PEOPLE v. S.C. (MORALES)

Real Party in Interest, Johnny Morales, Petition for Review

Cal.August 19, 2015

a -oy [=SurREME COURT CORY COURT S2286 4x ‘oepf ° FILED IN THE SUPREME COURT FOR THE STATE OF CALIFORNIA AUG 19 2015 ) Frank A. McGuire Clerk THE PEOPLE OF THE STATE OF ) No. CALIFORNIA ) Deputy ) Petitioner, ) Court of Appeal No. ) E061754 V. ) ) Related Death THE SUPERIOR COURT OF ) Penalty Appeal CALIFORNIA, COUNTY OF ) Pending No. 8137307 SAN BERNARDINO, ) ) Respondent, ) ) JOHNNY MORALES, ) ) Real Party in Interest. ) ) PETITION FOR REVIEW After Published 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,State Bar No. 85659 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 Appellant/ Real Party in Interest Johnny Morales TABLE OF CONTENTS Page PETITION FOR REVIEW ........... 2... cece e eee eee eee eens 1 ISSUES PRESENTED FOR REVIEW ............ 0.0 cece eee eee nee 2 REASONS FOR GRANTING REVIEW ........... 2.000 c eee cece e eens 2 STATEMENT OF THE CASE AND FACTS ..............00 00000000000. 4 THIS COURT SHOULD GRANT REVIEW TO MAKE CLEAR THAT A TRIAL JUDGEIN A CAPITAL CASE HASJURISDICTION TO GRANT A MOTION TO PRESERVE EVIDENCE POTENTIALLY RELEVANT TO HABEAS CORPUSINVESTIGATIONIN ANTICIPATION OF THE APPOINTMENT OF HABEAS CORPUS COUNSEL WHO CAN CONDUCT THAT INVESTIGATION AND RELATED DISCOVERY PROCEEDINGS UNDER PENAL CODE SECTION 1054.9 2.0... eeeeeeteen eee nen eens 6 A. Summary of The Appellate Court’s Published Opinion Granting the People’s Petition for Writ of Mandate ........... 6 B. The Court of Appeal Granted the People’s Petition for Writ of Mandamusin Violation of a Trial Court’s Discretionary Right to Entertain Postjudgment Motions While Appeal is Pending, So Long as They Do NotAlter the Judgment Being Appealed From ......... 8 C. Trial Courts Have the Inherent Authority to Use Any Nonstatutory Meansor Process They Deem Necessary to Ensure the Successful Exercise of Their Statutory Jurisdiction 2.0...eeceeee eee 12 D. The Court Should Grant Review to Make Clear That Preservation Motions Play an Important Part in Effectuating the Policies and Procedures It Has Developed For Capital Postconviction Practice and Protecting the Interests of Justice Section 1054.9 Was Enacted to Serve ............... 18 CONCLUSION ........ 00. cece cc cee nent beeen eens 24 CERTIFICATE OF COUNSEL .....0.0.0 000 cece cence eee teen eens 25 TABLE OF AUTHORITIES Page(s) FEDERAL CASES Jones v. Chappell (C.D. Cal. 2014) 31 F.Supp.3d 1050 2.2...eeee eee 20 STATE CASES California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133 2.0...eeeeen eee 10 DeHaroStreet Investors v. Dept. ofHousing and Community Development (2008) 161 Cal.App.4th 1240 2...eeee eee 6 | Henderson v. Drake (1954) 54 Cal.2d 1 oo.ccceee ene eee 8 In re Jimenez (2010) 50 Cal.4th 951.0...ceeeee eee passim In re Morgan (2010) 50 Cal.4th 932 2...ceeeee passim In re Reno (2012) 55 Cal.4th 428 20...eeeeee ees 22 In re Steele (2004) 32 Cal.4th 682.2... 0.0... eee eee eee 7, 12, 14,19 Marks vy. Superior Court (2002) 27 Cal.4th 176.0... 0.0.00.ceetees 4, 18, 21 Millholen v. Riley (1930) 211 Cal. 29 2...cece eens Lees 13, 15 il TABLE OF AUTHORITIES People v. Robert James Acremant Tulare County Superior Court No. 31734, Order While Automatic Appeal Pending in No. S0110804, filed August 3, 2011 2.0... ceeeee eee 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... 0... cc eee People v. Robert Ward Frazier Contra Costa County Superior Court, No. 041700-6, Order Granting Postjudgment Motion to Preserve Evidence,filed December 6, 2013 2... 0...ccceeee People v. Gonzalez (1990) 51 Cal.3d 1179 2...eeee eee People v. Larry Kusuth Hazlett, Jr. Kern County Superior Court No. BF100925A, Orders While Automatic Appeal Pending in No. S126387,filed June 22, 2004 and October 6, 2011 ...................0.0. People v. Johnson (1992) 3 Cal.4th 1183 2...2eeeee eee People v. Louis Mitchell, Jr. San Bernardino County Superior Court No. FSB051580, Order While Automatic Appeal Pending in No. $147335, filed June 22,2012 ...0eens People v. Picklesimer (2010) 48 Cal.4th 330.0...0.eee People v. Superior Court (Laff) (2001) 25 Cal.4th 703 2...ceeee eee ili Page(s) beeen 12 .... passim seen ees 11 .... passim .... passim wee. 13,15 TABLE OF AUTHORITIES Page(s) People v. Superior Court (Morales) (2015)__—s- Cal.App.4th ___, 2015 DJDAR 8792 ................. 1,5 Perrin v. Honeycutt (1904) 144 Cal. 87 20.eeeee teenies 6, 10 Townsel v. Superior Court (1999) 20 Cal.4th 1084 0...ceeeens passim Viking Pools Inc. v. Maloney (1989) 48 Cal.3d 602 2.0.0...eee eee eee ee 19 STATE STATUTES Code Civ. Proc., §§ 128, subd. (a) ........... 0.00022 eee 16 187 ooeeeees 13, 14 STT occcece nent e eee 8 opassim 1085 26. cece eee 6, 10 Evid. Code, §§ A52(c) & (dd)...eeeeee 12 459Lcete eees 12 Gov. Code, §§ 15421 2...ee eee 4, 18, 22 68152(c)1) ... eeeee 17 68662 2...cece eee 4,15 68663 2...cee eee 4,18 Pen. Code, §§ 1054.9 Joliee passim STATE RULES Cal. Rules of Court, rules 8.500(a)(1) 0...eeeee 1 8.500 (D)(1) 2... ce eee eee 1 8.504 (d)(4) .. 6.ce eee eee 1 8.1125 2.ceeeee 23 iv TABLE OF AUTHORITIES Page(s) OTHER AUTHORITIES Cal. Com.on the Fair Admin.of Justice, Final Rep. (2008) http://www.ccfaj.org/documents/CCFAJFinalReport.pdf (as of August 19, 2015) 2.0...eeeee eee 19 Supreme Court Policies Regarding Cases Arising from Judgments of Death, policy 3, std. 1-1] .... 0.0.0... .. 00.00.00. 4, 15, 18, 21 Supreme Court Policies Regarding Cases Arising from Judgments of Death, policy 3, std. 2-1 .... 2... eee eee eee 4, 15,18 PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE OF CALIFORNIA, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Pursuantto rule 8.500(a)(1) of the California Rules of Court, Johnny Morales, defendant and appellantin the trial court proceedings and related capital appeal pending before this Court and real party in interest in the mandamusproceedings before the appellate court, respectfully petitions for review following the published opinion of the California Court of Appeal, Fourth Appellate District, Division Two,filed on July 15, 2015, issuing a peremptory writ of mandate to the San Bernardino County Superior Court to vacate its order to preserve evidence in this capital case. A copy of the opinion, originally issued in unpublished form,is attached to this petition as Appendix A. A copy of the court’s order granting the People’s request to publish the opinion is attached herein as Appendix B. (See also People v. Superior Court (Morales) (2015) __ Cal.App.4th __, 2015 DJDAR 8792.) A transcription of the audio recording of the oral argumentbefore the appellate court, certified by the transcriber under penalty of perjury as true and correct, is attached as Appendix C. A separate motion to attach said transcript accompaniesthis petition. (Cal. Rules of Court, rule 8.504 (d)(4).) Appellant seeks review under California Rules of Court, rule 8.500 (b)(1), to decide important, recurring, and unsettled questions of law and policy relating to capital appellate and postconviction practice and procedure. ISSUES PRESENTED FOR REVIEW Doescurrent law create 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 judgmentbut while appeal therefrom is pending? Assumingthere is no such rule or duty preventing trial courts from so acting, should this Court affirmatively and explicitly recognize that current law empowersa trial court to issue such orders as a matter of both law and public policy? REASONS FOR GRANTING REVIEW This opinionis the first published decision addressinga trial court’s jurisdiction to issue evidence preservation orders after it imposes judgment, but before the judgment’s finality on appeal, since significant developments in the law and policies governing postconviction practice and procedure in capital cases overthe last 17 years. In granting the People’s petition for writ of mandamusto vacate such an orderin this case, the appellate court simply ignored those developments in holding that this Court’s decades-old decisions in People v. Gonzalez (1990) 51 Cal.3d 1179 and People v. Johnson (1992) 3 Cal.4th 1183, reflect a clear and current rule of law that categorically forbids trial courts from granting nonstatutory postjudgment motions — including but not limited to evidence preservation motions — regardless of whetherfinality of the judgmentis stayed pending appeal and regardless of the purposeor effect of the motion. The question of whethertrial courts have jurisdiction to issue evidence preservation orders after a death judgmentis imposed and is pending on appeal, made in anticipation of the appointment of habeas corpus counsel whohas the exclusive authority to obtain evidence relevant to habeas corpus investigation through discovery under Penal Code section 1054.9 and other means, is an enormously important and recurring one. It exists during every capital appeal when the defendant hasnot yet been afforded his rightto habeas corpus counsel. Under current practice in which habeas corpus counseltypically is not timely appointed in accord with this Court’s policies, this meansthat the question arises during most death penalty appeals. The Court’s failure to grant review and recognize notonly that there is no clear and presentrule of law deprivingtrial courts of such jurisdiction (contrary to the appellate court’s reasoning), but also that trial courts in fact enjoy suchjurisdiction, will have potentially severe and devastating consequences to death-sentenced defendants. The state’s failure to appoint capital habeas counselin a timely manner together with the inability of capital appellate counsel to ensure the preservation of vital evidence until habeas counselis appointed creates a very real and present dangerthat critical evidence will be lost or destroyed before their clients’ habeas corpus rights are finally honored and therebystrike a devastating blow to those rights, the interests of justice, and the state’s own independentinterest in the reliability of its death judgments. According to the appellate court in this case, only this Court can provide a mechanism by which to avoid those consequences:as the presiding justice remarkedat oral argument, appellate “counselis asking us to create a rule here that really should be addressed by the Supreme Court,it really is a problem oftheir creation . . . I recognize that everyone wants us to create that rule here butit just strikes me that it’s better created in front of the folks who created the problem. I always believe in someonecleaning up their own mess.” (App.C,p. 7, italics added.) STATEMENTOF THE CASE AND FACTS On September 12, 2005, the Superior Court of San Bernardino County, the Honorable Ingrid Uhler Presiding, entered a judgmentof death against Johnny Morales,real party in interest in the mandamusproceedings before the appellate court. Thereafter, the Office of the State Public Defender was appointed to represent Morales on his automatic appeal from that judgment before this Court, which is currently pending. (No. S$137307.) Habeas corpus counsel has yet to be appointed. (See Gov’t Code, §§ 68662, 68663, 15421; Supreme Court Policies Regarding Cases Arising from Judgments of Death, policy 3, std. 2-1.) 