Opinion
E080826
04-16-2024
GILBERT B. SANCHEZ, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Mary K. McComb, State Public Defender, Andrea G. Asaro, Deputy State Defender for Petitioner. Jason Anderson, District Attorney, Grover Merritt and Kyle M. Karnes, Deputy District Attorneys for Real Party in Interest.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super.Ct.No. FVA701267. Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted in part; denied in part.
Mary K. McComb, State Public Defender, Andrea G. Asaro, Deputy State Defender for Petitioner.
Jason Anderson, District Attorney, Grover Merritt and Kyle M. Karnes, Deputy District Attorneys for Real Party in Interest.
No appearance for Respondent.
OPINION
MILLER Acting P. J.
Petitioner, Gilbert B. Sanchez, has been convicted of murder and sentenced to death. His automatic appeal is pending in the California Supreme Court (People v. Sanchez, S239380, app. pending), and he is awaiting appointment of counsel for habeas corpus proceedings. Petitioner filed a motion to preserve and retain physical and documentary materials (Motion) seeking an order from the trial court to all agencies possessing evidence relevant to his case and prior convictions to preserve evidence and records in his case. The trial court granted the Motion in part but denied his request as to several requests to preserve evidence.
Petitioner petitions this court for a writ of mandate directing the trial court to vacate that part of its order denying petitioner's requests for preservation of records. We issued an order to show cause (OSC) in order for real party in interest, the San Bernardino County District Attorney's Office (the People) to address the denial of the Motion as to the Sheriff's Departments of Riverside, San Bernardino and Los Angeles Counties; the District Attorney's Offices of San Bernardino, Riverside and Los Angeles Counties; and the California Department of Corrections and Rehabilitation. We grant the petition and issue the writ, directing the trial court to order preservation of discovery materials "in the possession of the prosecution and law enforcement authorities to which [petitioner] would have been entitled at time of trial" (§ 1054.9, subd. (c)) as detailed in this opinion.
FACTUAL AND PROCEDURAL HISTORY
A. FACTS, CHARGES AND PRIOR CONVICTIONS
The parties presented the following facts in the Motion, petition and return:
The victim in this case was raped and strangled to death in Fontana on October 18, 2001. In 2006, petitioner's DNA was matched by the San Bernardino County Sheriff's Department's crime lab (Crime Lab) to DNA in sperm that was found on the victim. Petitioner was charged by the People with one count of murder with a special circumstance of lying in wait (Pen. Code, § 190.2, subd. (a)(15)). At trial and during the penalty phase, the prosecution presented evidence of petitioner's prior convictions from Riverside, Los Angeles and San Bernardino Counties. Petitioner was found guilty on January 28, 2016, and the jury fixed the punishment at death.
All further statutory references are to the Penal Code unless otherwise indicated.
B. MOTION TO PRESERVE EVIDENCE
Petitioner was appointed counsel from the Office of the State Public Defender to handle his automatic appeal in the California Supreme Court and the Motion was filed by his appellate counsel. Petitioner has not been appointed counsel to investigate and handle the filing of a petition for writ of habeas corpus. Petitioner alleged in the Motion that habeas counsel would not be appointed for a significant amount of years and that it was imperative to preserve the evidence related to the case, which could potentially be available to appointed counsel when filing the habeas petition. Petitioner contended that he was entitled to preservation of the records pursuant to section 1054.9.
In the Motion, petitioner listed the materials he sought to preserve from each agency. From the San Bernardino County District Attorney's office (SBCDA): (1) petitioner sought all material related to the capital case as follows: (a) petitioner's statements before and after arrest along with the names of witnesses who heard the statements and recordings; (b) law enforcement writings pertaining to the amended" 'Notice[s] of Aggravation'" filed by the People pursuant to section 190.3; (c) all witness statements related to the penalty phase; (d) all of his custodial records including jail, booking, housing, movement, transfer, classification, disciplinary, medical, and visitor logs; (e) his adult and juvenile probation records; (f) all physical evidence, including biological materials; (g) full and complete versions of law enforcement reports; (h) all writings by experts, including criminalists and the coroner from the San Bernardino County Sheriff's Department (SBCSD); (i) all scientific and forensic writings including autopsy reports, cell phone records, DNA files, and many others; (j) all written background information on all persons who participated in any forensic or scientific work, especially including evidence of possible disciplinary action taken against one of the forensic specialists; (k) photographs and audio equipment; (1) digital versions of the Power Point presentation given by the prosecutor in both the guilt and penalty phases; (m) any evidence of payments to witnesses for testimony; (n) all custodial records of any cooperating witnesses or informants from October 18, 2001, to present; (o) any record of visits by law enforcement to witnesses or informants in custody from October 18, 2001, to present; and (p) all other impeachment evidence relating to witnesses or informants.
For consistency and ease of reference, we will refer to the numbers that Petitioner used in the Motion and were referred to in the trial court's order.
Additionally from the SBCDA, petitioner sought (2) all exculpatory evidence; (3) all writings related to the decision by the prosecutor to seek the death penalty; (4) all policy manuals or guidelines used by the People to make the decision to charge a special circumstance or seek the death penalty; (5) all information about investigation or notations made in jury voir dire and selection; (6) all policy manuals or guidelines used by the People to aid in jury selection; (7) materials related to "Sunshine Bishop," "Mr. Bishop," and/or "Mr. Sunshine; (8) all materials related to San Bernardino County Municipal Court cases against petitioner, including (a) law enforcement writings, (b) statements by petitioner, (c) physical evidence, (d) scientific evidence and reports, (e) background information on persons participating in forensic or scientific work, and (f) photographs and audio recordings; (9) materials related to an incident occurring in Montebello on June 16, 2001, involving petitioner; (10) all information on Fernando Renteria; (11) materials provided to the prosecution by any member of the defense team; (12) all impeachment evidence concerning law enforcement officers involved in the investigation of the case including (a) arrests or convictions, (b) internal investigations, (c) all records of any disciplinary actions, (d) misrepresented findings or reported findings later refuted by DNA evidence, (e) allegations of false statements or reports, (f) all mental health reports, (g) disciplinary actions based on the above conduct, (h) records related to discharge of a firearm by one of the officers or any incidents involving force used by a district attorney investigator, (i) any sexual assault investigations, and (j) reports of perjury or concealing of evidence; (13) all reports or hearings related to destruction of evidence in any case from October 18, 2001, to present; (14) policies and procedures related to evidence collection and preservation from October 18, 2001, to present; and (15) all audits or investigations conducted into evidence preservation and destruction from October 18, 2001, to present.
