Filed 4/1/20 Martin v. Super. Ct. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

STEVEN A. MARTIN,

Petitioner,

v.

THE SUPERIOR COURT OF SACRAMENTO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

C086906

(Super. Ct. No. 74800)

Petitioner Steven A. Martin contends the trial court erred when it denied his motion for postconviction discovery under Penal Code section 1054.9 based on finding the discovery would lead to successive petitions for writs of habeas corpus. (Statutory section references that follow are to the Penal Code, unless otherwise stated.) We agree with petitioner and grant the petition for writ relief, but we limit discovery to only those materials which the prosecutor provided to petitioner at trial.

FACTS AND PROCEEDINGS

Petitioner was convicted in 1986 of first-degree murder with special circumstances. He was sentenced to prison for life without the possibility of parole.

In 2017, petitioner filed a motion for postconviction discovery pursuant to section 1054.9. He sought the discovery to assist in preparing a petition for writ of habeas corpus. He sought all discovery materials held by the prosecutor to which he was entitled prior to his trial, and those to which he was entitled during his trial but were not provided to his counsel until after trial. He also sought a declaration by the prosecutor under penalty of perjury that no other discovery materials relevant to his case existed.

In a supporting declaration, petitioner explained his reasons for wanting to seek habeas corpus. He stated the trial court had replaced his court-appointed attorney four times before trial in a manner that violated his due process rights. He also claimed he had not been arraigned or allowed to enter his own plea. He sought the discovery to show in a petition for habeas corpus that he had been prejudiced by these actions.

Before filing his motion, petitioner attempted to obtain the discovery from his former counsel. He sent letters to each of the four attorneys that had been assigned to him, asking them to forward any discovery they possessed. He received no reply from three of them but learned that one had died. Petitioner’s fourth attorney, who was his trial attorney, stated through counsel that he had no material related to the case in his possession. At trial, that attorney had declared in a motion that he had received “three boxes, approximately 12 by 24 inches full of discovery and other materials” from a prior attorney. But the attorney’s counsel told petitioner that the attorney had given all of the case files to petitioner’s appellate counsel after trial in 1986.

Petitioner submitted in support of his discovery motion a declaration that his appellate counsel had filed with this court in 1987. In the declaration, appellate counsel, as part of requesting an extension of time to file an opening brief, stated he had received six volumes of transcripts—four clerk’s transcripts and two reporter’s transcripts—totaling approximately 1,700 pages. His health had prevented him from reviewing all of the material. Appellate counsel died in 1988.

Petitioner ultimately received the transcripts, but he did not receive any discovery items from his attorneys. Having exhausted possible relief from his attorneys, petitioner sought discovery possessed by the prosecutor through his motion for postconviction discovery.

On June 28, 2017, the trial court (Hon. Pamela Smith-Steward) construed the motion for postconviction discovery in part as a petition for writ of habeas corpus, and it denied the motion to that extent. The court found that petitioner’s substantive claims—that his attorneys were wrongfully released and he did not personally enter his plea—should have been raised on direct appeal and they were not cognizable on habeas corpus.

Nonetheless, the trial court recognized that petitioner had complied with the conditions of section 1054.9 and was entitled to reasonable access to discovery materials held by the prosecutor. It thus transferred the motion for assignment in another department.

While his motion was pending, petitioner filed a petition for habeas corpus with this court to vacate the trial court’s order. He asserted the trial court had improperly treated his discovery motion as a petition for habeas corpus. We summarily denied his petition. (In re Martin (Sept. 15, 2017, C085399 [nonpub. opn.].) Petitioner did not petition the California Supreme Court for review of our decision or writ relief.

