Filed 4/6/20 Hernandez-Delgado v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JUAN MANUEL HERNANDEZ-DELGADO,

Petitioner,

v.

THE SUPERIOR COURT OF MONTEREY COUNTY

Respondent,

THE PEOPLE,

Real Party in Interest.

No. H046493

(Monterey County

Super. Ct. No. SS140129)

Petitioner Juan Manuel Hernandez-Delgado seeks writ relief from a protective order imposed by respondent Monterey County Superior Court that prohibits “anyone” from providing him “the trial transcripts” from his criminal trial. Petitioner asserts that the order violates his constitutional right of access to the courts, specifically to seek collateral review. He also asserts that the protective order interferes with his right to receive his own property, which includes the trial transcripts. We conclude that petitioner has not shown that the protective order is unlawful, and we deny the petition.

I. Background

In July 2013, petitioner shot and killed two suspected rival gang members in separate incidents. Petitioner was convicted by jury trial of two counts of first degree murder (Pen. Code, §§ 187, 189). The jury found true allegations that petitioner committed the offenses for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1), (b)(5)), and that he personally used a firearm causing death or great bodily injury (Pen. Code, § 12022.53, subd. (d)). Petitioner was sentenced to 100 years to life in prison.

At petitioner’s trial, the prosecution presented testimony of three former gang members. The former gang members testified about the circumstances surrounding the murders and petitioner’s direct involvement. During the trial, the court ordered that the names of the former gang members be redacted from the transcripts, and John Doe 1, John Doe 2, and John Doe 3 be substituted for their names. In issuing the order, the court stated: “There’s a very specific reason that has been well established over the years in gang cases, that if there is something in writing, whether it’s an opinion or on a piece of scratch paper, that gives the name — that gives — provides evidence, if you want to call it that, that’s sufficient to green light somebody, to put them on a hit list, to take action against them. That doesn’t exist, if it’s not on paper. [¶] So if an Appellate Court does decide to publish that name, they’re putting the life of that person at risk.”

In a letter dated July 18, 2017, petitioner “requested a copy of the trial transcripts [from appellate counsel] so he could participate in his appeal.” His appellate counsel replied that he “only had one copy of the transcripts and that [he] needed them to do the appeal.” On September 13, 2018, appellate counsel “called the court reporter in Salinas, California, and left a message inquiring about the cost of a second set of transcripts [that counsel] could provide to [petitioner] while the appeal was pending.”

On September 15, 2017, Judge Russell Scott, who had presided over petitioner’s trial, issued a protective order that stated: “[U]ntil further order of this court, any pretrial or trial discovery materials (police reports, transcripts, photos or any material which would identify witnesses or convey statements of witnesses) and the trial transcripts or copies of any of these items may not be provided to the defendant by anyone.” It continued: “Any interested person may file a request for reconsideration of this order at any time, and the matter shall be scheduled expeditiously upon the filing of such request.”

In issuing the protective order, the court stated it had “reviewed and considered the declaration of [Deputy District Attorney] Christine Harter filed September 15, 2017, requesting a protective order prohibiting appellate counsel or anyone else from providing [petitioner] with a copy of the trial transcript.” The court explained its reasoning: “The court is particularly mindful of the risk taken by witnesses who drop out of a criminal street gang and testify against members of their former gang. The court is aware of the requirement that ‘paper’ exist as justification for gang leadership to sanction a hit. The record is replete with the danger faced by the drop-out witnesses and their families. The former gang-member witnesses who testified in this case were credible and, with little doubt, their testimony contributed greatly to the outcome. [¶] The gang mindset is to deter such conduct through exacting extreme punishment without appeal or other due process. The court made protective orders throughout the trial process to protect witness safety. That the court’s own record would be made the ‘paper’ that gives gang leadership justification for sanctioning a witness hit strikes at the heart of the court process. The trial court’s hands are not tied by virtue of the fact that the matter is now on appeal. The court has the inherent authority to protect its integrity and make orders that protect against action that threatens to impede or obstruct the present and future process of the court.”

On July 31, 2018, appellate counsel, on behalf of petitioner, filed a request for reconsideration of the protective order. Appellate counsel asserted that “no names of gang witnesses appear in the transcripts,” and thus “the transcripts provide no ‘paper’ that gives gang leadership the means to order a hit on any gang member who testified in this case.” He acknowledged that while there was a “compelling governmental interest” in protecting “witnesses who are gang members,” that interest had “already been met by redacting the names, nicknames and monikers of those witnesses from the trial transcripts.” He asserted that petitioner had a “ ‘constitutional right of access to the courts’ ” and that the right of access “includes the right to a transcript of the proceedings at trial.” In framing the right of access claim, appellate counsel described it as a right to “pursue further collateral remedies in state and federal courts.”