From the SBCSD, petitioner sought the following materials: (1) All material related to the investigation as follows: (a) defendant's statements before and after becoming a suspect along with names of witnesses who heard the statements and recordings; (b) full and complete versions of all law enforcement reports; (c) all witness statements; (d) his adult and juvenile probation records; (e) all physical evidence, including biological materials; (f) all scientific and forensic writings including autopsy reports and DNA testing; (g) all writings by experts, including criminalists and the coroner from the SBCSD; (h) all written background information on all person who participated in any forensic or scientific work; (i) photographs and recordings; (j) evidence of any payment to a non-law-enforcement witness or informant; (k) all custodial records of any cooperating witnesses or informants from October 18, 2001 to present; (1) any record of visits by law enforcement to witnesses or informants in custody from October 18, 2001, to present. In addition, petitioner sought (2) all law enforcement writings pertaining to the prior incidents identified in the section 190.3 motion; (3) all custodial materials related to "Sunshine Bishop," "Mr. Bishop," and/or "Mr. Sunshine; (4) all materials relating to visits by a law enforcement officer to "Sunshine Bishop," "Mr. Bishop," and/or "Mr. Sunshine" while he was in custody; (5) all exculpatory evidence; (6) all materials related to any prior arrests or detentions of petitioner, including (a) all writings, (b) statements by petitioner, (c) physical evidence, (d) scientific evidence and reports, (e) background information of all persons who participated in any forensic or scientific work, and (f) photographs and video; (7) all custodial materials while petitioner was in the custody at the West Valley Detention Center and Central Detention Center; (8) all of his adult and juvenile probation records; (9) all files pertaining to an incident involving, and statements made by, Gloria Tellez, aka Gloria Sanchez, aka Gloria Tellez Sanchez (Gloria Sanchez); (10) all custodial records for Gloria Sanchez; (11) all custodial materials related to Angel Benitez while in custody at the Glen Helen Detention Center; (12) all reports or hearings related to destruction of evidence in any case from October 18, 2001, to present; (13) all written policies and procedures relating to evidence collection, preservation or destruction from October 18, 2001; (14) all writings relating to any previous audits or investigations conducted into evidence preservation and destruction practices from October 18, 2001; (15) all impeachment evidence concerning SBCSD employees involved in his case, including evidence of (a) any arrests or convictions, (b) internal affairs investigations, (c) disciplinary actions, (d) misrepresented findings or reported findings later refuted by DNA evidence, (e) false testimony or reports, (f) all mental health reports, (g) disciplinary actions due to the above actions, (h) any records related to discharge of a firearm by one of the officers, (i) any sexual assault allegations, and (j) reports of perjury or concealing of evidence; (16) any reports or transcripts regarding investigations of destruction of records within the past ten years; (17) policies and procedures related to evidence collection and preservation from October 18, 2001, to present; and (18) all audits or investigations conducted into evidence preservation and destruction at the Crime Lab.
Petitioner requested from the Riverside County District Attorney's Office (RCDA): (1) all materials related to the investigation and/or prosecution of the prior offense-Riverside County Superior Court case No. RIF100498-including (a) all prosecutorial and law enforcement writings; (b) defendant's statements before and after becoming a suspect, along with names of witnesses who heard the statements and recordings; (c) all files pertaining to an incident involving Gloria Sanchez; (d) all physical evidence; (e) all scientific and forensic writings including autopsy reports, cell phone records, and DNA files; (f) all written background information on all persons who participated in any forensic or scientific work, especially including evidence of possible disciplinary action; and (g) all photographs and video recordings.
In addition, petitioner sought (2) all of his adult and juvenile probation records; (3) all adult and juvenile probation records for Gloria Sanchez; (4) all exculpatory evidence pertaining to petitioner; (5) all custodial records including jail, booking, housing, classification, disciplinary, medical, and visitor logs; (6) all statements made by Gloria Sanchez; (7) all custodial materials for Gloria Sanchez; (8) all impeachment evidence concerning any law enforcement officers involved in the investigation of any case against petitioner, which included Jerry Talamantes and Robert Himmelberg, including (a) records of convictions or arrests of the officers, (b) internal investigations, (c) disciplinary actions, (d) misrepresented findings that were later refuted by DNA evidence, (e) allegations of making false statements or reports, (f) mental health records, (g) findings of any disciplinary actions, (h) any incident involving the discharge of a firearm or use of force, (i) sexual assault allegations, and (j) records of any sustained finding of dishonesty; (9) all reports relating to any investigation of destruction of evidence by the RCDA from October 18, 2001, to present; (10) all written policies and procedures relating to the evidence collection and preservation from October 18, 2001, to present; (11) all records pertaining to any previous audits or investigations conducted into the preservation or destruction practices from October 18, 2001, to present; (12) any reports or written materials relating to investigation of destruction of evidence within the past 10 years; and (13) all written materials relating to any previous audits or investigations conducted into the evidence preservation and destruction policies and procedures.
