In a California criminal case, can the district attorney just hand over the defendant's RAP sheet to defense counsel, or does the defense have to apply to the Attorney General?

Plain-English summary

A defendant's "RAP sheet" (record of arrests and prosecutions, formally called state summary criminal history information) is the master DOJ record of someone's criminal history: arrests, charges, dispositions, sentencing, and so on. District attorneys get RAP sheets through the California Law Enforcement Telecommunications System (CLETS) within minutes. Defense lawyers do not have CLETS access, and getting a RAP sheet from the Attorney General's office takes time.

San Luis Obispo District Attorney Dan Dow asked the AG two questions. First, when defense counsel asks the DA for the defendant's own RAP sheet during discovery, can the DA voluntarily turn it over? Second, if so, is anything required to be redacted?

Attorney General Rob Bonta said yes to the first question and a nuanced yes to the second. On the first question, the AG worked through and rejected two arguments some DAs had been making against voluntary disclosure: (1) that Penal Code section 11105(b)(9) (which requires the AG to provide RAP sheets to defense counsel) impliedly makes the AG the exclusive source, and (2) that Penal Code section 11125 (which prohibits coercing someone to obtain their own RAP sheet) bars defense counsel from asking. The AG concluded both arguments misread their statutes and that nothing in the criminal discovery scheme prohibits voluntary RAP-sheet disclosure between two authorized recipients (the DA and defense counsel).

On the second question, the AG drew a clean adult-versus-juvenile line. For an adult defendant, juvenile court information from earlier in the defendant's life must be redacted before the RAP sheet goes to defense counsel: Welfare and Institutions Code section 827 lists who can see juvenile records, and adult defense counsel is not on that list (they would need a juvenile court order). For a juvenile defendant in a criminal or juvenile delinquency proceeding, defense counsel is on the section 827 list and can receive an unredacted RAP sheet. This matches the practice of the Department of Justice's Bureau of Criminal Information and Analysis (BCIA), which redacts juvenile information from adult RAP sheets before producing them under section 11105(b)(9).

What this means for you

Verify these statutes have not been amended since 2022 before relying on the specific procedure. The opinion was about the defendant's own RAP sheet, not witness or victim RAP sheets, which the AG addressed separately in opinion 105 Ops.Cal.Atty.Gen. 157 (2022).

If you are a district attorney

You may voluntarily produce the defendant's own RAP sheet to defense counsel during discovery. The cleanest internal protocol is:

• For adult defendants, run the CLETS query, redact any juvenile court information before producing the RAP sheet, document the redaction in the discovery file, and serve it on defense counsel.
• For juvenile defendants in a criminal or juvenile delinquency proceeding, you can produce the unredacted RAP sheet to defense counsel.
• Decline to produce only when you believe disclosure would violate another specific legal restriction. If you do decline, defense counsel can apply to the Attorney General under section 11105(b)(9) and obtain it directly anyway.

If you are a public defender or private criminal defense lawyer

You are an authorized recipient of your client's RAP sheet under section 11105(b)(9). When you ask the DA for it during discovery, point to this opinion if the DA is uncertain about authority to comply. If the DA still declines, the AG application route under section 11105(b)(9) remains open and the DOJ will provide the RAP sheet (with juvenile information redacted from an adult defendant's sheet). The 2018 amendment removed the prior requirement that you justify your application by reference to other statutory or decisional law; you now just need to certify that the information is needed in the course of your duties.

If you represent a juvenile defendant

You can receive your client's full unredacted RAP sheet, including any juvenile court information, because section 827(a)(1)(E) authorizes counsel for the minor in an active proceeding to access the minor's records. If your client later faces an adult criminal proceeding, that adult-case defense counsel will not have the same access without a juvenile court order.

If you handle juvenile records access in a juvenile court clerk's office

The opinion reinforces that the juvenile court has exclusive authority to determine third-party access to confidential juvenile records under T.N.G. v. Superior Court. Adult criminal defense counsel seeking access to a former juvenile case file must petition under section 827(a)(1)(Q).

