What is the test for a motion for disclosure of past misconduct by a police officer?

"Once the defense has established good cause, the court is required to conduct an in camera review of the records to determine what, if any, information should be disclosed to the defense. [Citation.]" (People v. Samuels, supra, 36 Cal.4th at p. 109.) The court may order disclosure of "only that information falling within the statutorily defined standards of relevance. [Citations.]" (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).)

"Section 1045 requires the court, in determining relevance, to examine the information and exclude from disclosure: (1) complaints regarding conduct more than five years old, (2) the 'conclusions of any officer investigating a complaint ...,' and (3) facts that are 'so remote as to make disclosure of little or no practical benefit.' [Citation.] The defendant is entitled only to information the court concludes is relevant to the case, following the in camera review. [Citations.]" (People v. Johnson (2004) 118 Cal.App.4th 292, 300; Warrick, supra, 35 Cal.4th at p. 1019.)

The defendant is entitled to discover relevant information under Pitchess even in the absence of any judicial determination that the potential defense is credible or persuasive. (Warrick, supra, 35 Cal.4th at p. 1026; People v. Gaines (2009) 46 Cal.4th

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172, 182.) "[O]nly documentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery. [Citations.] This is because 'evidence of habit or custom [is] admissible to show that a person acted in conformity with that habit or custom on a given occasion.' [Citation.]" (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021, italics in original.)

For example, in Herrera v. Superior Court (1985) 172 Cal.App.3d 1159, the defendant was charged with drunk driving, battery, and resisting an officer. He filed a Pitchess motion for disclosure of prior complaints against the arresting officers for excessive force. Herrera explained that the defendant was entitled "to disclosure of only that information which the court, after conducting its in camera review, determines is relevant to the case. In this case, the only relevant information was that which related to the three officers' alleged propensity to use excessive force," subject to the limitations of Evidence Code section 1045. (Id. at p. 1163, first italics in original, remaining italics added.)