Petitioner requested the following materials from the Riverside County Sheriff's Department (RCSD): (1) petitioner sought all material related to the investigation of any prior offense or conviction committed by petitioner in Riverside County as follows: (a) all prosecutorial and law enforcement writings; (b) petitioner's statements before and after becoming a suspect along with names of witnesses who heard the statements and recordings; (c) all medical records for petitioner from Riverside Community Hospital regarding treatment in relation to this incident; (d) all statements made by Gloria Tellez, aka Gloria Sanchez, aka Gloria Tellez Sanchez; (e) all physical evidence, including biological materials; (f) all scientific and forensic writings including autopsy reports and DNA testing; (g) all written background information on all persons who participated in any forensic or scientific work; and (h) photographs and recordings. In addition, petitioner sought (2) all of his adult and juvenile probation records; (3) all adult and juvenile probation records for Gloria Sanchez; (4) exculpatory evidence; (5) all custodial materials pertaining to petitioner while he was in the Robert Presley Detention Center; (6) all statements made by Gloria Sanchez; (7) all custodial materials pertaining to records for Gloria Sanchez; (8) impeachment evidence involving any investigation by law enforcement into petitioner's cases, including records of (a) any arrest or conviction in an officer's file, (b) internal investigations, (c) disciplinary actions, (d) misrepresentation of findings, (e) false statements and false reports, (f) mental health records, (g) any disciplinary actions taken due to the above incidents; (h) any incident involving discharge of a firearm, (i) sexual assault findings, and (j) sustained findings of perjury or falsifying evidence; (9) materials related to any investigation into destruction of evidence from October 18, 2001, to present; (10) policies and procedures relating to evidence collection and destruction from October 18, 2001, to present; (11) all writings relating to previous audits or investigations into evidence preservation and destruction practices and policies from October 18, 2001, to present; (12) any reports relating to the destruction of evidence in the prior 10 years; and (13) written materials of investigations into evidence preservation and destructions practices of RCSD.
Petitioner sought from the Los Angeles County District Attorney's Office (LACDA) all materials related to the investigation and/or prosecution of prior offenses committed by petitioner, including Los Angeles County Superior Court case Nos. A350297, A760744, A472318, VA017980 and BA264351, and an unadjudicated offense occurring in August 2002, including (a) all prosecutorial and law enforcement writings; (b) petitioner's statements made before and after becoming a suspect along with names of witnesses who heard the statements; (c) all physical evidence; (d) all scientific and forensic writings including autopsy reports, cell phone records, and DNA files; (e) all written background information on all persons who participated in any forensic or scientific work, especially including evidence of possible disciplinary action; and (f) photographs and videos recordings. In addition, petitioner sought (2) exculpatory evidence related to petitioner; (3) all adult and juvenile probation records for petitioner; (4) all custodial records including jail, booking, housing, classification, disciplinary, medical, and visitor logs; (5) impeachment evidence regarding any law enforcement officer involved in the investigation of any case against petitioner, including (a) records of convictions or arrests of the officers, (b) internal investigations, (c) disciplinary actions, (d) misrepresented findings that were later refuted by DNA evidence, (e) allegations of making false statements or reports, (f) mental health records, (g) findings of any disciplinary actions, (h) any incident involving the discharge of a firearm or use of force by a district attorney investigator, (i) sexual assault allegations or sustained findings, and (j) records of any sustained finding of dishonesty; (6) all reports relating to any investigation of destruction of evidence from October 18, 2001, to present; (7) all written policies and procedures relating to the evidence collection and preservation from October 18, 2001, to present; (8) all records pertaining to any previous audits or investigations conducted into the preservation or destruction practices from October 18, 2001, to present; (9) any reports or written materials relating to investigation of destruction of evidence within the past 10 years; (10) all written policies and procedures relating to evidence collection, preservation and destruction from October 18, 2001, to present; and (11) all written materials relating to any previous audits or investigations conducted into the evidence preservation and destruction policies and procedures.
Petitioner requested from the Los Angeles County Sheriff's Department (LACSD) the following materials: (1) all material related to the investigation of several cases involving petitioner, including Los Angeles County Superior Court case Nos. A350297, A760744, A472318, VA017980 and BA264351, and an unadjudicated offense occurring in August 2002. He sought (a) all prosecutorial and law enforcement writings; (b) petitioner's statements before and after becoming a suspect along with names of witnesses who heard the statements and recordings; (c) all physical evidence; (d) all scientific and forensic writings including autopsy reports and DNA testing; (e) all written background information on all persons who participated in any forensic or scientific work; and (f) photographs and recordings. In addition, petitioner sought (2) exculpatory evidence related to petitioner; (3) all adult and juvenile probation records for petitioner; (4) all custodial records including jail, booking, housing, classification, disciplinary, medical, and visitor logs; (5) impeachment evidence regarding any law enforcement officer involved in the investigation of any case against petitioner, (a) including records of convictions or arrests of the officers, (b) internal investigations, (c) disciplinary actions, (d) misrepresented findings that were later refuted by DNA evidence, (e) allegations of making false statements or reports,(f) mental health records, (g) findings of any disciplinary actions, (h) any incident involving the discharge of a firearm or use of force, (i) sexual assault allegations or sustained findings, and (j) records of any sustained finding of dishonesty; (6) all reports relating to any investigation of destruction of evidence from October 18, 2001, to present; (7) all written policies and procedures relating to the evidence collection and preservation from October 18, 2001, to present; (8) all records pertaining to any previous audits or investigations conducted into the preservation or destruction practices from October 18, 2001, to present; (9) any reports or written materials relating to investigation of destruction of evidence within the past 10 years; (10) all written policies and procedures relating to evidence collection, preservation and destruction from October 18, 2001, to present; and (11) all written materials relating to any previous audits or investigations conducted into the evidence preservation and destruction policies and procedures.
