ORIGINAL PROCEEDING; Petition for Writ of Mandate. Denied. (Super. Ct. No. SC061757C)
The opinion of the court was delivered by: Blease, Acting P. J.
CERTIFIED FOR PUBLICATION
Penal Code section 1054.9 allows a convicted defendant who has been sentenced to death or life in prison without the possibility of parole to obtain discovery materials "[u]pon the prosecution of a post-conviction writ of habeas corpus or a motion to vacate a judgment[.]"*fn1
Petitioner Louis Baca, who is serving a life term, previously brought unsuccessful petitions for writ of habeas corpus in both state and federal court. He now seeks discovery materials in an attempt to file a third successive habeas petition on issues decided in the previous writ proceedings.
Petitioner intends to file a third writ petition on the ground he had no intent to kill his victim, an issue that was established at trial by inference from his actions and the circumstances surrounding his actions. He seeks evidence for the ultimate purpose of showing he had no intent to kill his victim. He seeks all of the discovery ordered at trial, as well as the out of court statements of all witnesses. He hopes to show some discrepancy in the witness accounts that would prove irrefutably that he had no intent to kill. This issue was litigated at trial and was the objective of the ineffective assistance of counsel claims made and denied in his earlier writ petitions.
We shall conclude that a section 1054.9 discovery motion may be denied on the ground that the purpose of the section is to permit discovery of matters relevant to the prosecution of a writ on grounds not previously litigated and decided against the petitioner in prior habeas proceedings.
Successive petitions for writ of habeas corpus relief are summarily denied absent justification. (In re Clark (1993) 5 Cal.4th 750, 797.) The possible exceptions to this rule -- the trial was so fundamentally unfair that no reasonable judge or jury would have convicted petitioner, or the petitioner is actually innocent of the crime -- do not apply here. (Ibid.) Fundamental unfairness is not shown unless new evidence points unerringly to innocence or reduced culpability, and evidence is not new evidence if it merely conflicts with evidence presented at trial on an issue in dispute. (Id. at p. 798, fn. 33.) Actual innocence cannot be shown with evidence that a reasonable jury could have rejected. (Ibid.)
We shall conclude that such evidence is not new evidence and that it is not the sort of evidence that a reasonable jury could not have rejected. As such, Baca has no legitimate grounds for a third habeas petition. Having already filed two unsuccessful petitions for writ of habeas corpus, his discovery motion is not "upon the prosecution of a post-conviction writ of habeas corpus." We shall deny the writ.
FACTUAL AND PROCEDURAL BACKGROUND
The following summary of facts is from the magistrate's findings in Baca's federal writ petition.
"On March 13, Baca drove to Tracy to retrieve his gun from his cousin [Paulette Villa]. Another cousin Villa had never met had accompanied Baca from the Bay Area. Villa was angry Baca had endangered her children, but said nothing. Baca was angry the gun was scratched and he clearly expressed his displeasure. He was also upset because the gun seemed to be jammed. He asked her to take him to the store to buy beer. She obtained permission from her mother, with whom she and her three daughters were living.
"On the way to the store, Villa saw two young women, who were later identified as Marie Sturdivant and Celina Martinez, walking on the sidewalk with Celina's brother, David, whom they called 'Pelon.' Villa thought they said something as she drove by so she made a U-turn to inquire. Villa pulled up alongside Celina, Marie and Pelon, at which time Baca jumped out of the car. He asked Pelon whom he was 'dogging.' One of the young women asked who he was. Baca pulled out a gun and pointed it at their heads. Pelon said he did not want any trouble. Baca yelled something like 'Decoto' or 'Decoto Norte X4' and returned to the car. . . .
" . . . Diane Gaarde, although accustomed to noise and violence in her neighborhood, was awakened by loud and angry male and female voices through her closed windows. She lay in her bed listening but could not understand any of the words spoken. She described the area as a no-man's land for gangs and confrontations.
"Meanwhile, Marie, Celina and Pelon walked on to the market. Although Pelon mentioned he did not like guns, the trio was rather nonchalant about the assault. They mentioned it to the store clerk but they did not call the ...