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 (SupremeCt. Policies, policy 3, std. 1-1; Marks v. Superior Court (2002) 27 Cal.4th 176, 184), Morales’s appellate counsel movedthe trial court for an order to variouslocal agencies to preserve (not produce) such evidence (“preservation motion’). (Real Party Morales’s Opposition to People’s petition for writ of mandate, Exhibits A, C [“Opposition”].)' Over the District Attorney’s written and oral objections (Opposition, Exhibit B), the trial court granted the motion and signed the evidence preservation order on July 9, 2014. (Opposition, Exhibits E,pp. 112-116, & F; see also Opposition, Exhibit C). On August 20, 2014, the Attorney General, on behalf of the People, filed in the Court of Appeal for the Fourth Appellate District, Division . ' The motion was brought during the postjudgment superior court proceedings to correct, complete and certify the record on appeal, which remain pending in that court. (Opposition, pp. 1-2; see also Supreme Court docket in Case No. $137307.) . Two, a petition for a writ of mandamusto vacate the trial court’s preservation order. On September 4, 2014, the appellate court invited Morales, as real party in interest, to file a responseto the petition. On October 21, 2014, Morales filed an opposition to the petition. (Opposition, p. 1.) Although petitioner-People did not reply to that opposition, on November 18, 2014, the appellate court issued an order to show cause why the petition should not be granted, permitting Morales to elect to stand on his opposition. On December 10, 2014, Morales notified the appellate court and petitioner in writing that he elected to stand on his opposition given the petitioner’s failure to reply to it and address the points and authorities raised therein. On March4, 2015, the appellate court issued a tentative written opinion granting the petition on the groundthat the trial court lacked subject matter jurisdiction to grant the preservation motion, but permitting Morales on request to present oral argumentbefore adopting the opinionasfinal. On July 7, 2015, at Morales’s request, the parties presented oral argumentin whichhis appellate counsel pressed the appellate court to deny the petition based on authorities he cited in his pleadings but which were omitted from the appellate court’s tentative opinion. (App. C, pp. 2-4.) On July 15, 2015, the appellate court adopted its tentative opinionin full, without modification, as its final, unpublished opinion. (App. A.) On July 31, 2015, the appellate court granted the People’s request to publish its opinion. (App. B; see also People v. Superior Court (Morales) (2015) ___ Cal.App.4th __, 2015 DJDAR 8792.) THIS COURT SHOULD GRANT REVIEW TO MAKE CLEAR THAT A TRIAL JUDGEIN A CAPITAL CASE HAS JURISDICTION TO GRANT A MOTION 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 SECTION1054.9 A. Summaryof The Appellate Court’s Published Opinion Granting the People’s Petition for Writ of Mandate Becausethe appellate court’s published opinion wasissued on the People’s petition for writ of mandamus, Code of Civil Procedure section 1085 governed; underthat statute, the essential question for the appellate court to resolve was whetherthe trial court had a “clear, present .. . duty” (People v. Picklesimer (2010) 48 Cal.4th 330, 340) — or put another way, whetherthere existed a “clear case to compel”thetrial court (Perrin v. Honeycutt (1904) 144 Cal. 87, 90; accord, 300 DeHaroStreet Investorsv. Dept. ofHousing and Community Development(2008) 161 Cal.App.4th 1240, 1255) — to deny Morales’s motion for a preservation orderfor lack of subject matter jurisdiction. The appellate court answered this question in the affirmative based primarily on this Court’s decisions in People v. Gonzalez (1990) 51 Cal.3d 1179 (“Gonzalez”) and People v. Johnson (1992) 3 Cal.4th 1183 (‘Johnson’). In Gonzalez, this Court held that defendants had norightto, andtrial courts lacked jurisdiction to grant, discovery after judgmentis imposed and before the filing of a petition for writ of habeas corpus anda finding thatit states a primafacie case for relief. (Gonzalez, supra, 51 Cal.3d at pp. 1260- 1261; App. A, p. 7.) In Johnson, this Court followed Gonzalez to hold that becausethere is no right to postjudgmentpre-petition discovery, there is likewisenoright, and trial courts have no jurisdiction to grant, “anticipatory postjudgment discovery” motions to preserve evidencein anticipation of (then) non-existent discovery. (Johnson, supra, 3 Cal.4th at pp. 1257- 1258.) The appellate court here recognized that Gonzalez has been abrogated by the 2003 enactment of Penal Codesection 1054.9, which grants capital (and LWOP) defendants the right to postjudgmentpre- petition discovery, but reasoned it has been abrogated only “to the extent coveredbythestatute.” (App. A, p. 8, see also In re Steele (2004) 32 Cal.4th 682, 691.) Otherwise, Gonzalez, as well as Johnson which followedit, remain intact: in the appellate court’s view, both clearly stand for the proposition that trial courts have no jurisdiction to grant 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 judgment is pending or the purpose and effect of the order granting the motion. (App. A, pp. 7-10.) Also according to the appellate court here, this Court recently “confirmed”that rule in People v. Picklesimer (2010) 48 Cal.4th 330, 337 (“Picklesimer’). (App. A,p. 8.) In reaching this holding, the appellate court did not even cite — much less address — the authorities Morales cited in his pleadings and oral argumentbefore that court and discussed in detail below, which eroded the precedential value of Gonzalez and Johnson;limited them to postjudgment discovery and “anticipatory discovery” motions brought under then-existing discovery law; support trial court’s subject matter jurisdiction to grant postjudgment motions while finality of the judgmentis stayed pending appeal and which do notalter that judgment; and makeclear that the rule reflected in Picklesimer has no bearing on such motions. For the reasons explained below, the appellate court’s published opinion is fundamentally flawed and reveals the need for this Court to grant review. B. The Court of Appeal Granted the People’s Petition for Writ of Mandamusin Violation of a Trial Court’s Discretionary Right to Entertain Postjudgment Motions While Appeal is Pending, So Long as They Do NotAlter the Judgment Being Appealed From The appellate court’s reliance on Picklesimer, supra, to support its grant of mandamusreveals that it has conflated two distinct concepts: (1) a trial court’s jurisdiction following a true “final” judgment— 1.e., judgment has not only been imposedin the trial court but has also been renderedfinal on appeal and remittitur has issued; and (2) a trial court’s jurisdiction after it has imposed judgment but while the finality of that judgment has been stayed pending appeal. (See Henderson v. Drake (1954) 54 Cal.2d 1, 4; Code Civ. Proc., §§ 577, 916.) Picklesimer involved the former and reflects the rule that a trial court is ordinarily withoutjurisdiction in that context becauseall of the trial court proceedings and the resulting judgment are final. (Picklesimer, supra, 48 Cal.4th at pp. 337-338; Opposition, pp. 24-31; App. C, p. 4.) However, very different rules govern a trial court’s jurisdiction after it has imposed judgmentbut while appealis pending therefrom. (Opposition, pp. 24-31; App. C, pp. 2-4.) Code of Civil Procedure section 916 explicitly provides that the filing of a notice of appeal after imposition of judgmentin the trial court constitutes only a partial divestmentofthe trial court’s inherent jurisdiction during the pendencyof appeal. It provides in relevantpart: “the perfecting of an appeal stays proceedingsin the trial court upon the judgmentor 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 notaffected by the judgmentor order.” (Code Civ. Proc., § 916,italics added.) Asthis Court explainedin its post-Gonzalez and Johnson decision in Townsel v. Superior Court (1999) 20 Cal4th 1084 (“Townsel’), under Code of Civil Procedure section 916, “our acquisition of appellate jurisdiction does not... divest the trial court of all powerto act.” (/d. at pp. 1089- 1090.) Rather, trial courts retain jurisdiction to issue orders that do notalter the judgmentbeing appealed from and that go to matters “‘collateral or supplementalto the questions involved on the appeal’ [citation] . . ‘connected with the criminal proceeding before[thetrial court].’ [Citation].” (d., at p. 1090.) It is true that the Gonzalez and Johnson decisions involved motions — a discovery motion in Gonzalez and an “anticipatory discovery” motion to preserve evidence in Johnson — brought after judgment was imposedin the trial court but while appeal wasstill pending. However, this Court made clear in Townsel, supra, that those cases simply cannotbe read for a proposition that is inconsistent with Code of Civil Procedure section 916. (Opposition, pp. 24-30; App.C, pp. 2-4.) In Townsel, as in this case, during capital postjudgmentrecord correction and certification proceedings before the trial court while appeal waspending,the trial 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 in these proceedings, the People there defendedthe trial court’s jurisdiction to issue that order under Code of Civil Procedure section 916 because it was “connected”to the criminal proceedings resulting in the judgment being appealed from anddid notalter that judgment. (/d. at pp. 1089-1090.) This Court agreed and in so doing explicitly rejected the defendant’s argumentthat its earlier decision in Johnson, supra, established that trial courts are withoutjurisdiction to grant nonstatutory motions after imposition of the judgment, notwithstanding © section 916. (/d. at pp. 1089-1091.) The Court explicitly held that Johnson “did not purport to override section 916(a)” and explained that Johnson’s holding was limited to the absenceofa right to “discovery” (under then- existing discovery law). (Ibid.) The same reasoning applies equally to Gonzalez, on which — as the appellate court here emphasized — Johnson was based. (App. A, pp. 7-8.) Of course, in these mandamusproceedings,the People as petitioner bore the burden of establishing a clear and presentrule of law compelling the trial court to deny the evidence preservation motion for lack of subject matter jurisdiction. (Code Civ. Proc. , § 1085; Picklesimer, supra, 48 Cal.4th at p. 340; Perrin v. Honeycutt, supra, 144 Cal. at p. 90; California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1153-1155.) The appellate court implicitly found that the People had satisfied this burden by holding that Johnson, Gonzalez, and Picklesimer “forbid[] trial courts from ruling on. . . ‘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. 8-10.) But that is precisely the reading of Johnson (and Gonzalez) and the proposition the Townsel Court expressly rejected as being inconsistent with Code of Civil Procedure section 916. (Opposition, pp. 24-30; App. C, pp. 2-4.) Remarkably, in citing Johnson and Gonzalez for that very proposition, the appellate court 10 simply ignored Townsel and section 916. (See App. A.)’ Similarly, the appellate court simply ignored thecritical distinction — discussed above and as Morales emphasizedin his written and oral arguments below — between the jurisdictional rule reflected in Picklesimer and that in section 916 and Townsel. (Opposition, pp. 24-31; App. C,p. 4.)° Certainly,in the face of Code of Civil Procedure section 916 and Townsel, it is far from “clear” under current law thattrial courts have no jurisdiction to grant postjudgment motions, including evidence preservation motions, brought while appeal is pending and that do not alter the judgment being appealed from.* Indeed, given that the People successfully argued * Likewise, the People, as the burden bearing party on mandamus, did not acknowledge these authorities in its petition for writ of mandamus and elected to file no reply to Morales’s reliance thereon in his opposition. (Opposition, pp. 20, 32, fn. 7.) 3 Indeed,it was in large part because the appellate court’s tentative opinion did not acknowledgethese authorities that Morales requested oral argumentin order to press the court to do so. Although appellate counsel again arguedthose authorities before the court orally, and two of the justices each asked a single question of the Deputy Attorney General about Code of Civil Procedure section 916 and this Court’s Townsel decision, those authorities remain omitted from the court’s published final opinion. (App. C, pp. 2-6.) * Indeed,trial courts frequently grant evidence preservation motions in this procedural posture under current law, which demonstrates the absence of any clear and presentrule depriving courts of subject matter jurisdiction to do so. (See, e.g., 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, 201 lorder while automatic appeal pending in No. S0110804; People v. Larry Kusuth Hazlett, Jr., Kern (continued...) 11 that a trial court does have such jurisdiction in Townsel, it is axiomatic that the trial judge’s exercise of that very jurisdiction to grant the evidence preservation motionin this case did not violate any clear rule of law to the contrary and therefore that the People did not and could notsatisfy their burden in these proceedings. The appellate court’s published opinionis thus inconsistent with this Court’s precedents and the fundamental requirements for mandamusrelief. This Court cannotallow it to stand. Of course, in the absence of clear and present law on the question of whethertrial courts have jurisdiction to grant evidence preservation motions in this procedural context, settling that important and recurring issue and announcinga clear rule provides further reason for this Court to grant review. C. Trial Courts Have the Inherent Authority to Use Any Nonstatutory Means or Process They Deem Necessaryto Ensure the Successful Exercise of Their Statutory Jurisdiction The 2003 enactmentof Penal Code section 1054.9, granting defendants sentenced to death (or LWOP)the right to postjudgment pre- petition discovery “as an aid in preparing the [habeas corpus] petition,” abrogated the contrary holdings of Gonzalez and Johnson. (See In re *(...continued) County Superior Court No. BF100925A,June 22, 2004 and October6, 2011 orders while automatic appeal pending in No. $126387); Peoplev. 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 automatic appeal pending in No. $147335.) Copies of those orders and a motion for judicial notice thereof pursuant to Evidence Code sections 452(c) & (d) and 459, accompanythis petition. 12 Steele, supra, 32 Cal.4th at pp. 691-692[trial court is appropriate forum for enforcementofthis right, even in capital cases wherepetitionis filed in Supreme Court and nottrial court].) While the enactmentofthis statute alone did notcreate jurisdiction in thetrial 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 which extend thetrial court’s jurisdiction to evidence preservation orders. (Opposition, pp. 25-33.) ~ Code of Civil Procedure section 187 provides in relevantpart: “Whenjurisdiction is, ... by any. . . statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Codeor the statute, any suitable process or modeof proceeding may be adopted which may appear most conformable to the spirit of this code.” This statute is consistent with the long-standing rule that, in the absence of explicit legislation, “[a] court set up by the [California] Constitution has within it the powerofself-preservation, indeed, the power to removeall obstructionsto its successful and convenient operation.” (Millholen v. Riley (1930) 211 Cal. 29, 33-34; accord,e.g., People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 735.) The Townsel decision implicitly reflects these principles. There, the challenged postjudgmentjury no-contact order wasnot explicitly authorized by a specific statute. (Townsel, supra, 20 Cal.4th at pp. 1090-1091.) However, there wasa specific statute conferring postjudgmentjurisdiction on the trial court to impose sanctions for “unreasonable” postjudgmentjuror contact. (/d. at p. 1091.) In addition to holding that the trial court had jurisdiction to issue the nonstatutory jury no-contact order under Code of 13 Civil Procedure section 916, this Court held that the order served and facilitated the court’s ability to exercise its statutory jurisdiction over unreasonable juror contact and for that reason, as well, was an appropriate exercise of the court’s jurisdiction. (/bid.) Applying the foregoing principles here, “jurisdiction is. . . conferred”on the trial court to litigate postjudgmentpre-petition discovery by Penal Codesection 1054.9 and this Court’s construction thereof in Jn re Steele, supra, 32 Cal.4th at pp. 691-692, within the meaning of Code Civil Procedure, § 187. Hence, 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 ofproceeding be not specifically pointed out by” section 1054.9 or other statutes. (Code Civ. Proc., § 187, italics added.) Asthe trial judge recognized in granting the preservation motion, she had jurisdiction, or the “authority now,” to order discovery. (Opposition,p. 8; Opposition Exhibit D, p. 114.) But as morefully discussed in part D, post, like more than half of the men and womenon death row inthisstate, Morales has been deprived ofhis ability to invoke the trial court’s discovery jurisdiction “now”becausehe has not yet been afforded his right to the timely appointment of habeas counsel, who has 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 currentcrisis in the Court’s ability to secure habeas corpus counsel in capital cases, resulting in many if not most death row inmates waiting many years — some decades— fortheir rights to habeas corpus counsel, and their concomitantright to the tools 14 necessary to prepare their habeaspetitions, to be honored. (in re Morgan (2010) 50 Cal.4th 932, 938-939; In re Jimenez (2010) 50 Cal.4th 951, 955, 958; Gov. Code, § 68662; Supreme CourtPolicies, policy 3, stds. 2-1, 1.1- 1.) The Court has further recognizedthatits failure to fulfill its obligations in this regard can carry significant threats to the rights of men and women sentenced to death, including the loss or destruction ofcritical evidence before habeas corpus counselis finally appointed and can obtain it. Cn re Jimenez, supra, at pp. 955, 958.) Indeed, given the People’s apparent view —as reflected by their opposition in the trial court and their petition in the appellate court — that neither it nor any ofthe other local agencies to whom the preservation order was directed has a duty to preserve any evidence until such time that the trial court actually orders its production through discovery (or other means) (Opposition, pp. 23-24, 30-32), chilling thetrial court’s ability to order preservation of evidenceat least until such time as habeas corpus counsel is appointed and caninitiate discovery could render Penal Code section 1054.9 and the court’s jurisdiction underthatstatute meaningless. As Morales argued below,this dangeris a potential “obstruction[]” to the court’s “successful operation” under Penal Code section 1054.9, whichits inherent powersof self-preservation authorize it to remove. (Millholen v. Riley, supra, 211 Cal. 29, 33-34; accord, People v. Superior Court (Laff), supra, 25 Cal.4th 703, 735.) An evidence preservation order 99 66is a “suitable” “means”or “process or mode”to protectthe trial court’s jurisdiction under Penal Code section 1054.9 and ensure it is given “effect,” even though that “course of proceeding be not specifically pointed out by” that statute or another. (Code Civ. Proc. ,§ 187.) Like the nonstatutory postjudgmentorder in Townsel that served and facilitated the trial court’s 15 jurisdiction under anotherstatute