PEOPLE v. ABEL (JOHN C.)Appellant's OppositionCal.April 23, 2010 Michael R. Belter, Esq. eae PALLET State Bar No. 97417 " sur 16 North Marengo Avenue,Suite 619 Fi vee Pasadena, California 91101 APR 93 2010 Office: (626) 796-2599 Fax: (626) 796-1458 Frederick K. Ohirich Clerk michaelbelter@yahoo.com Deputy Attorney for Defendant/Petitioner IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF ) CAPITAL CASE CALIFORNIA, ) ) Case No. S064733 Plaintiff and Respondent, ) ) Related Case No. $175275 Vv. ) ) JOHN CLYDE ABEL, ) Orange County Sup.Ct. ) No. 95CF1690 Defendant and Petitioner. ) ) OPPOSITION TO RESPONDENT’S MOTION FOR ACCESS TO SEALED PENAL CODE SECTION 987.9 MATERIALS, AND SEALED TRANSCRIPT FILED IN CASE NUMBER 80464733 FOR USE IN THE PENDING STATE HABEAS PROCEEDING TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: On February 24, 2010, respondentfiled a “Motion for Access to Sealed Penal Code Section 987.9 Materials, and Transcript Filed in Case Number 5064733 for Use in the Pending State Habeas Proceeding” (hereinafter “Motion for DEATH PENALTY Access”). Petitioner John Clyde Abel opposes respondent’s motion on the ground that the request is premature in the absence of an Order to Show Cause (OSC), that Penal Codesection 987.9(d)' doesnotapplyretroactively, that disclosureis prohibited by attorney client and work productprivileges and by principles of equal protection, andthat there is no basis for unsealing the confidential in camera transcripts. I. RESPONDENT’S REQUEST FOR DISCLOSURE OF THE TRIAL COURT’S SEALED FUNDING RECORDSIS PREMATURE; DISCLOSURE IS PROHIBITED BY STATUTE AND BY SIXTH AND FOURTEENTH AMENDMENT PRINCIPLES. Respondentrequests “a copy ofall Penal Code section 987.9” documents filed in the trial court, contending that petitioner’s “pending HabeasPetition challenges the representation provided by counsel, and therefore, places in issue all of counsel’s consultation, employment, and use of investigators, consultants and experts,” thereby making “the 987.9 documents relevant to resolving appellant’s habeas claims.” (Motion for Access,at p. 2.) Respondentseeksthis disclosure in order to prepare the informal reply to the petition for writ of habeas corpus before an order to show causehas issued. The request should be denied as premature. ‘All further citations are to the California Penal Code unless otherwise indicated. A. THE DISCLOSURE REQUIREMENT OF PENAL CODE SECTION 987.9(d) IS NOT TRIGGERED UNTIL AN ORDER TO SHOW CAUSE HASISSUED. Respondent bases the request upon the language of Penal Code section 987.9. Subdivision (a) of that section provides, in pertinent part: (2) In thetrial of a capital case or a case under subdivision (a) of ection 190.05 the indigent defendant, through the defendant's counsel, may request the court for funds for the specific payment of investigators, experts, and others for the preparation or presentation of the defense. The application for funds shall be by affidavit and shall specify that the funds are reasonably necessary for the preparation or presentation of the defense. The fact that an application has been made shall be confidential and the contents of the application shall be confidential. (Pen. Code §987.9, subd.(a), emphasis added.) Respondent contendsthat in spite of the foregoing confidentiality guarantee, subdivision (d) of section 987.9 now permits respondentto obtain access to the trial court funding files. Subdivision (d) provides: (d) The confidentiality providedin this section shall not preclude any court from providing the Attorney General with access to documents protected by this section when the defendantraises an issue on appeal or collateral review where the recordedportion of the record, created pursuantto this section,relates to the issue raised. When the _ defendantraises that issue, the funding records, or relevant portions thereof, shall be provided to the Attorney Generalat the Attorney General's request. In such a case, the documents shall remain under seal and their use shall be limited solely to the pending proceeding. (Pen. Code §987.9, subd. (d).) Respondentargues, relying on People v. Superior Court (Berryman) (2000) 83 Cal.App.4th 308, that petitioner has “raise[d] an issue” on collateral review, within the meaning of subdivision(d), by filing a state habeas petition which presents several claims ofineffective assistance of counsel. (Motion for Access,at pp. 2-3.) Respondentis incorrect. For the reasonsset forth below, subdivision (d) must be interpreted as requiring disclosure only after an order to show causehasissued