CITY OF LOS ANGELES, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JEREMY BRANDON, Real Party in Interest, 29 Cal. 4th 1

Opinion KENNARD, J. Defendant Jeremy Brandon, who was charged with sexually molesting a seven-year-old boy, sought discovery of certain information in the personnel records of the two arresting officers. The trial court reviewed the materials in chambers and, as relevant here, ordered the disclosure of a citizen complaint filed against one of the officers 10 years before the arrest in this case. Although Evidence Code

section 1045, subdivision (b)(1) expressly precludes discovery of citizen complaints “occurring more than five years before” the accused’s criminal act, the Court of Appeal upheld the trial court’s order as necessary to protect defendant’s federal constitutional right to a fair trial. (Italics added.) We reverse the judgment of the Court of Appeal. I. Facts and Procedural Background On February 1, 2000, two Los Angeles police officers arrested defendant for the sexual molestation of a seven-year-old child that had occurred earlier that day.

The district attorney charged defendant with lewd conduct on a child under age 14 (Pen. Code, § 288, subd. (a)) and with failing to register as a sex offender (id., § 290, subd. (g)(2)), a requirement imposed as a consequence of defendant’s 1992 conviction of child molestation. Defendant filed a pretrial motion in the superior court seeking discovery of certain information in the personnel files of the two arresting officers.

Specifically, defendant sought the names, addresses, and telephone numbers of persons who had filed complaints against the officers “relating to acts of falsification of police reports, lying, perjury, dishonesty, untruthfulness or other acts of moral turpitude that reflect on the officers’ honesty or truthfulness.” Defense counsel’s accompanying declaration stated that defendant “may” assert as a defense to the charges “that the civilian witnesses in this case were coached as to the statements and testimony they should make” and that this “coaching was done in [an] effort to fabricate evidence against the defendant and to suborn peijury.” In asserting entitlement to this information, defendant cited this court’s decision in Pitchess v.

Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess) and the United States Supreme Court’s decision in Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (Brady). Defendant served the motion on both the district attorney and the Los Angeles Police Department (LAPD). The district attorney did not respond to the motion. But the LAPD’s custodian of records brought to the superior court, for review in chambers, materials from the personnel files of both officers.

These materials included an internal report regarding a 1996 complaint against Officer C., alleging that he had failed to report a fellow officer’s assault on a prisoner. The 1996 report made reference to a 1990 incident involving Officer C.’s failure to report the improper use of mace by a partner officer. The superior court found the information about both the 1996 and the 1990 incidents “relevant” to defendant’s case, and ordered the LAPD’s custodian of records to provide to the defense the names, addresses, and telephone numbers of the complainants and witnesses for the two incidents.

The City of Los Angeles (City), representing the LAPD, sought reconsideration, contending the 1990 complaint predated the arrest in this case by 10 years and thus fell outside the scope of Evidence Code

section 1045, subdivision (b)(1) (section 1045(b)(1)). Under that provision, “complaints concerning [police officer] conduct occurring more than five years before the event or transaction which is the subject of the litigation in aid of which discovery ... is sought” must be “exclude[d\ from disclosure.” (§ 1045(b)(1), italics added.) The trial court denied the City’s motion for reconsideration. The City challenged that ruling in a petition for writ of mandate filed in the Court of Appeal. After issuing an alternative writ and staying enforcement of the superior court’s disclosure order, the Court of Appeal ordered defendant and the City to brief these additional issues:

(1) The scope of a defendant’s right to pretrial discovery under Brady, supra, 373 U.S. 83; (2) the constitutionality of the five-year exclusion as provided for in

section 1045(b)(1); and (3) the appropriate test for determining the constitutional validity of a state evidentiary rule that affects a defendant’s federal due process right to a fair trial.