Finally, petitioner sought preservation of records by the California Department of Corrections and Rehabilitation (CDCR) including as follows: (1) petitioner sought all material related to the investigation of petitioner in this capital case including all materials related to prior offenses, aggravating factors and disciplinary incidents. petitioner sought (a) his statements before and after becoming a suspect along with names of witnesses who heard the statements and recordings; (b) all physical evidence; (c) all writings and physical evidence regarding drawing samples of blood from petitioner at Centinela State Prison on October 19, 2006; (d) all written background information on all persons who participated in any forensic or scientific work, including those who participated in drawing blood from petitioner; (e) writings pertaining to DNA analysis; (f) photographs and recordings; (g) software necessary to access materials; (h) any evidence regarding benefits paid to nonlaw enforcement witnesses or informants; and (i) all materials relating to housing, movement, transfer or visits by law enforcement to any witnesses or informants from October 18, 2001, to present. In addition, petitioner sought (2) all custodial records for petitioner while housed at the California Youth Authority, Centinela State Prison, California Correctional Institution, California Institution for Men, the California Rehabilitation Center, Northern Kern State Prison, Avenal State Prison, Ironwood State Prison and the California State Prison, Los Angeles; (3) all custodial records relating to petitioner's commitment as a juvenile; (4) recordings or transcripts of parole revocation or suitability hearings; (5) all probation records and files; (6) all records relating to the discharge of a firearm or use of force by a correctional officer involved in the capital case involving petitioner; (7) any sustained findings of sexual assault by a custodial officer; (8) sustained findings of falsifying evidence or perjury; (9) any reports or written materials relating to investigation of destruction of evidence within the past 10 years; (10) all written policies and procedures relating to evidence collection, preservation and destruction from October 18, 2001, to present; and (11) all written materials relating to any previous audits or investigations conducted into the evidence preservation and destruction policies and procedures.
Andrea Asaro, who represented petitioner in the direct appeal to the California Supreme Court, provided a declaration on petitioner's behalf to support the Motion. She attested that it could be 20 years until petitioner was appointed habeas counsel. Some records in petitioner's case had already been destroyed. Also attached to the Petition was a list of petitioner's prior arrests and convictions. These included crimes committed in Los Angeles County, Montebello, San Bernardino County, Fontana, and Riverside County. Also included were the prior arrests and prosecutions of witnesses, including Fernando Renteria and Gloria Sanchez. The Petition also attached the amended notice of aggravation pursuant to section 190.3, filed by the People, which informed petitioner that the prosecution would seek admission of victim impact statements and his prior convictions and arrests at the penalty phase. The People intended to introduce evidence of prior crimes involving the Montebello Police Department, SBCSD, Los Angeles Police Department, and a crime committed while detained at the West Valley Detention Center. Another notice of aggravation was filed by the prosecution on September 9, 2015, seeking to admit several other prior incidents and convictions involving the LACSD and testimony regarding petitioner's prior performance on parole. The potential witness list submitted by the prosecution on November 6, 2015, was included. On the list were criminalists, police officers and deputies from numerous departments, Sunshine Bishop, and Angel Benitez.
C. OPPOSITION TO MOTION AND REPLY
The People filed opposition to the Motion (Opposition). The People argued in the Opposition that petitioner was not entitled to any records in discovery from the CDCR. Section 1054.9, subdivision (b), only applied to prosecution and law enforcement authorities. Further, petitioner had not proven in the Motion that trial counsel was not already in possession of the material from the CDCR and the materials had been lost, that the materials would have been discoverable at the time of trial, or were not already the subject of an existing discovery order.
It was further argued in the Opposition that petitioner was seeking records related to the housing, discipline, medical care and psychiatric care received by petitioner and other witnesses while in custody, from the SBCSD, LACSD, and the CDCR. These agencies in housing petitioner were not acting as investigative agencies, but rather administrative agencies, and were not subject to discovery orders. Further, petitioner failed to identify that the materials were discoverable at the time of trial. The trial court also should strive not to require multiple agencies to preserve the same evidence; duplicative orders should be avoided. The People further argued that the order by the trial court must be restricted to those items that were discoverable at the time of trial. Any materials that were not possessed by the prosecution or law enforcement at the time of trial were not discoverable.
It was further argued in the Opposition that many items were not subject to discovery because they were privileged or attorney work product and were protected under the official information privilege. This included all investigation and information regarding prospective jurors generated by the prosecution, and any policy guidelines, which constituted work product. Further, petitioner was not entitled to materials related to the decision to seek the death penalty and any policies relied upon in seeking the death penalty as it was work product and subject to the official information privilege.
Petitioner filed a reply to the Opposition. Petitioner argued that the People lacked standing to oppose the Motion on behalf of other agencies. The remaining agencies had no objection to the record preservation request. SBCSD had already responded it had put a hold on the evidence requested that had not already been released. Further, evidence of prior crimes was potentially discoverable at the time of trial and should be preserved. Petitioner further argued that CDCR records were discoverable despite the language in section 1054.9. Petitioner received medical treatment while in prison which was relevant to the case. The trial court had the inherent authority to order that the CDCR preserve petitioner's records. The trial court could order preservation of DNA evidence from private laboratories. The jail records were relevant to petitioner's medical treatment and his ability to cooperate with his counsel. Further, petitioner could seek preservation of records from multiple agencies.
Petitioner contended that he was just seeking to have each agency preserve any records they possessed in regard to him and the capital case, including prior convictions. It need not be proven that the items would actually be discoverable at the time that habeas counsel was appointed. Any work product or attorney-client privileged materials should be preserved whether or not they were actually discoverable.
D. TRIAL COURT RULING
A hearing was conducted on October 14, 2022. Petitioner's counsel reiterated that only the People had filed opposition; the Motion was unopposed by the other agencies. The People had no standing to object on behalf of the other agencies. Petitioner's counsel also advised the trial court that she had received a call from RCSD clarifying what records were needed to be preserved; clearly, they did not object to the Motion. Petitioner was only seeking that the status quo be maintained by preserving records; he did not have to prove that the items would ultimately be discoverable.