and threshold showingsofrelevance required by the plain languageofthe statute have been made. For purposes of subdivision (d), an “issue” cannot be said to have been “raised” on collateral review until at least the point at which a primafacie case has been found to exist and an order to show cause has been issued by this court. Until that time, there is no “cause or proceeding” in existence in which a relevant issue can be deemed“raised.” Indeed, any other interpretation of the statute would violate equal protection principles, and a statute must be given a construction favoring constitutionality. (See 1 Witkin, California Criminal Law (3d ed. 2000) Introduction to Crimes, §27, p. 56, and casesthere cited.) What respondent seeks is court-ordered discovery of confidential funding records pertaining to petitioner’s defense. However, the relevant case law establishes that respondentis not entitled to discovery at this stage in the habeas proceedings. California courts have held that a court may not entertain a post judgmentdiscovery motion which is unrelated to any proceeding then pending before the court. This court has held that the “bare filing of a claim for post-conviction relief cannot trigger a right to unlimited discovery.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1258.) A habeas corpuspetition must be verified, and muststate a “prima facie case”for relief. That is, it must set forth specific facts which, if true, would require issuance ofthe writ. Any petition that does not meet these standards must be summarily denied, andit creates no cause or proceeding which would confer discovery jurisdiction. (Ibid. Thus, at the presenttime, the “bare filing” of a petition for writ of habeas corpus by petitioner has not yet created a “cause or proceeding which would confer discovery jurisdiction.” (/bid.) Respondent therefore cannot obtain discovery until after an order to show causehas beenissuedin this case. Respondent may contendthat subdivision (d) of section 987.9 confers upon respondenta statutory right to discovery as an exception to the Gonzalez rules. However, for reasonsset forth below, such an interpretation violates principles of non-retroactivity in this case and would clearly violate equal protection principles and thus violate the rule that statutes must be interpreted in a manner to preserve their constitutionality. 7Asthis court notedin Jn re Steele (2004) 32 Cal.4th 682, 691, section 1054.9 “modifie[d]”therule stated in Gonzalez to the extent it created a statutory, pre-petition right to post-conviction discovery for capital defendants. The right to post-conviction discovery created by section 1054.9, however, is limited and merely entitles a petitioner to obtain documents he would have beenentitled to at the time oftrial. (/d. at pp. 692, 695.) Moreover, section 1054.9 creates no discovery rights for the state. Gonzalez therefore continues to govern discovery in habeas cases that is outside the scope of section 1054.9. (See Board ofPrison Terms v. Superior Court (2005) 130 Cal.App. 4 1212, 1241-1242 [generalrule in habeas cases is that discovery, other than that provided by section 1054.9, is not available until OSC is issued, citing Gonzalez, supra, at p. 1258].) B. THE LEGISLATURE DID NOT CONTEMPLATE THAT PENAL CODE SECTION 987.9 SUBD. (d) WOULD HAVE A RETROSPECTIVE EFFECT. The legislature enacted subdivision (d) ofPenal Code section 987.9 in 1998, to become effective on January 1, 1999. The confidential applications filed by petitioner and the orders issued by thetrial court in the present case were drafted and filed in 1995, 1996, and 1997. Application of subdivision (d) to petitioner's case accords an impermissible retroactive effect to the statute neither contemplated by the legislature nor appropriate in light of the constitutional and statutory rights implicated by such disclosure. Noportion of the Penal Codeis retroactive “unless expressly so declared.” (Pen. Codesection 3.) Penal Code section 3 is a codification of the principle, “familiar to every law student,” (United States v. Security Industrial Bank (1982) 459 U.S. 70, 79), that “statutes are not to be given a retrospective operation unless it is clearly made to appear that such was thelegislative intent.” (Aetna Casualty & Surety Co. v. Industrial Accident Commission (1947) 30 Cal. 2d 388, 393; accord, Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 [absent “an expressretroactive provision”a statute will not be applied retroactively unlessit is “very clear from extrinsic sources” that the Legislature “must have intended” that].) At the time the Legislature enacted Penal Code section 987.9, subd.