If you are a defendant trying to understand what happens with your RAP sheet

Your own attorney can request your RAP sheet from the prosecutor or directly from the DOJ. If you are an adult, anything from your juvenile record that the DOJ holds will be redacted before your attorney receives it through normal channels (juvenile records have separate confidentiality protection). Penal Code section 11125 protects you from being forced by an employer to procure your own RAP sheet for them; that statute is about preventing coerced disclosure to employers, not restricting your own attorney's access.

Common questions

Q: Why does it matter who hands over the RAP sheet if defense counsel can get it from DOJ anyway?
A: Speed and workflow. The DOJ application process can take weeks; the DA can produce the RAP sheet during discovery in real time. The defendant's RAP sheet often shapes early decisions about plea negotiations, charging "strikes" under section 667, and immigration consequence analysis under Padilla v. Kentucky. Faster access serves all of those.

Q: What is CLETS and why is it relevant?
A: The California Law Enforcement Telecommunications System is the secure DOJ network that gives law enforcement and criminal justice agencies (including DAs) real-time access to criminal history information. Defense counsel does not have CLETS access; this opinion addresses how defense counsel gets the same information.

Q: Why is juvenile court information redacted from an adult RAP sheet?
A: California has a strong policy favoring confidentiality of juvenile records to protect the minor's interests, avoid stigma, and assist in rehabilitation. Welfare and Institutions Code section 827 lists who can inspect juvenile case files. Adult criminal defense counsel is not on that list. The juvenile court itself has exclusive authority to grant access to its records.

Q: Can defense counsel petition the juvenile court for access to a current adult client's juvenile records?
A: Yes, under section 827(a)(1)(Q). The petition asks the juvenile court to authorize access for use in the adult proceeding. Whether to grant access is committed to the juvenile court's discretion.

Q: Does this opinion say anything about witness or victim RAP sheets?
A: No. The opinion is about the defendant's own RAP sheet. The AG issued a companion opinion at 105 Ops.Cal.Atty.Gen. 157 (2022) addressing whether a DA may voluntarily provide a witness or victim RAP sheet to defense counsel.

Q: What is Penal Code section 11125 actually about?
A: It is an anti-coercion provision designed to prevent employers from circumventing Labor Code section 432.7 (which forbids employers from asking about arrests that did not result in conviction) by requiring job applicants to obtain their own RAP sheets and hand them over. The "person" who cannot "require or request" another to furnish a record is a prospective employer, not a defense lawyer asking the prosecutor for discovery.

Background and statutory framework

California's Department of Justice maintains state summary criminal history information ("RAP sheets") under Penal Code section 11105. Subdivision (a)(2)(A) defines the master record. Subdivision (b) lists who is entitled to receive it: courts (b)(1), peace officers (b)(2), district attorneys (b)(3), various government agencies (b)(4) through (b)(8), and notably defense counsel "in a criminal case or juvenile delinquency proceeding . . . if the information is needed in the course of their duties" (b)(9). Subdivision (c) gives the AG discretion to provide criminal history information to other entities upon a showing of compelling need.

Section 11142 is the criminal anti-disclosure statute: it makes it a misdemeanor for an authorized recipient of a RAP sheet to knowingly furnish it to a person not authorized to receive it. Notably, when both the giver and the recipient are authorized recipients (as with a DA and defense counsel), section 11142 does not apply. The AG's analysis turned in part on this structural feature.

The discovery framework lives in Penal Code section 1054 et seq. (the Crime Victims Justice Reform Act, enacted by Proposition 115 in 1990). Section 1054.1 lists what the prosecutor must produce; section 1054.5(a) makes clear that the listed items are the floor, not the ceiling, and that voluntary disclosure beyond the statute is permissible. Section 1054(b) declares a state policy preference for informal discovery between the parties.

The historical context the AG traced: in Engstrom v. Superior Court (1971), the Court of Appeal held that DAs must procure prosecution-witness felony conviction information from the AG and provide it to defense counsel. The California Supreme Court narrowed that ruling in Hill v. Superior Court (1974). The Legislature responded in 1975 with the predecessor to current section 11105(b)(9), giving defense counsel a route to obtain RAP sheets directly from the AG. The 2018 amendment removed the requirement that defense counsel justify the request by other authority. Throughout, the legislative direction has been toward facilitating defense access, not restricting it.