The People were the only other party to appear and insisted that the failure of other agencies to respond did not mean they did not object to the Motion; the request was too broad; and it should not have to preserve items that would not have been discoverable at trial, including policy and procedure manuals and death penalty decisions.
The trial court entered a written ruling on November 3, 2022. As for the People, the trial court granted the Motion on requests 1(a), (b), (c), (h), (k), (1), (m) and (p); 2, 7, 9, and 11; and requests 12(a), (b), (c), and (k). For SBCSD, it granted requests 1(a), (b), (e), (f), (g), (h) and (i); 2; and 15 (a), (b), and (c). The materials that were to be preserved by the Riverside County Sheriff's Office were as follows: 1(a), (b), (c), (d), (e), (f), (g), (h); 4; 6; and 8(a) and (b). It ordered the LACDA to preserve the records only in request 1. The trial court ordered petitioner's counsel to prepare a separate order to be served on each of these agencies.
The trial court denied the remainder of the Motion citing People v. Superior Court (Morales) (2017) 2 Cal.5th 523 (Morales), People v. Shorts (2018) 24 Cal.App.5th 709 (Shorts), In re Steele (2004) 32 Cal.4th 682 (Steele), section 1054.9 and work product privilege. Petitioner prepared and the trial court signed preservation orders for all of the agencies listed in the Motion. The final preservation order was filed and signed on January 3, 2023.
DISCUSSION
Petitioner made several contentions in the Petition, but this court has issued an OSC only on "Section III(C) and III(E)(1)." Section III(C) addresses the trial court's order as it pertains to preservation of records by Riverside, San Bernardino and Los Angeles Counties District Attorney's Offices; the San Bernardino, Riverside and Los Angeles Counties Sheriff's Departments. Section III(E)(1) pertains to the preservation of records by the CDCR.
We note the People have argued that mailed notice of the Motion was not sufficient to notify the various agencies and departments of the trial court's authority to order preservation of evidence. They additionally argue that they have standing to object on behalf of all the agencies and departments to which the Motion was addressed. Petitioner and the People also refer to agencies other than those listed in the Petition, including the superior court, jury commissioner, indigent defense program, children and family services, and probation department.
This court issued an OSC in regard to III(C) and (E)(1) only. These issues fall outside our order to show cause and we need not consider them further. (See Bracamontes v. Superior Court (2019) 42 Cal.App.5th 102, 106, fn. 2 (Bracamontes).)
A. RULES OF POSTCONVICTION RECORD PRESERVATION
"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 [citations], the Legislature has partially abrogated this rule by enacting Penal Code section 1054.9. The statute creates a mechanism by which, . . . a capital or [life without possibility of parole] 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.'" (Morales, supra, 2 Cal.5th at p. 528; see also Bracamontes, supra, 42 Cal.App.5th at p. 110.)
"The scope of a preservation order under Morales mirrors the scope of available discovery under section 1054.9." (Bracamontes, supra, 42 Cal.App.5th at p. 110.) "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 [the] 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 [the] time of trial absent a specific defense request, but to which the defendant would have been entitled at [the] time of trial had the defendant specifically requested them." (In re Steele (2004) 32 Cal.4th 682, 697.)
" '[T]rial courts, which have jurisdiction under Penal Code section 1054.9 to grant condemned inmates' motions for postconviction discovery, have the inherent power to protect that jurisdiction by entertaining motions for the preservation of evidence that will ultimately be subject to discovery under that statute when the movant is appointed habeas corpus counsel.'" (Bracamontes, supra, 42 Cal.App.5th at p. 110.)" 'Discovery on habeas corpus is necessarily directed at issues raised or potentially raised on habeas corpus, which may or may not relate to any of the evidence presented or not presented in the underlying criminal trial.'" (Shorts, supra, 24 Cal.App.5th at p. 721.)
"[T]he scope of section 1054.9 [is] 'consistent with the scope of the prosecution's constitutional duty to disclose exculpatory information [under Brady v. Maryland (1963) 373 U.S. 83[.] "The scope of this disclosure obligation extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge 'any favorable evidence known to the others acting on the government's behalf ....'" [Citation.] "As a concomitant of this duty, any favorable evidence known to the others acting on the government's behalf is imputed to the prosecution. 'The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation.'" [Citation.] Thus, the prosecution is responsible not only for evidence in its own files but also for information possessed by others acting on the government's behalf that were gathered in connection with the investigation.'" (Bracamontes, supra, 42 Cal.App.5th at p. 112.)
"Under Morales a condemned inmate who does not yet have appointed habeas corpus counsel is entitled to an order preserving all materials potentially discoverable under section 1054.9." (Shorts, supra, 24 Cal.App.5th at pp. 723-724, italics added.) Questions as to whether a movant is actually entitled to discovery of the preserved material will await the eventual filing and determination of the postconviction discovery motion. (Ibid.)
" 'Generally speaking, a trial court's ruling on discovery matters is reviewed for abuse of discretion.' [Citation.] However, where . . . the primary dispute concerns the scope of preservation and discovery under the statute, our review is de novo." (Bracamontes, supra, 42 Cal.App.5th at p. 111.)
B. DISTRICT ATTORNEY OFFICES
1. SAN BERNARDINO COUNTY DISTRICT ATTORNEY
Petitioner contends he is entitled to all requested records from the SBCDA. The trial court only partially granted his request for the preservation of records related to the investigation of his capital case by the People but denied several of the requests.