On October 26, 2018, Judge Timothy P. Roberts held a hearing on the request for reconsideration. Appellate counsel reiterated that “there’s no compelling reason to deny [petitioner] his constitutional right to a transcript of the proceedings.” The deputy district attorney asserted that “there is more than one way to find out who the witnesses are” and retaliate—“[t]hey do that all the time, and that’s the whole purpose of getting transcripts.” The court agreed that while the names had been redacted, “in the real world, the issue is, if the [petitioner’s] associates, friends, partners in the gang were to get the transcript, it would be a matter of mere moments before they figured out who these people were and put names to them.” The court further reasoned that even with the protective order in place, “it would not preclude [petitioner] from pursuing any collateral remedies; . . . . They would be available to some other attorney, whether appointed or not appointed, . . . and that . . . would not preclude the [petitioner] from moving forward.” Thus, the court concluded that in balancing petitioner’s “ability to go forward with his legal remedies, compared to the safety of the witnesses and their families,” the protective order should be upheld.

II. Discussion

Petitioner makes two arguments. His first argument is constitutional. He contends that the superior court’s protective order violated his right of access to the courts for collateral relief. He further contends that the goal of protecting witness safety was already accomplished by the trial court’s redaction of the witnesses’ names and that “the bulk of the transcripts are not implicated by the state’s concern.” His second argument is based on property rights. Petitioner argues that the “trial transcripts are part of appellate counsel’s file, and that file belongs to petitioner.” He notes that the California Rules of Professional Conduct require counsel to return “all client papers and property.”

“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . .” (Code Civ. Proc., § 1085, subd. (a).) “Two basic requirements are essential to the issuance of the writ: (1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citation].” (People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d 480, 491 (El Dorado).) “A ‘ministerial duty’ is one generally imposed upon a person in public office who, by virtue of that position, is obligated ‘to perform in a prescribed manner required by law when a given state of facts exists. [Citation.]’ [Citations.]” (City of King City v. Community Bank of Central California (2005) 131 Cal.App.4th 913, 926.)

Petitioner urges this court to review the trial court’s protective order for abuse of discretion. However, the cases upon which he relies are inapposite. In Wade v. Superior Court (2019) 33 Cal.App.5th 694 (Wade), after a contested hearing, the trial court denied a request that an active duty member of the military be granted pretrial diversion based on California’s military diversion statute. (Id. at pp. 701-704.) On writ review, this court discussed, first, whether mandate review was even proper. It found that it was proper, based on the “relative novelty of the military diversion program and the likelihood that the issues presented here will repeat as military dependents seek the chance to participate in the program.” (Id. at p. 707.) Then, after engaging in extensive statutory and legislative analysis, this court determined that the trial court had abused its discretion by failing to exercise its discretion in conformity with the diversion statute. (Id. at pp. 716-718.) This court granted the writ petition, but did not order that the trial court grant the requested relief. Rather, the court remanded for reconsideration in light of the court’s opinion. (Id. at p. 718.) Importantly, review for abuse of discretion in Wade was found appropriate because of the assertion that the trial court failed to exercise its discretion as required by the diversion statute. In this case, as we discuss in further detail below, petitioner identifies no such statutory or constitutional command that precluded the protective order or required the trial court to proceed in some other manner.

In Big Bear Municipal Water Dist. v. Superior Court (1969) 269 Cal.App.2d 919 (Big Bear), another case relied upon by petitioner, the court, addressing a petition for mandate, reviewed for abuse of discretion a trial court’s exercise of its inherent authority to dismiss. (Id. at p. 925.) However, in so doing, the court only “assum[ed]” that it could undertake such a review; the court did not hold that such review was necessarily proper. (Ibid.) Notably, the only cases cited in support of the Big Bear court’s review for abuse of discretion were direct appeals, not mandate cases. (Ibid.) In this case, we decline petitioner’s invitation to undertake an abuse-of-discretion review of the trial court’s decision. Instead, we apply the settled legal principles that govern consideration of a petition for mandate.

A. Right of Access

Prisoners have a fundamental right of access to the courts. (Bounds v. Smith (1977) 430 U.S. 817, 821 (Bounds).) Such access must be “adequate, effective, and meaningful.” (Bounds, at p. 822; Ryland v. Shapiro (5th Cir. 1983) 708 F.2d 967, 972 [following Bounds, “[c]ourts have required that the access be ‘adequate, effective, and meaningful.’ ”].)