(d), the judiciary had adhered unanimouslyto this principle. (See cases collected in Evangelatos at 1207 & 1208; Buttram v. Owens-Corning Fiberglass Corporation (1997) 16 Cal.4th 520, 532, 536, n. 6; see also, Landgrafv. USIFilm Products (1994) 511 U.S. 244, 265 [presumption against retroactivity is “deeply rooted” in American jurisprudence and “embodiesa legal doctrine centuries older than our Republic”].) A statute has a retroactive or retrospective effect whenever the new law “attaches new legal consequences to ‘events completed’ before its enactment, and that such a determination must include consideration of fair notice, reasonable reliance, and settled expectations.” (Buttram v. Owens-Corning Fiberglas Corporation, supra, 16 Cal.4th at 536, n.6; accord, Evangelatos v. Superior Court, supra, 44 Cal.3d at 1206 [law is retroactive if it affects acts or transactions performedprior to its enactment or conditions and rights existing priorto its adoption]; Aetna Casualty & Surety Co. v. Ind. Acc. Com, supra, 30 Cal.2d at 391 [same]; see also, Landgrafv. USI Film Products, supra, 511 U.S. at 269-70 and n. 23 [collecting prior United States Supreme Court decisions and emphasizing considerations of fair notice, reasonable reliance and settled expectations].) Section 987.9 subd. (d) operatesretroactively in petitioner's case. At the timepetitioner's counsel drafted andfiled their applications for ancillary funding, the existing law offered and promised petitioner and counsel absolute confidentiality. Therefore, counsel could reveal attorney-client confidences and counsel's work product secure in the knowledgethat noneof it would be revealed to the State. As a result, counsel had no need to self-censor,edit, or carefully craft their applications to reveal only that minimal information which was necessary to obtain the desired funding. Counsel reasonably relied on the absolute confidentiality of his applications in revealing information learned in confidence. They had no notice and no reason to suspectthat at any time thereafter, their applications might be distributed and ultimately relied uponto petitioner's detrimentin litigation. Had petitioner and counsel had fair notice of such a possibility they could have limited their showing to reveal aslittle confidential information as necessary to obtain investigative and expert assistance. Application of subdivision (d) to provide for disclosure of applications that counsel crafted in light of an absolute assurance of confidentiality unfairly gives an “effect to acts or conduct” that counsel “did not contemplate” when they filed their applications. (Union Pacific Railroad Co. v. Laramie Stock Yard (1913) 231 U.S. 190, 199.) There is no reason to depart from the well-established rule that prevents the attachment of unforeseen consequencesto past actions. Nothing in the legislative history or the wording ofthe provision suggests an intent to depart from this principle. The statute contains no expressretroactivity provision, there is no other language in subdivision (d) on which this Court mayrely in finding that such an intent is “very clear,” and the legislative history demonstrates that the legislature did not consider the matter in amending section 987.9. (See Evangelatosv. Superior Court, supra, 44 Cal.3d at 1209 and n.13, [setting forth the governing mode ofanalysis of the statutory language andlegislative history].) Becausethe “presumption against statutory retroactivity is founded upon sound considerations of general policy and practice[,] . .. accords with long held and widely shared expectations about the usual operation oflegislation,” (Landgraf v. USI Film Products, supra, 511 U.S.at 293), and is not contradicted by any legislative history, this Court should not apply Penal Code section 987.9, subd. (d) to the funding requests and orders in petitioner's case. C. EQUAL PROTECTION PRINCIPLES PROHIBIT DISCLOSURE OF RECORDSOF AN INDIGENT DEFENDANT WHENA PRIVATELY FUNDED DEFENDANT WOULD NOT BE REQUIRED TO MAKE A COMPARABLE DISCLOSURE. Petitioner also objects to the request because respondent’s broad interpretation would renderthe statute unconstitutional. Because discovery of a privately funded, non-indigent defendant’s expenditures for experts and investigators could not be compelled at this stage in the habeas proceedings, equal protection principles prohibit the courts from compelling disclosure of similar records of petitioner’s expenditures solely becauseheis indigent. Underthe plain