On November 29, 2017, the trial court (Hon. Timothy M. Frawley) denied petitioner’s motion for discovery. It ruled the habeas petition that petitioner wanted to bring after receiving the discovery would have been barred as successive, as it would have duplicated his habeas petition (the discovery motion) the court previously denied. The court reasoned as follows: “A trial court may not deny as untimely a postconviction discovery motion brought under section 1054.9. (Catlin v. Superior Court [(2011)] 51 Cal.4th [300,] 305 [(Catlin)].) But the purpose of the section is to permit discovery of matters relevant to the prosecution of a writ on grounds not previously litigated and decided against the petitioner in prior habeas corpus proceedings. (Baca v. Superior Court (2010) 187 Cal.App.4th 1534, 1536 [judg. vacated and cause remanded (2011) 122 Cal.Rptr.3d 638 (Baca)].) Hence a section 1054.9 discovery motion may be denied on the ground that the discovery [is] sought for the purpose of filing an impermissible successive habeas corpus petition. (Id.)

“Defendant’s motion alleges that he suffered prejudice because he was denied his right to personally enter his plea of not guilty and the trial court wrongfully relieved his first two trial attorneys and appointed new counsel. These claims were raised in a previously filed petition for writ of habeas corpus . . . which was denied on June 28, 2017. Absent a change in the law, courts will not consider repetitive petitions presenting claims that were previously rejected on habeas corpus unless the petition alleges facts which, if proven, would establish that a fundamental miscarriage of justice occurred as a result of the proceedings leading to the conviction. (In re Clark (1993) 5 Cal.4th 750, 767, 797.) . . . Defendant[] has not shown how the requested discovery is related or necessary to his entry of plea or court error claims, much less that it would support finding a fundamental miscarriage of justice. Furthermore, Section 1054.9 does not allow for the proverbial ‘fishing expedition’ for anything that might exist. (Barnett v. Superior Court (2010) 50 Cal.4th 890, 894 [(Barnett)].) Defendant’s discovery request lacks any specificity. [¶] As Defendant has not shown that he has a current or pending petition justifying his post-conviction discovery request, the matter is denied.”

Petitioner petitioned the California Supreme Court for writ relief. That court transferred the matter to us “with instructions to issue an alternative writ to be heard . . . when the proceeding is ordered on calendar.” (Martin v. Superior Court (Apr. 11, 2018, S246841) [nonpub. opn.].)

We issued an alternative writ.

DISCUSSION

Petitioner contends the trial court abused its discretion when it denied his motion for postconviction discovery. He argues the court erred by denying the motion based on its earlier denial of his motion as a habeas corpus petition because the court incorrectly treated the motion as one for habeas corpus instead of discovery. He asserts the only issue before the court on both occasions was his right to discovery under section 1054.9, and the court on both occasions exceeded its jurisdiction by denying him that right.

The People agree with petitioner that the trial court erred in denying the discovery motion. They contend Baca, the authority the court relied on to state that a section 1054.9 motion may be denied if the discovery is sought for an impermissible successive habeas corpus petition, is no longer valid. They state there is no authority that justifies denying a section 1054.9 motion on procedural grounds that apply to habeas corpus petitions. They concede petitioner satisfied the requirements of section 1054.9 and is entitled to discovery.

However, the People claim petitioner is entitled only to the discovery produced by the prosecution at the time of trial, sometimes referred to as file reconstruction. They assert he is not entitled to any additional discovery which he could have received at trial but which the prosecution did not provide to him. This is because he did not meet his burden of establishing a reasonable basis to believe that any additional discovery exists.

We agree with the People.

At the time of petitioner’s hearing on the motion, former section 1054.9, subdivisions (a) and (b) required a court to order that a defendant serving a sentence of life without parole who is prosecuting a postconviction writ of habeas corpus be provided access to discovery materials in the possession of the prosecution and law enforcement authorities, to which he would have been entitled at trial, upon a showing that he made good faith but unsuccessful efforts to obtain the materials from his trial counsel. (Stats. 2002, ch. 1105, § 1.)

The statute read: “(a) Upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment in a case in which a sentence of death or of life 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 court shall, [with an exception not relevant here], order that the defendant be provided reasonable access to any of the materials described in subdivision (b).

“(b) For purposes of this section, ‘discovery materials’ means materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at time of trial.” (Stats. 2002, ch. 1105, § 1.)

