(Santa Clara County Super. Ct. No. CC251632). The Honorable Gilbert T. Brown.
The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.
CERTIFIED FOR PUBLICATION
Petitioner Jared Flint Jackson was sentenced in March 2004 to two consecutive terms of 15 years to life following his conviction after a jury trial of two counts of aggravated sexual assault on a child (Pen. Code, § 269)*fn1 and one count of misdemeanor child endangerment (§ 273a, subd. (b)). After this court filed its decision in People v. Uribe (2008) 162 Cal.App.4th 1457 (Uribe), petitioner filed a petition for writ of habeas corpus in this court, arguing that the prosecution's failure to disclose during pretrial discovery the videotape of the victim's sexual assault response team (SART) examination amounted to prejudicial Brady error*fn2 and a denial of due process, and requesting that this court order a new trial. On February 5, 2009, we issued an order to show cause returnable in the superior court why petitioner was not entitled to the relief requested. On October 27, 2009, after completion of the briefing and without holding an evidentiary hearing, the superior court issued an order granting the petition for writ of habeas corpus without specifying what relief petitioner would receive.
On or about November 6, 2009, the People filed a motion for reconsideration of the October 27, 2009 order, arguing that additional facts had come to light after the People had filed their return. On December 18, 2009, the superior court filed its order granting the motion for reconsideration, vacating its order of October 27, 2009, and inviting petitioner to supplement his habeas corpus petition. On January 5, 2010, petitioner filed a petition for writ of mandate and/or prohibition in this court seeking vacation of the order granting the motion for reconsideration. We summarily denied the petition on January 25, 2010.
Petitioner filed a petition for review in the Supreme Court. After requesting and receiving an answer to the petition and a reply, on March 30, 2010, the Supreme Court granted the petition for review and transferred the matter back to this court with directions to vacate our January 25, 2010 order, and to issue an order directing the superior court to show cause why the relief sought in the petition should not be granted. We issued the order to show cause on April 16, 2010.
We find that the superior court has inherent power to reconsider and vacate an order granting a petition for writ of habeas corpus within the 60-day time period for the People to file an appeal from the order, as long as no appeal has yet been filed. We further find that, on the facts of this case, the superior court acted within its discretion in granting reconsideration of its order granting the petition for writ of habeas corpus. Accordingly, we will deny the petition for writ of mandate and/or prohibition.
FACTS AND PROCEDURAL HISTORY
In March 2003, S., petitioner's 13-year-old step-daughter, disclosed to her therapist and to an investigator for the district attorney's office, Carl Lewis, that petitioner had sexually molested her about 10 months earlier. S. told Lewis that petitioner gave her a glass of Kool-Aid and told her to drink all of it. An hour after she drank it, she began to feel dizzy. She fell asleep on the couch in the living room, and awoke to find petitioner standing next to her. He hit her on the side of her head. S. fell back to sleep and, when she awoke again, petitioner was lying on top of her. One of his hands was on her shoulder, the other was inside her vagina. She fell back to sleep. When she next awoke, petitioner was removing her pants. At some point he grabbed her breasts. He again lay on top of her with one hand on her shoulder and the other hand on her vagina. She could not get up because petitioner was too heavy and she was afraid of him.*fn3 Petitioner then put his penis in her vagina. After some time, S. fell back to sleep again. When she awoke the next morning, petitioner was not with her. She went to the bathroom, and it hurt for her to urinate. Later that day, petitioner told her in an "angry" voice: " 'Don't tell or you'll know what will happen.' "
S. was examined in April 2003 by Mary Ritter, a SART examiner. Ritter testified at petitioner's trial that her examination of S. disclosed "hymenal findings which were suggestive of prior penetrating trauma." She conceded that these findings could have been the result of developmental or congenital conditions or some other injury, and that she could not definitely identify the source of these findings.