In its decision, the Court of Appeal upheld the trial court’s discovery order, reasoning that “to enforce [section 1045(b)(1)’s] five-year limitation” on the disclosure of police personnel records “would unduly infringe . . . defendant’s right to a fair trial.” The decision also addressed an argument raised in an amicus curiae brief by the Los Angeles County Public Defender, in support of defendant, that the LAPD “ordinarily does not produce for in camera inspection complaints that are over five years old.” After observing that information over five years old might qualify as evidence favorable to the accused that is material to guilt or punishment under Brady, supra, 373 U.S. 83, the Court of Appeal held that police agencies responding to a defense motion seeking in camera review of police personnel records “must produce for inspection ... all of the records or information described in the motion . . . without limitation as to time.” We granted the City’s petition for review.

II. Controlling Legal Principles We here consider the interplay between the United States Supreme Court’s 1963 decision in Brady, supra, 373 U.S. 83, and California’s statutory discovery procedures enacted after this court’s 1974 decision in Pitchess, supra, 11 Cal.3d 531. In Brady, the high court announced a rule, founded on the due process guarantee of the federal Constitution, that requires the prosecution to disclose evidence that is favorable and “material” to the defense.

Under California law, the procedures that the Legislature enacted to codify our Pitchess decision allow defendants access to certain information in the arresting officer’s personnel records that is “material” to their defense. Although Brady and Pitchess both require disclosure of material evidence, they employ different standards of materiality. A. Brady Disclosure Under Brady, supra, 373 U.S. 83, 87 [83 S.Ct. 1194, 1196-1197], the prosecution must disclose to the defense any evidence that is “favorable to the accused” and is “material” on the issue of either guilt or punishment.

Failure to do so violates the accused’s constitutional right to due process. (Id. at pp. 86-87 [83 S.Ct. at p. 1196].) Evidence is material under the Brady standard “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (United States v. Bagley (1985) 473 U.S. 667, 682 [105 S.Ct. 3375, 3383, 87 L.Ed.2d 481].) Although Brady disclosure issues may arise “in advance of,” “during,” or “after trial” (United States v.

Agurs (1976) 427 U.S. 97, 107-108 [96 S.Ct. 2392, 2399, 49 L.Ed.2d 342]), the test is always the same. (Id. at p. 108 [96 S.Ct. at p. 2400].) Brady materiality is a “constitutional standard” required to ensure that nondisclosure will not “result in the denial of defendant’s [due process] right to a fair trial.” (Ibid.) Because the Brady rule encompasses evidence “known only to police investigators and not to the prosecutor,” it is incumbent upon the prosecutor to learn of any favorable evidence “known to the others acting on the government’s behalf in [a] case, including the police.” (Kyles v.

Whitley (1995) 514 U.S. 419, 437-438 [115 S.Ct. 1555, 1567-1568, 131 L.Ed.2d 490]; see In re Brown (1998) 17 Cal.4th 873, 879, fn. 3 [72 Cal.Rptr.2d 698, 952 P.2d 715], and cases cited therein.) The prosecution’s disclosure duty under Brady applies even without a request by the accused; it pertains not only to exculpatory evidence but also to impeachment evidence. (Strickler v. Greene (1999) 527 U.S. 263, 280-281 [119 S.Ct. 1936, 1948, 144 L.Ed.2d 286]; United States v. Bagley, supra, 473 U.S. at p. 676 [105 S.Ct. at p. 3380]; United States v.

Agurs, supra, 427 U.S. at p. 107 [96 S.Ct. at p. 2399].) Closely related to the Brady rule requiring the prosecution to disclose material evidence favorable to the defense is the prosecution’s obligation to retain evidence. With respect to retention, however, the prosecution’s obligation is narrower. Its failure to retain evidence violates due process only when that evidence “might be expected to play a significant role in the suspect’s defense,” and has “exculpatory value [that is] apparent before [it is] destroyed.” (California v.

Trombetta (1984) 467 U.S. 479, 488-489 [104 S.Ct. 2528, 2534, 81 L.Ed.2d 413].) In that regard, the mere “possibility” that information in the prosecution’s possession may ultimately prove exculpatory “is not enough to satisfy the standard of constitutional materiality.” (Arizona v.

