The opinion of the court was delivered by: Hull , Acting P. J.
Tholmer v. Super. Ct. CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A person sentenced to death or life in prison without the possibility of parole is entitled, upon a proper showing, to post-conviction "discovery materials" to further a petition for writ of habeas corpus or motion to vacate a judgment. (Pen. Code, § 1054.9, subd. (a); further statutory references are to the Penal Code.) Here, 18 years after being sentenced to life without the possibility of parole, petitioner filed a petition pursuant to section 1054.9 to obtain such discovery materials. As we shall explain, we accept the People's concession that the respondent superior court erred in denying the petition to the extent it seeks discovery of statements petitioner made to police officers and to the rap sheets of three witnesses. We further conclude petitioner is entitled to additional witness statements based on his showing that these documents were or should have been disclosed by the prosecution to the defense prior to trial. But we otherwise conclude the respondent court did not err in denying the petition.
In 1993, petitioner Lionell Tholmer was convicted after a jury trial of the first degree murders of Cynthia Sparpana and her three-year-old daughter, Danyel. The jury also found that petitioner personally used a firearm, and found true special circumstances of multiple murders and the commission of a prior murder. The jury set the penalty at death, but the trial court "rejected the jury's determination and, upon its independent review, imposed a sentence of life without the possibility of parole, based on the court's lingering doubt." We affirmed the conviction on appeal in People v. Tholmer (Jan. 26, 1995, C015830) [nonpub. opn.].
To the extent relevant to our analysis of petitioner's discovery motion, we briefly summarize the facts of the murders from our appellate opinion:
Cynthia Sparpana was found dead in her home on November 5, 1985. She had been beaten in the face with a blunt instrument such as the butt or barrel of a gun, strangled, and shot in the back of the head with a small caliber gun. Sparpana's daughter, Danyel, was missing and has never been found. Sparpana owned a Harrington and Richard, Inc. (H&R) 929 .22 caliber handgun, which was missing. Some of Sparpana's injuries were consistent with being struck with the barrel of this gun, and a bullet recovered from Sparpana's head was .22 caliber. Evidence indicated Sparpana died between Saturday evening, November 2, and Sunday morning, November 3.
Petitioner told investigators that Sparpana was murdered by John Meadows, petitioner had loaned his car to Meadows the weekend of Sparpana's murder, Meadows abandoned the car in Thornton, and when petitioner retrieved the car he found in it a .22 caliber handgun and Danyel's security blanket with blood on it. Petitioner claimed he gave the handgun to Troy Barron to sell. Barron told investigators he sold the gun to either Floyd Johnson or Manuel Vasquez. Johnson turned over to authorities an H&R .22 caliber handgun which fit the description of Sparpana's gun, but the butt had been sawed off so there was no way conclusively to identify the gun as Sparpana's.
Prior to his trial for the Sparpana murders, petitioner was convicted of murdering John Meadows, who died on or about November 3 or 4, 1985. Bullets recovered from Meadows's body could have been fired from Sparpana's H&R .22 caliber handgun. Petitioner confessed to murdering Meadows, but claimed Meadows told him he murdered the Sparpanas. The People argued petitioner killed Meadows to make him a scapegoat in order to cover up petitioner's murders of the Sparpanas.
We filed our opinion affirming petitioner's conviction of murdering the Sparpanas, and his sentence to life without the possibility of parole, on January 26, 1995.
On March 30, 2011, petitioner filed in the respondent superior court a form habeas corpus petition, which he recaptioned, "Petition for Post-conviction Discovery Penal Code Section 1054.9." Petitioner's verified petition asserted he sought discovery materials the prosecution currently possesses, to which petitioner was entitled prior to or at trial, which will aid him in preparing a petition for writ of habeas corpus, and petitioner had unsuccessfully sought to obtain the materials from his trial attorney.
The petition expressly requested access to the following documents:
"(1) A printout from the California Law Enforcement Telecommunication System (CLETS) records for the Rohm gun, serial number IC190317, introduced against petitioner at trial without the CLETS record."
"(2) The chain of custody records listing the identities of the Sacramento City police officers who seized the Rohm gun serial number IC190317 from Floyd Johnson['s] Sacramento 5th Ave residence in December 1985.
"(3) The records generated by the Sacramento City police related to the December 1985 seizure of serialized gun IC190317 from Floyd Johnson[']s 5th Ave residence.
"(4) All of the statements Floyd Johnson made to police who were investigating the Meadows/Sparpana murders regarding his purchase and possession of two guns that police later came to possess, specifically a H&R 929 and Rohm serial number IC190317 that was reported to have been sold to Floyd Johnson by Troy Barron.
"(5) All police reports of any statement Troy Barron made to police regarding purchasing or selling two guns to ...