languageofthe statute, and under Gonzalez andits progeny, this court has neither the authority northe jurisdiction to grant respondent discovery of the expenditures for experts and investigators of a privately funded, non-indigent defendant until an order to show cause has been issued and a “cause or proceeding” has been created. Accordingly, equal protection principles prohibit the forced disclosure of such records on behalf of an indigent defendant until a similar juncture in the litigation. Any statute which requires disclosure of only the expenditures of an indigent defendant, and not similar expenditures of a privately funded defendant, is unconstitutional. It is axiomatic that in post-conviction proceedings, a state may not discriminate against indigent convicted defendants on account oftheir poverty. (Douglas v. California (1963) 372 U.S. 353, 355; Griffin v. Illinois (1956) 351 U.S. 12, 19; Smith v. Bennett (1961) 365 U.S. 708, 709.) There can be no equal justice where the kind ofpost-conviction proceedings a defendant enjoys “depends on the amount of moneyhe has.” (Douglas v. California, supra, 372 U.S., at p. 355; Griffin v. Illinois, supra, 351 U.S., at p. 19.) “[T]o interpose any financial consideration between an indigent prisonerofthe State and his exercise ofa state right to sue forhis liberty is to deny that prisoner the equal protection ofthe laws.” (Long v. District Court ofIowa (1966) 385 U.S. 192, 194,citing Smith v. Bennett, supra, 365 U.S. at p. 709.) Thus, the United States Supreme Court has held that an indigent defendant must be given a free transcript on appeal if a non-indigent defendant could obtain one by purchase. (Griffin, supra, 351 U.S. at p. 19; see also, People v. Hosner (1975) 15 Cal.3d 60, 66.) By the same reasoning, an indigent defendant cannot be jailed for non-paymentofa fine becauseofhis inability, due solely to his indigency, to pay the fine and penalty assessment imposed upon him as a condition of probation, and state statutes to the contrary will be held unconstitutional. (Williams y. Illinois (1970) 399 U.S. 235, 243; Bearden v. Georgia (1983) 461 US. 660, 670; In re Antazo (1970) 3 Cal.3d 100, 115.) Similar reasoning has also been applied in cases where the prosecution or the state attempts to compel discovery of some aspect of the defense case whenit could not do so if the defendant were not indigent. (See, e.g., United States v. Meriwether (1973) 486 F.2d 498, 506 [prosecution should not be entitled to discover identity of adverse witnesses for whom subpoenasare sought by indigent defendant whenit is not able to do so in the cases of defendants able to pay witness fees]; Ex parte Lexington County (S.C. 1994) 314 S.C. 220, 228 [disclosure of defense request for expert witness fees would force defense to reveal defenses only because defendantis indigent]. Thus, respondentis not entitled to use subdivision (d) of section 987.9 to compel discovery oftrial court funding records until the pointthat a court could compelsimilar disclosure of the records of a non-indigent defendant. Any interpretation to the contrary would render thestatute unconstitutional. Berryman, supra, on which respondentrelies, is both distinguishable and questionable authority and in any event does not support respondent’s position. In Berryman, the Court of Appeal for the Fifth Appellate District reversed thetrial court’s order denying disclosure of 987.9 funding records and granted the requested discovery because afederal habeascorpuspetition had beenfiled. (Berryman, supra, 83 Cal.App.4th 308, 3 11.)° Thecase is therefore distinguishable from the instantsituation, both because respondentbasesits request uponthefiling ofpetitioner’s statepetition and because the Gonzalez reasoning (i.e., that the mere filing of a state habeas petition does not create a “cause or proceeding”) does not apply to a pending federal petition. Moreover, Berrymanis questionable authority becausethere is no indication in that case that the Fifth Appellate District ever consideredeither this court’s jurisdictional rationale for Gonzalez, the issue ofretroactivity, or the equal protection problem, and consequent unconstitutionality of the statute, which would becreatedif respondent’s interpretation of section 987.9, subdivision (d), were to be adopted. “It is axiomatic that cases are not authority for propositions not considered.” (People v. Ault (2004) 33 Cal.4th 1250, 1268,fn. 10.) 