Petitioner first claims he was entitled to all physical, scientific and forensic materials discoverable at trial, including records of any private laboratories. This appears to be requests 1(f)-all physical evidence and items, including biological records; 1(i)-all scientific and forensic writings, and underlying documentation and data; and 1(j) background and qualifications of the criminalists, analysts and technicians in the case. Petitioner insists he was entitled to have this evidence preserved based on the case involving DNA evidence linking petitioner to the crime.
In Bracamontes, supra, 42 Cal.App.5th 102, the court held that government and private laboratories are part of the "prosecution team." As such, "physical and documentary evidence in their possession, related to their work in [the case], is potentially discoverable under section 1054.9 and therefore subject to a preservation order under Morales." (Id. at p. 116.) Additionally, these items are discoverable under section 1054.9 because they would have been available to the defense at the time of trial. The trial court should have ordered that the above materials be preserved.
Petitioner also claims that he was entitled to complete law enforcement reports (request 1(g)). He further claims he is entitled to all materials in regard to prior convictions, arrests and detentions in San Bernardino County (request 8(a)-(f)). This includes the request for petitioner's probation records (1(e)) and his custodial records (1(d)). Petitioner also insists that he was entitled to all the impeachment evidence as it was information subject to Brady disclosure. This includes requests 10, which were statements and files on witness Fernando Renteria; 12(d) through (j); and 13 through 15.
We note that the People have not objected to the above materials being disclosed. Moreover, many of these records were ordered preserved by other agencies and this court has found no authority that the preservation of the same evidence cannot be ordered for each agency. Petitioner was entitled to impeachment evidence and law enforcement reports as he "would have been entitled [to these materials] at time of trial." (§ 1054.9, subd. (c).) Moreover, he was entitled to the preservation of evidence of his prior convictions, which was included in the statement of aggravation submitted by the People and for which he was charged. (Shorts, supra, 24 Cal.App.5th at pp. 724725.) Even if these documents eventually are found not to be discoverable, the evidence should be preserved.
The trial court properly denied the requests for preservation of the records that included the time frame of October 18, 2001, to present. This includes requests 1(d), 1(n), 1(o), 13, 14, and 15. Petitioner was only entitled to those records that were discoverable at the time of trial. (§ 1054.9, subd. (c).) As written, these requests were properly denied by the trial court as they included materials that were not discoverable at the time of trial. Further, petitioner's request for all of his probation records-request 1(e)-was too broad. He was entitled only to his probation records generated in connection with the capital case, not for all cases. (Shorts, supra, 24 Cal.App.5th at p. 729.)
The People object only to the preservation of evidence related to (1) materials related to its decisions to seek the death penalty in the case and policy or manuals of the People by which a decision to charge special circumstances or seek the death penalty is decided (requests 3 &4); and (2) the jury voir dire notes and policy or manuals on jury selection (requests 5 &6).
The People concede that the prosecutor's notes on jury selection should be subject to the preservation motion but contend that it need not preserve any policies or manuals of the office. In People v. Superior Court (Jones) (2021) 12 Cal.5th 348, the defendant, decades after he was sentenced to death, filed a petition for writ of habeas corpus claiming the prosecution used peremptory strikes to discriminate against prospective jurors in violation of Batson/Wheeler . The defendant in that case filed a motion for postconviction discovery pursuant to section 1054.9 seeking the prosecution's notes on jury selection. (Jones, at pp. 353-356.) The Supreme Court found that even if the jury selection notes were protected work product, the prosecutor had waived any protection through conduct, and they were discoverable. (Id. at pp. 362-363.) Further, in Box v. Superior Court (2022) 87 Cal.App.5th 60, 67, the court found "[w]here a prima facie case of racial bias under Batson/Wheeler has been made, a defendant is entitled to discover the prosecution's jury selection notes under section 1054.9. Those notes are not categorically shielded from discovery by the absolute work product privilege"
Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258.
Petitioner was entitled to preservation of the prosecutor's notes on jury selection. The materials should be preserved at this time for the filing of a habeas petition.
Moreover, the People object to any materials being preserved that involved their decision to seek the death penalty and their policies on seeking the death penalty in cases where such items would not have been discoverable at trial. They contend that the materials are work product and entitled to privilege pursuant to Evidence Code section 1040. Petitioner disagrees. In People v. Keenan (1988) 46 Cal.3d 478, 504-507, the court found on a proper showing of intentional and invidious discrimination, a defendant may be entitled to discovery about the capital-charging policies and practices of the district attorney's office. Moreover, the decision to seek the death penalty in petitioner's case and the policy of the office in charging special circumstances and seeking the death penalty may be discoverable under the Racial Justice Act (§ 745, et. seq.). As such, at this point, it seems appropriate to order that the materials be preserved. The trial court erred by denying requests 3, 4, 5 and 6.
Based on the foregoing, we will order that the trial court grant the requests to preserve the evidence on requests 1(f), (i), (j), (g); 3; 4; 5; 6; 8 (a)-(f); 10; and 12 (d), (e), (f), (g), (h), (i) and (j). As for the remaining denial of records as to the SBCDA, the order shall stand.
For the remaining two district attorney offices, and the sheriff's departments, the types of records sought are nearly identical to those just discussed. As such, all legal authority already applied is also applicable to the decision whether to reverse or uphold the preservation orders for these remaining offices without the necessity of repeating the legal authority.
2. LOS ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE
The only request granted for the LACDA was request 1, which provided, "All materials and reports related to the investigation and/or prosecution of [Petitioner] (DOB 9/14/61) for any offense listed in Appendix A (Prior Arrests and Prosecutions of [Petitioner]), specifically including Los Angeles County Superior Court case numbers: A350297, A760744, A472318, VA017980 and BA264351, and including an unadjudicated incident of alleged domestic violence occurring on or about August 29, 2022." The remainder of the requests, which outlined the specific materials and writings, including statements by petitioner, biological materials, scientific reports, and photographs, were denied. Petitioner contends that he was entitled to all of the materials. The People do not object.