Youngblood (1988) 488 U.S. 51, 56 [109 S.Ct. 333, 336, 102 L.Ed.2d 281], fn. *.) And whereas under Brady, supra, 373 U.S. 83, the good or bad faith of the prosecution is irrelevant when it fails to disclose to the defendant material exculpatory evidence (id. at p. 87 [83 S.Ct. at pp. 1196-1197]), a different standard applies when the prosecution fails to retain evidence that is potentially useful to the defense. In the latter situation, there is no due process violation unless the accused can show bad faith by the government. (Arizona v. Youngblood, supra, 488 U.S. at p. 58 [109 S.Ct. at pp. 337-338].) B.

Pitchess Disclosure In 1974, we held in Pitchess, supra, 11 Cal.3d 531, that a defendant charged with battery on four Los Angeles County Sheriff’s deputies could, in support of his claim of self-defense, discover any complaints of excessive force contained in the deputies’ personnel files.

The accused, we said, is entitled to that information upon a showing that it will “facilitate the ascertainment of the facts and a fair trial.” (Id. at p. 536.) This showing requires no more than “general allegations” establishing “some cause for discovery other than ‘a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.’ ” (Id. at p. 537.) Four years after we articulated this “judicially created doctrine” (Pitchess, supra, 11 Cal.3d at p. 535), the California Legislature “codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.” (City of Santa Cruz v.

Municipal Court (1989) 49 Cal.3d 74, 81 [260 Cal.Rptr. 520, 776 P.2d 222] (City of Santa Cruz).) In City of Santa Cruz, we described the statutory scheme as follows: “The Penal Code provisions define ‘personnel records’ (Pen. Code, § 832.8) and provide that such records are ‘confidential’ and subject to discovery only pursuant to the procedures set forth in the Evidence Code. (Pen. Code, § 832.7.) Evidence Code sections 1043 and 1045 set out the procedures for discovery in detail. . . . [S]ection 1043, subdivision (

a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (

b) provides that such motion shall include, inter alia, ‘

(2) A description of the type of records or information sought; and [f]

(3) Affidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has such records or information from such records.’ ” (City of Santa Cruz, supra, 49 Cal.3d at pp. 81-83.) We went on to say: “A finding of ‘good cause’ under

section 1043, subdivision (

b) is only the first hurdle in the discovery process. Once good cause for discovery has been established,

section 1045 provides that the court shall then examine the information ‘in chambers’ in conformity with

section 915 (i.e., out of the presence of all persons except the person authorized to claim the privilege and such other persons as he or she is willing to have present), and shall exclude from disclosure several enumerated categories of information, including: (1) complaints more than five years old, (2) the ‘conclusions of any officer investigating a complaint. . .’ and (3) facts which are ‘so remote as to make disclosure of little or no practical benefit.’ (§ 1045, subd. (b).)” (City of Santa Cruz, supra, 49 Cal.3d at p. 83, italics omitted.) We then observed that subdivision (

b) of

section 1043 requires a defendant to show “good cause” for discovery in these two general categories: (1) the materiality of the requested information to the pending litigation, and (2) a “reasonable belief’ that the governmental agency has the information the defendant seeks to discover. (City of Santa Cruz, supra, 49 Cal.3d at p. 83.) We further noted: “The relatively low threshold for discovery embodied in

section 1043 is offset, in turn, by

section 1045’s protective provisions which: (1) explicitly ‘exclude from disclosure’ certain enumerated categories of information (§ 1045, subd. (b)); (2) establish a procedure for in camera inspection by the court prior to any disclosure (§ 1045, subd. (b)); and (3) issue a forceful directive to the courts to consider the privacy interests of the officers whose records are sought and take whatever steps ‘justice requires’ to protect the officers from ‘unnecessary annoyance, embarrassment or oppression.’ (§ 1045, subds. (c), (d) & (e).)” (City of Santa Cruz, supra, 49 Cal.3d at pp. 83-84.) Unlike the high court’s constitutional materiality standard in Brady, which tests whether evidence is material to the fairness of trial, a defendant seeking Pitchess disclosure must, under statutory law, make a threshold showing of “materiality.” (§ 1043, subd. (b).) Under Pitchess, a defendant need only show that the information sought is material “to the subject matter involved in the pending litigation.” (§ 1043, subd. (b)(3).) Because Brady's constitutional materiality standard is narrower than the Pitchess requirements, any citizen complaint that meets Brady's test of materiality necessarily meets the relevance standard for disclosure under Pitchess. (§ 1045, subd. (b).) III.