3 In addition to facts stated in Berryman, a review ofthis court’s electronic docket confirmsthat nostate habeaspetition was pendingin this court at the time Berryman wasdecided. D. REQUIREMENTSFOR DISCLOSURE OF PRIVILEGED MATERIALS MUST BE INTERPRETED AS NARROWLY AS POSSIBLE WHILE STILL PROVIDING FAIRNESS FOR THE OPPOSING PARTY. The material respondent requests is protected not only by the specific provisions of section 987.9, subdivision (a), but also by the attorney-client and work product privileges, which are rooted in both statutory and fundamental constitutional rights. For example, state law imposes upon every attorney the duty ““[t]o maintain inviolate the confidence, and at every peril to himself or her-self to preserve the secrets, of his or her client.’” (Bus. & Prof. Code § 6068(e).) Penal Code section 1054.6 also provides: Neither the defendant nor the prosecuting attorney is required to disclose any materials or information which are work product as defined in subdivision (a) of Section 2018.030 of the Code of Civil Procedure, or which are privileged pursuant to an express statutory provision, or are privileged as provided by the Constitution of the nited States. (Pen Code §1054.6.) Code of Civil Procedure section 2018.030, subdivision (a), prohibits the discovery “under any circumstances” of core work product, defined as “[a] writing that reflects an attorney’s impressions, conclusions, opinions,or legal research or theories .. .” Subdivision (b) then provides that work product not described in subdivision (a) may only be disclosedif “the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Code Civ. Proc. §2018.030, subd. (b).) Improper disclosure of privileged communications would violate not only the foregoing rights, but also petitioner’s Sixth Amendmentright to counsel and Fourteenth Amendmentdue processright to a fair proceeding. (Prince v. Superior Court (1992) 8 Cal.App.4th 1176, 1180 [under Sixth Amendment, defense may not be compelled to disclose results of pretrial DNA testing unless expert is called to testify]; Torres v. Municipal Court (1975) 50 Cal.App.3d 778, 784 [under Sixth | and Fourteenth Amendments, appointmentof expert for indigent defendant must be confidential]; United States v. Rosner (2d Cir. 1973) 485 F.2d 1213, 1224 [essence of Sixth Amendmentright to counselis privacy of communication with counsel].) The important constitutional interests protected by the attorney-client and work product privileges muststill be protected when fairnessto litigant requires limited disclosure of privileged documents. Thus, whenlitigation of a claim of ineffective assistance of counsel or another issue requires disclosure of material subject to the attorney-client or work-product privileges, the scope of the waiver must be interpreted as narrowly as possible, and the actual disclosure limited as muchaspossible, in order to protect the privilege while still providing the opposing party with a fair opportunity to defend against the claim. (Bittakerv. Woodford (9" Cir. 2003) 331 F.3d 715, 720-721.) One reason such a narrowinterpretation is requiredis that otherwise a criminal defendant would be placed in the impossible position of having to choose between two constitutional rights,i.e., the Sixth and Fourteenth Amendmentright to the effective assistance of counsel, on the one hand, versus the Sixth and Fourteenth Amendmentright to protection of client confidences, on the other. (Id. at pp. 723-724; see also Simmonsv. United States (1968) 390 U.S. 377, 394; Greater Newburyport Clamshell Alliance v. Public Service Co. (1* Cir. 1988) 838 F.2d 13, 21-22 [“the scope of required disclosure should not be so broadasto effectively eliminate any incentive to vindicate [a] constitutional right . . .”].) For these reasons, the disclosure requirement of subdivision (d) of Penal Codesection 987.9 must be interpreted as narrowlyas possible whilestill permitting opposinglitigants a fair opportunity to defend against claims. Moreover, because the confidential 987.9 materials will include documentsas to which the privilege has not been waived,it is essential, as argued below,that disclosurebe permitted,if at all, only after a careful in camera review. II. IF THE COURT DETERMINES THE REQUEST SHOULD BE RASTERANINCAMERAFROGBINGigHE WHETHER AND WHICH RECORDS SHOULD BE RELEASED AND TO COMPEL RECIPROCAL DISCOVERY. Althoughpetitioner submits that respondent’s request is at best premature,in the event that this court should determinethat the request should be granted and disclosure ordered, this court must conduct an in camera inspection ofthe requested records to determine whether“the recorded portion ofthe record, created pursuantto [] section [987.9], relates