          We may assume for our purposes that defense counsel has made “an informal request . . . for the
desired materials and information” (§ 1054.5, subd. (b)) immediately upon the filing of the criminal complaint.
From that time on, any interview notes of witnesses whom the prosecutor intends to call at the trial could not
be destroyed without first being turned over to defense counsel.

                                                      5                                               98-204
       defense counsel in order to give possible grounds for cross-examination of
       such witnesses; no such rule has ever been propounded; it seems to us that it
       seeks to carry to a ridiculous extreme the enunciation of ‘rights of accused
       criminals.’ ”

              Of course, it is to be recognized that the prosecution has an independent
constitutional obligation to disclose any material evidence that may tend to exculpate the
defendant and must take affirmative steps to preserve such evidence pursuant to the due
process clause of the Fourteenth Amendment. (People v. Johnson (1989) 47 Cal.3d 1194,
1233; Thompson v. Superior Court, supra, 53 Cal.App.4th at 484-485; People v. Robinson
(1995) 31 Cal.App.4th 494, 498-499; Hines v. Superior Court (1993) 20 Cal.App.4th 1818,
1824, fn. 4.) In People v. Roybal (1998) 19 Cal.4th 481, 509-510, the Supreme Court
recently explained:

              “Law enforcement agencies have a duty, under the due process clause
       of the Fourteenth Amendment, to preserve evidence ‘that might be expected
       to play a significant role in the suspect’s defense.’ (California v. Trombetta
       (1984) 467 U.S. 479, 488; accord, People v. Beeler (1995) 9 Cal.4th 953.) To
       fall within the scope of this duty, the evidence ‘must both possess an
       exculpatory value that was apparent before the evidence was destroyed, and
       be of such a nature that the defendant would be unable to obtain comparable
       evidence by other reasonably available means.’ (California v. Trombetta,
       supra, 467 U.S. at p. 489; People v. Beeler, supra, 9 Cal.4th at p. 976.”

We are not dealing with exculpatory evidence here, but only with what the new discovery
statutes require with respect to nonexculpatory evidence.

               Did the 1990 enactment of sections 1054-1054.7 change prior California law
with respect to the preservation of interview notes prior to the filing of a criminal complaint?
We believe that it did not. First, nothing expressly stated in these statutes requires the
preservation of interview notes in the circumstances presented. Hence, if such a requirement
were to exist, it would only be indirectly by way of implication.

              As previously quoted, section 1054.1 requires the prosecuting attorney to
disclose materials and information “if it is in the possession of the prosecuting attorney or
if the prosecuting attorney knows it to be in the possession of the investigating agencies.”
The words “is” and “to be” are in the present tense. The language of section 1054.1 cannot
reasonably be construed to require the preservation of nonexculpatory interview notes that
have been transferred to a formal report prior to the filing of a criminal complaint.

              Initiative measures are subject to the same rules of construction that are

                                               6                                         98-204
applicable to statutes enacted by the Legislature. (Lesher Communications, Inc. v. City of
Walnut Creek (1990) 52 Cal.3d 531, 540; Legislature v. Deukmejian (1983) 34 Cal.3d 658,
675.) In DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601, the court expressed the
governing rules:

               “To determine the intent of legislation, we first consult the words
       themselves, giving them their usual and ordinary meaning. [Citations.] When
       ‘ “statutory language is . . . clear and unambiguous there is no need for
       construction, and courts should not indulge in it.” ’ [Citations.] The plain
       meaning of the words in a statute may be disregarded only when that meaning
       is ‘ “repugnant to the general purview of the act,” or for some other
       compelling reason . . . .’ [Citations.] These principles apply as much to
       initiative statutes as to those enacted by the Legislature. [Citation.]”

In Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1097, the court recognized
the cardinal rule that a statute ‘. . . is to be interpreted by the language in which it is written,
and courts are no more at liberty to add provisions to what is therein declared in definite
language than they are to disregard any of its express provisions.’ [Citations.]” (See also
Burden v. Snowden (1992) 2 Cal.4th 556, 562; Security Pacific National Bank v. Wozab
(1990) 51 Cal.3d 991, 998; Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50
Cal.3d 370, 381.) Here, the language of section 1054.1 appears unmistakable. No duty to
preserve interview notes arises in the instant circumstances.

                  We have examined the ballot pamphlet in detail with respect to the intent of
the people in adopting Proposition 115. (Ballot Pamp., Prim. Elec. (June 5, 1990), Prop.
115, pp. 32-35.) No support may be found therein to require the preservation of
nonexculpatory interview notes prior to the filing of a criminal complaint. ‘[B]allot materials
can help resolve ambiguities in an initiative measure [citation], but they cannot vary its plain
meaning.” (DaFonte v. Up-Right, Inc., supra, 2 Cal.4th at 602.) “Absent ambiguity, we
presume that the voters intend the meaning apparent on the face of an initiative measure
[citation] . . . .” (Lesher Communications, Inc. v. City of Walnut Creek, supra, 52 Cal.3d at
543.)


               Finally, we need not address the policy reasons that support the destruction of
interview notes or the opposing policy reasons for requiring their preservation. That analysis
has already taken place (see, e.g., In re Gary G., supra, 115 Cal.App.3d at 640-641, 643-
644), and the competing concerns are more appropriately addressed to the Legislature rather
than to the courts or this office. As stated in Wells Fargo Bank v. Superior Court, supra,
53 Cal.3d at 1099: “Our function is not to judge the wisdom of statutes. [Citation.]” In sum,
if interview notes were intended to be preserved in the present circumstances, section1054.1

                                                 7                                          98-204
could easily have so provided. (See Peralta Community College Dist. v. Fair Employment
& Housing Com. (1990) 52 Cal.3d 40, 50; State Farm Mut. Auto Ins. v. Dept. of Motor
Vehicles (1997) 53 Cal.App.4th 1076, 1082.)

               The language of section 1054.1 does not change the longstanding duty of law
enforcement agencies regarding the preservation of notes of witness statements prior to the
filing of a criminal complaint.4 We thus conclude that prior to the filing of a criminal
complaint, law enforcement agencies may destroy interview notes containing witness
statements that have been transferred to a formal report.

                                                  *****




        4
           If disclosable evidence is in existence, law enforcement agencies have a general duty to undertake
reasonable efforts in good faith to locate it for purposes of discovery. (In re Littlefield (1993) 5 Cal.4th 122,
129-136.) Nothing in Littlefield imposes any duty with regard to evidence not in existence at the time of the
filing of the criminal complaint. (See also People v. Little (1997) 59 Cal.App.4th 426, 430-433.)

                                                       8                                                98-204
