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People v. Superior Court (Johnny Morales)

Supreme Court of California

February 16, 2017

THE PEOPLE, Petitioner,
v.
THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; JOHNNY MORALES, Real Party in Interest.

         San Bernardino County Super. Ct. No. FVA015456, Ct.App. 4/2 E061754 Ingrid Adamson Uhler Judge:

          Kamala D. Harris, Attorney General, Edward C. DuMont, State Solicitor General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Donald E. deNicola, Deputy State Solicitor General, Holy D. Wilkens and Michael T. Murphy, Deputy Attorney General, for Petitioner.

          No appearance for Respondent.

          Michael J. Hersek and Mary K. McComb, State Public Defenders, Barry P. Helft, Chief Deputy State Public Defender, and C. Delaine Renard, Deputy State Public Defender, for Real Party in Interest.

          WERDEGAR, J.

         Here we address whether a superior court has jurisdiction to grant a motion to preserve evidence relating to a capital case then pending review on automatic appeal to this court. We conclude it does, limited to evidence potentially discoverable under Penal Code section 1054.9, which establishes a mechanism for postconviction discovery.

         Real party in interest Johnny Morales was sentenced to death in 2005; the State Public Defender (hereafter appellate counsel) has been appointed to represent him in his pending automatic appeal. As a condemned prisoner, Morales is entitled to the appointment of habeas corpus counsel (Gov. Code, § 68662); owing to a shortage of qualified attorneys willing to accept appointment, however, habeas corpus counsel has not yet been appointed. Appellate counsel's responsibilities, as defined by the scope of her appointment, do not include the investigation and preparation of a petition for writ of habeas corpus, but-until habeas corpus counsel is appointed-do include “preserv[ing] evidence that comes to the attention of appellate counsel if that evidence appears relevant to a potential habeas corpus investigation.” (Cal. Supreme Ct., Policies Regarding Cases Arising From Judgments of Death, policy 3, std. 1-1 (Policy 3).)

         As more fully described post, under Penal Code section 1054.9, [1] enacted in 2002, a defendant sentenced to death or life imprisonment without the possibility of parole (LWOP) who is prosecuting a postconviction habeas corpus petition may seek discovery of “materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at [the] time of trial.” (Pen. Code, § 1054.9, subd. (b); see In re Steele (2004) 32 Cal.4th 682 (Steele).) Here, appellate counsel filed in the superior court a “Motion to Preserve Files, Records, Evidence and Other Items Related to Automatic Appeal, ” citing in support her responsibilities under Policy 3 and Morales's rights under Penal Code section 1054.9. Although the motion did not seek discovery under that statute as such (given that appellate counsel is not preparing a habeas corpus petition), it did seek an order directing numerous law enforcement and social service agencies in San Bernardino County to preserve various categories of materials assertedly relevant to the investigation and prosecution of the case against Morales and comparable materials pertaining to other named individuals whose connection with Morales's case is not apparent on the face of the motion. The motion also sought preservation of materials apparently not within the scope of Penal Code section 1054.9, including an order directing (1) the San Bernardino County Jury Commissioner to preserve materials involving procedures and practices regarding the selection of jury venires in the years 2002 through 2004, (2) the San Bernardino County Indigent Defense Program to preserve materials pertaining to the procuring and awarding of contracts for the operation of the county's conflict panel between 2001 and 2004, and (3) the preservation of San Bernardino County Superior Court materials pertaining to the appointment of counsel for indigent defendants from 2001 to 2004. The motion requested that the order remain in effect until either 30 days after execution of the death sentence or until destruction of the materials is approved by a court of competent jurisdiction after at least 90 days' written notice of any intention to allow such destruction has been provided to Morales, his counsel, the San Bernardino County District Attorney, and the Attorney General. Finally, the motion sought an accounting, also not within the explicit scope of Penal Code section 1054.9, by the agencies named in the motion as to whether any of the materials sought “are in the possession of any other governmental unit, entity, official, employee, or former employee and/or whether any of such material has been destroyed.”

         The District Attorney opposed the motion, contending it sought unauthorized postconviction discovery outside the court's jurisdiction to grant; the requested orders were unnecessary, overbroad, and onerous; the proposed expiration date of the preservation orders was unreasonable; and the request for an accounting of the status of requested items was an improper discovery request, unauthorized by statute or case law.

         The superior court granted the motion in its entirety, observing that none of the entities served with the motion had filed opposition and reasoning that, as a matter of “common sense, ” unless the evidence is preserved, there will be nothing to discover under Penal Code section 1054.9.

         The Attorney General, on behalf of the People, filed a petition for writ of mandate asking the Court of Appeal to vacate the superior court's preservation order. She argued that the superior court lacked authority to issue the order because judgment had been pronounced and there was no matter pending in the superior court to which jurisdiction for such an order could attach or, in the alternative, that even if the court had jurisdiction to enter a preservation order, the particular order exceeded its jurisdiction because it was not limited to materials for which Morales had a right to seek discovery under Penal Code section 1054.9. The Court of Appeal issued a peremptory writ, directing the superior court to vacate its preservation order and enter a new order denying the motion. Morales's petition for review followed.

         Although the general rule is that a person seeking habeas corpus relief from a judgment of death is not entitled to postconviction discovery unless and until a court issues an order to show cause (Steele, supra, 32 Cal.4th at p. 690; People v. Gonzalez (1990) 51 Cal.3d 1179, 1255-1261 (Gonzalez)), the Legislature has partially abrogated this rule by enacting Penal Code section 1054.9. The statute creates a mechanism by which, as noted, a capital or LWOP prisoner prosecuting a habeas corpus petition can seek discovery of “materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at [the] time of trial.” (Id., subd. (b).)

         We enumerated the prerequisites to postconviction discovery under the statute in Steele, supra, 32 Cal.4th 682. The defendant must first make good faith efforts to obtain the materials from trial counsel, but the statute encompasses not only materials trial counsel actually possessed (but that have been lost for whatever reason) but also those “ ‘in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at [the] time of trial, ' ” regardless of whether he or she specifically requested them. (Id. at p. 696, quoting Pen. Code, § 1054.9, subd. (b).) That is, “we interpret section 1054.9 to require the trial court, on a proper showing of a good faith effort to obtain the materials from trial counsel, to order discovery of specific materials currently in the possession of the prosecution or law enforcement authorities involved in the investigation or prosecution of the case that the defendant can show either (1) the prosecution did provide at [the] time of trial but have since become lost to the defendant; (2) the prosecution should have provided at [the] time of trial because they came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence; (3) the prosecution should have provided at time of trial because the defense specifically requested them at that time and was entitled to receive them; or (4) the prosecution had no obligation to provide at time of trial absent a specific defense request, but to which the defendant would have been entitled at time of trial had the defendant specifically requested them.” (Steele, supra, at p. 697.)

         “The discovery obligation... does not extend to all law enforcement authorities everywhere in the world but... only to law enforcement authorities who were involved in the investigation or prosecution of the case.” (Steele, supra, 32 Cal.4th at p. 696.) In other words, Penal Code “[s]ection 1054.9, subdivision (b), should not be read as creating a broader postconviction discovery right” than was operative at the time of trial. (Steele, supra, at p. 696.) Although we have said “[t]he statute imposes no preservation duties that do not otherwise exist” and “does not impose a duty to search for or obtain materials not currently possessed” (id. at p. 695), the statute is silent regarding whether ...


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