to the issue[s] raised,” as required by the subdivision (d) ofthe statute, to compel reciprocal discovery of expenditures by the prosecution and law enforcement for experts andinvestigation,andto craft the necessary protective orders limiting disclosure of the material to the pending litigation. Respondentseeks “a copy ofa// Penal Code section 987.9 documentation” filed in this case. (Motion for Access, at p. 2, emphasis added.) Byits plain language, however, Penal Codesection 987.9 subdivision (d), permits disclosure of the confidential funding records only “when the defendantraises an issue on appeal or collateral review where the recordedportion ofthe record, created pursuantto this section, relates to the issue raised.” (Jbid., emphasis added.) Even whensuch an issue has beenraised,the statute provides that only “the funding records, or relevantportions thereof, shall be provided to the Attorney General.” ([bid., emphasis added.) Accordingly, because the records are confidential, this court must conduct an in camera review of the 987.9 files to determine as a threshold matter whether petitioner has raised an issue to which the 987.9 files relate and, if so, which portionsofthe recordsare relevant to the issue or issues. (See, e.g. In re National Mortg. Equity Corp. Mortg. Pool Certificates Sec. (C.D. Cal. 1988) 120 F.R.D. 687, 692 [in camera inspection conducted to determine the extent to which materials protected by the attorney-client privilege were necessary to former attorney’s defense against fraud charge, and only selected documents were released].) The history of the statutory language from introduction to enactment supports petitioner's literal reading ofthe statute. As originally introduced, Senate Bill 1441 would have added Penal Code section 987.9 (d) terminating confidentiality upon finality of direct review or uponthefiling of a post-conviction pleading to which the contents of the confidentialfile relates.* The bill was amendedtwice. The first amendmenteliminated the automatic termination provision by requiring the Attorney General to obtain judicial permission to view the documents. The statute authorized the court to release records that it found “relate” to pending post conviction claims.” The amendmentalso provided for continued “The relevant portion of SB 1441 originally read, “(d) The confidentiality providedin this section shall exist only until the judgmentis final on direct review or until the defendant raises an issue on appealorcollateral review wherethe record created pursuantto this section relates to the issue raised.” (Sen. Bill No. 1441 (1997-1998 Reg. Sess.) As introduced Jan. 28, 1998.) °As amended on April 27, 1998 sub section (d) read, “The confidentiality provided in this section shall not preclude any court from providing the Attorney General with access to documents protected by this section when the defendant raises an issue on appealor collateral review where the recorded portion ofthe record, created pursuant to this section relates to the issue raised. When the defendantraises that issue, the funding records, or portions thereof, shall be provided to the Attorney General at the Attorney General’s request. In such a case, the documentsshall “confidentiality.” The second amendmentinserted the word “relevant” before “portions” in the final version. The inclusion ofthe words “relates to the issues raised “ and “relevant portions” meanthat the statute is not self executing and any disclosure must be based on a judicial determination of the relevancy of each specific sealed item to a specific disputed claim or allegation. The preferred method of determining relevancy in California is by way of an in camera hearing. (See Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321, 325-26 [where county sought access to confidential defense funds requests,trial court alone has authority to determine- in camera - whether reasonable need for defense services has been shown].) By requiring the documents to remain undersealit is clear that the preferred method for determining relevancy remains by wayof an in camera hearing, lest the horse be let out ofthe barn before the dooris closed.