on a related subject and thus constituted an appropriate exercise of jurisdiction, a nonstatutory preservation order serves andfacilitates the trial court’s jurisdiction under Penal Code section 1054.9 and thus amounts to an appropriate exercise of jurisdiction. (Townsel, supra, 20 Cal.4th at pp. 1090-1091; see Opposition, pp. 7-8, 30- 34; App. C, pp. 2-4.) Thetrial judge effectively agreed, reasoning that “if ultimately the trial court has authority now for further discovery, that obviously if we didn’t also have authority to preserve, that there may be nothing to discover.” (Opposition, p. 8; Opposition, Exhibit D, p. 114.) However, the appellate court simply ignored these principlesin its published opinion. The court observed: “[W]e have no quarrel with Morales’s description of the delays in the death penalty review process. However,the issue is not whether the procedure sought by Moralesis desirable, but whetherit is authorized by law.” (App. A., p. 4, italics added.) In resolving that issue in the negative, however, the court did not cite or address the foregoing authorities under which Morales argued that the procedure is not merely “desirable,” but also “authorized by law,”as reflected therein. (See App. A.) Likewise, the appellate court ignored that even in Johnson,this Court recognized that superior courts “may well have the inherent authority to issue an order for the preservation” of their own court records and documents maintained by their ministerial officers, after imposition of judgment. (Johnson, supra, 3 Cal.4th at p. 1258, citing Code Civ.Proc., § 128, subd. (a) [court has inherent authority to control acts ofits “ministerial officers” in “furtherance of justice”]; Opposition, pp. 8-10, 33-34; see App. A.) Thetrial court’s order here was directed in large part to San Bernardino County Superior Court records, other materials in the possession of the 16 court’s ministerial officers, and records to which Morales would otherwise be entitled independent of discovery through the prosecution, based on a particularized showing of potential relevance to habeas corpus investigation. (Opposition, pp. 8-10, 33-34; Opposition Exhibits A, C, D, F.) Indeed, the permanentpreservation of many of those recordsare already permitted or required by statute so long as they are identified. (Gov. Code, § 68152, subd. (c)(1)) [court records of “capital felony” proceedings “in whichthe defendantis sentenced to death” must be retained permanently, “including records of the cases of any codefendants and anyrelated cases, regardless of disposition” when so identified].) Thus, the court’s order was not only consistent with its jurisdiction under Code of Civil Procedure section 916, but also with the authority to preserve materials recognized by this Court in Johnsonitself as well as by the Legislature. Certainly viewed in the context of the prerequisites for mandamusrelief, the trial court’s orderin this regard did not constitute such a break with “clear” law as to justify granting the People’s petition for extraordinaryrelief. Yet the appellate court declined to address any of these authorities and principles in its published opinion. Instead,it effectively punted to this Court the question ofa trial court’s authority to order preservation of any material. (See App. A, p. 10.) As the acting presiding justice remarked at oral argument, “counsel is asking us to create a rule here that really should be addressed by the Supreme Court... .” (App. C, p. 6.) But under the very authorities the appellate court ignored, it was clear that Morales was not asking the court to “create a rule;” rather, he was asking the court to apply current law in recognizing a rule that already exists. At the very least, he wasinsisting that the court hold the People to their burden — as the petitioner seeking mandamusrelief — of establishing a clearrule of law to 17 the contrary. This the court failed to do. Given the importance of the essential question ofa trial court’s authority to issue postjudgmentpreservation ordersin capital cases under the circumstances presentedhere,its recurring naturein atleast half of all capital cases in the same procedural posture, the appellate court’s failure to resolve the critical issues presented and its view that only this Court can recognizea trial court’s authority to order evidence preservation, this Court should grant review in order to do so. D. The Court Should Grant Review to Make Clear That Preservation Motions Play an Important Part in Effectuating the Policies and Procedures It Has Developed For Capital Postconviction Practice and Protecting the Interests of Justice Section 1054.9 Was Enacted to Serve The appellate court’s published opinion is inconsistent with significant changes in the law andthis Court’s policies and practice governing capital postconviction procedures that have occurred since the Court’s 1992 Johnson and 1990 Gonzalez decisions. Beginning in 1998, state law and policy were changed and nowprovide for the appointment of separate counsel on appeal and habeas corpus, delineate their separate duties, and limit their authority to act accordingly. (Gov. Code, §§ 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 attendantduties of the separate appointments”].) Also under the new rules, “appointment of habeas corpus counselfor a person under a sentence of death shall be made simultaneously with appointmentof appellate counsel or at the earliest practicable time thereafter.” (Supreme Ct. Policies, policy 3, std. 2-1, italics added; see also policy 3, std. 1-1.1.) Against this background, in 2002 the Legislature enacted the bill that 18 added section 1054.9 to the Penal Code, effective January 1, 2003. That statute entitles capital (and LWOP) defendants to postjudgmentpre-petition discovery “as an aid in preparing”the petition for writ of habeas corpus (Jn re Steele, supra, 32 Cal.4th at p. 691) and is intended to “serve the interests of justice” (Pen. Code, § 1054.9, Historical and Statutory Notes, quoting Governor’s written message]). 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 such counsel. The Legislature presumably enacted this statute with the law and policies requiring the timely appointmentof habeas corpus counsel in 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 worked as it should and habeas corpus counsel were actually appointed in a timely manner consistent with this Court’s policies, motions to preserve evidence would be unnecessary. The “interests of justice” Penal Code section 1054.9 is intended to serve would be served by habeas corpus counsel’s ability to promptly conductthe necessary factual investigation and obtain relevant evidence through discovery (and other means) to support the claimsto be raised in the habeas corpus petition. However, in 2008,the reality that the system does not work as it should cameinto sharp focus, duein large part to the “excessive delay” in the appointmentof capital habeas corpus counsel. (Cal. Com. on the Fair Admin. of Justice, Final Rep. (2008) pp. 114-115, 121.) In its 2010 decisions in In re Morgan and In re Jimenez, this Court recognizedthat the crisis-level delays in the appointment of habeas corpus counsel can have devastating consequencesto capital defendants and result 19 in unfair prejudice to their rights through nofault of their own. In those cases, the Court held that as a matter of policy, preventing unfair disadvantage resulting from the failure to timely appoint habeas counsel justified creating an exception to the ordinary rules of habeas corpus practice and procedure. (Jn re Morgan, supra, 50 Cal.4th at pp. 937-942 [creating exception underlimited, specified circumstancesto allow filing of “shell” petitions that would otherwise violate state law, demand prompt summary dismissal, 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 grown only 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.) Of those inmates, 159 have been awaiting appointmentof habeas corpus counsel for more than ten years; 76 havefinal judgments on appeal and havealready waited an average of 15.8 years for the appointment of habeas counsel. (/bid.) This Court has recognized that the delays in the appointment of habeas counselcreate a dangerthatcritical evidence maybelost or destroyed in the years or decades before such counselis finally appointed and the People’s position in these proceedings demonstrates that this danger is areal and present one. (/n re Jimenez, supra, 50 Cal.4th at pp. 955, 958; Opposition, pp. 23-24, 30-32.) Again, the trial judge agreed that under these circumstances,if she did not have the authority to order evidence preservation “there may be nothing[left] to discover” by the time habeas counsel is finally appointed. (Opposition, p. 8; Opposition, Exhibit D,p. 114.) Hence, as a result of the delay in the appointment of habeas counsel in all death penalty cases, Penal Code section 1054.9 and the discovery 20 rights it provides to defendants can be rendered meaningless, the “interests of justice” that section 1054.9 is designed to serve will be subverted, and the defendantwill be deprived of the tools and factual support necessary to present a meaningful habeascorpuspetition challenging the lawfulness and reliability of his capital conviction and death sentence. As in Morgan and Jimenez, significant damageto a capital defendant’s rights caused by the state’s failure to timely appoint habeas corpus counsel cannotbetolerated. There must be a mechanism by whichto preventit. This Court has taken onestep in that direction by imposing a duty on eeeappellate counsel to “‘preserve evidence that comesto [her] attention . . if that evidence appearsrelevantto a potential habeas corpus investigation” until habeas corpus counsel is appointed. (Supreme Ct. Policies, policy 3, std. 1-1; Marks v. Superior Court, supra, 27 Cal.4th at p. 184; Opposition, pp. 2, 4, 10, 30). But that step, clearly, is not enough, as evidenced by the appellate court’s opinionin this case. Significantly, the appellate court did hold thatthere is a different mechanism by which appellate counsel can obtain an order preserving evidence, but which appellate counsel here simply “elected” not to pursue. According to the appellate court: “We recognize that if Morales had chosen to proceedbyfiling a barebones habeas corpuspetition, there