For juvenile records, Welfare and Institutions Code section 827 sets the confidentiality framework. Subdivision (a)(1) lists those who may inspect a juvenile case file: the minor, the minor's parents, the minor's counsel, the district attorney handling the matter, the probation officer, judges, certain government agencies in proceedings involving the minor, and others. Subdivision (a)(4) prohibits dissemination by receiving agencies to anyone outside that list. The juvenile court has exclusive authority to authorize access to anyone not statutorily included.

Citations and references

Statutes:
- California Penal Code section 11105 (state summary criminal history information)
- California Penal Code section 11105(b)(9) (defense counsel authorized recipient)
- California Penal Code section 11125 (anti-coercion regarding RAP sheet acquisition)
- California Penal Code section 11142 (misdemeanor for unauthorized disclosure)
- California Penal Code section 1054 et seq. (criminal discovery framework)
- California Government Code section 15150 et seq. (CLETS)
- California Welfare and Institutions Code section 827 (juvenile record confidentiality)
- California Welfare and Institutions Code section 827(a)(1)(E) (counsel for minor as authorized inspector)

Cases:
- Engstrom v. Superior Court, 20 Cal.App.3d 240 (1971) (DA duty to procure RAP sheets, since narrowed)
- Hill v. Superior Court, 10 Cal.3d 812 (1974) (narrowing Engstrom)
- People v. Tillis, 18 Cal.4th 284 (1998) (criminal discovery framework)
- People v. Webber, 228 Cal.App.3d 1146 (1991) (DA not required to procure RAP sheet)
- T.N.G. v. Superior Court, 4 Cal.3d 767 (1971) (juvenile court's exclusive authority over its records)
- In re R.G., 79 Cal.App.4th 1408 (2000) (juvenile records confidentiality policy)
- J.E. v. Superior Court, 223 Cal.App.4th 1329 (2014)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (immigration consequences of plea, defense counsel duty)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/20-1001_0.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General

OPINION
of
ROB BONTA
Attorney General
MANUEL M. MEDEIROS
Deputy Attorney General

No. 20-1001
September 8, 2022

THE HONORABLE DAN DOW, DISTRICT ATTORNEY OF SAN LUIS OBISPO COUNTY, has requested an opinion on questions concerning dissemination of state summary criminal history information.

QUESTIONS PRESENTED AND CONCLUSIONS

1. During the criminal discovery process, may a district attorney voluntarily provide a public defender, or other defense counsel of record, with a copy of the adult or juvenile defendant's state summary criminal history information ("RAP sheet")?

Yes. During the criminal discovery process, a district attorney may voluntarily provide a public defender, or other defense counsel of record, with a copy of the adult or juvenile defendant's own RAP sheet.

2. If voluntary compliance with defense counsel's request for the defendant's RAP sheet is permissible, must any information be redacted from the RAP sheet before furnishing it to defense counsel?

Yes. Juvenile court information must be redacted from an adult defendant's RAP sheet. Counsel for a juvenile defendant, however, may receive an unredacted copy of the juvenile defendant's RAP sheet.

BACKGROUND

The Department of Justice, under the direction of the Attorney General, maintains a compilation of criminal history information that is officially known as "state summary criminal history information" and is commonly known as an individual's "RAP sheet." This is a "master record of information" pertaining to the identification and criminal history of a person, "such as name, date of birth, physical description, fingerprints, photographs, dates of arrests, arresting agencies and booking numbers, charges, dispositions, sentencing information, and similar data about the person."

An individual's RAP sheet is readily available to law enforcement and criminal justice agencies, including a district attorney, via a computer query to the Department of Justice over the California Law Enforcement Telecommunications System (CLETS). District attorneys rely on a defendant's RAP sheet for a number of reasons: for example, to make filing decisions, or in the course of plea bargaining, or in charging prior "strikes," or as evidence of the defendant's prior offenses. For those reasons, and more, defense counsel typically want to review their clients' RAP sheets as early in the process as possible. However, unlike the district attorney, defense counsel do not have direct access to CLETS, and often seek to obtain the RAP sheet as part of discovery.

