PEOPLE v. S.C. (MORALES)

Real Party in Interest, Johnny Morales, Opening Brief on the Merits

Cal.December 29, 2015

COPY eas IN THE SUPREME COURTFOR THE STATE OF CALIFORNIA DEC 2 9 2015 ) Frank A. McGuire Clerk THE PEOPLE OF THE STATE OF ) No. S228642 CALIFORNIA ) Deputy ) Petitioner, ) Court of Appeal No. ) E061754 Vv. ) ) Related Death THE SUPERIOR COURT OF ) Penalty Appeal CALIFORNIA, COUNTY OF ) Pending No. $137307 SAN BERNARDINO, ) ) Respondent, ) ) JOHNNY MORALES, ) ) Real Party in Interest. ) ) REAL PARTYIN INTEREST/APPELLANT’S OPENING BRIEF ON THE MERITS After Decision by the Court of Appeal, Fourth Appellate District, Division Two,Issuing Peremptory Writ of Mandate, Filed July 15, 2015 MICHAELJ. HERSEK State Public Defender BARRYP. HELFT Chief Deputy State Public Defender C. DELAINE RENARD,State Bar No. 169893 Senior Deputy State Public Defender 1111 Broadway, Ste. 1000 Oakland, CA 94607 renard@ospd.ca.gov 510-267-3300 Attorneys for Real Party in Interest/Appellant Johnny Morales S U R ER e : Sa A R I S e e a t e n ca e TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......... 0.00. ccc ccc eee ee iv ISSUES PRESENTED ON REVIEW .........0..00ce cee eeeeeeees 1 STATEMENTOF THE CASE AND FACTS .......... 00.00.0000 eee 2 A. Imposition of the Death Judgmentin the Trial Court and this Court's Acquisition of Appellate Jurisdiction ..... 2 Appellate Counsel’s Motion in the Trial Court for an Order to Preserve Evidence, Broughtin Anticipation of Morales’s Right to Habeas Corpus Counsel and this Court’s Appointment of Such Counsel and That Counsel’s Exclusive Authority to Conduct Factual Investigation and Seek Discovery ....... 2 The People’s Petition in the Court of Appeal for a Writ of Mandamusto the Trial Court to Vacate its Evidence Preservation Order for Lack of Subject Matter Jurisdiction and the Appellate Court’s Published Opinion that the Writ Should Issue............ 4 Morales’s Petition for Review and Motion for Judicial Notice in this Court ...........0 0.0... eee 6 I. WHILE A JUDGMENTIS PENDING ON APPEAL, TRIAL JUDGESIN CAPITAL CASES RETAIN JURISDICTION TO GRANT MOTIONSTO PRESERVE EVIDENCE POTENTIALLY RELEVANT TO HABEAS CORPUS INVESTIGATIONIN ANTICIPATION OF THE APPOINTMENT OF HABEAS CORPUS COUNSEL WHO CAN CONDUCT THAT INVESTIGATION AND RELATED DISCOVERY PROCEEDINGS UNDER PENAL CODE SECTION 1054.9 0.0.0... . ceeceeee 8 A. Introduction .......... 0... eee eee eee eee eee eee 8 TABLE OF CONTENTS | After They Have Imposed Judgment and While Appeal Therefrom Is Pending, Trial Courts Retain Subject Matter Jurisdiction to Grant Evidence Preservation Motions ............00. ccc cee eee 1. During the Pendency of Appeal from a Judgment, Code of Civil Procedure Section 916 Provides that Trial Courts Retain Subject Matter Jurisdiction To Proceed on Collateral Matters that Do Not Affect or Alter the Judgment Being Appealed ................ 2. The Holdings and Jurisdictional Analyses of Gonzalez and Johnson ............00.005 3. The Holdings and Jurisdictional Analyses . of Gonzalez and Johnson Have Been Superceded By the Subsequent Decisions of this Court and the Legislature’s Subsequent Enactment of Penal Code Section 1054.9 wo... cc cece ees Trial Courts Have the Inherent Authority to Order Evidence Preservation as a Meansor Process They Deem Necessary to Ensure The Successful Exercise of Their Statutory Jurisdiction to Order Discovery Once Habeas Corpus Counsel is Appointed ................... Preservation MotionsPlay a Critical Role in Ensuring that Capital Defendants are Not Unfairly Prejudiced by The State’s Failure to Timely Appoint Habeas Corpus Counsel, Effectuating the Policies and Procedures This Court Has Developed For Capital Postconviction Practice, and Protecting the Interests of Justice Penal Code Section 1054.9 Was Enacted to Serve ............. il Page .... 10 .... 10 .... 13 .... 17 1... 2] 1... 28 TABLE OF CONTENTS Page I. EVENIF THIS COURT HOLDS THAT TRIAL COURTS DO NOT HAVE SUBJECT MATTER JURISDICTION TO ISSUE EVIDENCE PRESERVATION ORDERS AFTER THEY HAVE IMPOSED JUDGMENT AND WHILE APPEAL THEREFROM IS PENDING, THE LAW PRIOR TO ITS DECISIONIN THIS CASE AND AFTERITS 1999 TOWNSEL DECISION AND THE 2003 EFFECTIVE DATE OF PENAL CODE SECTION 1054.9, WAS UNSETTLED AND THUS DID NOT IMPOSE ON TRIAL COURTSA CLEAR, SPECIFIC, PRESENT LEGAL DUTY TO DENY SUCH MOTIONS .... 0.0... ceecece eee 35 CONCLUSION .. 1.1... 0ccccect teen eens 42 CERTIFICATE OF COUNSEL 2.1... cccceeens 43 ili TABLE OF AUTHORITIES Page(s) FEDERAL CASES Christeson v. Roper (2015)_ US. __135 S.Ct. 891 .....eee eee eee eee eee 29 Jones v. Chappell (C.D. Cal. 2014) 31 F.Supp.3d 1050 2.0... 0... eee eee ee eee 32 Jones v. Davis (9th Cir. 2015) 806 F.3d 538. 0...cece eee eee 32 Supervisors v. United States | (1873) 85 US. 710cenee nn een nee eenee 40 STATE CASES 300 DeHaro Street Investors v. Dept. ofHousing and Community Development (2008) 161 Cal-App.4th 1240 ........ 0...ceeeee 35 Barnett v. Superior Court (2010) 50 Cal4th 890 0...eeeee eee 24, 30, 33 Branciforte Heights, LLC v. City OfSanta Cruz (2006) 138 Cal.App. 4th 914 20...Leeeee eens 38 California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133 2...eeenent eee 35 Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805 2...ccceen eee ene eens 22 Connecticut Indem. Co. v. Superior Court (2000) 24 Cal4th 807 2...ceeeee ene eens 18 iV TABLE OF AUTHORITIES Page(s) In re Barnett (2003) 31 Cal.4th 466... 0...cccee eee eee eeee 29 In re Jimenez (2010) 50 Cal.4th 951 2...ceeeee eee eee 24, 32 In re Morgan (2010) 50 Cal.4th 932 2...ceeee eens passim In re Steele (2004) 32 Cal.4th 682 2.0.0... 0... ceeee eens .. passim Jacobs v. Board ofSupervisors of City and County ofSan Francisco (1893) 100 Cal. 121 2...cceee eens 36 James H. v. Superior Court (1978) 77 Cal.App.3d 169 22... .cccce eae 22, 26 Lundgren v. Deukmejian . (1988) 45 Cal.3d 777 0...cceee eee ene neas 36 Marks v. Superior Court (2002) 27 Cal.4th 176....... 0... cece eee tee eee 2, 28, 29, 34 Millholen v. Riley (1930) 211 Cal. 29 2...ecce ec ee eens 22, 26 Palmerv. Fox (1953) 118 CaLApp.2d 453...cece cee eee eee 36 People v. Robert James Acremant Tulare County Superior Court No. 31734, Order While Automatic Appeal Pending in No. S0110804, filed August 3, 2011 2...eeeccc cee eee wee eee 6 TABLE OF AUTHORITIES People v. Carlos Marvin Argueta Los Angeles County Superior Court No. BA261252, Order While Automatic Appeal Pending in No. $150524, filed November 7, 2014 .... 0.0... cc ccc eee ee eee eee People v. Ainsworth Page(s) eee eee 6 (1990) 217 Cal.App.3d 247 1...eeeee ees 10, 14, 16 People v. Engram (2010) 50 Cal4th 1131 0...eeeeee People v. Robert Ward Frazier Contra Costa County Superior Court, No. 041700-6, Order Granting Postjudgment Motion to Preserve Evidence,filed December 6, 2013 0.0... ccceee cee eens People v. Galland (2008) 45 Cal.4th 354...cccee eee People v. Gonzalez (1990) 51 Cal.3d 1179 2.occeee People v. Hailey (2004) 34 Cal4th 283 2...ccceee ee People v. Larry Kusuth Hazlett, Jr. Kern County Superior Court No. BF100925A, Orders While Automatic Appeal Pending in No. $126387,filed June 22, 2004 and October 6, 2011 .................20005 People v. Johnson (1992) 3 Cal.4th 1183 2...cece cee ee People v. Jordan (1884) 65 Cal. 644 2.cece cee ee eee vi .... passim bee eeee 33 .... passim beens 33 been eee 6 .... passim bee eees 22 TABLE OF AUTHORITIES Page(s) People v. Leal (2004) 33 Cal.4th 999 2...ceeeee renee 18 People v. Louis Mitchell, Jr. San Bernardino County Superior Court No. FSB051580, Order While Automatic Appeal Pending in No. $147335, filed June 22,2012 2... ceeccc eee tee nee eens 6 People v. Osband | (1996) 13 Cal.4th 622 2...ceeeee ee nee 33 People v. Picklesimer (2010) 48 Cal.4th 330. 2...eeccc eee cee nee passim People v. Rittger (1961) 55 Cal.2d 849 2...ccccece eee 14 People v. Seaton (2001) 26 Cal.4th 598 2...eeecece 33 People v. Superior Court (Laff) (2001) 25 Cal.4th 703 2...eecee eee tenes 22, 26 People v. Superior Court (Morales) (2015)__s Cal.App.4thweeee ee eee eee 5 Perrin v. Honeycutt (1904) 144 Cal. 87 2...ccceee eee eee ens 36 Townsel v. Superior Court (1999) 20 Cal.4th 1084...eeeeee passim Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180... 0.0... eeecc eee teens passim Viking Pools Inc., v. Maloney (1989) 48 Cal.3d 602 0.0... eecece teen eee 31 Vii TABLE OF AUTHORITIES Page(s) Walker v. Superior Court (1991) 53 Cal.3d 257 6.ceceeee eee ences 22 Wenzler vy. Municipal Court (1965) 235 Cal.App.2d 128 2.0.2... cece eee ees 36 Wisely v. Superior Court (1985) 175 Cal.App.3d 267 2.0.0... cee cee eee eens 16 STATE STATUTES Code Civ. Proc., §§ 22 oceee teen teenies 10 ST] ccc ccc ccc n eee nee eennes 10 o... 10 128, subd. (a) 2... eee eee ee eee ee 38 021, 22, 26 ooAopassim 1049 Loiceee tte eenene 10 L085 oeeee eee ee eee enna 35 Gov. Code, §§ 15421...eeee eee 2, 29 68152, subd. (c)(1) ... 6. eee eee eee eee es 33 68662 ..... eee eee eee eee 2, 24, 28, 29 68663 ..... eee eee eee eee 2, 24, 28, 29 69955, subd. (©) 20... cee ec eee eee 33 Health & Saf. Code, § 123110. 2.0.2... ccc cece eee eee eect eens 32 Pen. Code, §§ 1054.1...ceeee 25 1054.9 Loe ccc ce eee eee passim 14 1260. 2... eee cece eee eee eens 10 1265 Loeeeeect eee e eee 14 13101 eee eee eee ee 32 13300, subd. (b)(11) .. 2.2... eee ee ee eee 32 Vili TABLE OF AUTHORITIES Page(s) OTHER AUTHORITIES 7 Witkin, Cal. Proc. 5th (2008) Judgm. § 7 ....... 0. cece eee eee 11 55 C.J.S. Mandamus, § 74 (2015) .... 2. eeec cee eee 4] 55 C.J.S. Mandamus, § 78 (2015) 2.0...ccees 40 Cal. Com. on the Fair Admin. of Justice, Final Report (2008) http://www.ccfaj.org/documents/CCFAJFinalReport.pdf (as of December 22, 2015) 2.0... 0... cee ee eee ee eee 31 Supreme Court Policies Regarding Cases Arising from Judgments of Death, Policy 3, std. 1-1 ...............0006. 2, 34 Supreme Court Policies Regarding Cases Arising from Judgments of Death, Policy 3, std. 1-1.1] .............. 24, 28, 29 Supreme Court Policies Regarding Cases Arising from Judgments of Death, Policy 3, std. 2-1 ...............0040.. 27, 28 ix ISSUES PRESENTED ON REVIEW This Court granted review to decide whether: (1) “[A] trial judge in a capital case has jurisdiction to grant a motion to preserve evidence potentially relevant to habeas corpus investigation in anticipation of the appointmentof habeas corpus counsel who can conductthat investigation and related discovery proceedings under Penal Codesection 1054.9;” and whether (2) “[C]urrent law create[s] such a clear and present legal duty or rule that a trial court categorically acts outside its jurisdiction wheneverit exercises its discretion in a capital case to grant a motion to preserve evidence, broughtafter it has imposed a death judgment but while appeal therefrom is pending.” STATEMENT OF THE CASE AND FACTS A. Imposition of the Death Judgmentin the Trial Court and this Court’s Acquisition of Appellate Jurisdiction On September 12, 2005, the Superior Court of San Bernardino County, the Honorable Ingrid Uhler Presiding, entered a judgment of death against appellant and real party in interest, Johnny Morales. On August27, 2009, the Office of the State Public Defender was appointed to represent Morales on his automatic appeal from that judgment before this Court, whichis currently pending in No. $137307. (See Gov. Code, § 15421.) B. Appellate Counsel’s Motion in the Trial Court for an Order to Preserve Evidence, Brought in Anticipation of Morales’s Right to Habeas Corpus Counselandthis Court’s Appointment of Such Counsel and That Counsel’s Exclusive Authority to Conduct Factual Investigation and Seek Discovery Morales’s right to the appointment of capital habeas corpus counsel has yet to be honored. (See Gov. Code, §§ 68662, 68663; Supreme Court Policies Regarding Cases Arising from Judgments of Death, Policy 3, std. 2-1.) Hence, on April 10, 2014, and pursuantto the duty this Court has imposed upon appellate counsel to preserve evidence of potential relevance to habeas corpus investigation until habeas counsel is appointed (Supreme Ct. Policies, policy 3, std. 1-1; Marks v. Superior Court (2002) 27 Cal.4th 176, 184), Morales’s appellate counsel movedthetrial court for an order to various local agencies to preserve (not produce) such evidence (“preservation motion’’). (Real Party Morales’s Opposition to People’s petition for writ of mandate in Court of Appeal No. E061754 [“Opposition”], Exhibits A, C & D.)' The motion was broughtin anticipation of this Court’s appointment of habeas corpus counsel, who has the exclusive authority to conduct factual investigation and seek discovery under Penal Code section 1054.9 to aid in his or her preparation of a petition for writ of habeas corpus on Morales’s behalf. (Ibid.) On April 29, 2014, the District Attorney filed a written opposition to the motion on the grounds, interalia, that the trial court lacked subject matter jurisdiction to grant the motionafter it had imposed judgmentand this Court acquired appellate jurisdiction over the judgment. (Opposition, Exhibit B.) Morales filed a written reply disputing the District Attorney’s challenges. (Opposition, Exhibit C.) On July 9, 2014, after considering the written pleadings and hearing oral arguments,the trial judge ruled,interalia, that she had the authority to entertain the motion and granted it in toto. She signed the evidence preservation order on the same date. (Opposition, Exhibit E, pp. 112-116, & F.° ' According to this Court’s docket, on August 19, 2016, the Court of Appeal record of the mandamusproceeding was importedto this Court. Becausethere is no formal Clerk’s Transcript to which to cite, Morales shall herafter refer to the orders and pleadings in the appellate record by date and name. * Appellate counsel brought the motion before the trial court contemporaneously with record correction proceedings then pending before the court. * The terms “evidence preservation” motion and order are used throughoutthis brief to refer to a motion for an order to preserve (not produce) materials that are in the possession of the prosecution team and other local entities that appear relevant to potential habeas corpus (continued...) C. The People’s Petition in the Court of Appeal for a Writ of Mandamusto the Trial Court to Vacate its Evidence Preservation Order for Lack of Subject Matter Jurisdiction and the Appellate Court’s Published Opinion that the Writ Should Issue On August 20, 2014, the Attorney General, on behalf of the People, filed a petition in the Court of Appeal for the Fourth Appellate District, Division Two, for a writ of mandamustothetrial court to vacateits evidencepreservation order on the ground,interalia, that it lacked subject matter jurisdiction to issue the order after judgment was imposed and while appeal was pending. (8/20/14 Petition for Writ of Mandamus in No. E061754.) On September 4, 2014, the Court of Appeal ordered Morales to file a response to the petition, without which it was inclined to issue a peremptory writ, and gave the People an opportunity to reply to Morales’s _ response. (9/4/14 order in No. E061754.) On October 21, 2014, Morales filed an opposition to the petition. (Opposition, p. 1.) The People elected to file no reply. On November18, 2014, the appellate court issued an order to show cause whythepetition should not be granted which permitted Moralesto elect to stand on his already-filed opposition and afforded the People another opportunity to reply to Morales’s response. (11/18/14 order in No. E061754.) On December 10, 2014, Morales gave notice that he elected to stand on his opposition given the petitioner’s failure to reply and addressthe points and authorities raised therein. (12/10/14 notice by letter in No. E061754.) The People again declinedto file a reply to Morales’s Opposition. 3(...continued) investigation, brought in anticipation of the appointment of habeas corpus counsel and his or her exclusive authority to initiate factual investigation and discovery under Penal Code section 1054.9. 4 On March 4, 2015, the appellate court issued a tentative written opinion adopting the People’s jurisdictional argument and granting the People’s petition on the groundthat the trial court lacked subject matter jurisdiction to issue the preservation order. (3/4/15 Tentative Opinion in No. E061754.) As set forth in more detail in the arguments below,the appellate court concluded that this Court’s decisions categorically “forbid[] trial courts from ruling on . . . [nonstatutory] ‘free-floating’ motions”after they have imposed judgmentbecause“there is simply no pending case or proceeding to which the motion can attach,” regardless of whether appeal from the judgment is pending and regardless of the purpose and effect of the order granting the motion. (See Appendix A, pp. 7-10, citing People v. Gonzalez (1990) 51 Cal.3d 1179, People v. Johnson (1992) 3 Cal.4th 1183, and People v. Picklesimer (2010) 48 Cal.4th 330.)