would at least have been a proceeding to which his request could have attached, and the trial court could have reached the merits. [fn. omitted] However, counsel has carefully observed the boundariesof his role as counsel on appeal[italics in original] and elected notto file a collateral proceeding.” (App. A,p. 9, additional italics added.) The appellate court’s reasoning lacks an appreciation for capital postconviction procedure. Asthis Court — being the court in which capital postconviction 21 proceedingsarelitigated — is well aware, the procedure contemplated by the appellate court is forbidden for many reasons. Unlike noncapital cases, in whichthereis no “right” to habeas corpus counselatall, muchless a right to separate habeas and appellate counsel, such rights exist in capital cases and capital appellate counsel are limited by the termsof their appointment and not authorized to file habeas corpuspetitions on their clients’ behalf. More importantly, as the Court in Jimenez expressly cautioned,there is simply no such thing as a valid “barebones”or “shell”petition outside of the limited exception created in that case and Morgan. (In re Jimenez, supra, 50 Cal.4th at p. 958; In re Morgan, supra, 50 Cal.4th at pp. 937-942; accord, In re Reno (2012) 55 Cal.4th 428, 458 & fn. 15.) Even if appellate counsel were to disregard the limits of the appointment(and,asin this case, Government Code section 15421, limiting the authority of the Office of the State Public Defender) and had the powerto “elect” to file a “barebones”or shell petition as a method to ensure that evidencerelevant to habeas corpus is not destroyed, the ordinary rules of habeas corpus procedure would apply. Underthoserules, the petition would institute habeas corpus proceedings, promptdisposition of the petition would be required andresult in a summary dismissal, and a supplemental petition by habeas corpus counsel (once he or she is appointed) would be forbidden. (dn re Jimenez, supra, 50 Cal.4th at pp. 956-958; In re Morgan, supra, 50 Cal.4th at p. 940; see also In re Reno, supra, 55 Cal.4th at pp. 452-463.) In other words, if appellate counsel wereto file a “barebones”petition to create jurisdiction forthetrial court to order evidence preservation for habeas corpus proceedings — as the published appellate court opinion directs — it would actually result in the forfeiture of the very habeas corpus rights counsel seeksto protect. Forall of these reasons, review by this Court is necessary to settle 22 this issue and announcea clear rule that trial courts in capital cases have the powerto entertain and rule upon postjudgment motions to preserve evidence whichare filed by appellate counsel when habeas counsel has yet to be appointed. / // > Should the Court decline to grant review, Morales moves to depublish the appellate court’s opinion pursuant to rule 8.1125 of the California Rules of Court. A letter requesting depublication of the opinion will be filed with the Court under separate cover. 23 CONCLUSION Theuse ofpreservation motionsin the manner employed in this case is unique to capital postconvictionlitigation — a type oflitigation thatis directly within the purview of this Court. Because ofthis, it is appropriate that this Court be the one to provide guidance in how to implementthe litigation it controls. The Court of Appeal has issued a published opinion deprivingtrial courts of the opportunity to act whenthey believe action is necessary to protectthe rights that the Legislature and this Court have acknowledgedasbeing a necessarypartof the capital postconviction system. To not grant review andto let that opinion stand with no word from this Court on an issue of significant statutory and constitutional import is unthinkable. This Court should grant review and make clear thattrial courts have the discretion to orderthe preservation of evidencein capital cases so that such convictions can be litigated fully and fairly on habeas corpus. DATE:August 18, 2015 Respectfully submitted, MICHAELJ. HERSEK State Public Defender BARRYP. HELFT Chi State Public Defende C. DELAINERENARD Senior Deputy State Public Defénder Attorneys for Appellant/Real Party in Interest 24 CERTIFICATE OF COUNSEL Calif. Rules of Court, rule 8.504(d)(1) I, C. Delaine Renard, am the Senior Deputy State Public Defender assigned to represent defendant and appellant on his automatic appeal beforethis court, and real party in interest in the mandamusproceedings before the appellate court, Johnny Morales. I have conducted a word count ofthis petition using ouroffice's computer software. Onthe basis ofthat computer-generated word count and pursuantto rule 8.504(d)(1),I certify that this petition is 6,832 words in length. (DRE C. DELAINE RENARD , Attorney for Appellant/Real Party - in Interest Johnny Morales 25 APPENDIX A NOT TO BE PUBLISHEDIN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and Parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not beencertified for publication or ordered published for purposes of rule 3.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT 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 V. (Super.Ct.No. FVA015456) 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, HollyD. Wilkens and Michael T. Murphy, Deputy Attorneys General, for 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. Onrequest of real party in interest Johnny Morales, thetrial court entered an order requiring multiple public agencies and departments to “preserve” 22 categories of documents and other materials! allegedly to pertain in some way to the criminal proceedings whichresulted in a judgment of death against petitioner. The People sought review by way ofpetition for writ of mandate from this court, arguing that the trial court had no jurisdiction to make such an orderin the absenceof any pending proceeding. Weagreethat 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 whether destroyed materials would have favored the prosecution or appellant [Morales].” It appears that Morales was sentenced in 2005 and his appealis - pending before the Supreme Court of California. Morales asserted, without contradiction, that although he has been appointed appellate counsel (who prepared the motion), he has not yet been appointed counsel to pursue any habeas corpus remedy. ' A copy ofrealparty in interest’s order, consisting of seven pages,listing the 22 categories of documents he wishesto preserve is attached as Appendix A,post. It was also asserted in the motion that “the duty falls to appellate counsel to preserveall materials arguably governed by [Penal Code] section 10549121 so that the Legislature’s intention to provide condemnedpeoplelike appellant with postjudgment discovery can be given full force andeffect.”3 The People opposed the motion on the primary groundthat the trial court lacked jurisdiction to grant the requestedrelief in the absence of some pending recognized proceeding. The Peoplealso arguedthat the request imposed an undue burden onthe various agencies and departments specified. After hearing argument, the trial court made the orderset out above. The People sought a writ of mandate to vacate the order and this court issued an order to show cause. 2 All subsequent statutory references are to the Penal Code unless otherwise specified. 3 Penal Code section 1054.9 provides that “(a) Upon the prosecution of a postconviction writ of habeas corpusor a motion to vacate a judgmentin a case in which a sentence of death oroflife in prison without the possibility of parole has been imposed, and on a showing that 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 defendant be provided reasonable accessto 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 issuanceofthe 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. DISCUSSION First, we have no quarrel with Morales’s description of the delays in the death penalty review process. However, the issue is not whether the procedure sought by Morales is desirable, but whetherit is authorized by law. In addition to arguing that writ review is unnecessary(see fn. 4, post), Morales focuses on procedural challenges 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 departmentslisted in the motion did not object and therefore the People may not do so. There are two flaws in this argument. Thefirst is that consent (and a fortiori inaction) cannot confer jurisdiction where none exists. (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 on the People to preserve evidence. For example, item “c.” describes “[a]1l prosecutorial and law enforcementreports, notes, tape recordings, . . .” while item “f.” specifies “[a]ll writings or other records relating 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 witnessesrelated 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 throughthedistrict attorney, were directly affected by the order and wereentitled to appear and opposeit both in the trial court and before this court.5 Furthermore, the order wouldinevitably oblige the affected departments and entities to conduct a 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 remedyat 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 pleadingis properly raised by demurrer, not argument. (See Gong v. City 5 It may also be questioned whetherthe mailed notice of the motion wassufficient to subject the various agencies and departments to the court’s authority. The usual way of acquiring personaljurisdiction is by personal service; in the somewhat analogous context of compelling the attendance of a witness or the production ofevidence, a subpoena mustbe personally served. (Code Civ. Proc., § 1987.) 6 Morales also sets up a straw man by reasoning that the People’s opposition is - 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 argues that this “subverts” the purposesof section 1054.9 and is “incompatible with RPI’s most basic fundamental rights to fairness and heightened reliability in the death judgmentagainst him.” We donot read the People’s argumentsas evincing anyZeal to destroy any evidence, but merely as objecting in principle to the court’s attemptto issue an unjustified order imposing not-insignificant burdens. ofFremont (1967) 250 CalApp.2d 568, 573.) Second, where the petition contains sufficient facts from which the omitted facts can be gleaned, we havediscretion to consider it 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 argues that the petition must be denied because the People cannot plead and provethat thetrial 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” (CodeCiv. Proc., § 1085; see City ofKing City v. Community Bank ofCentral California (2005) 131 Cal.App.4th 913, 925) and of courseit cannot control the exercise of discretion. (City ofOakland v. Superior Court (1996) 45 Cal.App.4th 740, 751.) But mandate is available to correct abuses of discretion (Alejov. 