Under California's discovery statutes, the prosecutor is required to furnish specified information to defense counsel: "(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[;] and (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial . . . ." However, the discovery statutes also provide that, unless production of information is mandated by statute, by the United States Constitution, or by the court, the district attorney need not produce the information for defense counsel. Neither the Constitution nor any statute requires the prosecutor to give a copy of defendant's RAP sheet to defense counsel. The question at issue here, however, is whether the district attorney may do so voluntarily.

If the district attorney does not voluntarily provide defense counsel with a copy of the defendant's RAP sheet, defense counsel must apply to the Attorney General to obtain a copy. In turn, the Attorney General is required to furnish RAP sheet information to attorneys who are representing an individual "in a criminal case or juvenile delinquency proceeding," if the information is "needed in the course of their duties." Upon certification of counsel's qualification for access to the information, the Department of Justice will provide counsel with a copy of a defendant's RAP sheet.

Nevertheless, hoping to avoid the delay inherent in the Department of Justice application process, we are told that defense counsel commonly request production of a copy of defendant's RAP sheet from the district attorney. We are informed that some district attorneys routinely accommodate the request, others decline to do so, and still others are uncertain whether they may do so lawfully. Thus, we are asked (1) whether a district attorney may voluntarily comply with defense counsel's discovery request for the defendant's own RAP sheet, and (2) if so, what, if any, information must be redacted from the RAP sheet before it is handed over. As discussed in greater detail below, we conclude that a district attorney may voluntarily provide a defendant's RAP sheet upon defense counsel's request. As for redaction, we conclude that juvenile court information must be redacted from an adult defendant's RAP sheet, but not from a juvenile defendant's.

ANALYSIS

1. Voluntarily Furnishing a Criminal Defendant's RAP Sheet

California law forbids an authorized recipient of state summary criminal history information, such as a district attorney, from furnishing that information to an unauthorized recipient. But Penal Code section 11105(b)(9) makes defense counsel authorized recipients of such information for purposes of preparing for trial. And as a general matter, nothing forbids a prosecuting attorney from voluntarily providing more discovery to defense counsel than strictly required. Nevertheless, some district attorneys suggest that either section 11105(b)(9) itself, or another statute, section 11125, precludes a district attorney from voluntarily providing RAP sheet information to defense counsel. We discuss those claims below.

Section 11105(b)(9)

Some district attorneys suggest that the Legislature intended that section 11105(b)(9) make the Attorney General the exclusive source of RAP sheet information for defense counsel. The argument is that the statute, by implication, bars a district attorney from sharing with defense counsel RAP sheet information that was received via CLETS. We find this argument unpersuasive.

We begin our analysis by considering the overall legislative scheme concerning dissemination of state summary criminal history information. As a general proposition, California law does not forbid secondary disclosure of this information among authorized recipients, i.e., from one authorized recipient to another authorized recipient, only from one authorized recipient to an unauthorized recipient. Accordingly, Penal Code section 11142 states: "Any person authorized by law to receive a record or information obtained from a record who knowingly furnishes the record or information to a person who is not authorized by law to receive the record or information is guilty of a misdemeanor." The term "record" in this context means "the state summary criminal history information as defined in subdivision (a) of Section 11105, or a copy thereof, maintained under a person's name by the Department of Justice." And the phrase "person authorized by law to receive a record," is expressly defined to mean "any person or public agency authorized by a court, statute, or decisional law to receive a record."

Of course, a district attorney is an authorized recipient of criminal history information. And the same is true of defense counsel in the context of a criminal or juvenile delinquency proceedings. Section 11142 is therefore no bar to secondary dissemination between these two authorized recipients. Moreover, when the Legislature sees a need to forbid secondary dissemination by an authorized recipient, the Legislature knows how to do so. It has not done so here.

But beyond this consideration of the Legislature's overall treatment of RAP sheet dissemination, section 11105(b)(9)'s directive to the Attorney General does not, by its terms, even suggest a concomitant limitation on the discretion of district attorneys in the conduct of discovery. In construing a statute, we follow the usual rules of statutory construction and look "first to the words of the statute themselves, giving to the language its usual, ordinary import." If the language supports more than one reasonable interpretation, we may consider the evils to be remedied, legislative history, the statutory scheme of which the statute is a part, and questions of public policy. Our ultimate goal, of course, is to effectuate the Legislature's intent.