* On July 7, 2015, the parties presented oral argument and Morales’s appellate counsel pressed the appellate court to deny the petition based on authorities he cited in his pleadings but which were omitted from the court’s tentative opinion. (Appendix C, pp. 2-4.) Nevertheless, on July 15, 2015, the appellate court adopted its tentative opinion in full, without modification, as its final opinion that the writ must issue. (App. A.) Althoughthe final opinion wasoriginally issued in unpublished form, on July 31, 2015, the appellate court granted the People’s request to publishit. (Appendix B; see also People v. Superior Court (Morales) (2015) ___ Cal.App.4th __, 2015 Daily Journal D.A.R. 8792.) * Exhibit A is the appellate court’s final opinion. However, as explained in Morales’s petition for review and undisputed by the People in their answerfiled in this Court, the appellate court’s final opinion adopted the tentative opinion in full and without modification. 5 D. Morales’s Petition for Review and Motion for Judicial Notice in this Court On August 19, 2015, Moralesfiled a petition for review in this Court asking it to: (1) makeclear that, after they have imposed judgmentand while appeal therefrom is pending,trial judges in capital cases retain subject matter jurisdiction to grant motions to preserve evidence potentially relevant to habeas corpus investigation in anticipation of the appointmentof habeas corpus counsel whocan conductthat investigation and related discovery proceedings under Penal Code section 1054.9; and (2) determine whether the law that existed at the time of the trial court’s 2014 evidence preservation orderin this case created such a clear and present legal duty or rule mandatingtrial courts to deny such motionsfor lack of subject matter jurisdiction that an order granting such a motion warranted extraordinary relief on mandamus. (Morales’s Petition for Review, pp. 2, 6.) On the same date, Moralesfiled a request for judicial notice of preservation orders issued by othertrial courts in other cases, after they imposed judgmentbut while the appeals therefrom were pending, from 2011 through 2014.° > Specifically, Morales moved for judicial notice of the following illustrative, but by no meansexclusive, court orders: People v. Robert Ward Frazier, Contra Costa County Superior Court No. 041700-6, December 6, 2013 order granting postjudgment motion to preserve evidence made while automatic appeal pending in No. $148863; People v. Robert James Acremant, Tulare County Superior Court No. 31734, August 3, 2011 order while automatic appeal pending in No. S0110804; People v. Larry Kusuth Hazlett, Jr., Kern County Superior Court No. BF100925A,June 22, 2004 and October 6, 2011 orders while automatic appeal pending in No. $126387; People v. Carlos Marvin Argueta, Los Angeles County Superior Court No. BA261252, November7, 2014, order while automatic appeal pending in No. $150524; People v. Louis Mitchell, Jr., San Bernardino County Superior Court No. FSB051580, June 22, 2012 order while (continued...) On August 27, 2015, this Court requested an answer from the People to the petition for review. On September 8, 2015, the People filed an answerto the petition, arguing only that this Court should not grant review. On September 11, 2015, Moralesfiled a reply to the People’s answer. On September 30, 2015, this Court granted Morales’s petition for review, as well as his motion forjudicial notice. Il /t °(,..continued) automatic appeal pending in No. $147335. 7 ARGUMENT 1. HILE A JUDGMENTIS PENDING ON APPEAL, TRIAL JUDGES IN CAPITAL CASES RETAIN JURISDICTION TO GRANT MOTIONS TO PRESERVE EVIDENCE POTENTIALLY RELEVANT TO HABEAS CORPUS INVESTIGATION IN ANTICIPATION OF THE APPOINTMENT OF HABEAS CORPUS COUNSEL WHO CAN CONDUCT THAT INVESTIGATION AND RELATED DISCOVERY PROCEEDINGS UNDER PENAL CODE SECTION 1054.9 A. Introduction Twenty five years ago, this Court held in People v. Gonzalez (1990) 51 Cal.3d 1179 (“Gonzalez”) that defendants had norightto, andtrial courts lacked jurisdiction to grant, discovery after the trial court imposes judgmentand beforethefiling of a petition for writ of habeas corpus and a finding thatit states a prima facie case for relief. (/d. at pp. 1257-1261.) Twoyears later, in People v. Johnson (1992) 3 Cal.4th 1183 (‘Johnson’), the Court followed Gonzalez and held that because there is no right to postjudgmentpre-petition discovery, there is likewise no right to, and trial courts have no jurisdiction to grant, “anticipatory postjudgment discovery” motions to preserve evidencein anticipation of (then) non-existent discovery. (/d. at pp. 1257-1258.) This Court has explicitly held that Gonzalez’s holding has been abrogated by the 2002 enactment of Penal Code section 1054.9, which grants capital (and LWOP)defendantsthe right to, and trial courts jurisdiction over, postjudgment pre-petition discovery “as an aid in preparing” a petition for writ of habeas corpus. (/n re Steele (2004) 32 Cal.4th 682, 691-692; App. A, p. 8.) The People and the appellate court in this case recognized as much, but reasoned that Gonzalez has been abrogated only “to the extent covered by the statute.” (App. A,p. 8.) Otherwise, the appellate court concluded, Gonzalez and Johnson remain intact. In the court’s view, both clearly stand for the broad and categorical proposition that trial courts have no jurisdiction to grant any nonstatutory motions — including but not limited to evidence preservation motions — after they have imposed judgment because “there is simply no pending case or proceeding to which the motion can attach,” regardless of whether appeal from the judgmentis pending or the purpose andeffect of the order granting the motion. (App. A, pp. 7-10.) That this broad and categorical rule remains the law today is, according to the appellate court, demonstrated by this Court’s “confirm[ation]” of that purported rule in People v. Picklesimer (2010) 48 Cal.4th 330, 337 (“Picklesimer’). (App. A, p. 8.) Based on this analysis, the appellate court granted the People’s petition for writ of mandamustothetrial court to vacate its evidence preservation motion for wantof subject matter jurisdiction. (App. A, pp. 7-10.) As demonstrated below, this Court’s decision in Picklesimer simply does not stand for the proposition the appellate court attributed toit. Furthermore, this Court’s Gonzalez and Johnson decisions regardinga trial court’s postjudgmentjurisdiction to entertain and grant motionsrelating to discovery in capital cases, as well as the broader implicationsoftheir jurisdictional analyses as applied postjudgment and while appeal therefrom is pending, have effectively been rendered deadletter, or limited to their particular time andplace in the legal landscape. That landscape has changed dramatically in light of subsequent decisions and developmentsin the law and policy governing capital postconviction practice and procedure. In the current legal landscape,after a trial court has imposed a death judgmentand whilethe finality of that judgment remains pending on appeal before this Court, trial courts retain jurisdiction to grant motions to preserve evidence potentially relevant to habeas corpus investigation in anticipation of the appointment of habeas corpus counsel who can conductthat investigation and related discovery proceedings under Penal Code section 1054.9. B. After They Have Imposed Judgment and While Appeal Therefrom Is Pending, Trial Courts Retain Subject Matter Jurisdiction to Grant Evidence Preservation Motions 1. During the Pendency of Appeal from a Judgment, Codeof Civil Procedure Section 916 Providesthat Trial Courts Retain Subject Matter Jurisdiction To Proceed on Collateral Matters that Do Not Affect or Alter the Judgment Being Appealed The appellate court’s analysis and reliance on Picklesimer to support its grant of mandamus conflated two distinct concepts: (1) a trial court’s jurisdiction following a true “final” judgment— i.e., judgmenthas not only been imposedin the trial court but has also been rendered final onappeal (or after the time for filing appeal has passed) and remittitur has issued; and (2) a trial court’s jurisdiction after it has imposed judgmentbut while the finality of that judgment has been stayed pending appeal. (See Code Civ. Proc., §§ 22, 577, 916, & 1049; Pen. Code, § 1260.) The rule reflected in cases like Picklesimer applies in the former situation and providesthat a trial court is ordinarily without subject matter jurisdiction to entertain or grant motions in that context because boththe trial court proceedings and the resulting judgmentare final for all purposes and hencethere is nothing pendingin the trial court to which a motion can attach. (Picklesimer, supra, 48 Cal.4th at pp. 337-338, and authorities cited therein; accord, e.g., People v. Ainsworth (1990) 217 Cal.App.3d 247, 251.) But very different rules 10 apply while the judgmentandits finality are pending on appeal.° Asthis Court recognized in its post-Gonzalez and Johnson decision in Townsel v. Superior Court (1999) 20 Cal.4th 1084 (“Townsel”’), Code of Civil Procedure section 916 governsa trial court’s jurisdiction after it has imposed judgmentand while appeal therefrom is pending. Section 916 providesin relevantpart: “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcementof the judgmentor order, but the trial court may proceed upon any other matter embracedin the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd.(a), italics added.) Under Code of Civil Procedure section 916, when an appealis taken from the judgment imposed bythetrial court, it results in only a partial divestmentof the trial court’s inherentjurisdiction during pendency of the appeal. (Townsel, supra, 20 Cal.4th at pp. 1089-1090; accord, e.g., Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189, and authorities cited therein [“Varian’’].) The appellate court acquires exclusive appellate jurisdiction over the judgmentandthetrial court has no authority to interfere with such appellate jurisdiction. In order “to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided,” section 916, subdivision (a), “stays all further trial court proceedings ‘upon the matters embraced’ in or ‘affected’ by the appeal” (Varian, supra,at p. © To be sure,the term “final judgment” has various meanings depending uponthe purpose for which “finality” is relevant. (See 7 Witkin, Cal. Proc. 5th (2008) Judgm. § 7, p. 551 [collecting cases].) For jurisdictional purposes and ease of reference, Morales will use the term “true final judgment” throughoutthis brief to refer to a judgmentthat has been renderedfinal following appeal and issuance of the remittitur. {1 189) and divests the trial court of subject matter jurisdiction over the judgment being appealed and barsit from taking action which affects or alters the judgment(id. at pp. 196-198; Townsel, supra, at p. 1089). oeImportantly, however, the appellate court’s “acquisition of appellate jurisdiction does not . . . divest the trial courtof all powerto act.” (Townsel, supra, 20 Cal.4th at pp. 1089-1090; accord, Varian, supra, 35 Cal.4th at pp. 189, 191.) Rather, by the plain terms of Code of Civil eee Procedure section 916, trial courts retain jurisdiction over “‘other matter[s] » 999embraced in the action and not affected by the judgment.’” (Townsel, supra, at p. 1090,italics added.) Thus, an appeal taken from the judgment imposedin thetrial court “does not stay proceedings on ‘ancillary or collateral matters which do not affect the judgmentor order on appeal ... .’ [Citation.]” (Varian, supra, at p. 191.) If a postjudment motion, proceeding, or order does not “interfere with [the appellate court’s] appellate jurisdiction” by affecting the appeal or altering the judgmenton appeal, it falls within the trial court’s jurisdiction to proceed on the matter. (Townsel, supra, at p. 1090; accord, Varian, supra, at p. 191.) Or as this Gee Court has otherwise explained,“‘whether a matter is “embraced”in or “affected” by a judgmentor order within the meaning of section 916 depends on whether postjudgment or postorder proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citations.]” (Varian, supra, at p. 189.) “‘If so, the proceedings are stayed’”and the trial court has no jurisdiction to act; “‘if not, the proceedings are permitted’” and the trial court has jurisdiction to act. (Ibid.; see also /d. at pp. 191, 196- 198.) For instance, in Townsel — and as discussedin detail in Part 3, post - this Court held that the trial judge retained jurisdiction under section 916 to issue a nonstatutory jury no-contact orderafter it had imposed a death 12 judgment and while automatic appeal therefrom was pending becauseit did not affect of alter the judgment being appealed or otherwise interfere with this Court’s appellate jurisdiction. (Townsel, supra, at pp. 1089-1091.) 2. The Holdings and Jurisdictional Analyses of Gonzalez and Johnson The Gonzalez and Johnson decisions involved motions — a discovery motion in Gonzalez and an “anticipatory postjudgment discovery motion”to preserve evidence in Johnson — brought after judgment was imposedin the trial court and while appeal wasstill pending. (Gonzalez, supra, 51 Cal.3d at p. 1257; Johnson, supra, 3 Cal.4th at pp. 1256-1258.) Asexplained in Part 3, post, both their jurisdictional analyses and holdings have been superceded by the enactment of Penal Codesection 1054.9, jurisdictional principles triggered by the enactmentofthat statute, and this Court’s subsequent decisions analyzing the appropriate application of Code of Civil Procedure section 916, both in civil and criminal cases. Gonzalez’s primary holding wasthat there was no postjudgment right to the affirmative production of evidence through discovery prior to the filing of a habeas corpuspetition and a finding that it stated a prima facie case for relief. (Gonzalez, supra, 51 Cal.3d at pp. 1258-1261.) In reachingthat holding, the Gonzalez majority also reasonedthata trial court had no subject matter jurisdiction to entertain or grant a discovery motion after it imposed judgment, regardless of whether or not appeal from that judgmentwas pending. It based its subject matter jurisdictional analysis entirely on the general rule, reflected in Picklesimer and discussed above, that applies to all nonstatutory motions broughtafter a “true” final judgment —i.e., after judgment has been renderedfinal on appeal and remittitur has issued: under those circumstances,since all proceedingsare “final in the 13 99 66trial court,” “there is nothing pending” to which any motion can attach and the trial court has no jurisdiction to grant a motionrelating to thosefinal proceedings. (Gonzalez, supra, at p. 1257, citing People v. Ainsworth, supra, 217 Cal.App.3d 247, 251 [applying rule to discovery motion brought after “true” final judgment].) While the Gonzalez majority acknowledged that the motion there was not broughtafter a “true” final judgmentbutrather while appeal was still pending, it perfunctorily concludedthatthe distinction was one without a difference because the sameprinciples applied in both procedural postures. (Gonzalez, supra, 51 Cal.3d at p. 1257.) In so reasoning, the majority ignored Code of Civil Procedure section 916 apart from insertingit into a string cite to inapposite authorities, all of which applied to jurisdiction after remittitur had issued. (/bid., citing Pen. Code, §§ 1193, 1265, Code Civ. Proc., § 916, subd. (a), and People v. Rittger (1961) 55 Cal.2d 849, 852.) Gonzalez’s broad jurisdictional analysis is inconsistent with the plain terms of Code of Civil Procedure section 916 and this Court’s subsequent application thereof in cases like Townsel and Varian, as discussedin Part 1, ante. In contrastto the finality of the trial court proceedings following a “true” final judgment, the proceedingsare not“final in the trial court” for jurisdictional purposes bythetrial court’s mere imposition of judgment or the taking of an appeal. (Gonzalez, supra, 51 Cal.3d at p. 1257.) As discussed above, the appeal merely “stays proceedingsin the trial court upon the judgmentor order appealed from or upon the matters embraced therein or affected thereby... .”’ (Code Civ. Proc., § 916, subd. (a).) But the proceedings are not stayed — muchless “finalin the trial court” (Gonzalez, supra, 51 Cal.3d at p.1257) — over “‘ancillary or collateral 14 matters which do not affect the judgmentor order on appeal... .’ [Citation]” (Varian, supra, 35 Cal.4th at p. 191). Hence,the trial court retains subject matter jurisdiction to “proceed upon” such matters as “any other matter embracedin the action and not affected by the judgmentor order.” (Code Civ. Proc., § 916, subd. (a); accord, Townsel, supra, 20 Cal.4th at pp. 1089-1091; Varian, supra, at pp. 196-198.) Thus, under Codeof Civil Procedure section 916, the real jurisdictional question for the Gonzalez majority to resolve was whether the discovery motion involved a matter collateral to the judgment on appeal or whether it would have affected or altered the judgment on appeal or otherwise interfered with the appellate court’s jurisdiction — a question the majority overlooked and thus failed to resolve. (See Gonzalez, supra, 51 Cal.3d at pp. 1284-1285,dis. opn. of Broussard, J., joined by Mosk,J. [criticizing majority’s reliance on inapposite rule reflected in Ainsworth and failure to apply governingrule of section 916].) Asexplained in Part 3, post, to the extent that Gonzalez’s general jurisdictional analysis is inconsistent with Code of Civil Procedure section 916, it has been implicitly overruled by this Court’s subsequent decisions, particularly in Townsel. (See also Varian, supra, 35 Cal.4th at pp. 189-191, 196-198 [explaining application of section 916].) Furthermore, Gonzalez’s specific holdings regarding the absenceofa right to postjudgment discovery and a trial court’s postjudgment subject matter jurisdiction to order discovery have been explicitly superceded by the Legislature’s subsequent enactmentof Penal Code section 1054.9. Turning to the Johnson decision issued two yearslater, the Johnson Court relied entirely on Gonzalez to hold thattrial courts had no jurisdiction to grant motions to preserve evidence broughtin anticipation of 15 postjudgmentpre-petition discovery for two reasons. (Johnson, supra, 3 Cal.4th at pp. 1257-1258.) First, following Gonzalez’s analysis that the trial court proceedingsare final after imposition ofjudgment and hencethere is nothing pending to which a motion canattach, the Johnson Court rejected the notion — never raised here — that discovery or “anticipatory” discovery motions can attach to pending record correction proceedings. (/bid., citing Gonzalez, supra, 51 Cal.3d at pp. 1256-1258 and Peoplev. Ainsworth, supra, 217 Cal.App.3d at pp. 250-255.) Second, also following Gonzalez, Johnson held that there was no right, or jurisdiction to grant, a motion to preserve evidence broughtin anticipation of postjudgment, pre-petition discovery because there simply was no right to such discovery under Gonzalez. (Johnson, supra, 3 Cal.4th at pp. 1257-1258.) In other words, the evidence preservation motionin that case was properly denied because it was broughtin anticipation of an asserted right and procedure that simply did not exist under the law then reflected in Gonzalez. (Ibid., distinguishing Wisely v. Superior Court (1985) 175 Cal.App.3d 267, 268-270 [trial court had jurisdiction to order pretrial discovery in anticipation of newtrial and its attendant discovery rights notwithstanding that new trial order wasstill pending on appeal].) As set forth below, like the Gonzalez decision on which Johnson was based, Johnson hasbeen rendered deadletter by the subsequentdecisionsofthis Court and the subsequent enactment of Penal Code section 1054.9. Hf // 16 3. The Holdings and Jurisdictional Analyses of Gonzalez and Johnson Have Been Superceded By the Subsequent Decisions of this Court and the Legislature’s Subsequent Enactment of Penal Code Section 1054.9 Gonzalez’s holding thata trial court has no jurisdiction over, and a defendanthas no right to, postjudgment discoveryin a capital case before a habeas corpuspetitionis filed and a judicial finding is madethatit states a primafacie casefor relief has been abrogated by the 2002 enactmentof Penal Code section 1054.9. Un re Steele, supra, 32 Cal.4th at pp. 691-692.) To the extent that Johnson rested on Gonzalez’s holdingsin this regard,it too has been superceded bythat statute. As to the broader implications of those decisions’ analyses on the question ofa trial court’s postjudgment jurisdiction during the pendency of appeal in general, this Court has already expressly limited them in Townsel. Indeed, the Townsel Court’s analysis and application of Code of Civil Procedure section 916, as well as the Court’s analysis of that statute in Varian, have impliedly overruled them. In Townsel, during capital postjudgmentrecord correction and certification proceedingsin the trial court and while automatic appeal was pending in this Court, thetrial court issued a nonstatutory jury no-contact order. (Townsel, supra, 20 Cal.4th at pp. 1086-1088.) In stark contrast to the People’s position as the petitioner on mandamusbefore the appellate court in this case, the People there defendedthetrial court’s subject matter jurisdiction to issue the order under Code of Civil Procedure section 916 becauseit did not affect or alter the judgment and thus did notinterfere with this Court’s exclusive appellate jurisdiction. (/d. at pp. 1089-1090.) This Court agreed. (/bid.) In so doing, this Court explicitly rejected the defendant’s argument w ci Ea yr wh ie in e A N W A R O N G Ch ae i S we R E e e r t e 17 that Johnson establishedthat trial courts are without jurisdiction to grant nonstatutory motionsafter imposition of the judgment even during pendency of appeal, notwithstanding Code of Civil Procedure section 916. (Townsel, supra, 20 Cal.4th at pp. 1089-1091.) As the Court putit, “Johnson ... merely held the process of record correction is not a ‘criminal proceeding’ sufficient to support orders relating to discovery. [Citation.] In resolving the discovery issue in Johnson, we did not purport to override section 916(a)’s languagethat, despite a pending appeal, a trial court could ‘proceed upon any matter embraced in the action and not affected by the 999judgmentor order.’” (/d. at p. 1090,italics in original.) This holding is consistent with the fundamental separation of powers doctrine that courts do not have the powerto override, abrogate, or rewrite a statute enacted by the Legislature other than on constitutional grounds. (See, e.g., People v. Leal (2004) 33 Cal.4th 999, 1008, and authorities cited therein; Connecticut Indem. Co. v. Superior Court (2000) 24 Cal.4th 807, 814.) Thus, the Townsel Court explicitly limited the precedential value of Johnson’ s jurisdictional analysis and, by necessary implication, the Gonzalez analysis on which it was based. Johnson, as well as Gonzalez, simply cannotbe read for a proposition inconsistent with, or which “purport[s] to override section 916(a).” (Townsel, 20 Cal.4th at p. 1090.) The reasoning of the appellate court and the People in this case that Gonzalez, Johnson, and Picklesimer categorically “forbid[] trial courts from ruling on . . . [nonstatutory] ‘free-floating’ motions” after they have imposed judgment because“there is simply no pending case or proceeding to which the motion can attach” — regardless of whether appeal from the judgmentis pending and regardless of the purpose and effect of the order granting the motion (App. A, pp. 7-10) — is flatly inconsistent with section 18 916 and precisely what Townselexpressly forbade. Indeed, Townsel’s analysis and holding, along with the Court’s extensive analysis of Code of Civil Procedure section 916 in Varian, supra, 35 Cal.4th at pp. 189-191, 196-198, are utterly irreconcilable with the general jurisdictional analyses of Gonzalez and Johnson, as discussed in the preceding sections. This Court has never applied the jurisdictional analysis reflected in Gonzalez and Johnsonto a casestill pending on appeal, as those decisions did, either before or after those decisions. This Court’s post- Gonzalez and Johnson decisions addressing trial court’s subject matter jurisdiction after imposition of judgment and while appeal is pending have clearly recognized thatthe trial court proceedings are not “final” in this context, that only part of the proceedingsare stayed, andthat the trial court is not divested ofall jurisdiction to act, contrary to the reasoning of Gonzalez and Johnson. Thetrial court’s subject matter jurisdiction in this context is governed by Code of Civil Procedure section 916 and turns on the impact of a motion or order on the judgment being appealed and the appellate court’s jurisdiction, also contrary to Gonzalez and Johnson. (Townsel, supra, 20 Cal.4th at pp. 1089-1091; Varian, supra, at pp. 189- 191, 196-198.) Hence, it necessarily followsthat the broad jurisdictional analyses of both Gonzalez and Johnson have been impliedly overruled and are dead letter for all purposes. | At best, they must be limited to their particular time and place: postjudgment motionsrelating to “discovery” under the then-existing discovery law reflected in Gonzalez. (See Townsel, supra, 20 Cal.4th atp. 1090.) Because Penal Codesection 1054.9 abrogated the discovery law reflected in Gonzalez, and now confers ontrial courts jurisdiction to grant, and on capital defendants the right to, postjudgmentdiscovery as an aid in 19 preparing their habeas corpuspetitions, even what limited value they may have retained after Townsel in the discovery context has been nullified. Pursuantto the foregoing authorities and under current law, Code of Civil Procedure section 916, subdivision (a), governs the question of whethertrial courts in capital cases retain jurisdiction to grant postjudgment motions, brought while appeal from the judgment remains pending, to preserve evidencein anticipation of the appointment of habeas corpus counsel andhis or herinitiation of factual investigation and postjudgment discovery. (See Townsel, supra, 20 Cal.4th at pp. 1089-1091; accord, Varian, supra, 35 Cal.4th at pp. 189-191, 196-198.) Underthatstatute, the only jurisdictional question becomes whether the motionis collateral to, and does not seek to alter or affect, the judgment being appealed. (Townsel, supra, at pp. 1089-1091; accord, Varian, supra, at pp. 189-191, 196-198.) Althoughthe People in this case had ample motive and opportunity to do so, they have never disputed that an evidence preservation motion,like that broughthere,satisfies these requirements.’ Indeed, the point is indisputable. Just as the trial court in Townsel ’ As set forth in Morales’s opposition to the People’s petition for writ of mandamus,their petition never cited or addressed Morales’s reliance in the trial court on Code of Civil Procedure section 916 and Townsel. (Opposition, pp. 20, 32, fn. 7.) Morales’s opposition also relied heavily on those authorities. (Opposition, pp. 24-30.) Although the appellate court gave the People the opportunity to reply to Morales’s opposition and his written notice electing to stand on his opposition to show cause why the People’s petition should not be granted, the People elected not to reply and thus not to address or dispute the application of section 916 and Townsel. Finally, even at oral argument, Morales’s appellate counsel emphasizedthe People’s failure to dispute that if the jurisdictional question were governed by section 916, the motion and orderhere clearly fell within the trial court’s jurisdiction underthat statute and Townsel. (App.C,p. 4.) 20 retained subject matter jurisdiction under Code of Civil Procedure section 916 to issue the postjudgment, nonstatutory juror no-contact order while appeal from the judgment remained pending becauseit did not affect or seek to alter the judgmentbeing appealed, for the same reasonsso too do trial courts retain jurisdiction underthat statute to issue evidence preservation orders brought in the same procedural posture. For these reasons alone, this Court must recognize that under current law,trial courts in capital cases retain subject matter jurisdiction to entertain and grant postjudgmentevidence preservation motions while appeal from the judgmentis pending pursuant to Code of Civil Procedure section 916, subdivision (a). If there remains any doubt over the matter,it is surely resolved by additional laws and policy considerations. C. Trial Courts Have the Inherent Authority to Order Evidence Preservation as a Meansor Process They Deem Necessary to Ensure The Successful Exercise of Their Statutory Jurisdiction to Order Discovery Once Habeas Corpus Counsel is Appointed Under Penal Codesection 1054.9,the trial court has postjudgment jurisdiction over discovery, even in capital cases in which the habeas corpus petition is filed in this Court. (In re Steele, supra, 32 Cal.4th at pp. 691- 692.) While the enactmentof section 1054.9 alone did notcreate jurisdiction in the trial court to grant evidence preservation motions, it did trigger application of other legal principles that did not apply at the time of the Johnson and Gonzalez decisions and that extendthetrial court’s jurisdiction to evidence preservation orders. Code of Civil Procedure section 187 provides in relevantpart: ‘Whenjurisdictionis, ... by any .. . statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; 21 and in the exercise ofthis jurisdiction, if the course of proceeding be not specifically pointed out by this Codeor the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.” This statute reflects the long-recognized, inherent powersof courts to effectuate and protect the jurisdiction conferred upon them. Whenjurisdiction is conferred upon the courts by law, whether constitution or statute, they “have and should maintain vigorously all the inherent and implied powers necessary to properly and effectively function. ..” (People v. Engram (2010) 50 Cal.4th 1131, 1146 [discussing jurisdiction conferred by California Constitution]; Walker v. Superior Court (1991) 53 Cal.3d 257, 266-267; Millholen v. Riley (1930) 211 Cal. 29, 33- 34.) In the absenceofa specific statute, these powers entitle courts to ‘adopt any suitable methodof practice, both in ordinary actions and special proceedings,” for a defendant to invoke,or the court to successfully exercise,its jurisdiction. (Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 812-813; accord, e.g., People v. Jordan (1884) 65 Cal. 644, 645-646.) This power“‘arises from necessity where, in the absence of any previously established proceduralrule, rights would belost or the court would be unable to function.’ [Citation.]” (James H. v. Superior Court (1978) 77 Cal.App.3d 169, 175-176.) Underthese principles, absent explicit legislation, “[a] court set up by the [California] Constitution has within it the powerof self-preservation, indeed, the power to removeall obstructions to its successful and convenient operation.” (Millholen v. Riley, supra, 211 Cal. 29, 33-34; accord, e.g., People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 735.) The Townsel decision is consistent with these principles. There, the 22 challenged postjudgmentjury no-contact order wasnot explicitly authorized by a specific statute at the time. (Townsel, supra, 20 Cal.4th at pp. 1090- 1091.) However, Code of Civil Procedure section 206 conferred postjudgmentjurisdiction on the trial court to impose sanctions for “unreasonable”juror contact. (/d. at p. 1091.) In addition to holding that the trial court had jurisdiction to issue the order under Codeof Civil Procedure section 916, this Court held that the no-contact order served and facilitated the court’s ability to exercise its jurisdiction under section 206 and for that reason, as well, “both sections 916(a) and 206 establish that [the court] possessed jurisdiction to enter the no-contact order.” ([bid.) Applying the foregoing principles here, “jurisdiction is... conferred”on the trial court over postjudgment discovery by Penal Code section 1054.9 within the meaning of Code of Civil Procedure section 187. Therefore, the trial court has the inherent authority to utilize “all the means necessaryto carry [its jurisdiction under section 1054.9] into effect .... [even] if the course of proceeding be not specifically pointed out by” section 1054.9 or other statute. (Code Civ. Proc., § 187.) Hence,if the trial court deemsit necessary to order evidence preservation to ensure that discoverable evidenceis not lost or destroyed and thereby protect the successful exercise of its statutory jurisdiction to order discovery once habeas corpus counselis finally appointed and canseekit, the court has the inherent authority to do so. That is just whatthe trial court in this case ruled. Asthe trial judge recognized, she had jurisdiction, or the “authority now,” to order discovery. (Opposition, Exhibit D, p. 113.) However, as more fully discussed in Part D,post, like more than half of the men and women on death row in this state, Morales has been deprivedofhis ability 23 to invokethetrial court’s discovery jurisdiction “now” becausehe has not yet been affordedhis right to the timely appointment of habeas counsel, whohas the exclusive authority to conduct factual investigation and obtain relevant evidence through discovery (and other means)as an aid in the preparation of his habeas corpuspetition. Asthis Court has recognized,there is a current crisis in the Court’s ability to secure habeas corpus counsel in capital cases, resulting in manyif not most death row inmates waiting many years — somedecades — for their right to habeas corpus counsel, and their concomitantright to the tools necessary to prepare their habeaspetitions, to be honored. (/n re Morgan (2010) 50 Cal.4th 932, 938-939; In re Jimenez (2010) 50 Cal.4th 951, 955, 958; Gov. Code, §§ 68662, 68663; SupremeCt. Policies, policy 3, stds. 2-1, 1.1-1.) The Court has further recognized that its failure to fulfill its obligations in this regard can carry significant threats to the rights of men and womensentenced to death, including the loss or destruction ofcritical evidence before habeas corpus counselis finally appointed and can obtain it. Un re Jimenez, supra, at pp. 955, 958; see also Barnett v. Superior Court (2010) 50 Cal.4th 890, 897-898, citing and quoting from legislative history of Penal Codesection 1054.9 [legislature recognizing “all too often” occurrence that materials will be lost after trial and before habeas corpus counsel can secure them to aid in preparation of petition].) Certainly, that dangeris illustrated by this case. Based on the People’s opposition to Morales’s evidence preservation motion in the trial court and their mandamuspetition in the appellate court, their view is that neither they nor any of the other local agencies to whom the preservation order wasdirected have a duty to preserve any evidence until such time that the trial court actually orders its production through 24 discovery (or other means). (Opposition, pp. 23-24, 30-32.) Even assumingthatall prosecuting agencies had some hypothetical policy to preserve all discoverable material until such time that postjudgment discovery is sought, without the authority of the court to order preservation of all potentially relevant material until such time that the matter of discovery can actually be litigated, the question of whatis andis not discoverable and thus what must and mustnotbe preservedis left to the prosecutors alone in the interim. Asa result, discoverable evidence may be lost or destroyed before habeas corpus counsel is appointed and can seek discovery. Such result acts to prevent the complete and successful exercise of the trial court’s discovery jurisdiction. For example,in this case the People have an erroneously limited view of discoverable materials under Penal Codesection 1054.9,failing to recognize,inter alia, that postjudgmentdiscovery includes materials in the possession of “investigating agencies,’” including “‘any other persons or agencies which the prosecuting attorney or investigating agency may have employedto assist them in performing their duties’” (/n re Steele, supra, 32 Cal.4th at pp. 696-697, citing Pen. Code, §§ 1054.1 and 1054.5), as well as the clear relevance of much of the material in this case evenatthis early stage, despite Morales’s particularized showing oftheir relevance to habeas corpus issues already apparent from the face of the appellate record alone. (Opposition, pp. 37-39; Opposition, Exhibit C, pp. 52-67.) Thus, in the view of the People here, they have no duty to preserve — and henceare free to destroy — materials that would be subject to the discovery provisions of section 1054.9. Chilling the trial court’s ability to order preservation of evidence,at least until such time as habeas corpus counsel is appointed and can initiate factual investigation and discovery, could render meaningless 25 Penal Codesection 1054.9 and the court’s jurisdiction underthat statute. This dangeris a potential “obstruction[]” to the court’s “successful operation”as well as the defendant’s rights under Penal Code section 1054.9, which the court’s inherent powers of “self-preservation” authorize it toremove. (Millholen v. Riley, supra, 211 Cal. at pp. 33-34; accord, e.g., People v. Superior Court (Laff), supra, 25 Cal.4th at p. 735; James H.v. Superior Court, supra, 77 Cal.App.3d at pp. 175-176.) An evidence preservation orderis a suitable or necessary “means”to protectthetrial court’s jurisdiction under Penal Codesection 1054.9 and ensureit is given “effect,” even thoughthat “course of proceeding be not specifically pointed out by” statute. (Code Civ. Proc., § 187.) Just as the trial court’s nonstatutory postjudgment no-contact order served andfacilitatedits postjudgmentjurisdiction under Code of Civil Procedure section 206 and thus was a proper exercise of the court’s jurisdiction in Townsel, so too - doesa trial court’s nonstatutory evidence preservation order serve and facilitate its postjudgmentjurisdiction under Penal Code section 1054.9 and thus is a proper exercise ofits jurisdiction. (Townsel, supra, 20 Cal.4th at pp. 1090-1091.) Thetrial judge’s ruling in this case reflects these principles. Following Morales’s written arguments describing the delays in the appointment of habeas corpus counsel and the concomitant dangerthat discoverable evidence will be lost or destroyed before such counselis finally appointed and can seek discovery, the court reasonedthat “if ultimately the trial court has authority nowforfurther discovery, that obviously if we didn’t also have authority to preserve, that there may be nothing to discover.” (Opposition, Exhibit D, p. 113.) Based in part on the judge’s reasoning that her authority to order preservation of evidence 26 potentially relevant to habeas corpusinvestigation followed from and was necessary to ensure the full and effective exercise of her jurisdiction and the protection of Morales’s rights under Penal Code section 1054.9,thetrial court granted the motion. (Opposition, Exhibit D, pp. 112-114.) As demonstrated, thetrial judge’s ruling finds ample support in the law. Finally, it is true — as the appellate court in this case pointed out (App. A,p. 9) — that in construing the scope of discovery under Penal Code section 1054.9 in Jn re Steele, supra, this Court observed thatthe statute “imposes no preservation duties that do not otherwise exist.” (32 Cal.4th at p. 695.) Moraleshas no quarrel with this point; he agrees that the statute alone imposes no independent preservation duties on the part of evidence custodiansthat do not otherwise exist. Indeed, this is one of the reasons whya trial court’s ability to order custodians to preserve evidence is necessary in the first place. The fact that the statute alone doesnotcreate any new,independent evidence preservation duties in no way undermines the fundamentalprinciple that the trial court retains subject matter jurisdiction to order preservation. The Steele Court did not address that issue at all; nor did the Court even cite Johnson, muchless hintthat its holding — that a trial court lacks postjudgmentjurisdiction to order evidence preservation in anticipation of postjudgment discovery — remainsintact. Pursuant to the foregoing principles, a trial court has the inherent powerto act when it deemsthat act necessary to protect the authority of the court and the rights of a capital defendant that have been created by the Legislature and this Court. This power includes the authority to order the preservation of evidence following the imposition of a death judgmentas a matter of law as well as a matter of policy, as set forth below. 27 D. Preservation Motions Play a Critical Role in Ensuring that Capital Defendants are Not Unfairly Prejudiced by The State’s Failure to Timely Appoint Habeas Corpus Counsel, Effectuating the Policies and Procedures This Court Has Developed For Capital Postconviction Practice, and Protecting the Interests of Justice Penal Code Section 1054.9 Was Enacted to Serve Significant changes in the law and policy governing capital postconviction practice and procedure have occurred since the Court’s 1992 Johnson and 1990 Gonzalez decisions. These changes warrant recognition of a trial court’s inherent authority to grant postjudgment evidence preservation motions brought by appellate counsel in capital cases before habeas corpus counselis appointed. Prior to 1998, all death penalty appointments were dual, i.e., were for both the direct appeal and habeas corpus/executive clemency proceedings. (See Marks v. Superior Court, supra, 27 Cal.4th at p. 183.) Beginning in 1998, however, state law and policy were changed and now providefor the appointment of separate counsel on appeal and habeas corpusin capital cases. (Gov. Code, §§ 68662, 68663; Supreme Ct. Policies, policy 3, std. 2- 1.) Underthe new rules, “appointment of habeas corpus counsel for a person undera sentence of death shall be made simultaneously with appointmentofappellate counselor at the earliest practicable time thereafter.’ (Supreme Ct. Policies, policy 3, std. 2-1, italics added; see also Policy 3, std. 1-1.1 [timely petition to be filed either within 180 days after due date for filing appellant’s reply brief on appeal or within 36 months after appointmentof habeas counsel, whicheveris later].) This right “to appointed habeas corpus counsel ‘promotesthe state’s interest in the fair and efficient administration of justice and, at the sametime,protects the interests of all capital inmates by assuring that they are provided a 28 reasonably adequate opportunity to present us their habeas corpusclaims.’ | Un re Barnett (2003) 31 Cal.4th 466, 475.)” (Un re Morgan, supra, 50 Cal.4th at p. 937; see also Christeson v. Roper (2015) ___ U.S. __, 135 S.Ct. 891, 893 (per curiam) [by providing indigent capital defendants with similar right to qualified habeas corpus counsel, Congress recognizesthat ‘habeas corpushas.a particularly importantrole to play in promoting fundamentalfairness in the imposition of the death penalty’”’].) The Legislature and the Court have also delineated separate duties for appellate and habeas corpus counsel andin so doing havelimited the scope of their authority to act in accordance with their defined duties. (Gov. Code, §§ 68662, 68663, 15421; Supreme Ct. Policies, policy 3, std. 2-1; Marks v. Superior Court, supra, 27 Cal.4th at pp. 184-187 [“the scope of authority . . . should reflect the purpose and attendant duties of the separate appointments’’].) This scheme confers on habeas corpus counsel the exclusive authority to conduct factual investigation into, prepare, and file the habeas corpuspetition. The purpose of the rule requiring the appointmentof capital habeas corpus counsel “simultaneously with appointment of appellate counselorat the earliest practicable time thereafter” (Supreme Ct. Policies, policy 3, std. 2-1) is to ensure that this system actually works. As this Court has explained, “[i]deally, the appointment of habeas corpus counsel should occurshortly after an indigent defendant’s judgmentof death,”so as to “enable habeas corpus counselto investigate potential claimsfor relief and to prepare a habeas corpuspetition at roughly the same time that appellate counsel is preparing an opening brief on appeal” and “ensurethe filing of a habeas corpus petition soon after completion of the briefing on the appeal” as contemplated by Policy 3, Standard 1-1.1. (in re Morgan, supra, 50 29 Cal.4th at p. 937.) Against this background, in 2002 the Legislature enacted the bill that addedsection 1054.9 to the Penal Code. This statute entitles capital (and LWOP)defendants to postjudgment pre-petition discovery “as an aid in preparing” the petition for writ of habeas corpus. (Un re Steele, supra, 32 Cal.4th at p. 691.) Because habeas corpus counsel has the exclusive authority to “prepare” and file habeas corpuspetitions, the statute necessarily presupposes the appointment of habeas counsel and thereby limits the authority to seek discovery to habeas counsel. The Legislature enacted Penal Code section 1054.9 in order to prevent the injustice that results when habeas corpus counsel is unable to obtain evidence to which she would otherwise have access but does not through no fault of her or the defendant. The legislative history materials to the statute acknowledged the “‘all too often” occurrence that “a defendant’s files are lost or destroyedafter trial,” resulting in habeas counsel’s inability (under Gonzalez) to otherwise obtain the materials necessaryto file a habeas corpuspetition that states a prima facie case for relief. (Barnett v. Superior Court, supra, 50 Cal.4th at pp. 897-898, citing and quoting from legislative history of Penal Code section 1054.9.) Crippling habeas corpus counsel’s ability to prepare a petition due to the loss of or inability to obtain such evidence “through no fault of’ her or the 666 999 Gees defendantleads to ““clear injustice.’” (Ibid.) In order to avoid that result, the Legislature enacted Penal Codesection 1054.9 in “the interests of justice.” (Pen. Code, § 1054.9, Historical and Statutory Notes; see also Barnett v. Superior Court, supra, at pp. 897-898,citing legislative history materials.) The Legislature presumably enacted this statute with the law and policies requiring the timely appointment of habeas corpus counselin 30 mind. (See Viking Pools Inc., v. Maloney (1989) 48 Cal.3d 602, 609 [Legislature presumed to be aware of existing law whenit enacts statutes].) Thus,if the system workedas it should and habeas corpus counsel were actually appointed “shortly after an indigent defendant’s judgment of death” (In re Morgan, supra, 50 Cal.4th at p. 937) or “simultaneously with appointmentof appellate counsel” (Supreme Ct. Policies, policy 3, std. 2-1), motions to preserve evidence would be unnecessary. The “interests of justice” Penal Code section 1054.9 were designed to serve would be served by habeas counsel’s promptability to conduct necessary factual investigation and obtain relevant evidence through discovery (and other means) to support the claimsto be raised on habeas corpuspetition. However,six years after the Legislature enacted section 1054.9,the reality that the system does not workas it should cameinto sharp focus, due in large part-to the “excessive delay” in the appointmentof capital habeas corpus counsel. (Cal. Com. on the Fair Admin. of Justice, Final Report (2008) pp. 114-115, 121, cited by In re Morgan, supra, 50 Cal.4th at p. 939.) In its 2010 decisions in Morgan and Jimenez, this Court recognized that the crisis-level delays in the appointmentof habeas corpus counsel can have devastating consequencesto capital defendants and result in unfair prejudiceto their rights through no fault of their own. In those cases, the Court held that as a matter of policy, preventing unfair disadvantage resulting from the failure to appoint habeas counselin a timely manner justified creating an exceptionto the ordinary rules of habeas corpus practice and procedure. (Jn re Morgan, supra, 50 Cal.4th at pp. 937-942 [creating exception to existing rules underlimited, specified circumstances, to allow filing of “placeholder”petitions that would otherwiseresult in 31 prompt and summarydismissal and prohibit supplemental or second petitions]; accord, In re Jimenez, supra, 50 Cal.4th at pp. 955-958.) Since the 2010 Morgan and Jimenez decisions, the situation has grownonly worse. “[A]s of June 2014, 352 inmates — nearly half of Death Row — were without habeas corpus counsel.” (Jones v. Chappell (C.D. Cal. 2014) 31 F.Supp.3d 1050, 1058, reversed on other groundsin Jonesv. Davis (9th Cir. 2015) 806 F.3d 538.) Of those inmates, 159 have been awaiting appointment of habeas corpus counsel for more than ten years; 76 have final judgments on appeal and have already waited an average of 15.8 years for the appointment of habeas counsel. ([bid.) Asset forth in Part C, ante, this Court has recognized that the delays in the appointment of habeas counsel create a dangerthat critical evidence maybelost or destroyed in the years or decades before such counselis finally appointed and the People’s positions in the proceedings below demonstrate that this danger is a real and present one. (/n re Jimenez, supra, 50 Cal4th at pp. 955, 958; Opposition, pp. 23-24, 30-32, 37-39; Opposition, Exhibit C, pp. 52-67.) Such evidence is not limited to discoverable materials, but also includes other materials relevant to habeas corpusissues that would otherwise be available to habeas corpus counselif he or she were appointed “shortly after an indigent defendant’s judgment of death” (In re Morgan, supra, 50 Cal.4th at p. 937), such as court records, other materials in the possession of the court’s ministerial officers, or materials to which the defendant would otherwise be entitled independent of formal discovery. (See, e.g., Pen. Code, §§ 13300, subd. (b)(11), 13101; Health & Saf. Code, § 123110.) In capital cases, the Legislature has already provided for the permanentpreservation of the court records of “capital felony” proceedings “in which the defendantis sentenced to death,” 32 as well as the “records of the cases of any codefendants and anyrelated cases, regardless of disposition,” so long as those related records or cases are so identified on the record. (Gov. Code, § 68152, subd. (c)(1).) When they are notso identified, however, other statutory provisions come into play whichprovide,inter alia, that court reporters may destroy their notes ten years after the notes have been taken. (Gov. Code, § 69955, subd.