A defendant who shows good faith but unsuccessful efforts to obtain the discovery from trial counsel is entitled to seek discovery under section 1054.9 when he is preparing to file a habeas corpus petition as well as after he has filed the petition. (In re Steele (2004) 32 Cal.4th 682, 691 (Steele).) “The language could not be plainer: If that showing is made, the defendant is entitled to discovery.” (Catlin, supra, 51 Cal.4th at p. 305.)

There is no dispute petitioner made good faith but unsuccessful efforts to obtain the materials from his various trial attorneys to prepare for filing a petition for habeas corpus. Having done so, he is now entitled to discovery possessed by the prosecutor.

The People correctly recognize that Baca is no longer precedential. In that case, a panel of this court held that a section 1054.9 motion could be denied if the petitioner sought discovery to prosecute a petition for habeas corpus which was based on grounds previously litigated and denied against the petitioner in a prior petition for habeas corpus. (Baca, supra, 187 Cal.App.4th at p. 1537, review granted Nov. 23, 2010, S186253.) We subsequently vacated the decision at the direction of the California Supreme Court. (Baca v. Superior Court (2011) 122 Cal.Rptr.3d 638.)

Since then, no reported opinion of which we or the parties are aware has criticized or revised the Supreme Court’s directives in Catlin and Steele that the petitioner is entitled to postconviction discovery merely upon satisfying the requirements of section 1054.9. In our opinion, this is true regardless of what the eventual petition for writ of habeas corpus may assert. We follow those directives here.

Petitioner, however, is not entitled to all the material he seeks.

Section 1054.9 provides a convicted defendant access to four types of discovery: specific materials that “either (1) the prosecution did provide at time of trial but have since become lost to the defendant; (2) the prosecution should have provided at time of trial because they came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence; (3) the prosecution should have provided at time of trial because the defense specifically requested them at that time and was entitled to receive them; or (4) the prosecution had no obligation to provide at time of trial absent a specific defense request, but to which the defendant would have been entitled at time of trial had the defendant specifically requested them.” (Steele, supra, 32 Cal.4th at p. 697.)

If petitioner satisfies the requirements of section 1054.9, he is entitled to the discovery which the prosecution provided to the defense before trial (Steele’s category (1)). However, if the petitioner seeks discovery beyond what the prosecutor provided at trial, he “must show a reasonable basis to believe that [the] specific requested materials actually exist.” (Barnett, supra, 50 Cal.4th at p. 894.) This is “[b]ecause section 1054.9 provides only for specific discovery and not the proverbial ‘fishing expedition’ for anything that might exist . . . .” (Ibid.)

Petitioner has not provided a reasonable basis to believe the prosecution holds any discovery materials beyond what it provided to him at trial. His only evidence of other discovery materials is a former attorney’s statement that he received three boxes of discovery and other materials from a prior attorney, and his appellate counsel’s declaration that he received six volumes of transcripts. Petitioner also does not specify any materials he seeks to recover other than to call them discovery. That three boxes of discovery existed more than 30 years ago is not a reasonable basis to conclude they contained materials not provided to petitioner at trial or that the prosecution currently possesses that discovery.

On reply, petitioner asks us to consider his briefing before us as an amendment to his discovery motion to recover all records the prosecutor possesses that show who petitioner’s first appointed attorney was assigned to represent after he was removed from representing petitioner due to work overload. This request is outside the scope of section 1054.9. Petitioner gives no reason why a list of the attorney’s subsequent clients and assignments was information he received or was entitled to receive at trial from the prosecutor.

Petitioner is thus limited to receiving discovery which the prosecutor gave him at trial. Furthermore, as a result of this conclusion, petitioner is also not entitled to a declaration by the prosecutor stating he or she possesses no other materials relevant to petitioner’s case.

DISPOSITION

We direct the trial court to vacate its order denying petitioner’s motion for discovery under section 1054.9, and to enter a new order granting petitioner’s motion but only to the extent the motion seeks discovery of materials the prosecutor provided to petitioner at trial.

HULL, Acting P.J.

We concur:

ROBIE, J.

MURRAY, J.