Discussion A. Constitutionality of

Section 1045 ’s Five-year Limitation Upon Disclosure As discussed earlier, the high court in Brady, supra, 373 U.S. 83, 87 [83 S.Ct. 1194, 1196-1197], held that an accused is denied due process when the prosecution fails to disclose to the defense evidence that is favorable to the defendant and material on the issue of guilt. Our statutory scheme does not require disclosure of complaints of police officer misconduct that occurred more than five years before the crime with which the defendant is charged. Defendant here contends that

section 1045(b)(l)’s time limitation is contrary to Brady and therefore violates his constitutional right to due process. As we explain, the time limitation is not unconstitutional on its face. To prevail on his constitutional claim, defendant carries a heavy burden. “The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.” (People v. Falsetta (1999) 21 Cal.4th 903, 912-913 [89 Cal.Rptr.2d 847, 986 P.2d 182]; see also People v.

Hansel (1992) 1 Cal.4th 1211, 1219 [4 Cal.Rptr.2d 888, 824 P.2d 694].) When, as here, the contention is that a state rule violates due process, the defendant must show that the rule “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (People v. Falsetta, supra, 21 Cal.4th at p. 913; accord, Montana v. Egelhoff (1996) 518 U.S. 37, 43 [116 S.Ct. 2013, 2107, 135 L.Ed.2d 361] (plur. opn. of Scalia, J.); Patterson v.

New York (1977) 432 U.S. 197, 201-202 [97 S.Ct. 2319, 2322-2323, 53 L.Ed.2d 281].) Fundamental principles of justice are those that “ ‘ “lie at the base of our civil and political institutions” ’ ” and “ ‘define “the community’s sense of fair play and decency.” ’ ” (Dowling v. United States (1990) 493 U.S. 342, 353 [110 S.Ct. 668, 674, 107 L.Ed.2d 708].) We are not persuaded that fundamental principles of justice are implicated by

section 1045(b)(1), under which there is no statutory right to disclosure of citizen complaints of police misconduct that occurred “more than five years before” the charged crime. The discovery procedure of which

section 1045(b)(1) is a

part is a legislative enactment of rather recent vintage. Although there is “no general constitutional right to discovery in a criminal case” (Weatherford v. Bursey (1977) 429 U.S. 545, 559 [97 S.Ct. 837, 846, 51 L.Ed.2d 30]), beginning in 1974, our Legislature required California law enforcement agencies to “establish a procedure to investigate citizens’ complaints” against officers in their employ. (Pen. Code, § 832.5, subd. (a).) The Pitchess procedures not only require law enforcement agencies to compile citizen complaints, but they also contemplate the destruction of such complaints after five years. (Pen.

Code, § 832.5, subd. (b) [requiring retention of citizen complaints for “at least five years”].) Many if not most law enforcement agencies have a policy of routinely destroying citizen complaints after five years. (See People v. Jackson (1996) 13 Cal.4th 1164, 1221, fn. 10 [56 Cal.Rptr.2d 49, 920 P.2d 1254]; 83 Ops.Cal.Atty.Gen. 103 (2000).)

Section 1045(b)(l)’s five-year cutoff for discovery of police officer personnel records mirrors the five-year cutoff for retention of citizen complaints under Penal Code

section 832.5. (Assem. Com. on Criminal Justice, Analysis of Proposed Draft of Sen. Bill No. 1436 (1977-1978 Reg. Sess.) Aug. 28, 1978, p. 6 [five-year retention period intended to “conform” to the five-year “period of discovery”].) The parallel five-year periods may well reflect legislative recognition that after five years a citizen’s complaint of officer misconduct has lost considerable relevance.

