Ct. App. 3 C051311 Butte County Super. Ct. No. 91850, Judge: William R. Patrick.
The opinion of the court was delivered by: Chin, J.
Petitioner Lee Max Barnett is under a judgment of death. He filed in the superior court a motion for post-conviction discovery under Penal Code section 1054.9 (section 1054.9). We granted review to decide important issues regarding that section. We reach the following conclusions:
(1) Because section 1054.9 provides only for specific discovery and not the proverbial "fishing expedition" for anything that might exist, defendants seeking discovery beyond recovering what the prosecution had provided to the defense before trial must show a reasonable basis to believe that specific requested materials actually exist. But they do not additionally have to show that they are material within the meaning of Brady v. Maryland (1963) 373 U.S. 83 (Brady) and its progeny.
(2) Section 1054.9 does not govern materials in the possession of out-of-state law enforcement agencies that merely provided the prosecution with information or assistance under the circumstances of this case.
In 1988, in the Butte County Superior Court, petitioner was convicted of first degree murder with special circumstances, as well as other crimes, and was sentenced to death. We affirmed the judgment. (People v. Barnett (1998) 17 Cal.4th 1044.) We have subsequently denied two habeas corpus petitions that are irrelevant to the instant matter, one after issuing an order to show cause and an opinion. (In re Barnett (2003) 31 Cal.4th 466 [concerning pro se habeas corpus petitions filed by capital inmates already represented by counsel].)
We briefly summarized the facts underlying petitioner's conviction in In re Barnett: "It suffices to note that a jury convicted petitioner in 1988 of one count of assault with a firearm, several counts of kidnapping and robbery, and one count of first degree murder. Petitioner committed his crimes upon encountering the victims unexpectedly in 1986 at a remote campsite in a Butte County gold mining area. The evidence at trial included testimony from persons present at the encounter, including petitioner, and from others who had contact with petitioner the summer before the crimes occurred or immediately afterward." (In re Barnett, supra, 31 Cal.4th at p. 469.) At the penalty phase of the trial, the prosecution also presented evidence that petitioner had committed numerous other violent crimes and had various prior felony convictions. This criminal behavior and these convictions occurred between 1965 and 1988 in Canada, New York, Florida,
Arizona, and Massachusetts, as well as California. (People v. Barnett, supra, 17 Cal.4th at pp. 1080-1081.)
In July 2004, petitioner filed a discovery motion in the Butte County Superior Court pursuant to section 1054.9. As the Court of Appeal summarized, "In his discovery motion, Barnett sought various materials, including materials now missing from the numbered discovery provided during trial, materials the prosecution allegedly failed to produce in response to a discovery order during trial, and various other materials." (Much of the following discussion is taken from the Court of Appeal opinion.) Informal communications between the parties resolved some of the discovery issues, but the parties disagreed regarding other requests, and they litigated the matter in superior court. At one point, petitioner filed a brief that identified 60 items or categories of items he was seeking to discover. After further informal discussions, petitioner's counsel informed the court that the prosecution had produced over 300 pages of discovery materials and 64 compact discs of audiotape recordings. But areas of disagreement remained. Ultimately, the superior court issued a ruling, granting some of the disputed discovery requests and denying others.
Petitioner filed the instant petition for writ of mandate in the Court of Appeal. He sought to compel the superior court to grant the discovery requests it had denied. At issue was the superior court's denial, in whole or in part, of 24 different discovery requests. The Court of Appeal issued an alternative writ of mandate and ultimately addressed the 24 discovery requests in dispute in an exhaustive opinion. It granted the petition in part and denied it in part, and we granted review on specified issues. (Barnett v. Superior Court (Apr. 25, 2007, S150229.)
While the case was pending in this court, the Criminal Justice Legal Foundation filed an amicus curiae brief arguing that section 1054.9 was an invalid amendment of the statutory provisions of Proposition 115, enacted in 1990. In January 2008, we transferred the case back to the Court of Appeal to decide this question in the first instance. The Court of Appeal found that section 1054.9 is valid and otherwise essentially reiterated its first opinion.
In addition to upholding section 1054.9's validity, the Court of Appeal made three holdings now before us on review:
(1) "[A] law enforcement agency that provides a report relating to previous criminal conduct by a defendant charged with a capital offense can be deemed to have been 'involved in the investigation or prosecution of the case' against the defendant, such that materials in the possession of that agency are subject to discovery under section 1054.9." Accordingly, it ordered discovery of original notes from 22 out-of-state law enforcement officers who worked for six different out-of-state law enforcement agencies and who, according to petitioner, had been involved in investigating petitioner's prior crimes later used as aggravating evidence at the penalty phase of his trial.
(2) " '[I]n moving for discovery under section 1054.9, the defendant does not have to prove the actual existence (or a good faith belief in the actual existence) of discovery materials in the possession of the prosecution and/or the relevant law enforcement authorities as a prerequisite to obtaining an order for discovery under the statute.' " (Quoting the same panel's earlier opinion in People v. Superior Court (Maury) (2006) 145 Cal.App.4th 473, 485; see generally id. at pp. 479-485.)
(3) "[W]hen a defendant seeks discovery under section 1054.9 on the theory that he would have been entitled to the requested materials at time of trial under Brady[, supra, 373 U.S. 83], the defendant bears the burden of establishing the materiality of the evidence he seeks."
Both the People and petitioner sought review. In their respective petitions, the People challenged the first two of these holdings and petitioner the third. We granted both petitions and, on our own motion, ordered review of section 1054.9's validity. We have resolved the latter question in another case and found the statute valid. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564.) Accordingly, we will not now consider the statute's validity.
In 2002, the Legislature enacted section 1054.9, providing for post-conviction discovery in certain circumstances. Subdivisions (a) and (b) of that section, the portions relevant here, provide: "(a) 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, and on a showing that good faith efforts to obtain the discovery materials from trial counsel were made and were unsuccessful, the court shall, except as provided in subdivision (c) [relating to physical evidence], order that the defendant be provided reasonable access to any of the materials described in subdivision (b).
"(b) 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."
In In re Steele (2004) 32 Cal.4th 682 (Steele), we resolved some issues regarding section 1054.9's meaning, but others remain. Here, we must decide (1) what burden, if any, defendants have to show that the requested discovery materials actually exist and are material; and (2) whether section 1054.9 ...