In Lewis v. Casey (1996) 518 U.S. 343 (Lewis), the Supreme Court clarified that a prisoner asserting a denial-of-access-to-courts claim under Bounds must satisfy the constitutional standing requirement by alleging an actual injury. (Lewis, at pp. 351-353.) To meet this requirement, a prisoner must show that the challenged action “hindered the prisoner’s efforts to pursue a nonfrivolous claim.” (Penrod v. Zavaras (10th Cir. 1996) 94 F.3d 1399, 1403.) Thus, “the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating litigation.” (Christopher v. Harbury (2002) 536 U.S. 403, 415 [the constitutional right of access to courts is “ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court”].)

In this case, petitioner, aided by his appellate counsel, has not shown actual injury. In his petition, he makes the broad claim that he “has a right to his trial transcripts to pursue collateral remedies once his appeal is over.” He does not, however, describe how the protective order hindered his pursuit of a nonfrivolous claim, what claims he might raise on collateral review, or why his pursuit of collateral review depends on his ability to personally review the trial transcripts. Petitioner only suggests, generally, that a transcript is necessary to pursue ineffective assistance claims. In sum, petitioner fails to identify how the protective order hindered his efforts to pursue a nonfrivolous claim on collateral review. Thus, as an access-to-courts claim, mandamus cannot issue in this case because petitioner has not shown that the vacation of the superior court’s protective order is “an act which the law specially enjoins.” (Code Civ. Pro., § 1085, subd. (a).)

Petitioner cites to cases like Gardner v. California (1969) 393 U.S. 367 (Gardner), where the court has held, on equal protection grounds, that the state could not withhold transcripts from indigent defendants when the same transcripts were available to defendants who paid for the transcripts. (Id. at pp. 370-371.) These cases, however, do not specifically preclude the superior court’s protective order in this case, which was not based on petitioner’s indigency, but rather on the threat to witness safety arising from petitioner’s gang affiliation. Thus, cases like Gardner do not specifically prohibit the superior court’s protective order and do not compel mandamus in this case.

Similarly, petitioner cites to public right-of-access cases, where the court has held that a denial of public access to court proceedings must be “necessitated by a compelling governmental interest” that is “narrowly tailored to serve that interest.” (Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 607; see also Press-Enterprise Co. v. Superior Court (1984) 464 U.S. 501, 510.) Petitioner’s reliance on these cases is misplaced, as they involved the right of public access to court proceedings. Nothing in this line of cases precluded the superior court’s protective order, which applies only to petitioner, and thus these cases also do not compel mandamus here.

B. Property Interest

Citing Eddy v. Fields (2004) 121 Cal.App.4th 1543 (Eddy), petitioner argues that the trial transcripts are his property and the protective order prevents him from receiving his own property.

In Eddy, the appellate court considered an argument that an attorney could withhold some parts of his legal files from a client upon termination of the representation because the documents contained attorney work product. (Eddy, supra, 121 Cal.App.4th at p. 1548.) In analyzing the issue, the court stated that “[i]n general, the documents within an attorney’s legal file belong to the client.” (Ibid.) The court based this statement on former rule 3-700(D) of the Rules of Professional Conduct, which provided that upon termination of representation, an attorney must: “ ‘Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. “Client papers and property” includes correspondences, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not[.]’ ” (Ibid.)

Petitioner’s reliance on Eddy and California Rules of Professional Conduct, rule 1.16 is unavailing. First, Eddy involved the transfer of client files, some of which were claimed to be attorney work product, from one trustee to a successor trustee. (Eddy, supra, 121 Cal.App.4th at p. 1547.) The instant case involves the conveyance of certain court records to a prisoner, convicted of two first degree murders with gang enhancements, where the record establishes that these very court records could endanger members of the public. Indeed, it is not evident that California Rules of Professional Conduct, rule 1.16 even applies to trial transcripts, which are not specifically identified in the rule’s list of “client materials and property.” And, even if it did apply to trial transcripts, it is not evident that the rule, which applies to an attorney’s professional responsibility, also creates a property right that is enforceable in a mandamus proceeding. However, even assuming the rule does create such a right, the plain text of the rule itself provides that the right to client files is “subject to any protective order or non-disclosure agreement . . . .” (Cal. Rules Prof. Conduct, rule 1.16(e)(1), italics added.) Assuming the existence of a property right to trial transcripts, an abridgment of that right is explicitly sanctioned in circumstances where, like here, a protective order has been issued. Thus, petitioner has not demonstrated that mandamus relief is available.

III. Disposition

The petition for writ of mandate is denied.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P.J.

_____________________________

Bamattre-Manoukian, J.

Hernandez-Delgado v. Superior Court

H046493