(e).) Even whenexisting statutes already require preservation of records,it is all too commonfortheir negligent loss or destruction to occur. (See, ¢.g., People v. Galland (2008) 45 Cal.4th 354, 369 [custodians negligently destroyed records in violation of Government Code section 68152]; People v. Hailey (2004) 34 Cal.4th 283, 305 [juror questionnaires]; People v. Seaton (2001) 26 Cal.4th 598, 698 [court’s file containing pleadings and other records]; People v. Osband (1996) 13 Cal.4th 622, 661 [manytrial exhibits].)® The likelihood that important evidence will be purposely or negligently lost or destroyed increases with every year that capital defendants wait for their right to habeas corpus counsel to be honored. Thus, the same concerns that prompted the enactment of Penal Code section 1054.9 continue to exist given the reality of current capital postconviction practice and procedure. When habeascorpus counsel appointed years or decadesafter a death judgmentis unable to obtain evidence dueto its loss or destruction in the years before her appointment, but to which she would otherwise have had access had she been appointed 4 399 in a timely manner, ““‘the injustice is clear.” (Barnett v. Superior Court, ’ Indeed, as Morales arguedin thetrial court below, such evidence has already beenlost in this case, including the preliminary hearing exhibits and two significant pleadings the People filed during trial. (Opposition, Exhibit C, p. 56.) ae & Bees ee oom 33 supra, 50 Cal.4th at pp. 897-898, quoting from legislative history materials.) Asthe Legislature recognized in enacting Penal Code section 1054.9, such injustice must be avoided. As the Court recognized in Morgan and Jimenez, unfair prejudice to the defendant’s habeas corpusrights resulting from the failure or inability to appoint habeas corpus counsel in a timely manner mustlikewise be prevented. Therefore, there must be a mechanism by whichto ensure that important evidence will notbe lost to habeas corpus counsel dueto the failure to timely appoint her and not to any fault of her or the defendant. This Court has taken onestep in that direction by imposing a duty on appellate counselto “‘preserve evidence that comesto [her] attention . . if that evidence appears relevant to a potential habeas corpus investigation” until habeas corpus counsel is appointed. (SupremeCt. Policies, policy 3, std. 1-1; Marks v. Superior. Court, supra, 27 CalAth at p. 184.) But that step, clearly, is not enough, as evidenced by the appellate court’s opinion in this case. As demonstrated, there is a mechanism by whichto prevent unfair prejudiceto the rights of capital defendants dueto the loss or destruction of evidence resulting from the failure to timely appoint habeas corpus counsel: appellate counsel’s ability to invoke the trial court’s postjudgment jurisdiction to entertain and grant evidence preservation motions while appeal from the judgment remains pending and before habeas corpus counsel is appointed. This Court need only recognize the lawfulness of that procedure in the interests ofjustice. 34 II. EVEN IF THIS COURT HOLDS THAT TRIAL COURTS DO NOT HAVE SUBJECT MATTER JURISDICTION TO ISSUE EVIDENCE PRESERVATION ORDERS AFTER THEY HAVE IMPOSED JUDGMENT AND WHILE APPEAL THEREFROM IS PENDING, THE LAW PRIOR TO ITS DECISION IN THIS CASE AND AFTERITS 1999 TOWNSEL DECISION AND THE 2003 EFFECTIVE DATE OF PENAL CODE SECTION 1054.9, WAS UNSETTLED AND THUS DID NOT IMPOSE ON TRIAL COURTSA CLEAR, SPECIFIC, PRESENT LEGAL DUTY TO DENY SUCH MOTIONS Asdiscussed in ArgumentI-A, ante, mandamus law governedthe appellate court’s consideration of the People’s petition for writ of mandamusin this case and its holding that mandamusshould issue to the trial court to vacate its evidence preservation order for lack of subject matter jurisdiction. Under Code of Civil Procedure section 1085, traditional mandamuswill only lie to compel the performance of an act which the law specially enjoins, as a duty resulting from anoffice,trust or station.? The petitioner on mandamusbears the burden of pleading and proving the claims for relief on mandamus.(See,e.g., California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153-1155.) Amongother elements, the petitioner must showthat he or she has a “clear, present, and beneficial right” to performanceof a “clear, present . . . ministerial duty on behalf of the respondent” sought to be compelled through mandamus. (Picklesimer, supra, 48 Cal.4th at p. 340, and ” Code of Civil Procedure section 1085 provides in relevantpart: “(a) A writ of mandate may beissued by any court to anyinferiortribunal. . . to compelthe performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoymentofa right or office to which the party is entitled, and from whichthe party is unlawfully precludedbythat inferior tribunal, corporation, board, or person.” 35 authorities cited therein, ellipses inoriginal.) With respect to respondent’s duty, “[a] ministerial duty is an obligation to perform a specific act in a mannerprescribed by law whenevera givenstate of facts exists, without regard to any personal judgmentasto the propriety of the act.” (/bid.) The 99 66legal duty to act must be “specific,” “clear,” and “present” at the time the act sought to be compelled through mandamus wasrefused. (/bid; Code Civ. Proc., § 1085; Jacobs v. Board ofSupervisors of City and County of San Francisco (1893) 100 Cal. 121, 129 [the act to be commanded must be “definite, certain and fixed”at the time the respondentrefused to so act]; accord, Palmer v. Fox (1953) 118 Cal.App.2d 453, 456; Lundgrenv. Deukmejian (1988) 45 Cal.3d 777, 731-732 [“present” duty is “measured as of the time the proceedingis filed’”’].) In the absence ofa specific statute clearly creating such a duty, “there must be a clear case to ‘compel the performanceofan act which the law specially enjoinsas a duty resulting 999 from an office, trust, or statton’” for mandamus to issue. (Perrin v. Honeycutt (1904) 144 Cal. 87, 90; accord, e.g., 300 DeHaro Street Investors v. Dept. ofHousing and Community Development (2008) 161 Cal.App.4th 1240, 1255; Wenzler v. Municipal Court (1965) 235 Cal.App.2d 128, 132-133.) Underthese principles, the People who petitioned for mandamus relief in this case bore the burden of demonstrating that a “clear case” 99 66created a “specific,” “clear” and “present” legal rule mandatingthetrial court to deny postjudgment evidence preservation motions for lack of subject matter jurisdiction, even while appeal was pending,at the timeofits 2014 order granting the motion and the People’s responsive petition for writ of mandamus. Of course,if this Court agrees that a trial court has subject matter jurisdiction to entertain and grant postjudgment evidence 36 preservation motions while appeal from the judgment remains pending pursuantto the legal authorities set forth in ArgumentI, ante, it necessarily followsthat the appellate court’s order granting the People’s petition for writ of mandamus must be reversed. But even, assuming arguendo,thatthis Court declines to hold that a trial court has such jurisdiction, the sameresult is required. As discussed in ArgumentI-A, ante, the appellate court implicitly foundthat the People hadsatisfied their burden by broadly holding that Johnson, Gonzalez, and Picklesimer categorically “forbid[] trial courts from ruling on” on any and all nonstatutory motions after they have imposed judgment because “there is simply no pending case or proceeding to which the motion can attach” — regardless of whether appeal from the judgmentis pending and regardless of the purpose andeffect of the order granting the motion. (App. A, pp. 7-10.) Without question, the law in 2014 did not clearly establish the rule sostated. To the contrary, the law clearly established just the opposite. (Code Civ. Proc., § 916, subd. (a); Townsel, supra, 20 Cal.4th at pp. 1089-1091.) Indeed, in Townsel, the People successfully argued that after judgmentis imposed but while appealis still pending,trial courts retain jurisdiction under Code of Civil Procedure section 916, subdivision (a), to grant motions that are connectedto the trial court proceedings and involve matters collateral to the judgment being appealed. (Townsel, supra,at p. 1089.) It is axiomatic, then, that the People in this case could not and did not satisfy their burden of establishingthat thetrial court’s exercise of that very jurisdiction to grant Morales’s evidence preservation motion violated any clear, specific legal duty to the contrary. The appellate court’s holding that the trial court clearly had no 37 subject matter jurisdiction to grant the evidence preservation motion was not limited to such motionsin particular but rather purported to apply to that motion a non-existent rule that — in its view — applies to any andall nonstatutory motions brought after imposition of the judgment. (See App. A, pp. 7-10.) As to the specific question of whether trial courts had clear, specific, and present legal duty to deny postjudgment evidence preservation motionsin particular for lack of subject matter jurisdiction at the time of the court’s 2014 ruling and the People’s initiation of the mandamus proceedingsin this case, this Court decides that issue de novo,as one of pure law that does not involve any disputed facts. (Branciforte Heights, . LLC v. City OfSanta Cruz (2006) 138 Cal.App. 4th 914, 933, and authorities cited therein.) As to this question, it is true that the 1992 Johnson decision was“clear” in holding that trial courts do not have postjudgmentjurisdiction to entertain and grant evidence preservation motions brought in anticipation of postjudgmentpre-petition discovery based on the Gonzalez analysis and in holding that courts at that time had no jurisdiction to grant, and defendants enjoyed noright to, such discovery. (Johnson, supra, 3 Cal.4th at pp. 1257-1258.) However, the legal proposition reflected in Johnson wasno longer “clear” in 2014, or indeed at any time after this Court’s 1999 Townsel decision and the Legislature’s enactment of Penal Code section 1054.9, for the reasons discussed in ArgumentI, ante. Even if the authorities cited in ArgumentI, ante, did not clearly establish the trial court’s authority to grant the evidence preservation motion in this case, atthe very least they conflicted with and cast considerable doubt on the continuedvitality of Johnson, and theclarity of any “rule” requiring trial courts to deny such motions for lack of subject matter jurisdiction in 2014. 38 Furthermore, Johnson’s jurisdictional holding was qualified even at the time it was made. In contrast to its holding that a trial court lacked | subject matter jurisdiction to order preservation of potentially discoverable evidence under Gonzalez, Johnson recognized that superior courts “may well have the inherent authority to issue an order for the preservation” of records maintained by their ministerial officers after imposition of judgment. (Johnson, supra, 3 Cal.4th at p. 1258, italics added, citing Code Civ. Proc., § 128, subd. (a) [court has inherent authority to control acts of its “ministerial officers” in “furtherance of justice]; see also Opposition, pp. 8-10, 33-34.) The San Bernardino County Superior Court’s evidence preservation orderin this case was directed in substantial part to San Bernardino County Superior Court records in this and related cases and other materials in the possession of that court’s ministerial officers, based on a particularized showingoftheir potential relevance to habeas corpus investigation. (Opposition, pp. 8-10, 33-34; Opposition, Exhibits A, C, D, F.) Hence, even at the time of Johnson decision,it did not impose a “clear” or “specific” duty on the partof trial courts to deny motionsto preserve materials in the custody of the superior court where the case wastried,or its ministerial officers, for lack of subject matter jurisdiction.'® 99 66The absenceof any “specific,” “clear” and “present” legal rule mandatingtrial courts to deny postjudgment evidence preservation motions '0 As the burden bearing party on mandamuswhorelied solely on Johnson and Gonzalez in arguing the trial court’s lack of subject matter jurisdiction in 2014, the People simply ignored the overriding orat the very least conflicting legal principles set forth in ArgumentI, ante, and the Johnson decision’s own limitations on its jurisdictional holding. (Opposition, pp. 20, 32-34, fn. 7; App. C.) The appellate court’s opinion followed suit. (See App. A.) 39 for want of subject matter jurisdiction is further demonstrated bythis Court’s judicially noticed facts that trial courts across the state have granted such motions during pendency of appeal since the enactment of Penal Code section 1054.9. (See fn. 5, ante.) Whether this Court ultimately determines that those courts were right or wrong,it is impossible to reconcile their 99 66rulings with a “specific,” “clear” and “present” legal “duty” on trial courts to deny all such motionsfor lack or subject matter jurisdiction. Given the foregoing, the necessary prerequisite for mandamusrelief in this case was not and could notbe satisfied. There simply was no 39 66“specific,” “clear” and “present” rule of law that compelled thetrial court to deny the evidencepreservation motion here for lack of subject matter jurisdiction at the time of its 2014 ruling andthe initiation of mandamus proceedingsin the appellate court. In other words, even if this Court were to decide that trial courts do not have subject matter jurisdiction to issue postjudgment evidence preservation orders during the pendency of appeal under current law and announcea clear rule which creates a clear duty on the part oftrial courts to deny preservation motions on that groundin the future, that holding would necessarily entail resolving the uncertainty resulting from the conflict between Gonzalez and Johnson on the one hand and the subsequent authorities discussed in ArgumentI, ante, on the other. “As a generalrule, by its very nature, a writ of mandamus cannot .. . create or impose new” duties. “Mandamus maybe usedonly for the purpose of enforcing the exercise .. . or the performance of such duties as already exist without the mandate.” (55 C.J.S. Mandamus, § 78 (2015), fns. omitted, italics added; accord, Supervisors v. United States (1873) 85 U.S. 71, 77 [under traditional mandamusprinciples, “the office of a writ of mandamusis not to 40 create duties, but to compelthe discharge of those already existing”’]; see also 55 C.J.S. Mandamus,supra, § 74 [“If for any reason the duty to perform the act is doubtful”at the time it is refused and the mandamus petitionis filed, “the obligation is not regarded as imperative” and mandamuswill not issue].) Hence, reversal of the appellate court’s mandamusorderto the trial court to vacate its