° remain undersealandtheir use shall be limited solely to the pending proceeding.” (Sen. Bill No. 1441 (1997-1998 Reg. Sess.) as amended April 27, 1998.) ®Consistent with section 987.9 subdivision (d)’s guarantee of continued confidentiality, documents should be disclosed only subject to protective order. In Bittaker, the federal court of appeals cited this court’s order in In re Gallego as a modelof an appropriate protective order: S042737 In re Gerald Gallego on Habeas Corpus Regarding the documents provided by petitioner to respondent on July 17, 1996, in conjunction with this court's order to respondent to show cause (dated July 10, 1996): 1. Respondentshall limit its use ofthe documents, and the information containedtherein, to rebuttal of petitioner's habeas corpusclaims, including responding to the order to show cause. 2. Respondentshall not use the documents, or the information contained therein, against petitioner in any manner during any future proceeding, including any possible retrial; and In addition, the California Constitution and case law, as well as federal equal protection and due processprinciples, have made quite clear that discovery in criminal cases mustbe reciprocal, with any imbalance favoring the defendantas required by reciprocity under the due process clause. (See Wardius v. Oregon (1973) 412 U.S. 470, 475-76.) The California Constitution also calls for reciprocal discovery. “In order to provide forfair and speedytrials, discovery in criminal cases shall be reciprocal in nature, as prescribed by the legislature or by the people through theinitiative process.” (Cal. Const Art. I § 30 (c).) Thus,ifthe prosecution is permitted to obtain discovery of defense counsel’s funding records,petitioner must be provided similarly broad discovery ofprosecution records of expenditures for experts and investigators. (See Wardius, supra, 412 U.S., at p. 475-476; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 371.) For example, in Wardius, the U.S. Supreme Court held unconstitutional a discovery statute which required the defense to provide the namesofalibi witnesses to the prosecution pre-trial, but did not require the prosecution to disclose the namesofits rebuttal witnesses to the defense’s alibi witnesses. (Wardius, supra, 412 U.S., at p. 476.) The statute did not provide for reciprocal 3. Respondentshall treat the documents, and the information containedtherein, as confidential and not disseminate them ordisclose their contents other than in the courseofits litigation of this habeas corpus proceeding. (Un re Gallego, No. S042737 (Cal. Aug.14, 1996), quoted in Bittaker, supra 331 F.3d at p. 725 fn. 8.) discovery. The Court reasoned that although the due processclause “haslittle to say regarding the limits of discovery which the parties must be afforded.,...it does speak to the balance of forces between the accused andhis accuser.” (Wardius, supra, 412 U.S., at p. 474.) The Court mandated reciprocity as an element of fundamental fairness in any criminal discovery scheme. Thus, in Wardius, the defendant could not, consistent with due process, be required to reveal his alibi defense if he did not have the opportunity to learn the identities of the State’s rebuttal witnesses. The Due Process Clause requires that any discovery procedure adopted must be a two- waystreet. (Wardius, supra, 412 U.S., at p. 475.) TIL. THE PARTIES LOOKING TO HAVE THE SEALED TRANSCRIPTS OPENED ARE NOT PARTIES PERMITTED TO EXAMINE THE SEALED TRANSCRIPTS UNDER CALIFORNIA RULE OF COURT8.328(c)(6) Respondent’s motion requests to view any portions of the in camera hearing that are relevant to show “petitioner objecting to the presentation of mitigating evidenceor refusing to cooperate with investigation and preparation for the penalty phase...” (Respondents Motion for Access, at p. 5) Under California Rules of Court, rule 8.328(c), only a reviewing court justice and parties and their attorneys whohadaccessto the material in the trial court may have access to confidential records of in camera proceedings.’ The party and their attorneys who hadaccessto the confidential records of the in camera proceedingin the trial court were Abel and his counsel. Respondents do not fall under the parties allowed to view transcripts of the in camera proceedings underrule 8.328 and therefore should not be allowed access. IV. PETITIONER’S WAIVER OF HIS PERSONAL PRESENCE DURING THE PRESENTATION OF EVIDENCE DURING THE PENALTY PHASE DOES NOT SUPPORT RESPONDENT”S ARGUMENTTO UNSEAL THAT PORTION OF THE TRIAL TRANSCRIPT Respondents assert they should be allowed accessto the sealed transcript of the in camera proceedingto the extentthat it relates to the petitioner objecting to the presentation of mitigating evidence or refusing to cooperate with the investigation and preparation for the penalty phase. The cases cited by respondents, Snow, Kirpatrick, and Lang, are all used to show that when a defendantobjects to the presentation of mitigating evidence, a