A law enforcement agency’s destruction of a citizen’s complaint violates a defendant’s right to due process only when the complaint’s exculpatory value to a particular criminal case is readily apparent before its destruction. (California v. Trombetta, supra, 467 U.S. at p. 488 [104 S.Ct. at p. 2533].) The mere “possibility” that the complaint might be exculpatory in some future case is insufficient. (Arizona v.

Youngblood, supra, 488 U.S. at p. 56, fn.* [109 S.Ct. at p. 336].) Unless there is bad faith by the law enforcement agency, the destruction of records does not implicate a defendant’s constitutional right to a fair trial; routine destruction by a law enforcement agency “acting . . . ‘in accord with [its] normal practice’ ” tends to indicate “ ‘good faith.’” (California v. Trombetta, supra, at p. 488 [104 S.Ct. at p. 2533], quoting Killian v.

U.S. (1961) 368 U.S. 231, 242 [82 S.Ct. 302, 308, 7 L.Ed.2d 256].) Just as due process does not prohibit a law enforcement agency from destroying records of citizen complaints that are more than five years old and whose exculpatory value to a specific case is not readily apparent,

section 1045(b)(l)’s five-year limitation on court-ordered discovery of such complaints does not, on its face, violate due process. State rules excluding evidence at trial deny a criminal defendant due process only if those rules offend fundamental principles of justice. (Patterson v. New York, supra, 432 U.S. at pp. 201-202 [97 S.Ct. at pp. 2322-2323].) Applying that standard to the pretrial discovery scheme of

section 1045(b)(1), we perceive no fundamental principle of justice that is offended by that provision’s prohibition against disclosing citizen complaints of officer misconduct that were filed “more than five years” before the proceeding in which disclosure is sought. In holding that routine record destruction after five years does not deny defendants due process, we do not suggest that a prosecutor who discovers facts underlying an old complaint of officer misconduct, records of which have been destroyed, has no Brady disclosure obligation.

At oral argument, the Attorney General, appearing as amicus curiae on behalf of the City, agreed that, regardless of whether records have been destroyed, the prosecutor still has a duty to seek and assess such information and to disclose it if it is constitutionally material. We also reject defendant’s contention that

section 1045(b)(l)’s limitation on disclosure of citizen complaints more than five years old violates the supremacy clause of the federal Constitution (see U.S. Const., art. VI, cl. 2) by denying him evidence that might be material under Brady, supra, 373 U.S. 83. An issue of federal supremacy arises only when a state law conflicts with some federal law. (See Felder v. Casey (1988) 487 U.S. 131, 138 [108 S.Ct. 2302, 2306-2307, 101 L.Ed.2d 123].) Here, defendant contends

section 1045(b)(1) conflicts with the federal Constitution’s due process clause. But there is no conflict. As we have already explained,

section 1045(b)(1) comports on its face with the federal due process requirements.

The dissent charges the majority with not addressing the “issue of destroying sustained citizen complaints.” (Dis. opn., post, at p. 27.) It reasons that a sustained complaint, which contains an allegation of officer misconduct that the employing police agency has found true, possesses “exculpatory value to any particular case in which that officer is a material witness.” (Id. at p. 28.) In the dissent’s view, the systematic destruction of five-year-old sustained citizen complaints by an employing police agency violates the due process rights of unknown future defendants against whom the officer may someday testify.

We disagree. As the high court explained in California v. Trombetta, supra, 461 U.S. 479, 489 [104 S.Ct. 2528, 2534], due process is implicated by the prosecution’s failure to retain evidence only when the exculpatory value of that evidence to a specific defendant is apparent before the evidence is destroyed. Some of the dissent’s disagreement with the majority reflects a basic misunderstanding of the workings of the statutory Pitchess discovery scheme.

For instance, the dissent asserts that a citizen complaint might not be available for discovery until “well after the five-year period begins to run,” because of delay caused by investigation and by provisions in the Government Code requiring officers be shown adverse comments to be placed in their personnel files and allowing them 30 days to file written responses to such comments. (Dis. opn., post, at p. 22.) But the Pitchess scheme does not delay discovery of citizen complaints until an investigation is completed or even until the officer has filed his response.