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 we find a clear error of law, mandate willlie. Wenow explain our reasoningon the merits. First, it must be notedthatthis is nor a request for actual postconviction discovery under section 1054.9. It is quite true that although that statute refers to such discovery “ ‘[u]pon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment,’ ” (In 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 permissivenessofthat statute does not govern this case. Before the enactment of 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 abouta jailhouse informant who hadtestified against him attrial. In that case, the court held that “[t]he trial court lackedjurisdiction to order ‘free-floating’ postjudgment discovery when no criminal proceeding was then pending before it.” (Gonzalez, at p. 1256.) Quoting from previous authority, it explained that “ ‘a discovery motion is not an independent right or remedy. It is ancillary to an ongoing action or proceeding. After the judgment has becomefinal, there is nothing pendingin 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 presumptionsof validity applicable to a collateral attack on a criminal judgment, the court held that “[t]he state may properly require that a defendant obtain someconcrete information on his own before he invokes collateral remedies against a 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 upon a finding that a habeas corpuspetition stated a primafacie case for relief. (/d. 7 Such a request must show that the materials either were providedto the defendantat trial, or should have been provided pursuanteither to a discovery order in the case or the prosecution’s constitutional obligations. (See Jn 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 but implies the pendency of an ongoing action.® 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 by the 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. (dn 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 for virtually anything the prosecution possesses.” (Jn re Steele, supra, 32 Cal.4th at p. 695.) It also commented that section 1054.9 “imposes no preservation duties that do not otherwise exist.” (dn 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 of that order was pending. The reasoning of Wisely clearly did not impress the 99 66.Supreme Court in Gonzalez, which foundit “inapposite,” “whateverits 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 requirementof mandatory sex offender registration after the court found an equal protection violation in People v. Hofsheier (2006) 37 Cal.4th 1185. Picklesimer holdsthat relief must be sought by a petition for writ of mandate. (Gonzalez, supra, 51 Cal.3d at p. 1257) because the new trial order at least provided an arguable basis for continuing jurisdiction.? Here, although Morales claimsthat the preservation order is essential to protect his right to pursue collateral relief by habeas corpus,there is simply no pending case or proceeding to which the motion can attach. Accordingly, the trial court had no subject matter jurisdiction. Werecognize that if Morales had chosen to proceedbyfiling a barebones habeas corpuspetition, there would at least have been a proceeding to which his request could have attached,andthetrial court could have reached the merits.!9 However, counsel has carefully observed the boundariesofhis role as counsel on appeal andelected notto file a collateral proceeding. We also recognize that some of the materials which he seeks to have preserved and whichare 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 standard rule,of course, is that an appeal deprivesthe 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 whetherthe issuance of a preservation order would be proper. The scope of the motion appears to have gone far beyondthelimits of section 1054.9; it was not established that the materials sought could not be obtained from counsel or should have been turned over by the prosecution. Nor was any effort made to explain what information Morales ever hoped to find in more obscure categories which did not visibly fall within the ambit of materials to which he would have been entitled at trial. However, we need not, and do not, attempt to establish the level of “sood 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 forbidstrial courts from ruling on such a “free-floating” motion as was presented here. Weare notat liberty to ignore Gonzalez, especially as the court in Stee/e noted the limited extent to which section 1054.9 altered Gonzalez’s rule. Accordingly, we find that the trial court exceededits jurisdiction in issuing the preservation order and we will 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. NOT TO BE PUBLISHED IN OFFICIAL REPORTS KING J. We concur: McKINSTER Acting P. J. CODRINGTON J. 10 FILED ‘ iIAROING COUNTY SAN BERNACOURT. JUL 09 2014 BY ppc. DEPUTY IN THE SUPERIOR COURT OF T HESTATE OF CALIFORNIA IN AND TOR THE COUNTY OF SAN BE RNARDINO , Superior Ct. No. BVA 015456 THE PEOPLE OFTHE STATE OF CALIF ORNIA, (CaliforniaiaSupreme Court Plaintiff and Respondent, No. 81373 Oo . ORDE RTO PRESERVE v. . EVIDENCE PENDING — . . AUTOMATIC APPEAL AND RELATED POST JOHNNY MORALES,. ) CONVICTION . . PROCEEDINGS Defendantand Appellant. ; IT 18 THE ORDER OF THIS COURT: ‘That the San Bernardino County District Attomey, the San B ernardino County Sheriff- | ‘Coroner, the Montclair Police Department, the Fontana Police Department, the Colton . Police Department, the Corona Police Departme nt, the San Bernardino Police Department (including the San Bernardino Police Departme nt Crime Lab), the San Bernardino County, Sheriff’s Department, the San Bernardino Cou nty Sheriff's Scientific Investigations Division, the San Bernardino County Children and Family Services and the Children’s Assessment Center, the San Bernardino County Probation Department, the San Bernardino County Superior Court, the San Bernardino Cou nty Jury Commissioner, the San Bernardino County Information Services Department, the San Bernardino County Jail, West Valley Detention Center, California Department of Corre ctions, thé Attorney General of California, and their present and former employees , agents, and representatives, to preserve files, records, evidence and other related items listed herein pe nding resolution of this automatic appeal andall related postconvictionlitigation. By this motion, appellant requests preservationof files, records, evidence and any other items pertainingto the prosecution ofthis case andrelating to the investigation of the | APPENDIX A 11 o a n n a n t wow n d 10 ii 12 13 14 15 16 7 18 19 20 21 22, 23 24 25 26 21 28 death of Blia Lopez and the robbery of Carlo s 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 pen alty phases of appetlant's trial, including, b ut not limited to, the following: a, All records, documents, and exhi bits, including the réporter’s transcript notes of proceedings which pertain to appell ant, Johnny Morales (AKA “Mario Morales ” and “Jose Arisa”)(DOB: 1/20/78), and People v. Johnny Morales (Superior Cou rt Case No, FVA 015456), including confiden tial Penal Code sections 987.9 and. 98 7.2 records; , b. - All items admitted into evidence, or offered into evidence but excluded or withdrawn in this case, whether at the t rial or any pretrial proceeding, whether such items were physical; demonstrative, illustrative, w ritten, tape recorded, videotaped, o photographed, or of some other type; a nd whether in possession of the Scin Be rnardino County Superior Court, the San Bernardino Co unty Children and Family Services and the Children’ s Assessment Center,the San Bernardino County District Attorney’s O ffice, or any other law enforcement agency, inclu ding, but not limited to the Fontana Poli ce Department, the Montclair Police Depart ment, the Ontario Police Department, the Corona, Police Department, the Colton Police Departm ent, the San Bernardino Police Department, and the San Bernardino County Sheriff's De partment,; _ G ~ > All prosecutorial and law enforce ment reports, notes, tape recordings, or other memorializations of fruits of law e nforcement investigation or witness inter views, all * scientific and forensic reports or notes a nd underlying documentation (including, but not limited to, laboratory notebooks, bench n otes, computer printouts, or other recordi rigs of raw data, in whatever media), all photogr aphs and negatives, and all other iterns tha t are in. any wayrelated to this capital case and that are i n the possession of anyofthecity, county, ot state governmental agencies or officials nam ed above; or their agents or employees, including private individuals or institutions reta ined to renderservices in connection with this capital case; 4. All notes taken by each andevery court re porterin this case, whether in 12 w o w a e T O N A W w N e 10 14 12 13 14 15 16 7 18 . 