Although the trial court generally granted petitioner's request for materials related to his prior convictions suffered in Los Angeles County, the trial court should have additionally granted the specific requests 1(a) through (f). In addition, petitioner was entitled to preservation of exculpatory evidence (request 2); and all impeachment evidence of the officers involved in the prior offense (requests 5(a)-(j)).
As above, petitioner was not entitled to "all" his adult and juvenile probation records (request 3). In addition, his requests that involved either records from October 18, 2001, to present or the past 10 years, also were properly denied (requests 6-10).
The only remaining items that were denied were petitioner's custodial records while in the custody of LACSD (request 4) and all written materials relating to any previous audits or investigations conducted into the evidence preservation and destruction policies and procedures of LACDA (request 11). The People have made no argument as to these items. We will order that this evidence be preserved.
3. RIVERSIDE COUNTY DISTRICT ATTORNEY
As for the RCDA, the trial court denied the request in its entirety. Petitioner argues that the RCDA prosecuted defendant in regard to an incident leading to his arrest with Gloria Sanchez and his conviction in this case. Gloria Sanchez testified and the incident was introduced at trial. Petitioner contends all records of the prior conviction, impeachment materials and custodial records should be preserved. The People concede that the trial court could order preservation of RCDA records on the prior conviction.
Petitioner was entitled to preservation of all evidence in regard to the prior conviction (requests 1(a)-(g)); all exculpatory evidence (request 4); all custodial records (request 5); all statements made by Gloria Sanchez (request 6); all custodial materials for Gloria Sanchez (request 7); the impeachment evidence concerning any law enforcement officers involved in the investigation of any case against petitioner or who testified in the capital case (request 8(a)-(j)); and materials regarding preservation and destruction of evidence (request 13).
We note that many of these materials were ordered to be preserved by RCSD. We see no reason to restrict preservation to one agency.
For the same reasons discussed above, the trial court properly denied some of the items requested. The trial court properly denied the request for petitioner's and Gloria Sanchez's probation records (requests (2) &(3)), and evidence that included dates that were after trial (requests 9-12}
C. SHERIFF'S DEPARTMENTS
1. RCSD
The trial court erred in part by denying petitioner's request to order RCSD to preserve evidence. Petitioner was entitled to the preservation of records in relation to an incident occurring in Riverside County involving Gloria Sanchez, including custodial records for Gloria Sanchez and petitioner (requests 5, 7); impeachment evidence (requests 8(c)-(j)); and materials and policies regarding evidence presentation and destruction (request 13).
The trial court properly denied the requests for the probation reports for petitioner and Gloria Sanchez (requests 2, 3), and the requests for evidence that included the time period after trial (requests 9-12).
2. LACSD
The trial court denied the request made for records to be preserved by LACSD in its entirety. Petitioner argues that this agency investigated several of his prior convictions. The People concede that he is entitled to the preservation of records by LACSD.
The trial court should have granted petitioner's request for materials in regard to prior cases in Los Angeles County (request 1(a)-(f)); exculpatory evidence related to petitioner (request 2); custodial records (request 4); impeachment evidence regarding any law enforcement officer involved in the investigation of any case against petitioner (request 5(a)-(j)); and (11) all written materials relating to any previous audits or investigations conducted into evidence preservation and destruction policies and procedures.
Again, the trial court properly denied the request for "all" probation records (request 3) and all records that included dates after trial (requests 6-10).
3. SBCSD
Finally, petitioner was entitled to preservation of materials related to the investigation of the capital case, including all witness statements (request 1(c)), writings or evidence of payment to witnesses or informants (request 1(j)), and custodial materials pertaining to witnesses or informants (request 1(k)). Further, the trial court should have granted the request as to all materials in regard to persons or incidents included in the section 190.3 notice (request 2); custodial materials and visits by law enforcement for Sunshine Bishop (requests 3 &4); evidence of his prior conviction in San Bernardino County (requests 6(a)-(f)); custodial materials for petitioner and Gloria Sanchez (requests 7, 10); statements by Gloria Sanchez (request 9); custodial materials for Angel Benitez (request 11); impeachment evidence for employees of SBCSD (requests 15(d)-(j)); and written materials and audits regarding the destruction of evidence, including the Crime Lab (request 18). We again note that questions as to whether a movant is actually entitled to discovery of the preserved material will await the eventual filing and determination of the postconviction discovery motion. (Shorts, supra, 24 Cal.App.5th at pp. 723-724.) We see no reason to deny the preservation of this evidence at this time.
However, the trial court properly denied petitioner's request for his and Gloria Sanchez's probation records (requests 1(d) &8) and the requests for evidence that included dates after the trial (requests 12-14 &16-17).
D. CDCR
The People contend that "preservation orders in regard to prison records may be problematic." The People contend that the administrator of the prison is not ipso facto a part of the prosecution team, which "might" exclude the CDCR from the reach of the preservation order and any records would be the subject of a subpoena duces tecum in the habeas proceeding.
Petitioner contends the trial court had, pursuant to Code of Civil Procedure sections 128 and 187, the inherent authority to retain any records. Further, the recent enactment of Proposition 66, which requires that habeas proceedings in capital cases be heard first in the trial court, gave the trial court the inherent authority to require the CDCR to retain all records.
Shorts rejected the argument petitioner raises that the court has inherent authority to order the preservation of materials under Code of Civil Procedure sections 128, subdivision (a)(5) and 187. According to Shorts, this argument is foreclosed by Morales, supra, which upheld the general rule that a person seeking habeas relief is not entitled to postconviction discovery until an order to show cause has issued. The sole exception to that rule is material that qualifies for a preservation order under section 1054.9. (Shorts, supra, 24 Cal.App.5th at p. 728.) Proposition 66, which gives original jurisdiction in the capital habeas proceedings to the trial court, does not expand section 1054.9, and Petitioner provides no relevant authority that it changed section 1054.9. As such, preservation of CDCR records is determined pursuant to section 1054.9.