Here, the language of section 11105(b) is facially prescriptive, its mandate being to ensure that the Attorney General provide summary criminal history information to specified recipients who should have it. And section 11105(b)(9), as mentioned, requires the Attorney General to provide RAP sheet information to defense counsel, assuming it is needed in the course of counsel's duties. In contrast, section 11105(c) gives the Attorney General discretion to provide criminal history information to other specified entities "upon a showing of a compelling need." But no provision of section 11105 purports to restrict or otherwise direct the activity of a district attorney with respect to RAP sheet information in the district attorney's possession and requested by another authorized recipient.

We could conclude our analysis of this argument by relying on the plain language of the statute. However, we also find support for our conclusion in the statute's legislative history. There, we discover that section 11105(b)(9) was not enacted to disable district attorneys from voluntarily providing RAP sheets to defense counsel, but rather was intended to provide an alternative route in the event district attorneys decline to release such information voluntarily.

In 1971, the Court of Appeal in Engstrom v. Superior Court, noting that defense counsel did not have access to criminal history information comparable to that of the district attorney, ruled that district attorneys must procure prosecution-witness felony conviction information from the Attorney General, and provide it to defense counsel. The Supreme Court later disapproved of Engstrom's sweeping holding in Hill v. Superior Court, ruling instead that a trial court had the discretion to require the production of this information upon a sufficient showing of good cause.

Following Hill, the Legislature undertook a substantial revision of the statutory scheme relating to dissemination of summary criminal record information. For the first time, section 11105(b)(11) (later renumbered as section 11105(b)(9)) mandated that the Attorney General provide state summary criminal history information to criminal defense counsel "if otherwise authorized access by statutory or decisional law." That revision represented a legislative response to prosecutor insistence that defense counsel pursue a formal judicial order to obtain prosecution-witness RAP sheet information. The new statute permitted defense counsel to bypass the district attorney altogether and obtain the criminal history information directly from the Attorney General.

Still, under the statute, defense counsel was required to justify application to the Attorney General by reference to some other statutory or decisional law entitlement. At the urging of the defense bar, this limitation was removed in 2018, leaving subdivision (b)(9) as it presently reads. The effect was to guarantee defense attorneys access to RAP sheet information from the Attorney General, "if needed in the course of their duties."

If anything, then, the history of section 11105(b)(9) is one of facilitating defense counsel access to RAP sheet information. We can find no basis in either the statutory language itself or in the pertinent legislative history to construe section 11105(b)(9) as an implied prohibition against a prosecuting attorney voluntarily providing a defendant's RAP sheet to defense counsel. Since the Legislature has demonstrated that it will restrict secondary dissemination of RAP sheet information when it wants to, we are disinclined to read into section 11105(b)(9) an implied prohibition against subsequent dissemination to defense counsel in the course of discovery.

Section 11125

Some district attorneys argue that section 11125 makes it unlawful for defense counsel to request a RAP sheet from the district attorney. That statute reads: "No person or agency shall require or request another person to furnish a copy of a record or notification that a record exists or does not exist, as provided in Section 11124. A violation of this section is a misdemeanor."

As we noted earlier, the general rule is that statutory construction begins with the plain language of the statute. However, it is also settled that "[t]he intent of the law prevails over the letter of the law, and the letter will, if possible, be so read as to conform to the spirit of the act." In this case, when it enacted section 11125, the Legislature was very clearly addressing a specific concern that had nothing to do with the context at issue here. That purpose was to prevent an unlawful invasion of privacy.

Before 1980, a person desiring to see his or her own state summary criminal history information was limited to viewing the information in the Sacramento or Los Angeles offices of the Department of Justice; the person was not permitted to retain a copy. In 1980, the Legislature amended section 11124 to authorize a person who is the subject of state summary criminal history information to obtain a physical copy of the RAP sheet; if the Attorney General did not have a RAP sheet on the person, the person was so notified. As explained below, section 11125 was enacted in conjunction with this amendment to section 11124, out of a concern that the opportunity to obtain a copy of one's own RAP sheet could invite unintended coercion of the applicant by others, in violation of statutory privacy rights.