19 20 24 22 23 24 25 26 27 Superior or Municipal Court; e. All custodial recordsrelating to appellant Johnny Morales (AKA “Ma rio Morales” and “Jose Arrisa”) (DO B: 4/20/78), including but not li mited to; all jail records and/orthe complete jail packet, whic h includes any “writings” (as defined in Gov. Code § 6252, subd. (g)), housing records, cla ssification records, disciplinary record s, jail visiting logs and records, records of any medical. and/or psychiatri¢ treat ment or evaluation occurring during appellant’ s incarcerat ion, and any. audiotapes, videotapes, an d any other records pertaining to appellant either dur ing or prior to the’pendency of this case that are in | the possession or control of the S an Bernardino County Sheriff's D epartment, the San Bemardino Police Department, the Fon tana Police Department, the Corona Po lice ‘Department and the Colton Police Depa rtment, f. All writings or other records relating to the decision by the San Bernardino County District Attorney's Office to se ek the death penalty in People v. Johnn y Morales (Superior Court Case No. FVA 015 456), including, but notlimited to all policy manuals, ‘regulations, guidelines, policy statements , internal memoranda and other writings which have been relied upon or promulgat ed by the San Bernardino County Di strict Attorney’s Office pertaining to the procedure by whi ch a decision is madeas to whether to ch arge special circumstances and/or seek th e death penalty, and any and all docu ments, writings, records, memoranda, or notes relati ngto the decision to allege special ci rcumstances and to seek the death penalty in this capita l case; , g- Allelectronic data pertaining to Peop le v. Johnny Morales (Superior Court Case No. EVA 015456)in the posse ssion of or maintained by the San Be rnardino County Information Services Department, i ncluding any email communications, h. Allrecords or documents main tained or controlled by the San Bern ardino County Jury Commissioner pertainin g to the selection of the venire or any other matter — involving the case of Peoplev. Johnny Morales (Superior Court Case No. FV A 015456). Any records, manuals, standard opera ting procedures, or other documents m aintained or controlled by the San Bernardino Cou nty Jury Commissioner involving pr ocedures arid 13 _ 2 e e e s 10 12 13 14 15. 16 17 18 i9 20 21 23 24 25 26 27 28 practices regarding the selection ofjury venires, including county-wide jury venires, which were in effectin the years 2002-2004; i. All records maintained or controlled by the San Bemardino County Probation Department which pertain to appellant Johnny Morales(AKA “Mario Morales” and “Jose Atrisa”)(DOB: 1/20/78). j. All materials controlled or maintained by the San Bernardino County Sheriff-Coroner’s Department(or any private contractor personnel) pertaining to-the investigation and autopsy of the death of Elia Torres Lopez onor about June 9,2001; k.. All records, documents, exhibits, investigative Teports, and jail records telating to prior investigations or prosecutionsof appellantJohnny Morales,(AKA"Mario Morales” and “Jose Arrisa”) (DOB 1/20/78), including butnotlimited to those pertaining’ ‘to the following:‘San Bernardino County Case: People v. Johnny Morales, San Bemardino Court Case No: FVAOL 1012: People v. Johnny Morales, Fontana Municipal Court Case No: MVA 021611: ‘People v. Johnny Morales, Fontana Municipal Court Case No: MVA017382; whether in the possession or control of the San Bemarditio County Superior Court, the San Bernardino County District Attomey’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 BernardinoPolice Department, and the San Bemardino County Sheriff’s Department. IL. All criminalfiles relating to witnesses appearingin this case including the following people: Cesar Alban, Anthony Casas, Xiomara Escobar, Carlos Gutierrez,. Michael Kania, Maria S. Lopez, Mayra Lopez, Margarita Martinez, Daniel J. Mendoza, Angel I. Morales, MarcelaOchoa-Martinez, Yolanda Riech, Alejandra Sanchez, Brianda Sanchez, Jennifer Sanchez, Joe Sanchez, Frank P. Sheridan, JosefinaT, Tadeo, Brad Toms, Elda Velasquez and Kenneth Wolf. m. All California Departmentof Corrections records Tegarding Johnny Morales (AKA “Mario Morales” and “Jose Arrisa”)\(DOB 1/20/78) including, but not limited to, 14 West Valley Detention Center records, n. All notes taken by each and ever y court reporter, whether in Superior o r Municipal court, during the proceedings..of a ppellant’ § cO- defendant, Xiomara Escobar (San Bemardino County. Case No. FVA 01 5456),iin which appellant was not present , - 9, Allrecords, manuals, standard oper ating procedures, policies or documents maintained or controlled by the San Bernard ino County Indigent Defense Program pertaining to the selection of and qualificati ons formembers of the county conflict panel between 2001 to 2004; and any other re cords or other documents maintained or controlled : by the program: involving the appointment and payment of counselinthe case of People v. Johnny Morales (Superior Court Case No. FVA 015456). , p. All records, manuals, standard op erating procedures, policies or documen ts maintained.Or controlled by the San Bem ardino County Indigent Defense Progr am, San Bernardino Superior Court and the Law Office s of Earl Carter pertaining to the procuring and awardingof contracts for the operatio n of the San Bernardino County Conflict P anel. selection of and qualifications for member s of the county coniflict panel between 20 01to 2004; q. All records, manuals, standard ope rating procedures, policies or documents maintained or controlled by the San Bernardino County Superior Court pertaining to the appointmentof counsel for indigent defe ndants from the county conflict panel be tween 2001 to 2004; and any other records or other documents maintained or controll ed by the court involving the appointment and counsel in the case of People v. Johnny Morales (Superior Court Case No. FVA 015456). t. All prosecutorial and law enforce ment reports, notes, tape recordings, or other memorializationsoffruits of law enforcement investigation or witness inter views, all photographs and negatives, andall other item s that arein any way related to People v. Wayne Rozenberg (Superior Court CaseNo. FSB046236) andthat are in the possession of any of the city, county, or state governmen tal agencies Or officials named above, or t heir agents or employees, including private ind ividuals or institutions retained to render s ervices 15 R o e e e O e Y A w s W Y HK DO +18 19 20 21 22 24 25 26 27 28 o a nr d a w B® w n e in connection with this case; ‘. All records, documents, exhibits, investigative reports, and jail records relating to prior investigationsor prosecutions. of Mario Izaguirre,including butnot limited to those pertaining to the following; San Bernardino County Case: People v.v. Mario Izaguirre, San Bernardino Court Case No: FVA022952. ‘ t. All criminalfiles relating to other suspects‘andlor witnesses related to this case including the following: Junior Ivan Bscober, Javier Ever Flores (BOB 9/7179), Marlo Flores (DOB 7/28/T8), Melvin Falla, Melvin Hemandez, Jorge Morales, Jossy Remberto Aleman-Cruz (DOB: 6/24/79) (AKA: “Tossy Cruz-Aleman” or “Josy” or “Carlos Rodriquez”), Enrique Lujan (AKA “Kuique”or “Kiki”), Henry. Lujan (AKA “Garra” or “Garras”), Noe Sevilla-Ochoa, Jorge Luis Sifuentes, Joe Vant and Rigoberto Zavala (AKA. “Rico'") whetherin the possession or controlof the San Bernardino CountySuperior Court, the San Bernardino County District Attomey’ s Office, or any other law enforcement agency, including, but notlimited 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 Bermardino County Children’s Assessment Center that were in any way related to law enforcement investigation or prosecution ofeither: (1) the death of Elia Torres Sanchez or (2) the homeinvasion robbery of Carlos Gutierrez on or about June 9, 2001 whetherin the possession or control of the San Bernardino County. Children’s Assessment Center, the San Bemardino County Superior Court, the San Bernardino County District Attomey’s Office, or any other law enforcement agency, - including, but not limited to the Fontana Police Department, the San Bernardino Polic e Department, and the San Bernardino County Sheriffs Department. y. All records, documents, exhibits, investigative reports, and jail records relating to prior investigations or prosecutions related or pertaining to the following; 16 po o A HD YH F | DY R O e e S U aA A A wH R Y N H OD - Corona Police Department Case No: 01-4706, Ontario Police Departmen t Case No:01-05- ‘| 1083, Fontana Police Department Case No:01-5241, Fontana Police D epartment Case No: C97-9381, Fontana Police Department Case No: C98-08777, SanBerna rdino County Sheriff Department Case No: 030102609,whetherin the possession «or controlo f the San - Bernardino County Superior Court, the San Bernardino County District Attorne y's Office, or any other law enforcement agency, including, but not limite d to the FontanaPolice Department, the Ontario Police Department, the Corona Police Department , the San Bernardino Police Department, and the San Bernardino County Sheriff’s Depa rtment. , Appellant requests that this order for preservation remain in effect until eithe r: @) thirty days after execution of the death sentence,or (2) non-preservation of suc h items or materials is approved by a court of competent jurisdiction after at le astninety (90) days writteri notice of any intention to destroy or allow. destruction of such evidenc e has been given to appellant, his counsel, the San Bernardino County District At torney, and the Attorney General of California. Appellant further moves for disclosures bytheagencies‘namedin this m otionas to whether any of the items or materials mentioned above are in the pos session of any other governmental unit, entity, official, employee or former employee and/o r whether any of such material has been destroyed. SO ORDERED. INGRIP A. UHLER JUDGRK.OF THE SUPERIOR COURT 17 APPENDIX B Filed 7/31/15 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT DIVISION TWO ORDER THE PEOPLE, 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 heretoforefiled in the above matter on July 15, 2015, and it appearing that the opinion meets the standards for publication as specified in California Rules of Court, rule 8.1105(c), IT IS ORDEREDthat said opinion be certified for publication pursuant to California Rules of Court, rule 8.1105(b). KING We concur: McKINSTER Acting P.J. CODRINGTON J. 18 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 morning. If we could have appearances for 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 notbe there long. Mr. Murphy,this is a favorable ruling for you should it withstand oral argumenttoday. You’re free to address anypart of it, you can reserveall your time to respondif that’s what you’dlike to do...any other comments on publication, or whatever you'd like to do, you’re free to do that, it’s yourcall. Thank you, your Honor. I'll probably be real brief and try to get used to sitting on this other side of the courtroom today.I’m in full agreement with the tentative opinion and so [ll just reserve my time. Alright. And you,as the appellant, you do havethe right to open and close, it doesn’t change the order of argument. With that in mind, I was the great Carnac we knew you wouldn’t beseated long. Wewere taking bets on whether he would show upatall... Well...something you might wantto address, I’m just curious, if this is publishable if for no other reasonit’s a first step in review andit does tend to get the attention of other people you might wanttotalk to. That’s correct. So with that in mind, go ahead counsel. 