evidence preservation order in this case wouldstill be required. // II 41 CONCLUSION The Gonzales and Johnson decisions were promulgatedin a legal galaxy that existed long ago and far away. Since those cases were decided this Court hasclarified the scopeofa trial court’s jurisdiction when an appealis pending andthetrial court is considering an issue that does not go to the merits of the judgment;the Legislature has significantly altered the law by providingfor pre-petition discovery in capital and LWOPcases; and the law and policy have radically changed regarding appellate and postconvictionlitigation in capital cases. All of these factors render irrelevant the Gonzales and Johnson decisions and mandatea findingthat in the current legal landscapetrial courts have jurisdiction to consider and grant evidencepreservation motions. This Court should now clearly declare that to be the law. DATE: December24, 2015 Respectfully submitted, MICHAEL J. HERSEK State Public Defender BARRYP. HELFT Chief DeputyState-Public Defender WZ C. DELAINERENARD Senior Deputy State Public Defender Attorneys for Real Party in Interest/Appellant 42 CERTIFICATE OF COUNSEL Calif. Rules of Court, rule 8.520(c)(1) I, C. Delaine Renard, am the Senior Deputy State Public Defender assigned to represent defendant and appellant on his automatic appeal from his death sentence before this Court, and real party in interest in the mandamus proceedings before the appellate court below and on review thereof before this Court, Johnny Morales. I have conducted a word count of this brief on the merits using our office's computer software. On the basis of that computer-generated word count and pursuantto rule 8.520(c)(1), I certify that this petition i inlength. C. DELAINERENARD / Senior Deputy State Public Defender Attorney for Real Party in Interest/ Appellant Johnny Morales 43 APPENDIX A NOT TO BE PUBLISHEDIN OFFICIAL REPORTS California Rules of Court, rule 6.1115(a), prohibits courts and parties from citing or relying on opin ions notcertified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not bee n certified for publication or ordered published for purposesof rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT Court of Appeal DIVISION TWO Fourth Appellate District Division Two ELECTRONICALLY FILED 1:10 pm, Jul 15, 2015 THE PEOPLE, By: M. Urena Petitioner, E061754 Vv. (Super.Ct.No. FVAO1 5456) THE SUPERIOR COURT OF OPINION SAN BERNARDINO COUNTY, Respondent; JOHNNY MORALES, Real Party in Interest. ORIGINAL PROCEEDINGS;petition for writ of mandate. Ingrid Adamson Uhler, Judge. Petition granted. Kamala D.Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Holly D. Wilkens and Michael T. Murphy, Deputy Attorneys General, for Br AO NE I R C S R S oe Petitioner. No appearance for Respondent. Michael J. Hersek, State Public Defender, and Cheryl Delaine Renard, Senior Deputy State Public Defender, for Real Party in Interest. On requestofreal party in interest Johnny Morales, the trial court entered an order requiring multiple public agencies and departments to “preserve” 22 categories of documents and other materials! allegedly to pertain in some wayto the criminal proceedings which resulted in a judgmentof death againstpetitioner. The People sought review by wayofpetition for writ of mandate from this court, arguing that the trial court had nojurisdiction to make such an orderin the absence of any pending proceeding. Weagree that the orderis erroneous, and will grant the relief requested. STATEMENT OF THE CASE Morales’s motion requested that “materials potentially relevant to his case be kept intact so that future litigation can center on the fairness of his conviction and death sentence, and not on tangential issues such as whether materials should have been destroyed or whetherdestroyed materials would have favored the prosecution or appellant [Morales].” It appears that Morales was sentencedin 2005 andhis appeal is pending before the Supreme Court of California. Morales asserted, without contradiction, that although he has been appointed appellate counsel (whoprepared the motion), he has notyet been appointed counselto pursue any habeas corpus remedy. ! A copy ofrealparty in interest’s order, consisting of seven pages,listing the 22 categories of documentshe wishes to preserveis attached as Appendix A,post. It was also asserted in the motion that “the duty falls to appellate counsel to preserve all materials arguably governed by [Penal Code] section 1054.912] so that the Legislature’s intention to provide condemnedpeople like appellant with postjudgment discovery can be given full force and effect.”3 The People opposed the motion on the primary groundthatthe trial court lacked jurisdiction to grant the requested relief in the absence of some pending recognized proceeding. The People also argued that the request imposed an undue burden on the various agencies and departments specified. After hearing argument,the trial court madethe order set out above. The People sought a writ of mandate to vacate the order and this court issued an order to show cause.4 2 Ail subsequentstatutory references are to the Penal Code unless otherwise specified. 3 Penal Code section 1054.9 providesthat “(a) Upon the prosecution of a postconviction writ ofhabeas corpus or a motion to vacate ajudgment in a case in which a sentence of death oroflife in prison without the possibility of parole has been imposed, and on a showingthat good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful, the[trial] court shall, except as provided in subdivision (c), order that the defendantbe provided reasonable access to any of the materials described in subdivision (b). [{] (b) For purposesof this section, ‘discovery materials’ means materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have beenentitled at time oftrial.” 4 MORALESasserts that writ review is not necessary because the People have an adequate remedyat law by appeal. Our issuance ofthe order to show causereflects our determination that the remedy at law is not adequate, and we declineto revisit the issue. (See Marron v. Superior Court (2003) 108 Cal.App.4th 1049, 1056.) We will discuss his other procedural objections below. S N M P er p in st o t e DISCUSSION First, we have no quarrel with Morales’s description ofthe delays in the death penalty review process. However, the issue is not whether the procedure sought by Moralesis desirable, but whether it is authorized by law. In addition to arguing that writ review is unnecessary (see fn. 4, post), Morales focuses on proceduralchallenges to the People’s attempt to overset the ruling. He argues first that the People failed to “specifically [] allege, or allege sufficient facts to make even a prima facie showing,that it has a beneficial interest or substantial right that will be substantially damagedif writ relief is denied ....” The gist of this argumentis that the public agencies and departments listed in the motion did not object and therefore the People may not do so. There are two flawsin this argument. The first is that consent (and a fortiori inaction) cannotconferjurisdiction where noneexists. (See People v. Alanis (2008) 158 Cal.App.4th 1467, 1473 [also involving postjudgmenttrial court proceedings while defendant’s appeal was pending].) The secondis that the People are an interested party as multiple categories do impose a duty onthe People to preserve evidence. For example, item “c.” describes “[a]ll prosecutorial and law enforcement reports, notes, tape recordings, .. .” while item “f.” specifies “[a]ll writings or other recordsrelating to the decision by the San Bernardino County District Attorney’s Office to seek the death penalty, .. .” and “t.” refers to “[a]ll criminalfiles relating to other suspects and/or witnesses related to this case including the following: [names] whetherin the possession or control of the San Bernardino County Superior Court, the San Bernardino County District Attorney’s Office ....” Thus, the People, acting through the district attorney, were directly affected by the order and were entitled to appear and opposeit both in the trial court and beforethis court.> Furthermore, the order would inevitably oblige the affected departments and entities to conducta search of records and devise some method of segregating any materials which might conceivably fall within the order. Morales also complains that the People inadequately allege the justification for’ extraordinary relief as set out in Code of Civil Procedure, sections 1085 and 1086. To the extent that this reflects the position that the People are not a party “beneficial[ly] interest[ed]” and that they have an adequate remedy at law, we have explained our disagreement.® To the extent that Morales challenges the technical adequacy of the pleading with respectto alleging these elements, we are unpersuaded. First, any such objection to the pleading is properly raised by demurrer, not argument. (See Gong v. City 5 It may also be questioned whether the mailed notice of the motion wassufficient to subject the various agencies and departmentsto the court’s authority. The usual way of acquiring personaljurisdiction is by personalservice; in the somewhat analogous context of compelling the attendanceof a witness or the production of evidence, a subpoena mustbe personally served. (Code Civ. Proc., § 1987.) 6 Morales also sets up a straw man byreasoningthat the People’s oppositionis based upon the notion that they (and the other agencies) have a “ ‘substantial right’ to destroy the subject materials . . . before any discovery order can be made,” and then arguesthat this “subverts” the purposes of section 1054.9 and is “incompatible with RPI’s most basic fundamental rights to fairness and heightened reliability in the death judgment against him.” Wedo notread the People’s argumentsas evincing any zeal to destroy any evidence, but merely as objecting in principle to the court’s attempt to issue an unjustified order imposing not-insignificant burdens. ofFremont (1967) 250 Cal.App.2d 568, 573.) Second, wherethe petition contains sufficient facts from which the omitted facts can be gleaned, we havediscretion to considerit despite technical inadequacies. (Chapman v. Superior Court (2005) 130 Cal.App.4th 261, 271-272.) The district attorney’s apparent unfamiliarity with pleading formats does not require us to refuse relief where warranted. Morales then arguesthat the petition must be denied because the People cannot plead and provethat the trial court had a clear duty to deny his motion for lack of jurisdiction. It is true thatit is often said that mandate issues to compel a lower court or officer to perform a “clear duty” (Code Civ. Proc., Community Bank ofCentral California (2005) 131 Cal.App.4th 913, 925) and of courseit cannot control the exercise ofdiscretion. (City ofOakland v. Superior Court (1996) 45 Cal.App.4th 740, 751.) But mandateis available to correct abuses ofdiscretion (Alejo v. Torlakson (2013) 212 Cal.App.4th 768, 780) and an error of law is an “abuse of discretion” correctable by mandate. (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746.) As wefind a clear error of law, mandate will lie. Wenow explain our reasoning on the merits. First, it must be noted that this is not a request for actual postconviction discovery under section 1054.9. It is quite true that although thatstatute refers to such discovery “ ‘[u]pon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment,’ ” (Jn re Steele (2004) 32 Cal.4th 682, 690-691) this does not meanthat an actual petition or motion must have beenfiled at the time discovery is sought. It is sufficient if such a request for collateral relief is proposed or in preparation. However,since this is not a request under section 1054.97 the permissivenessof that statute does not govern this case. Before the enactmentof section 1054.9, the Supreme Court in People v. Gonzalez (1990) 51 Cal.3d 1179 (Gonzalez) dealt with an effort by a capital defendant, pending resolution of his appeal, to obtain official file information about a jailhouse informant whohadtestified against him attrial. In that case, the court held that “[t]he trial court lacked jurisdiction to order ‘free-floating’ postjudgment discovery when no criminal proceeding wasthen pending beforeit.” (Gonzalez, at p. 1256.) Quoting from previous authority, it explained that “ ‘a discovery motionis not an independentright or remedy. It is ancillary to an ongoing action or proceeding. After the judgment has becomefinal, there is nothing pending in the trial court to which a discovery motion may attach.’ ... [§] [This] reasoning applies equally where, as here, an appeal remains undecided.” (/d. at p. 1257.) Stressing the presumptionsofvalidity applicable to a collateral attack on a criminal judgment, the court held that “[t]he state may properly require that a defendant obtain some concrete information on his own before he invokes collateral remedies againsta final judgment.” (/d. at p. 1260.) Thus, discovery would only be available once the reviewing court (the Supreme Court) issued an order to show cause upona finding that a habeas corpuspetition stated a primafacie caseforrelief. (Ud. 7 Such a request must show that the materials either were provided to the defendantattrial, or should have been provided pursuanteither to a discovery order in the case or the prosecution’s constitutional obligations. (See In re Steele, supra, at p. 697.) It must also show “that goodfaith efforts to obtain discovery materials from trial counsel were made and were unsuccessful ....” (§ 1054.9, subd.(a).) at pp. 1260-1261.) Gonzalez was then followed by People v. Johnson (1992) 3 Cal.4th 1183, 1258, and in People v. Picklesimer (2010) 48 Cal.4th 330, 337 (Picklesimer), the court again confirmedthat a motion is not an independent remedy butimplies the pendencyofan ongoingaction.8 The court in Jn re Steele, supra, 32 Cal.4th 682 recognized that section 1054.9 affected the rule of Gonzalez to the extent covered bythe statute. But the court’s comment wasthat section 1054.9 “modifies” and reflects a “modification”of the rule, not that Gonzalez retains no further validity. (Jn re Steele, supra, at p. 691.) The court stressed that, in the language of Gonzalez, even the new legislation “does not allow ‘free- floating’ discovery asking forvirtually anythingthe prosecution possesses.” (In re Steele, supra, 32 Cal.4th at p. 695.) It also commentedthat section 1054.9 “imposes no preservation duties that do not otherwise exist.” (Jn re Steele, supra, at p. 695.) Morales argues that the order was authorized by Wisely v. Superior Court (1985) - 175 Cal.App.3d 267, 270, in which the appellate court foundit “fundamentally unfair” to deny discovery to a defendant who had been granted a newtrial, while the People’s appeal ofthat order was pending. The reasoning of Wisely clearly did not impress the Supreme Court in Gonzalez, which foundit “inapposite,” “whatever its merits,” 8 Picklesimer, supra, 48 Cal.4th 330 involved the efforts ofa petitioner long ago convicted of voluntary oral copulation with a 16- or 17-year-old minor(§ 288a, subdivision (b)(1)) to remove the requirement of mandatory sex offenderregistration after the court found an equalprotection violation in People v. Hofsheier (2006) 37 Cal.4th 1185. Picklesimer holdsthat relief must be sought by petition for writ of mandate. (Gonzalez, supra, 51 Cal.3d at p. 1257) because the new trial orderat least provided an arguable basis for continuingjurisdiction.? Here, although Morales claimsthat the preservation orderis essential to protect his right to pursue collateral relief by habeas corpus,there is simply no pendingcase or proceeding to which the motion can attach. Accordingly,the trial court had no subject matter jurisdiction. Werecognize that if Morales had chosen to proceed by filing a barebones habeas corpuspetition, there wouldat least have been a proceeding to whichhis request could have attached, andthe trial court could have reached the merits.!9 However, counsel has carefully observed the boundariesof his role as counsel on appealandelected notto file a collateral proceeding. Wealso recognize that some of the materials which heseeks to have preserved and which are not subject to any statutory preservation obligation may be of value to him in presenting a claim for relief on habeas corpus. However, our decision is guided by two points: first, that this is not a legislatively authorized motion under 9 The standardrule, of course, is that an appeal deprives the court ofjurisdiction going to the merits of the case—thatis, anything that might interfere with the appellate court’s effective resolution of the case. (People v. Alanis (2008) 158 Cal.App.4th 1467, 1472.) 