State law generally protects an individual from having to disclose to potential employers and others the existence of arrests that did not result in a conviction or other adverse conclusion. For example, in 1980 (when section 11125 was added) Labor Code section 432.7 provided in relevant part: "No employer whether a public agency or private individual or corporation shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention which did not result in conviction . . . ." A similar policy has long been included in California's licensing statutes. Section 11125 was enacted to prevent an employer from circumventing these policies by requiring a job applicant to procure a copy of his or her RAP sheet, or to provide evidence that one does not exist.

As stated in a legislative committee analysis for the bill that enacted section 11125:

Under existing law (Labor Code section 432.7), no employer, with certain exceptions, shall ask an applicant for employment to disclose information: concerning an arrest or detention which did not result in conviction, or information concerning participation in any pretrial or post-trial diversion program, nor shall any employer seek or utilize such information from any source as a factor in determining any condition of employment, including hiring, promotion, or termination; under [this bill], it would be a misdemeanor for any person to require an employee or prospective employee to obtain a copy of a state summary criminal record or a notification that such a record does or does not exist.

Contrary to the argument advanced by some district attorneys, then, the "person" being referenced in the statute's opening phrase, "No person or agency shall," is not the person who is the subject of the record being sought, but rather a prospective employer or licensing agency. In other words, section 11125 makes it unlawful for any person to coerce another person to procure a copy of his or her own RAP sheet or evidence of its non-existence. To construe the statute in the manner urged by the district attorneys would not only conflict with other related statutes, as we have noted above, but would find no support in the statute's legislative history. We decline to give section 11125 such a reading.

We conclude that a district attorney may, during the discovery phase of a criminal or juvenile delinquency proceeding, voluntarily provide a public defender or other defense counsel of record with a copy of the defendant's own RAP sheet.

2. Redaction

Our requestor has also asked, in the event we conclude that a district attorney may voluntarily comply with defense counsel's request for the defendant's RAP sheet, whether any information must be redacted from the RAP sheet before furnishing it to defense counsel. The answer depends on whether defense counsel represents an adult or a minor.

California has a strong policy favoring confidentiality of juvenile records. That policy helps to protect the interests of the child by assuring fairness, avoiding the stigma of criminality, and assisting in rehabilitation. Welfare and Institutions Code section 827 "sets the current parameters of this state's policy with respect to the confidentiality of juvenile records and governs release of such records." Generally, matters in a juvenile court file are confidential and may be inspected only by statutorily identified persons or by other persons having the court's permission.

Insofar as is relevant here, section 827 authorizes counsel for a minor defendant in an active criminal or juvenile delinquency proceeding to access the minor's records. Accordingly, if a juvenile defendant's RAP sheet is requested under section 11105(b)(9), the Department of Justice will provide a complete and unredacted copy to defense counsel. A district attorney may, therefore, do the same.

However, section 827 does not authorize counsel for an adult defendant to have access to that defendant's juvenile court information. Section 827(a)(1) specifies that, except in circumstances not relevant here, "a case file may be inspected only by" the specifically identified persons, and counsel for a defendant in an adult criminal proceeding is not among those listed. In such a case, the juvenile court has "exclusive authority" to determine whether and to what extent to grant access to confidential juvenile records. It is the Department of Justice's practice to adhere to the plain language of section 827 and, therefore, to redact from an adult defendant's RAP sheet any juvenile court information before furnishing the RAP sheet to defense counsel under section 11105(b)(9). A district attorney should likewise ensure that such information is redacted from an adult defendant's RAP sheet before voluntarily providing the RAP sheet to defense counsel in a criminal proceeding.

Thus, we conclude that a district attorney must redact juvenile court information from an adult defendant's RAP sheet before voluntarily providing it to counsel for the adult defendant, but may provide an unredacted copy of a juvenile defendant's RAP sheet to counsel for the juvenile defendant.