Petitioner relies on Neary v. Regents of University of California (1992) 3 Cal.4th 273. The case involved the power of the appellate court to reverse a trial court judgment to effectuate the parties' settlement. In finding that the appellate court had such authority, the California Supreme Court held, "it is well established that California's Constitution provides the courts, including the Courts of Appeal, with inherent powers to control judicial proceedings." (Id. at p. 276.) It further held that Code of Civil Procedure section 128, subdivision (a)(8), "authorizes every court '[t]o amend and control its process and orders so as to make them conform to law and justice.' This provision is consistent with and codifies the courts' traditional and inherent judicial power to do whatever is necessary and appropriate, in the absence of controlling legislation, to ensure the prompt, fair, and orderly administration of justice." (Neary, at p. 276) Here, there is controlling legislation-section 1054.9-that applies in this case and Proposition 66 did not expand this provision.
Shorts clarified that records from the defendant's prior criminal cases and CDCR records are subject to a preservation order when identified in the prosecution's statement of aggravation or testified about in the trial, but probation department records and other court records are not. (Shorts, supra, 24 Cal.App.5th at pp. 724-726, 729.) In Shorts, the court found, "Restricting the preservation order to CDCR records actually reviewed by the prosecutor prior to trial is unwarranted. To the extent the CDCR has records relating to any of the incidents about which [the defendant] was cross-examined during the guilt phase of his trial or that were introduced as evidence of aggravating circumstances in the penalty phase . . . [are] properly preserved under Morales and section 1054.9." (Shorts, supra, 24 Cal.App.5th at p. 726.) Records relating to CDCR's administrative responsibilities do not appear to be subject to a preservation order. (Ibid. at fn. 11; see People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1317-1318 [distinguishing between CDCR's investigative and administrative responsibilities], overruled on other grounds in Facebook, Inc. v. Superior Court (Touchstone) (2020) 10 Cal.5th 329, 345, fn. 6.) Petitioner sought both types of materials, and the court denied his request in its entirety. Petitioner is entitled to the preservation of at least some of the CDCR materials he requested.
Petitioner sought preservation of records by the CDCR in (requests 1(a)-(i)) relating to the current capital case. These records appear to be discoverable except for (request (1)(i)), which requests all materials relating to housing, movement, transfer or visits by law enforcement to any witnesses or informants from October 18, 2001, to present. These records are not discoverable as they occurred after trial.
Petitioner also sought custodial records. The records requested were as follows: (request 2) all custodial records for petitioner while housed at the California Youth Authority, Centinela State Prison, California Correctional Institution, California Institution for Men, the California Rehabilitation Center, Northern Kern State Prison, Avenal State Prison, Ironwood State Prison and the California State Prison, Los Angeles; (request 3) all juvenile records; (request 4) the recordings or transcripts of parole revocation or suitability hearings; and (request 6) all records relating to the discharge of a firearm or use of force by a correctional officer involved in the capital case involving petitioner. Based on Shorts, these all appear to be discoverable in relation to the prior convictions, which were at the very least relevant to the aggravating factors at the penalty phase.
The requests in (7) and (8), any findings of sexual assault or falsifying evidence by a correctional officer, are too broad as they could include time periods after trial. This also applies to requests (9) and (10), which specifically refer to time periods after the trial. Request (10)-and also (11)-refer to the policies and procedures of the prison but this is not discoverable as they are records relating to the administrative responsibilities of the CDCR. (Shorts, supra, 24 Cal.App.5th at p. 726, fn. 11.) Finally, request (5) seeks all probation records and files, which is too broad as it applies to all cases involving petitioner and not just the capital case.
Based on the foregoing, the trial court order as to the CDCR should be modified to order preservation of the materials in 1 (a)-(h), (2), (3), (4), and (6).
In sum, the Motion here sought to preserve evidence that could potentially be used to file a habeas petition. Petitioner may not be able to file a habeas petition for several decades. Preservation of the records in this case ensures that petitioner will have a fair opportunity to present his habeas petition.
DISPOSITION
Let a writ of mandate issue directing the Superior Court of San Bernardino County to vacate its order denying, in part, petitioner's request for preservation of records. It shall enter a new order containing the original grant of preservation of records, and shall include the additional records as follows: It shall grant the order as to the San Bernardino County District Attorney's Office as to requests 1(f), (i), (j), (g); 3; 4; 5; 6; 8(a)-(f), 10, and 12(d), (e), (f), (g), (h), (i), and (j). For the Los Angeles County District Attorney's Office, the trial court shall grant requests 1(a) through (f); 2; and 5(a) through (j). For the Riverside County District Attorney's Office, the trial court shall grant requests 1(a) through (g); 4; 5; 6; 7; 8(a) through (j) and 11. For the San Bernardino County Sheriff's Department, the trial court shall grant requests 1(c), (j), and (k); 2; 3; 4; 6(a) through (f); 7; 9; 10; 11; 15(d) through (j); and 18. For the Los Angeles County Sheriff's Department, the trial court shall grant requests 1(a) through (f); 2; 4; 5(a) through (j); and 11. For the Riverside County Sheriff's Department, the trial court shall grant requests 5; 7; 8(a) through (j); and 13. For the CDCR, the trial court shall grant requests 1 (a) through (h), 2, 3, 4, and 6. The remaining denial of records shall stand.
I concur: CODRINGTON J.
MENETREZ, J, Concurring and Dissenting.
I agree with the majority opinion's analysis of the record preservation requests directed to the San Bernardino County District Attorney. No other entity has objected to petitioner's request for record preservation. I would therefore grant the petition in its entirety as to every entity other than the San Bernardino County District Attorney. I accordingly concur in part and respectfully dissent in part.