10 We do not determine whether the issuance of a preservation order would be proper. The scope of the motion appears to have gone far beyondthe limits of section 1054.9; it was not established that the materials sought could not be obtained from counsel or should have been turned overby the prosecution. Nor was any effort madeto explain whatinformation Morales ever hopedto find in more obscure categories which did notvisibly fall within the ambit of materials to which he would have been entitled at trial. However, we neednot, and do not, attempt to establish the level of “good cause,” if any, which could support a preservation order—again, assuming that one could be made. section 1054.9, and second, that Supreme Court precedent otherwise forbids trial courts from ruling on such a “free-floating” motion as was presented here. Weare notatliberty to ignore Gonzalez, especially as the court in Steele noted the limited extent to which section 1054.9 altered Gonzalez’s rule. Accordingly, wefind that the trial court exceededits jurisdiction in issuing the preservation order and wewill issue the writ. | DISPOSITION Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order for preservation of evidence, and to enter a new order denying real party in interest’s motion. Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service onall parties. NOTTO BE PUBLISHEDIN OFFICIAL REPORTS KING J. Weconcur: McKINSTER Acting P. J. CODRINGTON J. 10 w w d A W A F F Y W D M 11 {2 13) 14 15 16° 17 18 19 20 21 22 23 24 25 27 28 ipaonoSOURSAN BERNi COUR T. JUL09 20% BY PRES IN THE SUPERIOR COURT OF THESTATE OF CALIFORNIA IN AND FOR THE COUNTY OF SA N BERNARDINO } Superior Ct. No. PVA 015456 THE PEOPLE OFTHE STATE OF C ALIFORNIA, ; (California Supreme Court Plaintiff and Respondent, ; No. §137307) ~ : . ) ORDERTO PRESERVE v . EVIDENCE PENDING — , _ AUTOMATIC APPEAL AND RELATED POST JOHNNY MORALES,. } CONVICTION . PROCEEDINGS Defendant and Appellant. ; . IT IS THE ORDER OF THIS COURT: That the San Bernardino County District Attor ney, the San Bernardino County Sheriff- ‘Coroner, the Montclair Police Department,the Fontana Police Department, the Colton Police Department,the Corona Police Departmen t, the San Bernardino Police Department (including the San Bernardino Police Departme nt Crime Lab), the San Bernardino County. Sheriff's Department, the San Bemardino Coun ty Sheriff's Scientific Investigations Division, the San Bernardino County Children an d Family Services and the Children’s Assessment Center, the San Bernardino C ounty Probation Department, the San Ber nardino County Superior Court, the San Bernardin o County Jury Commissioner, the San Ber nardino County Information Services Department, the Sa n Bernardino County Jail, West Valley Detention Center, California Departmentof Correc tions, the Attorney Generalof California, and their present and former employees, agent s, and representatives, to preserve files, records, evidence and other related items listed her ein pending resolution of this automatic appeal andail related postconvictionlitigation. By this motion, appellant requests preservationof files, records, evidence and any other items pertaining to the prosecution ofthis case andrelating to the investigation of the APPENDIX A ll 2 2 1 12 13 14 15 16 17 18 20 21 22 23 24 25 26 27 28 death of Elia Lopez and the robbery of Carlos Gutierrez that occurred on June 9, 2001 in the city ofBloomington, as well as offenses alleged as other-crimes evidence and as aggravating factors during the guilt and penal ty phases of appellant's trial, including, but not limited to, the following: . a, Allrecords, documents, and exhibits, incl uding the reporter's transcript notes of proceedings which pertain to appellant , Johnny Morales (AKA “Mario Morales” and “Jose Arrisa’(DOB: 1/20/78), and. People y, Johnny Morales (Superior Court Case No. FVA 015456), including confidential Pena l Code sections 987.9 and 987.2 records; b. - All iterns admitted into evidence, or offe red into evidence but excluded or withdrawn in this case, whether atthetrial or a ny pretrial proceeding, whether such items were physical; demonstrative., illustrative, writ ten, tape recorded, videotaped, photographed, or of some other type; and whet her in possession of the Sen Bernardino County Superior Court, the San Bernardino Cou nty Children and Family Services and the Children’s Assessment Center, the San Bernard ino County District Attorney’ s Office, or any other law enforcement agency, inclu ding, but not limited to the Fontana Poli ce Départment, the Montelair Police Department, the Ontaria Police Department, theCorona, Police Department, the Colton Police Departmen t, the San Bernardino Police Department, and the San Bernardino County Sheriff's Depa rtment, ; , _ G “All prosecutorial and law enforcem ent reports, notes, tape recordings, or other memorializations of fruits of law enforcem ent investigation or witness interviews,all scientific and forensic reports or notes and underlying documentation (including, but n ot limited to, laboratory notebooks, bench not es, computer printouts, or other recordings of raw data, in whatever media), all photographs an d negatives, andall other items that are in any wayrelated to this capital case andthat are i n the possession of any of the city, county, or state governmental agencies or officials named above, ot their agents or employees, including private individuals or institutions retaine d to render services in connection with this capital case; d. All notes taken by each and every court repo rterin this case, whether in 12 Superior or Municipal Court; e. Allcustodial records rela ting to appellant JohnnyMorale s (AKA “Mario Morales” and “Jose Artisa”) (D OB: 1/20/78), including but not limited to; all jail records and/or the complete jail packet, which includes any “writings” ( as defined in Gov. Code§ 6252,subd. (g)), housing r ecords, classification record s, disciplinary records, jail visiting logs and records, records of any medicaland/or psychiatric treat ment or evaluation occurring during appellant's inca rceration, and any. audiotapes, vi deotapes, and any other records pertaining to appellant e ither during or prior to the’pende ncy of this case that are in | the possession or control of the San Bernardino County Sheriff' s Department, the San Bernardino Police Department, the Fontana Police Department, the Corona Police “Department and the Colton Poli ce Department, f. All writings or other r ecords relating to the decisio n by the San Bernardino County District Attorney’ s Offic e to seek the death penalty in Peo ple v. Johnny Morales (Superior Court Case No. FVA 0 15456), including, but not limitedt o all policy manuals, ‘regulations, guidelines, ‘policy st atements, internal memoranda and other writings which have been relied upon or promulg ated by the San Bernardino Coun ty District Attorney's Office pertaining to the procedur e by which a decision is made as t o whether to charge special circumstances and/or seek the death penalty, and any and all documents, writings, records, memoranda, or notes rela ting to the decision to allege speci al circumstances and to seek the death penalty in this capit al case; — g. All electronic data perta ining to People v. Johnny Mor ales (Superior Court Case No. FVA 015456)in the possession of or maintained by the San Bermardino County {information Services Department , including any email communicat ions; h. All records or documents ma intained or controlled by the San B ernardino County Jury Commissioner pertain ingto the selection of the venire or any other matter . involving the case of People vy. Joh nny Morales (Superior Court Case No. FVA 015456). Any records, manuals, standard op erating procedures, or other docum ents maintained or controlled by the San Bernardino County Jury Commissionerinvolv ing procedures atid 13 practices regarding the selection ofjury venires, including county-wide jury venires, whichwerein effect in the years 2002-2004: i. Allrecords maintained or controlled by the San Bemardino County Probation Department which pertain to appellant Johnny Morales(AKA “Mario Morales”and “Jose Arrisa"")(DOB: 1/20/78) j. All materials controlled or maintained by the San Bernardino CountySheriff-Coroner’s Department(or any private contractor personnel) pertaining to theinvestigation and autopsy of the death of Elia Torres Lopez on or about June 9, 2001; k.. All records, documents, exhibits, investigative Teports, andjail records relating to prior investigations or Prosecutions of appellant Johnny Morales, (AKA “MarioMorales”and “Jose Arisa”) (DOB 1/20/78), including butnotlimited to. those pertaining’‘fo the following: San Bernardino County Case: People v, Johnny Morales, San BernardinoCourt Case No: FVAO1 1012: People v. Johnny Morales, Fontana MunicipalCourt CaseNo: MVA 02161 1; People v, Johnny Morales, Fontana Municipal Court Case No: .-| MVA017382; whetherin the possession or controlof the San Bemardirio County SuperiorCourt, the San Bernardino County District Attomey’s Office; or any other law enforcement; agency, including, but not limited to the Fontana Police Department, the Montelair PoliceDepartment, the Ontario Police Department, the Corona Police Department, the Colton| Police Department, the San Bernardino Police Department, and the San Bernardino CountySheriff's Department, i All criminal filesrelating to witnesses appearing in this case including thefollowing people: Cesar Alban, Anthony Casas, Xiomara Escobar, Carlos Gutierrez,Michael Kania, Maria 5. Lopez, Mayra Lopez, Margarita Martinez, Daniel J. Mendoza,Angel I, Morales, Marcela Ochoa-Martinez, Yolanda Riech, Alejandra Sanchez, BriandaSanchez, Jennifer Sanchez, Joe Sanchez, Frank P, Sheridan, Josefina T. Tadeo, Brad Toms,Elda Velasquez and Kenneth Wolf. m, All California Departmentof Corrections records regarding Johnny Morales(AKA. “Mario Morales” and “Jose Arrisa”)(DOB 1/20/78) including, but not limited to, 14 West Valley Detention Center r ecords. n. All notes taken by each and e very courtreporter, whether in Supe rior or Municipal court, during the proce edings.Of appellant’ 8 co-defendan t, Xiomara Escobar (San Bernardino CountyCase No. FVA 015456), in which appellant w as notpresent. - _ O All records, manuals, stand ard operating procedures, policies o r documents maintained or controlled by the Sa n Bernardino County Indigent Def ense Program pertaining to the selection of and q ualifications for members of the co unty conflict panel between 2001 to 2004;and any other r ecords or other documents maintained or controlled ‘ ‘\ by the program involving the app ointment and payment of counselin the case of People v. Johnny Morales (Superior Court C ase No. FVA 015456). _p. All records, manuals, stand ard operating procedures, policies or documents maintainedor controlled by the Sa n Bemardino County Indigent Defe nse Program, San Bemardino Superior Court and the L aw Offices of Earl Carter pertaining to the procuring, and awarding of contracts for the op eration of the San Bernardino Coun ty Conflict Panel. selection of and qualifications for m embers ofthe county conflict panel between 2001to 2004; q. All records, manuals, standard operating procedures, policies or doc uments maintained or controlled by the San Bernardino County Superior Court p ertaining to the appoiniment of counsel for indigent defendants from the county conflict panel between 2001 to 2004; and any other records of other documents maintained or co ntrolled by the court involving the appointment an d counselin the case of People v. Jo hnny Morales (Superior Court Case No. FVA 0 15456). tr. All prosecutorial and law en forcement reports, notes, tape recor dings, or other memorializations offruits of law enforcementinvestigation or wit ness interviews, all photographs and negatives, and al l other itemsthat are in any way rela ted to People v. Wayne Rozenberg (Superior Court Ca se No. FSB046236) and that are in th e possession of any of the city, county, or state gover nmental agencies or officials named above,or their agents or employees, including priva te individuals or institutions retained to render services 5 15 wo w a n d t n u k w W N m o p w y MY P N YM ND e e B e ewe e e Ee e e S A R R E S G O H R E SF C G a e ri A A R a n e s in connection with this case; 5. All records, documents, exhibits, investigative reports, and jail records relating to prior investigations or prosecutions of Mario Izaguirre, including butnot limited to those pertainingto the following; San Bernardino County Case: People v. Maria . Izaguirre, San Bernardino Court Case No: FVA022952. St t All criminalfiles relating to other suspects‘and/or witnesses related to this case including the following: Junior Ivan Escobar, Javier Ever Flores (DOB 97119), Marlo Flores (DOB 28/78), Melvin Falla, Melvin Hernandez, Jorge Morales, Jossy Remberto Aleman-Cruz (DOB: 6/24/79) (AKA: “Jossy Cruz-Aleman”or “Josy” or “Carlos Rodriquez”), Enrique Lujan (AKA “Kuique’or “Kild”), Henry. Lujan(AKA “Gara” or “Garras”), Noe Sevilla-Ochoa, Jorge Luis Sifuentes, Joe Vant and Rigoberto Zavala (AKA “Rico”) whether in the possession or controlof the San Bernardino County Superior Court, the San Bernardino County District Attorney’s Office, or any other law enforcement agency, including, but not limited to the Fontana Police Department, the Montclair Police Department, the Ontario Police Department, the Corona Police Department, the Colton. Police Department, the San Bernardino Police Department, and the San Bernardino County Sheriff’s Department. , u. ..All files, reports, notes, tape recordings, other memorializations offruits forensic interviews of Joe Sanchez, Jennifer Sanchez, Brianda Sanchez, Crystal Izaguirre and David Gutierrez by staff at the San. Bernardino County Children’s Assessment Center that were in any way related to law enforcement investigation or prosecution ofeither: (1) ‘the death of Elia Torres Sanchezor (2) the home invasion robbery of Carlos Gutierrez on or about June 9, 2001 whether in the possession or control of the San Bernardino County . Children’s Assessment Center, the San Bernardino County Superior Court, the San Bernardino County District Attorney’s Office, or any other law enforcement agency, - including, but not limited to the Fontana Police Department, the San Bemardino Police Department, and the San Bernardino County Sheriff’ s Department, vy. All records, documents, exhibits, investigative reports, and jail records relating to prior investigations or prosecutions related or pertaining to the following; 16 D w o A A YH F w OW R D O e e e S s So 6 c a e U R H P YW KY KS DO 21 a Corona Police Department Case No: 01-4706, Ont ario Police Department Case No: 01-05- 1083, Fontana Police Department Case No: 01-5241, F ontana Police Department Case No: C97-9381, Fontana Police Department Case No: C9 8-08777, SanBernardino County Sheriff Department Case No: 030102609,whetherin th e possession «or control of the San - Bemardino County Superior Court, the San Bernardin o County District Attormney’s Office, or any other law enforcement agency, including, bu t not limited to the FontanaPolice Department, the Ontario Police Department, the Cor ona Police Department, the San Bernardino Police Department, and the San Bernardin o County Sheriffs Department. Appellant requests that this order for preservation rema in in effect until either: @ thirty days after execution of the death sentence, or ( 2) non-preservation of such items or materials is approved by a court of competent jurisdicti on after at least ninety (90) days writteri notice of any intention to destroy or allow destru ction of such evidence has been given to appellant, his counsel, the San Bermardino Cou nty District Attorney, and the Attorney General of California. Appellant further moves for disclosures bytheagencies‘n amed in this motionas to whether any of the items or materials mentioned abovea re in the possession of any other governmental unit, entity, official, employee or former e mployee and/or whether any of such material has been destroyed. SO ORDERED. INGRI UHLER JUDGROFTHE SUPERIOR COURT 17 APPENDIX B CERTIFIED FOR PUBLICATION IN THE COURTOF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT Court of Appeal DIVISION TWO Fourth Appellate District Division Two ELECTRONICALLY FILED ORDER THE PEOPLE, 2:25 pm, Jul 31, 2015 By: R. Hudy Petitioner, E061754 Vv. (Super.Ct.No. FVA015456) THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; JOHNNY MORALES, Real Party in Interest. THE COURT A request having been madeto this court pursuant to California Rules of Court, rule 8.1120(a), for publication of a nonpublished opinion heretofore filed in the above matter on July 15, 2015, and it appearing that the opinion meets the standardsfor publication as specified in California Rules of Court, rule 8.1105(c), IT IS ORDEREDthatsaid opinion becertified for publication pursuant to California Rules of Court, rule 8.1105(b). Weconcur: McKINSTER Acting P. J. CODRINGTON J. cc: See attached list KING MAILING LIST FOR CASE: E061754 The People v. The Superior Court; Johnny Morales Superior Court Clerk San Bernardino County 247 West Third Street San Bernardino, CA 92415 Michael Thomas Murphy Office of the Attorney General P. O. Box 85266 San Diego, CA 92186-5266. 