THE SUPERIOR COURT OF MONTEREY COUNTY, (Monterey County Super. Ct. No. M96352)
The opinion of the court was delivered by: Mihara, J.
CERTIFIED FOR PUBLICATION
Petitioner Arnulfo Magallan was charged by complaint with a felony. He filed a suppression motion in advance of the preliminary examination. Magallan then filed a discovery motion seeking material related to his suppression motion, which the prosecutor had refused to provide. The magistrate granted his discovery motion. The prosecution filed a writ petition in the superior court challenging the magistrate's order on the ground that the magistrate was precluded by statute from ordering this discovery. A panel of three superior court judges, who were the same three judges who formed the superior court's appellate division, heard the petition and issued a writ. The superior court ordered the magistrate to deny the discovery motion.
Magallan challenges by this writ petition both the jurisdiction of that panel to hear the writ petition and the merits of its decision. We hold that the superior court panel did not lack subject matter jurisdiction simply because the same three judges also formed the superior court's appellate division, as the record does not establish that they were sitting as the appellate division when they held a hearing on the writ petition. On the merits, however, we conclude that the superior court erred. Under this court's decision in People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403 (Mouchaourab), the magistrate was empowered to grant Magallan's motion for discovery in support of his suppression motion.
Magallan was arrested on May 5, 2008. He was charged by complaint with a single count of felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Magallan was arraigned on May 7, 2008, and he entered a plea of not guilty. The preliminary examination was scheduled for May 21. On May 19, the court granted Magallan's request for a continuance, and the preliminary examination was rescheduled for June 18, 2008. On June 16, the court again granted a defense request for a continuance and scheduled for June 30 a hearing to schedule the preliminary examination. On June 30, the court set for July 30 both the preliminary examination and "PC 1538.5 Motion concurrent."
On July 24, 2008, Magallan's trial counsel filed a suppression motion asserting that the evidence obtained from a search of Magallan's person and home should be suppressed because the police had lacked a warrant. On July 28, the scheduled hearing was rescheduled to August 6. On August 4, Magallan's trial counsel asked the prosecutor to provide "911 records for PC 1538.5 Motion," and, at her request, the preliminary examination date was vacated, and a hearing to reschedule the preliminary examination was set for August 18. On August 18, the preliminary examination was rescheduled to September 10. On September 8, it was rescheduled to September 24.
On September 29, 2008, Magallan's trial counsel filed a "FORMAL MOTION FOR DISCOVERY." In the motion, she explained that, on June 30, 2008, she had asked the prosecutor for "a copy of the audio recordings of the 911 telephone call, dispatch communications to resolve the call, and computer logs generated as a result of the dispatch communications." This evidence was intended to "be used at the upcoming suppression motion [hearing] to confront and cross examine the arresting officers' testimony concerning those timing sequences as it relates to the prosecution's proffered explanations for effectuating a warrantless arrest." Magallan's trial counsel argued that the discovery statutes required disclosure, and, in any event, Magallan's rights to due process and to the effective assistance of counsel required disclosure.
The prosecution opposed the discovery motion on the ground that it had no statutory or constitutional obligation to provide the requested items. It argued that the requested items were not statutorily discoverable because (1) "it is not within 30 days of trial," and (2) "the People do not envision using the  call to law enforcement as evidence at trial." The prosecution asserted that there was no statutory authority for discovery when charges were pending before a magistrate. "[D]iscovery is mandated only at the trial court level of the criminal proceedings, not at the magistrate court, preliminary examination level of felony criminal proceedings such as the case herein." Thus, in the prosecution's view, no criminal defendant was statutorily entitled to any discovery whatsoever prior to the preliminary examination. With respect to federal constitutional obligations, the prosecution asserted that its only obligation was to provide exculpatory evidence to the defense prior to the preliminary examination.
On October 14, 2008, the magistrate ordered the prosecutor to turn over the requested items to the defense. The prosecution filed a motion for reconsideration. In this motion, the prosecutor argued that magistrates lack any power to order discovery. Magallan filed opposition to the motion. In the prosecutor's reply to the opposition, he asserted that the items sought by the discovery motion "are irrelevant for purposes of determining the validity of the search." On November 19, 2008, the magistrate reaffirmed her earlier ruling and ordered the prosecution to provide the requested discovery by December 1.
On December 1, 2008, the prosecution filed a writ petition challenging the magistrate's discovery order. On June 29, 2009, a panel of three superior court judges granted the prosecution's petition. On August 27, 2009, the magistrate set aside her order granting the discovery motion. On October 28, 2009, Magallan filed a writ petition in this court. In January 2010, this court issued a stay of the trial court proceedings. In May 2010, this court issued an order to show cause.
A. Subject Matter Jurisdiction
Magallan claims that the judges who heard the prosecution's writ petition lacked subject matter jurisdiction because these three judges had not been assigned to any "writ department" of the superior court but were instead serving as the "appellate division" of the superior court in acting on the petition.
The prosecution's December 1, 2008 writ petition in the superior court was captioned "IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA [¶] COUNTY OF MONTEREY--CRIMINAL WRIT DEPARTMENT." On December 2, 2008, a writ issued staying the discovery order and commanding the magistrate either to reverse her order or to show cause why she should not be ordered to do so. The alternative writ was captioned "SUPERIOR COURT OF CALIFORNIA [¶] COUNTY OF MONTEREY" and was signed by Judge Russell D. Scott, who was identified in the order as "Judge of the Superior Court." It is undisputed that Judge Scott was the presiding judge of the Monterey County Superior Court at the time of that order.
On January 12, 2009, Magallan filed his return. The return was captioned "IN THE SUPERIOR COURT OF CALIFORNIA [¶] MONTEREY COUNTY, APPELLATE DEPARTMENT." On January 21, the superior court clerk noted that the writ proceeding had been assigned a civil case number and was set "in Department 9 for Setting of Hearing on the Writ." On January 27, the prosecutor filed his reply, which, like Magallan's return, included in its caption "APPELLATE DEPARTMENT."
On January 29, 2009, the parties appeared in Department 9, which was not Judge Scott's department, and the case was continued "for hearing on the writ" in "Salinas courtroom 2" on February 18. The hearing on the writ petition actually took place on April 1. On April 13, the prosecution filed a pleading captioned "CRIMINAL WRIT DEPARTMENT" in which it noted that the "Appellate Division" lacked subject matter jurisdiction over the writ and asked that the writ petition be heard by the "criminal writ division of the superior court."
The June 29, 2009 order granting the writ petition was captioned "SUPERIOR COURT OF CALIFORNIA [¶] COUNTY OF MONTEREY" and stated that the matter had been heard "in Department 4 of this Court, before Superior Court Judges Russell D. Scott, Albert H. Maldonado and Timothy P. Roberts." Judge Maldonado dissented from the order. Just over a week later, the three judges who had issued the decision in the writ matter issued an order stating that the writ petition had ...