Rather, when the proper showing is made, citizen complaints are discoverable even if the investigation of those complaints is still incomplete. (§ 1043; Pen. Code, § 832.5, subds. (b) & (c).) B. Brady Disclosure of Citizen Complaints over Five Years Old The trial court here ordered discovery of the names and addresses of witnesses to an incident of police misconduct that predated the arrest in this case by “more than five years.” (§ 1045(b)(1).) As we have mentioned,

section 1045(b)(1) precludes disclosure of such old records. Is the statutory time limitation an absolute bar to disclosure? It is not. The reason is this: Our state statutory scheme allowing defense discovery of certain officer personnel records creates both a broader and lower threshold for disclosure than does the high court’s decision in Brady, supra, 373 U.S. 83.

Unlike Brady, California’s Pitchess discovery scheme entitles a defendant to information that will “facilitate the ascertainment of the facts” at trial (Pitchess, supra, 11 Cal.3d at p. 536), that is, “all information pertinent to the defense” (City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53 [19 Cal.Rptr.2d 73, 850 P.2d 621]).

The City argues that permitting in-chambers review of police officer personnel records to determine whether they contain information that qualifies as material evidence under Brady, supra, 373 U.S. 83, would improperly expand the disclosure of officer personnel records “far beyond the disclosure” permitted by

section 1045(b)(1), because it would allow for disclosure of information not discoverable under the Pitchess, supra, 11 Cal.3d 531, statutory scheme. The Attorney General, appearing as amicus curiae, advances a different view, which we find persuasive. The Attorney General asserts that the “ ‘Pitchess process’ operates in parallel with Brady and does not prohibit the disclosure of Brady information.” We agree. As we recently explained in People v.

Mooc (2001) 26 Cal.4th 1216 [114 Cal.Rptr.2d 482, 36 P.3d 21], the Pitchess “procedural mechanism for criminal defense discovery . . . 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.” (Id. at p. 1225.) In the Attorney General’s view, citizen complaints older than five years that the trial court after in-chambers review finds to be “ ‘exculpatory,’ as defined by Brady,” may be subject to disclosure, notwithstanding the five-year limitation in

section 1045(b)(1). The Attorney General points to the United States Supreme Court’s decision in Pennsylvania v. Ritchie (1987) 480 U.S. 39 [107 S.Ct. 989, 94 L.Ed.2d 40] (Ritchie), as authorizing trial court review of information that (like police officer personnel records) enjoys a “qualified statutory confidentiality” to determine whether it includes material exculpatory evidence subject to disclosure under Brady, supra, 373 U.S. 83.

In Ritchie, the defendant, who was charged with molesting his 13-year-old daughter, sought disclosure of confidential reports of the protective services agency that had investigated the charges. A state appellate court directed the trial court to review the file in chambers, disclose the daughter’s statements about the incidents, and allow defense counsel access to the full file for the limited purpose of arguing the relevance of those statements. The prosecution challenged that ruling.

The Pennsylvania Supreme Court held that Ritchie’s attorney was entitled to search the full file for any useful evidence. (Ritchie, supra, 480 U.S. at p. 46 [107 S.Ct. at p. 995].) The United States Supreme Court disagreed, but it also rejected the prosecution’s contention that because the information in question was privileged under a statute, in-chambers review of that information by the trial court was impermissible. (Id. at pp. 58-60 [107 S.Ct. at pp. 1001-1003].) The high court noted that Pennsylvania law contemplated situations when disclosure of the privileged information would occur, such as when the protective services agency was “directed to do so by court order.” (Ritchie, supra, 480 U.S. at p. 58 [107 S.Ct. at p. 1001].) Thus, Ritchie was “entitled to have the [protective services agency] file reviewed by the trial court” to ascertain whether it contained evidence that “probably would have changed the outcome of [Ritchie’s] trial.” (Ibid) The court stressed, however, that Ritchie could not “require the trial court to search through the [agency’s] file without first establishing a basis for his claim that it contains material evidence” (id. at p. 58, fn. 15 [107 S.Ct. at p. 1002], italics added), that is, evidence that could determine the trial’s outcome, thus satisfying the materiality standard of Brady, supra, 373 U.S. 83.