2hiw ANWLIOLU Office of the State Public Defender 1111 Broadway Suite 1000 Oakland, CA 94607 Cheryl Delaine Ranard Appellate Defenders,Inc. 555 West Beech Street, Suite 300 San Diego, CA 92101-2396 District Attorney County of San Bernardino Appellate Services Unit 412 Hospitality Lane, Ist Flr. San Bernardino, CA 92415-0042 ~ APPENDIX C MCKINSTER,PJ. MURPHY RENARD MCKINSTER,PJ. MURPHY MCKINSTER,PJ. RENARD MCKINSTER,PJ. RENARD MCKINSTER,PJ. People y. Superior Court (Morales) Fourth District Court of Appeal - Division 2 Case No. E061754 Oral Argument Transcript Argued July 7, 2015 in Riverside, CA And good moming. [f we could have appearancesfor the record and we'll ask all parties appearing today,if they would spell their last name so our clerk can make sure we haveall the paperwork right. Good morning, your Honor, Mike Murphy, Deputy Attorney General on behalf of the People. Last name is spelt M-U-R-P-H-Y. And Delaine Renard on behalf of the State Public Defender for Real Party Johnny Morales. R-E-N-A-R-D. Alright. We'll have you take a seat, [ expect you may notbethere long. Mr. Murphy,this is a favorable ruling for you should it withstand oral argumenttoday. You're free to address any part ofit, you can reserve all your timeto respondif that’s what you'd like to do...any other comments on publication, or whatever you'd like to do, you're free to do that, it’s your call. Thank you, your Honor. [ll probably be real brief and try to get used to sitting on this other side of the courtroom today.[’m in full agreement with the tentative opinion and so I'll just reserve my time. Alright. And you, as the appellant, you do have the right to open and close, it doesn’t change the order of argument. With that in mind, I was the great Camac we knew you wouldn’t be seatedlong. Wewere taking bets on whether he would showupatall... Well...something you might wantto address, I’m just curious,if this is publishableif for no other reasonit’s a first step in review andit does tend to get the attention of other people you might wantto talk to. That's correct. So with that in mind, go ahead counsel. RENARD People vy. Superior Court (Morales) Fourth District Court af Appeal - Division 2 Case No. E061754 Oral Argument Transcript Argued July 7, 2015 in Riverside, CA | The People have challenged thetrial court's preservation orderin this capital case on jurisdictional grounds by way ofpetition for writ of mandamus. And pursuant to mandamus principles, the petitioner bears the burden of proving that the trial court had a clear and present duty,or as the court putit, there was a clear rule of law compelling the court to deny the motionat the time it was made in 2014. Now,in its tentative opinion the court cited four primary cases as reflecting the law that govemed atthe time of the ruling; the most significant of which are the Supreme Court's 1990 decision in Gonzalez and its 1992 decision in Johnsen. But much has changed since those decisions and neither reflect a clear ruleof law that. required the court to deny the preservation motion. In Gonzalez, of course, the Supreme Court held there is no right to post conviction discovery andin Johnson the court relied on Gonzalez to holdthat there is no right to preservation in anticipation of discovery proceedings that did not exist at the time. Of course those holdings have been abrogated by the enactmentof section 1054.9. Nowit is true as the court's noted inits tentative opinion that. both cases have a broad discussion regarding a trial court’s post-judgmentjurisdiction. But the. Supreme Court in 1999, in Townsel v. Superior Court, made clear that noneofits prior cases, including...,and it specifically cited Johnson, can stand for the proposition that the trial court loses ail jurisdiction while an appeal is pending. And that’s becausesection 916 says so. Codeof Civil Procedure section 916 provides that after the trial court — has imposed judgmentand a notice of appealis filed, there is a partial divestmentofjurisdiction.Thatis, a divestment ofjurisdiction just over the judgment. The trial court retainsjurisdiction to entertain motions,to grantorders that don’t alter the judgment. The Supreme Court in Townsel upheld a post-judgment motion that was broughtin exactly the same procedural posture as our motion in this case. It was a People’s motionin that case, on the ground that court had jurisdiction and it didn’t alter the judgment. MCKINSTER,PJ. RENARD MCKINSTER,PJ. People v. Superior Court (Morales) Fourth District Court of Appeal - Division 2 Case No. E061754 Orol Argument Transcript Argued July 7, 2015 in Riverside, CA So, here the order does not alter the judgment. Furthermore, although 1054.9, we agree, does notitself confer jurisdiction on the court to tssue preservation orders,it does trigger application of other principles that didn't apply at the time of the Johnsondecision. And thatis, by statute, by long standing California Supreme Court precedent. Oncea statute confers jurisdiction on a court, the court has the inherent power,the inherent authority to use any means, any process it deems necessary, evenif that means and processis not delineated by statute or specified by statute to ensurethatits jurisdiction is protected or given effect. Again, Townselrelied on these principles to uphold the post-judgment motion in that case and if we apply that logic here, as the trial judge herself did, because as she said “I have jurisdiction to grant discovery now,so it follows that [ have to have jurisdiction to order preservation of evidence otherwise there will be nothingleft to discover,” given the currentcrisis in the timely appointmentof habeas counsel in capital cases, The law has also changed in other significant respects since Johnson, at that time there were dual appointment system in capital cases for habeas and appellate counsel. We now have separate appointments. We have separate duties and appellate counsel has a duty to preserve evidenceuntil habeas counsel's appointed since we have 8 to 10 to 13-year delays before habeas counsel's appointed that duty becomes even morecritical. Now the court... Seemslike something the Supremes mightbe interestedin... Certainly, { believe so your Honor. Yeah,because I tip my hat to you for staying within confines of what you are supposed to do as appellate counsel and haven’t deviated from that. The obvious answeris if you file a habeas, you now have the proceeding andthere’s a statute that nowallows you to attach a motion to it and that appears to be THE problemin this case. RENARD| MCKINSTER,PJ. RENARD People v. Superior Court (Morales) Foucth District Court of Appeal - Division 2 Cnse No. E061L754 Oral Argument Transcript Argued July 7, 2015 in Riverside, CA Well, { think you're right, and in your tentative opinion there was this suggestion that we could file a bear bonespetition and thereby create a proceeding to which this motion could attach. And we just can’t. We’re not authorized to do that... And we're telling you we’re not authorized to do what you wantus. to do withoutthat habeas. But actually you are. Section 916 says so. Townsel says so. You have jurisdiction, wellthe trial judge had jurisdiction. This order did not alter the judgment, 916 couldn't be more clear. Townsel in 1999 specifically held Johnsonjust can't be read in any waythat’s inconsistent with section 916,The judgment, the order here just cannot be distinguished on any grounds fromthe order that was upheld in Townsel. The court did, and maybethis will help clearit up, this court cited Pickelsimer as reflecting the governing law, and that’s easily disposed of because that _ involved an order following a true final judgment. When { say true final judgment [ mean appeal’s final, remittitur’s issued and that case it had been final for years. And the court actually ordered the judgmentto be altered in a way. So section 916 didn’t apply. So in true final judgment cases it’s true, thecourt losesall jurisdiction but that’s not true when appeal is pending. The finality ofjudgmentis stayed pending the finality of the appeal. Section 916 explicitly states that thecourt retains jurisdiction to issue orders that don’t alter the judgment. That’s exactly...the petitioner has never contended that this order altered the judgmentnor doesit, nor could they. . The court hasalso cited. /n re Steele, a line from Jn re Steele that states. that 1054.9 does not effect the, I’m sorry, does not imposepreservation duties that don’t otherwise exist. We don’t disagree with that. We don’t contend that 1054.9 itself confers jurisdiction to issue preservation orders. Sreele was not addressing this jurisdictional question and didn’t even cite Johnson which is the only preservation case on the books, muchless indicate that it continuesto be good law. And moreto the point, it did not create a clear and present rule of law that required the: trial court to deny the preservation motion. And I think unless there are any other questions, Iii submit. MCKINSTER,PJ. RENARD MCKINSTER,PJ. MURPHY KING,J. MURPHY CODRINGTON,J. People vy. Superior Court (Morales) Fourth District Court of Appeal - Division 2 Case No. E061754 Oral Argument Transcript Argued July 7, 2015 in Riverside, CA Alt?.,.Not presently. Ok. Mr. Murphy. Morningagain,thank you. Your Honors,I think mostly what we've heard from Real Party in Interest in this case are some policy arguments that, whatever merits they have, can’t change the fact that the lower court just didn’t have jurisdiction in this case. This case is controlled by Gonzalez and Johnson, two California Supreme Court cases... Whatabout Townsel? Well Townsel addressed a no-contact order for jurors and it did relate to a matter wholly unrelated to discovery or preservation orders, which were the topic in Johnson and Gonzalez and when youalso have the new statute that was enacted addressing discovery, and you have the California Supreme Court in Steele indicating that this was a limited modification to their cases and certainly didn’t impose any preservation orders which is precisely the issue we're dealing with here. [ think those cases are more onpoint...more controlling and there was some language,and think it was in the Johnson case, where the court kind of dismissed these othersimilar arguments about, “well we should be able to have orders like this” and they just weren’t impressed with that. And I think it's going to take a California Supreme Court to change whatI think is clear in Gonzalez and Johnsonthat there's just notjurisdiction for orders at this stage dealing with discovery. Whetherit be discovery itself or preservation outside of the confines of the new statute 1054. She also said section 916 along with Townsel conveyedjurisdiction. MURPHY MCKINSTER,PJ. MURPHY MCKINSTER,PJ. MURPHY MCKINSTER,PJ. RENARD People v. Superior Court (Morales) — Fourth District Court of Appeal - Division 2 Case No. E061754 Oral Argument Transcript Argued July 7, 2015 in Riverside, CA Right. And that was oneofthe statutes that was addressed, and I can’t rememberat the momentif it was in Gonzalez or Johnson that they were again unimpressed that that generalized statute would confer jurisdiction for a situation dealing with these kinds of specific non- statutory motionsfor discovery. And when you encompass or combine that with /n re Steele and their discussing the discovery statute and limiting that to how they interpretedit in that case, [ don’t think it’s appropriate to expand beyondthat. I mean this, this was a very broad and encompassing order not only in the nature of it being preservation but obviously thescope ofit too. And I think there needsto be statutory authority or further direction from the Supreme Court to really, what appears to the People to be, directly contrary to the holdings in Gonzalez and Johnson. To the extent that counselis asking us to create a rule here that really should be addressed by the Supreme Court,it really is a problem of their creation... Right.. And it just seems to me that if we’re going to have an 18-year gapor longer in appointing habeas counsel and,again [ tip the hat to defendant’s counseloftrying to ensure that materials were available, although. that’s a two-edge sword. This is such a broad order, in some cases it would bedifficult for all the agencies to even determine whatit is they are asking to be preserved fet aloneif they failed to do that 18 years hence there’s now a Burmesetiger trapthat one could fall into that you didn’t to. preserve this and therefore, for that reason alone the death penalty should be reversed. Having said all that, it’s their problem of their creation,what is your position on publication ofthis case? Yeah. Ithink you should because, well that’s the short answer, I think you should. Yeah. And I’m just going to go quickly to defense counsel. What is your position on that? [ would movefor publication. People v. Superior Court (Morales) Fourth District Court of Appeul- Division 2 Case No. E061754 Oral Argument Transcript Argued July 7, 2015 in Riverside, CA MCKINSTER, PJ. Ok. Thatdoes get the attention of the folks. | recognize that everyone wants us to create that rule here but it just strikes me that it’s better created in front of the folks who created the problem. [ always believe in someonecleaning up their own mess. Anything further Mr. Murphy? MURPHY No,that’s all your Honors. Thank you very much. MCKINSTER,PJ. Alright. Thank you very kindly, the matter will stand submitted. [recording concluded] Duration: 12:58 DECLARATION Case Name: People v. Superior Court (Morales) Case Number: E061754 _ [declareunder penalty of perjury that the foregoing pages numbered | through 7 comprise a full, true and correct transcription, to the best of my ability, of the audio recording of the proceedingsheld in the above-entitled matter on Tuesday, July 7, 2015, Kecia A. Bailey Senior Legal Analyst Office of the State Public Defender Dated: July 16, 2015 DECLARATION OF SERVICE Re: THE PEOPLE v. SUPERIOR COURT (MORALES) No. 8228642 Court of Appeal No. E061754 Related Death Penalty Appeal Pending No. $137307) I, Kecia Bailey, declare that I am over 18 years of age, and not a party to the within cause; that my business address is 1111 Broadway, 10th Floor, Oakland, California 94607; I served a true copyofthe attached: REAL PARTYIN INTEREST/APPELLANT’S OPENING BRIEF ON THE MERITS on each of the following, by placing same in an envelope addressed respectively as follows: FELICITY SENOSKI JOHNNY MORALES,V-94083 Deputy Attorney General CSP-SQ Office of the Attorney General 5-EB-101 600 W. Broadway, Suite 1800 San Quentin, CA 94974 San Diego, CA 92186-5266 MICHAEL T. MURPHY CLERK OF THE COURT Deputy Attorney General San Bernardino County Superior Court Office of the Attorney General 247 West Third Street 600 W. Broadway,Suite 1800 San Bernardino, CA 92415 San Diego, CA 92186-5266 MICHAEL DOWD CLERK OF THE COURT Supervising Deputy District Attorney Fourth District Court of Appeal San Bernardino County District Attorney Division Two 900 E. Gilbert Street 3389 12th Street San Bernardino, CA 92415 Riverside, CA 92501 Each said envelope was then, on December 28, 2015, deposited in the United States mail at Alameda, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct. Signed onthis 28" day of December 2015,atYiLPele ofaBailey |