Ct.App. 1/5 A120430 Contra Costa County Super. Ct. No. 05-951701-2 Judge: Leslie G. Landau.
The opinion of the court was delivered by: Chin, J.
Proposition 115 passed in 1990. Among other things, it added a new chapter to the Penal Code providing for reciprocal pretrial discovery in criminal cases. (Pen. Code, § 1054 et seq.; see Pen. Code, pt. 2, tit. 6, ch. 10.)*fn1 The new chapter states that "[n]o order requiring discovery shall be made in criminal cases except as provided by this chapter," and that the "chapter shall be the only means by which the defendant may compel" discovery from prosecutors or law enforcement agencies. (§ 1054.5, subd. (a).) The Legislature may amend Proposition 115's statutory provisions, but only by a two-thirds majority vote in each house. In 2002, acting with less than a two-thirds majority, the Legislature enacted section 1054.9, which requires a court to order that a defendant under a sentence of death or life in prison without the possibility of parole be provided post-conviction discovery in specified circumstances.
We must decide whether section 1054.9 is invalid because it amended Proposition 115 without the requisite two-thirds majority. We conclude section 1054.9 does not amend Proposition 115 because that proposition governs only pretrial discovery and does not prohibit post-conviction discovery of the kind that section 1054.9 provides.
Real party in interest Michael Nevail Pearson (hereafter defendant) is currently under a judgment of death, and his automatic appeal is pending in this court.
On May 22, 2007, defendant, represented by the Habeas Corpus Resource Center, filed in the Contra Costa County Superior Court a motion for post-conviction discovery under section 1054.9 to aid in preparing a petition for writ of habeas corpus challenging his death judgment. In response, the Contra Costa County District Attorney, representing the People, argued that section 1054.9 was an invalid attempt to amend Proposition 115. The superior court found section 1054.9 valid and granted some of the requested discovery.
The district attorney filed the instant petition for writ of mandate in the Court of Appeal, arguing that section 1054.9 is invalid. After issuing an order to show cause, the Court of Appeal held that section 1054.9 is valid and denied the petition. We granted the district attorney's petition for review, which presented only the issue regarding section 1054.9's validity. Originally, we deferred briefing in this case pending consideration and disposition of the issue in Barnett v. Superior Court (review granted Sept. 17, 2008, S165522). Later, we ordered briefing in this case and also stated that, in deciding the issue, we would consider the relevant amicus curiae briefs and the briefs replying to those briefs that were filed in Barnett.
Proposition 115, an initiative measure adopted on June 5, 1990, added a new chapter to the Penal Code authorizing reciprocal discovery in criminal cases. (§ 1054 et seq.; see generally Izazaga v. Superior Court (1991) 54 Cal.3d 356.) Because this new chapter is part of an initiative measure, the Legislature has limited ability to amend it. The Legislature may not amend an initiative statute without subsequent voter approval unless the initiative permits such amendment, "and then only upon whatever conditions the voters attached to the Legislature's amendatory powers." (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1483-1484; see Cal. Const., art. II, § 10, subd. (c); Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251.)
An uncodified section of Proposition 115 provides: "The statutory provisions contained in this measure may not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors." (Stats. 1990, § 30, p. A-256.) Thus, the Legislature may amend Proposition 115's statutory provisions without voter approval, but only by a two-thirds vote of each house.
In 2002, the Legislature enacted section 1054.9. Subdivision (a) of that section provides as relevant: "Upon the prosecution of a post-conviction writ of habeas corpus or a motion to vacate a judgment in a case in which a sentence of death or of life in prison without the possibility of parole has been imposed, . . . the court shall . . . order that the defendant be provided reasonable access to any of the materials described in subdivision (b)." Subdivision (b) of that section provides: "For purposes of this section, `discovery materials' means materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at time of trial."*fn2
Senate Bill No. 1391 (2001-2002 Reg. Sess.), the legislation that enacted section 1054.9, did not receive two-thirds majority support in either house of the Legislature. Twenty-one of the 40 members of the Senate and 42 of the 80 members of the Assembly voted for the bill. (3 Sen. J. (2001-2002 Reg. Sess.) p. 4500; 5 Assem. J. (2001-2002 Reg. Sess.) p. 8239; see Cal. Const., art. IV, § 2.) Section 1054.9 was never submitted to a vote by the electorate. Accordingly, if section 1054.9 amended Proposition 115, it is invalid.
The district attorney contends that section 1054.9 does amend Proposition 115. He relies on section 1054.5, subdivision (a), part of Proposition 115's statutory provisions, which provides: "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." The question before us is whether the discovery provided in section 1054.9 violates this prohibition.
Proposition 115 provides only for pretrial discovery to aid in the trial process. The chapter's purposes make this clear. Section 1054 provides: "This chapter shall be interpreted ...