We find the high court’s decision in Ritchie, supra, 480 U.S. 39, instructive here, where we must determine the propriety of the trial court’s order made after an in-chambers review of the confidential personnel files of two arresting officers, directing disclosure of information regarding a citizen complaint made against one of them 10 years earlier.

Under Ritchie, a trial court that in response to a criminal defendant’s discovery motion undertakes an in-chambers review of confidential documents can, if the documents contain information whose use at trial could be dispositive on either guilt or punishment, order their disclosure. (Ibid.) This standard was not met here, as discussed below. C. Brady and Disclosure of the 1990 Complaint The Court of Appeal here concluded that applying

section 1045’s five-year limit on disclosure to withhold the 1990 complaint from defendant would have infringed on defendant’s right to a fair trial. We disagree. The 10-year-old complaint against Officer C. falls short of the constitutional materiality standard that the high court established in Brady, supra, 373 U.S. 83, and therefore is not subject to disclosure.

Based on defendant’s assertion that his defense “may” be that the two arresting officers had coached witnesses to fabricate evidence of child molestation against him, the trial court, after an in-chambers review of the personnel files of the two officers, ordered disclosure of the names and addresses of witnesses to an incident 10 years earlier, when Officer C. failed to report another officer’s improper use of mace on a suspect. Officer C.’s failure to report his partner’s use of mace cannot be considered constitutionally material to the charge in this case of lewd conduct on a seven-year-old boy.

In other words, it is not reasonably probable that a 10-year-old complaint of failing to report another officer’s improper use of mace would alter the outcome of defendant’s trial. (See Ritchie, supra, 480 U.S. at p. 57 [107 S.Ct. at p. 1001].) It is undisputed that materials that “may be used to impeach a witness” fall within the class of information subject to Brady because impeachment information affects the fairness of trial. (Strickler v. Greene, supra, 527 U.S. at p. 282, fn. 21 [119 S.Ct. at p. 1948]; see United States v.

Ruiz (2002) 536 U.S. 622 [122 S.Ct. 2450, 153 L.Ed.2d 586].) In this case Officer C.’s general veracity was called into question by the 1990 finding that he failed to report a fellow officer’s use of mace, after denying the incident had occurred. Nonetheless, that dereliction—failure to report misconduct by a fellow officer—was similar in kind to the disclosed incident in 1996 when Officer C. failed to report an assault on a prisoner by a fellow officer. Neither incident involved coaching witnesses to fabricate evidence.

Because in this case the 10-year-old complaint is not material evidence under the high court’s decision in Brady, supra, 373 U.S. 83, and is not discoverable evidence under California’s Pitchess statutory scheme, as it is more than five years old (§ 1045(b)(1)), the trial court’s order directing the police agency to disclose to the defense information about the macing incident was improper. Accordingly, the Court of Appeal erred in affirming that disclosure order. Disposition The judgment of the Court of Appeal is reversed.

We direct the Court of Appeal to issue a peremptory writ of mandate ordering the trial court not to disclose to the defense information regarding the 1990 citizen complaint against Officer C. George, C. J., Baxter, J., Werdegar, J., and Chin, J., concurred. Further undesignated statutory references are to the Evidence Code. Because it is not presented here, we do not reach the question of whether Penal Code

section 832.7, which precludes disclosure of officer records “except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code,” would be constitutional if it were applied to defeat the right of the prosecutor to obtain access to officer personnel records in order to comply with Brady. We do not suggest that trial courts must routinely review information that is contained in peace officer personnel files and is more than five years old to ascertain whether Brady, supra, 373 U.S. 83, requires its disclosure.

Rather, we conclude only that the trial court here did not act improperly in evaluating the 1990 citizen complaint mentioned in a personnel document detailing Officer C.’s failure in 1996, less than five years before the crime in this case, to report a fellow officer’s assault on a prisoner.