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 | The People have challenged the trial court’s preservation order in this capital case on jurisdictional grounds by wayofpetition for writ of mandamus. And pursuant to mandamusprinciples, the petitioner bears the burden ofprovingthatthe 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 casesas reflecting the law that governed at the timeofthe ruling; the mostsignificant of whichare the Supreme Court’s 1990 decision in Gonzalez andits 1992 decision in Johnson. But muchhas changedsince those decisions and neither reflect a clear rule of law that required the court to deny the preservation motion. In Gonzalez, of course, the Supreme Court heldthereis no right to post conviction discovery and in Johnson the court relied on Gonzalez to hold that 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 in its tentative opinion that both cases have a broad discussion regardinga trial court’s post-judgmentjurisdiction. Butthe Supreme Court in 1999, in Townsel v. Superior Court, madeclear that none ofits prior cases, including...,and it specifically cited Johnson, can stand for the proposition that the trial court loses all jurisdiction while an appeal is pending. And that’s because section 916 saysso. Code of Civil Procedure section 916 provides that after the trial court has imposed judgmentand a notice of appealis filed, there is a partial divestment ofjurisdiction. That is, a divestment ofjurisdiction just over the judgment. Thetrial court retains jurisdiction to entertain motions,to grant orders that don’t alter the judgment. The Supreme Court in Townsel upheld a post-judgment motion that was broughtin exactly the sameprocedural posture as our motionin this case. It was a People’s motion in that case, on the ground that court had jurisdiction andit didn’t alter the judgment. 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 So, here the order does not alter the judgment. Furthermore,although 1054.9, we agree, does notitself confer jurisdiction on the court to issue preservation orders, it does trigger application of other principles that didn’t apply at the time of the Johnson decision. Andthatis, 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, even if that means and processis not delineated bystatute or specified by statute to ensure that its jurisdiction is protected or giveneffect. Again, Townselrelied on these principles to uphold the post-judgment motion in that case and if we applythatlogic here,as thetrial judge herself did, becauseas she said “I have jurisdiction to grant discovery now,so it follows that I have to have jurisdiction to order preservation of evidence otherwise there will be nothing left to discover,” given the currentcrisis in the timely appointmentof habeas counselin capital cases. The law has also changedin othersignificant respects since Johnson,at that time there were dual appointment system in capital cases for habeas and appellate counsel. We now haveseparate appointments. We have separate duties and appellate counsel has a duty to preserve evidence until 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 mightbeinterestedin... Certainly, I believe so your Honor. Yeah, because I tip my hat to you for staying within confines of what you are supposedto do as appellate counsel and haven’t deviated from that. The obvious answeris if you file a habeas, you now havethe proceeding and there’s a statute that now allowsyouto attach a motion to it and that appears to be THE problem inthis case. RENARD — MCKINSTER,PJ. RENARD 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 Well, I think you’re right, and in your tentative opinion there was this suggestion that we could file a bear bones petition and thereby create a proceeding to which this motion could attach. And wejust 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 without that habeas. Butactually youare. Section 916 says so. Townsel says so. You have jurisdiction, well the trial judge had jurisdiction. This order did not alter the judgment, 916 couldn’t be more clear. Townsel in 1999 specifically held Johnson just can’t be read in any way that’s inconsistent with section 916. The judgment,the order here just cannotbe distinguished on any grounds from the order that was upheld in Townsel. The court did, and maybethis will help clear it 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. WhenI saytrue final judgment I mean appeal’s final, remittitur’s issued and thatcase 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, the court loses all jurisdiction but that’s not true when appeal is pending. Thefinality of judgmentis stayed pendingthefinality of the appeal. Section 916 explicitly states that the court retains jurisdiction to issue orders that don’t alter the judgment. That’s exactly...the petitioner has never contended thatthis order altered the judgmentnordoesit, nor could they. The court has also cited Jn re Steele, a line from In re Steele that states that 1054.9 does noteffect the, I’m sorry, does not impose preservation 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. Steele was not addressing this jurisdictional question and didn’t even cite Johnson whichis the only preservation case on the books, muchless indicate that it continues to be good law. And moreto the point, it did not create a clear and presentrule of law that required the trial court to deny the preservation motion. And I think unless there are any other questions,I’Il submit. MCKINSTER,PJ. RENARD MCKINSTER,PJ. MURPHY KING,J. MURPHY CODRINGTON,J. People v. Superior Court (Morales) Fourth District Court of Appeal - Division 2 Case No. E061754 Oral ArgumentTranscript Argued July 7, 2015 in Riverside, CA All?...Not presently. Ok. Mr. Murphy. Morning again, 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 caseis controlled by Gonzalez and Johnson, two California Supreme Court cases... Whatabout Townsel? Well Townsel addressed a no-contact orderfor jurors andit 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 whichis precisely the issue we’re dealing with here. I think those cases are more on point...more controlling and there was some language,and think it was in the Johnson case, where the court kind of dismissed these other similar 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 what I think is clear in Gonzalez and Johnsonthat there’s just not jurisdiction for orders at this stage dealing with discovery. Whetherit be discovery itself or preservation outside of the confines ofthe new statute 1054. Shealso said section 916 along with Townsel conveyed jurisdiction. 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 one ofthe statutes that was addressed, and I can’t rememberat the momentif it was in Gonzalez or Johnsonthat they were again unimpressed that that generalized statute would confer jurisdiction for a situation dealing with these kindsofspecific non- statutory motions for discovery. And when you encompass or combine that with In re Steele and their discussing the discovery statute and limiting that to how theyinterpretedit in that case, I 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 the scope of it too. And I think there needsto be statutory authority or further direction from the Supreme Court to really, what appearsto the People to be, directly contrary to the holdings in Gonzalez and Johnson. To the extent that counsel is asking us to create a rule here that really should be addressed by the Supreme Coutt,it really is a problem of their creation... Right. Andit just seems to methat if we’re going to have an 18-year gap or longer in appointing habeas counsel and, again tip the hatto defendant’s counselof trying to ensure that materials were available, although that’s a two-edge sword. This is such a broad order, in some cases it would be difficult for all the agencies to even determine whatit is they are asking to be preservedlet aloneif they failed to do that 18 years hence there’s now a Burmesetiger trap that one could fall into that you didn’t to preservethis 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 of this case? Yeah.I think you should because, wellthat’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? I would move for publication. 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 MCKINSTER, PJ. Ok. That does get the attention of the folks. I recognize that everyone wants us to create that rule here butit just strikes me thatit’s better created in front of the folks who created the problem. I 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 I declare under penalty of perjury that the foregoing pages numbered | through 7 comprise a full, true and correct transcription, to the best of myability, of the audio recording of the proceedings held in the above-entitled matter on Tuesday, July 7, 2015. Kecia A.4 0 Senior Legal Analyst Office of the State Public Defender Dated: July 16, 2015 DECLARATION OF SERVICE Re: THE PEOPLE v. SUPERIOR COURT (MORALES) No. Court of Appeal No. E061754 Related Death Penalty Appeal Pending No. $137307) I, Kecia Bailey, declare that Iam over 18 years of age, and nota party to the within cause; that my business address is 1111 Broadway, 10th Floor, Oakland, California 94607; I served a true copy of the attached: PETITION FOR REVIEW on each ofthe 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 4-EB-40 110 W. A Street, Suite 110 San Quentin, CA 94974 San Diego, CA 92101 MICHAEL T. MURPHY CLERK OF THE COURT Deputy Attorney General San Bernardino County Superior Court Office of the Attorney General 247 West Third Street 110 West A Street, Suite 1100 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 wasthen, on August 19, 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 foregoingis true and correct. Signed on this 19day of August 2015, at Oakland,, Californifa. | loMn:Wy KeciaBailey