A jury convicted petitioner of two counts of aggravated sexual assault on a child (§ 269) and one count of misdemeanor child endangerment (§ 273a, subd. (b)). The trial court sentenced him to two consecutive terms of 15 years to life in March 2004. He appealed his conviction to this court. We found no prejudicial errors and affirmed the judgment in a nonpublished opinion. (People v. Jackson (Sept. 2, 2005, H027259).) At the same time, we summarily denied a petition for writ of habeas corpus in which petitioner had argued that he had been convicted based on false evidence--the testimony of Ritter--and that his trial counsel had been ineffective for failing to obtain an independent medical opinion regarding the validity of Ritter's medical opinion. (H033483.) In support of the petition, petitioner had submitted a declaration from Dr. James E. Crawford, Medical Director of the Center for Child Protection at Children's Hospital and Research Center in Oakland. In the declaration, Dr. Crawford stated that, in his opinion, the interpretation of the physical findings identified by Ritter during the examination of S. "would be what is referred to as 'non-specific.' " "To say that this examination is 'suggestive of prior penetrating trauma,' in my opinion, is to draw a conclusion that the observed physical phenomena simply does not support."
Subsequently, in Uribe, supra, 162 Cal.App.4th at page 1463, this court held that the nondisclosure by the prosecution of the videotape of the SART exam of a child who claimed she had been sexually assaulted by her grandfather constituted prejudicial Brady error. In that case, Ritter conducted a SART exam on the child, but apparently did not tell prosecutors that she had videotaped the exam. The prosecution disclosed still photographs of the exam, which were introduced into evidence, and Ritter testified at trial that the photographs revealed physical evidence " 'consistent with a penetrating event occurring.' " (Id. at p. 1466.) It was not until after the trial that defense counsel learned of the existence of the videotape, which tended to impeach Ritter's testimony. (Id. at pp. 1469-1470.) Because this court found that Ritter was part of the " 'prosecution team' " for Brady purposes, it found that her knowledge of the existence of the SART videotape was imputed to the prosecution (id. at p. 1481), and that the failure of the prosecution to disclose the videotape undermined confidence in the outcome of the trial. (Id. at p. 1482.)
Following the publication of Uribe, petitioner's appellate counsel contacted the district attorney's office to find out whether there was a videotape of S.'s SART exam. In a June 2008 response letter to counsel, the supervising attorney of the district attorney's sexual assault unit, replied: "We had no indication in our records that such a tape existed, so I inquired of Ms. Ritter. She informed me that she did have a video of the exam and agreed to send it [to] me. Based on my brief review of this case and my discussion with DDA James Gibbons-Shapiro, I do not believe this tape constituted Brady material. Never-the-less, had we known of its existence at the time we would have provided it to trial counsel for the defendant. As a result it is being provided to you at this time." Counsel provided a copy of the videotape to Dr. Crawford, along with the photographs Ritter had relied on in her trial testimony. Counsel asked Dr. Crawford whether the videotape affected his opinion regarding what S.'s SART exam revealed and whether it would have been important to see the videotape in addition to the photographs before rendering a medical opinion during the trial.
On October 6, 2008, Dr. Crawford signed a declaration stating that the videotape "contains a very significant amount of additional information and detail than was available to a medical examiner who consulted only the photographs." Based on his review of the videotape, Dr. Crawford concluded "that the examination findings do not suggest prior penetrating trauma." Rather, the findings were " 'unremarkable,' " that is, they would give "absolutely no insight as to whether the allegations of prior penetrating trauma are true or not." Therefore, Dr. Crawford also concluded that "having the videotape would have been extremely important to any forensic practitioner attempting to interpret the results of this medical examination."
On October 17, 2008, counsel filed a petition for writ of habeas corpus on petitioner's behalf in this court, arguing that the prosecution's failure to disclose the videotape during pretrial discovery amounted to prejudicial Brady error and a denial of due process. Counsel requested that this court order a new trial. After requesting and receiving an informal response from the People, as well as a reply from petitioner, on February 5, 2009, we ...