lawyeris not required to put on mitigating evidence in the penalty phase. They argue that because of this, any statements made by Abelin the sealed transcripts that show he objected to the penalty phase should be released to them; however, Abel’s actions clearly show California Rules of Court, rule 8.328(c)(6) provides, “Unless the reviewing court orders otherwise, confidential material sent to the reviewing court under (4) may be examined only by a reviewing court justice personally; but parties and their attorneys who had access to the materialin the trial court may also examineit. that he understood the purpose and nature of the evidence to be introduced during the penalty phase and did not object to the proceedings. Therefore, the confidential in cameratranscripts do not need to be unsealed. In the trial court transcript, Abel merely waiveshis right to be present during the penalty phase. (RT 1754-1755) The judge mentioned that waiver of Abel’s presence might hurt his case and that during the presentation of the evidence during the penalty phase, the prosecution might use his absenceto their advantage. (RT 1754-1755) Abel listened to all this and still decided to waive his right to be present. This clearly shows that Abel was told and was aware that there would be a penalty phase andthat he was not objecting to the presentation of evidenceat the penalty phase. He merely expressedhis desire to not be present during it. Therefore, the fact that he waived being present at the penalty phase showsthat he knew and did not object to the penalty phase. Waivingthe right to be present at the penalty phase does not show that Abel objected to the presentation of mitigating evidence during the penalty phase. On the contrary, the waiver he madeofhis right to be present at the penalty phase showshe wasfully aware of the fact that a penalty phase was going to occur. Becausethere is no evidence to show that Abel objected to the presentation of evidenceat the penalty phase or that he refused to cooperate, Respondents argumentfor review ofthe sealed transcripts fails. V. CONCLUSION Respondent’s request for access to “all” confidential 987.9 materials filed in this case is premature and overbroad and may not constitutionally be granted until such time as respondent could obtain comparable discovery from a non-indigent defendantin the same procedural posture. However, if the court does order that respondent be given access to confidential 987.9 materials, such documents should be disclosed only be after careful in camera review to ascertain the relevance of the documentsto petitioner’s claims and whether disclosure is appropriate, given the very limited waiverofprivilege occasioned by petitioner’s allegations of ineffective assistance of counsel. Additionally, any disclosure should be subject to a protective order, as contemplated by the statute and consistent with the order this court entered in Gallego,supra. Finally, respondents are not permitted to review the in camera transcripts based on California Rule of Court 8.328(c)(6) andthere is no evidence showing that Abel objected to the penalty phase so respondents argumentto unsealthe transcript is without merit. Dated: April 20, 2010 Respectfully Submitted, nw. KW Bylter Michael R.Belter, Esq. Attorney for Defendant/Petitioner PROOF OF SERVICE I am over the age of 18 years, and am employedin the County of Los Angeles. My business address is: 16 North Marengo Ave., Pasadena California 91101. On April 22, 2010, I served the document described as Opposition to Motion for Access to Sealed Penal Code 987.9 Materials and Sealed Transcript, on all interested parties in this action by placing a copy of said Opposition in an envelope addressed as follows andaffixing the appropriate postage on each and personally delivering said envelopes to the United States Post Office and depositing same with an employee of said United States Postal Service at Pasadena, California. James Dutton Supervising Deputy Attorney General 110 West A Street, Suite 1100 San Diego, California 92101 Mary K. McComb Senior Deputy Public Defender State Public Defender’s Office Sacramento Office of the Chief Counsel 801 K Street, No. 1100 Sacramento, California 95814 Michael Lasher California Appellate Project 101 Second Street, # 600 San Francisco, California 94105 John Clyde Abel CDC No. H-28575 San Quentin State Prison San Quentin, California 94974 I declare under penalty of perjury underthe lawsofthe State of California that the foregoing is true and correct. Executed this April 22, 2919 < JL EY SlyvidDes;adins”
