Judge: Curtis A. Kin, Case: 23STCP01781, Date: 2024-09-19 Tentative Ruling

Case Number: 23STCP01781    Hearing Date: September 19, 2024    Dept: 86

Petitioner Paul John Denham petitions for a writ of mandate directing respondent George Gascon to review his conviction of murder and attempted murder, pursuant to petitioner’s January 13, 2021 and February 1, 2021 applications to the Los Angeles County District Attorney Office’s Conviction Integrity Unit.

I.       Factual Background

A.           Petitioner’s Underlying Conviction

On February 6, 1998, petitioner Paul John Denham was convicted of murder and attempted murder in People v. Denham, Los Angeles Superior Court Case No. NA031090. (Pet. ¶ 7; Ans. ¶ 7.) County of Los Angeles Sheriff’s Department

employees Dale Higashi and Michelle Lepisto provided forensic analysis and evidence during petitioner’s criminal proceeding. (Resp. RJN Ex. 2 at 90-104.) Mr. Higashi testified that a bullet recovered as evidence bore markings consistent with having been fired from a firearm recovered from Mr. Denham, while Ms. Lepisto testified that yellow duct tape used to make a homemade silencer was an exact match for a roll of yellow duct tape recovered from petitioner. (Resp. RJN Ex. 2 at 121-22, 126-28 [HT 92:6-93:20, 97:25-99:27].) Petitioner appealed his conviction, which was affirmed with modifications by the Second District Court of Appeal. (Resp. RJN Ex. 3 at 145-46.)

B.           Petitioner’s Post-Conviction Challenges and Requests for Discovery

Since having been convicted, petitioner has filed 21 appellate challenges to his conviction or the denial of his repeated requests for post-conviction discovery. (Resp. RJN Exs. 4-24.) This includes several petitions for writ of mandamus challenging orders issued by Judge Laura Laesecke, denying his requests for post-conviction discovery. (Resp. RJN Exs. 20, 22, 23.)

Review of minute orders in petitioner’s underlying criminal matter further confirms that petitioner has been engaged in extensive post-conviction litigation leading up to his filing of the instant Petition, as well as civil litigation to obtain additional evidence. On September 22, 2020, petitioner filed a request for the appointment of counsel to investigate and, if appropriate, file a motion for DNA testing. (Resp. RJN Ex. 25 at 276.) Counsel was appointed and, following investigation, filed the motion on February 16, 2021. (Resp. RJN Ex. 25 at 276-77.) On May 4, 2022, at the request of petitioner’s counsel, the motion for DNA testing was withdrawn. (Resp. RJN Ex. 26 at 280.)

On June 16, 2022, petitioner also filed a motion for disclosure of reports, in which petitioner sought chain of custody reports, lab reports, police reports, firearms identification reports, and photographs, as well as notes prepared in connection with scientific testing and the location of biological and physical evidence. (Resp. RJN Ex. 26 at 280.) The motion was denied. (Resp. RJN Ex. 27 at 285.) In ruling on the motion, the criminal court expressly noted that the motion referenced a previously denied motion pursuant to Penal Code section 1054.9, which Judge Laesecke refused to entertain and revisit. (RJN Ex. 26 at 280-81.) At the same time, the criminal court granted petitioner’s request to view and copy trial exhibits from his underlying criminal matter. (Resp. RJN Ex. 27 at 285.) On October 18, 2022, the criminal court ordered the release of ballistic evidence for testing. (RJN Ex. 28.)

On July 7, 2022, petitioner filed a Petition for Writ of Mandate in the matter Paul John Denham v. George Gascon, LASC Case No. 22STCP01938. (Resp. RJN Ex. 29.) On September 26, 2023, the Petition was granted. (Resp. RJN Ex. 30.) Respondent produced responsive documents on October 10, 2023, consisting of documents reflecting criminal matters prosecuted by Judge Laesecke at the time she was a Deputy District Attorney for Los Angeles County, in which either Mr. Higashi or Ms. Lepisto had testified. (Resp. RJN Exs. 30, 31.)

C.           Conviction Integrity Unit

            Respondent George Gascon is the District Attorney for Los Angeles County (“LADA”). (Ans. ¶ 3.) On December 7, 2020, respondent ratified Special Directive 20-13, which announced policies governing the Conviction Integrity Unit (“CIU”). (Pet. ¶ 9; Ans. ¶ 9.)

The CIU conducts “strategically collaborative, good-faith case reviews designed to ensure the integrity of challenged convictions, remedy wrongful convictions, and take any remedial measures necessary to correct injustices uncovered, within the bounds of the law.” (Resp. RJN Ex. 32 at 321.) “The CIU has a broad mandate to review a wide range of issues relating to wrongful convictions but shall prioritize claims of actual innocence brought by individuals who are currently in custody.” (Resp. RJN Ex. 32 at 322.)

Special Directive 20-13 provides that the CIU “will operate independently from litigation units in the office….” (Resp. RJN Ex. 32 at 321.) “The CIU shall be an independent unit that reports directly to the District Attorney or his designee.” (Resp. RJN Ex. 32 at 322.) “The CIU has a broad mandate to review a wide range of issues relating to wrongful convictions but shall prioritize claims of actual innocence brought by individuals who are currently in custody. The CIU shall not reject any case because…an appeal is pending [or] the case is in active litigation….” (Resp. RJN Ex. 32 at 322.)

Under Special Directive 20-13, the CIU “shall accept for review” cases where (1) the applicant was prosecuted by LADA, (2) there is a claim of actual innocence or wrongful conviction, and (3) the CIU identifies one or more avenues of investigation that have the potential to substantiate the applicant’s claims. (Resp. RJN Ex. 32 at 322-23.)

The CIU also may undertake review “in the interests of justice,” which “may” be met where the applicant alleges and/or the CIU concludes that further investigation is warranted. (Resp. RJN Ex. 32 at 323.) The CIU may not reject an application based on high-risk factors without meaningful review and investigation. (Resp. RJN Ex. 32 at 323-24.) High-risk factors include claims that the conviction was obtained via fabricated evidence, the concealment of exculpatory evidence, misconduct at trial, or where defense counsel presented no evidence to counter the prosecution’s case at trial. (Resp. RJN Ex. 32 at 324-25 [Nos. 4 and 16].)

D.           Resentencing Unit

The Resentencing Unit (“RU”) was formed to undertake independent review of all existing sentences for persons who have already served 15 years or more in prison. (Resp. RJN Ex. 33 at 336.) All persons who have served 15 years or more of their sentence are entitled to an expedited review of their current sentence. (Resp. RJN Ex. 33 at 340.) Per statistics available as of December 2020, there were 9,364 such cases prosecuted by LADA. (Resp. RJN Ex. 33 at 335, 340, 344.) Beginning in 2022, the RU expanded its mission to include independent review of all existing sentences for persons who have already served 10 years or more in prison. (Resp. RJN Ex. 34 at 350, 354.) Relying on the same December 2020 data, this expanded the pool of cases requiring independent RU review to 14,487. (Resp. RJN Ex. 33 at 335, 340, 344.) Consequently, the RU prioritizes reviews for persons convicted as minors and adults over the age of 50 who are incarcerated for a non-violent felony. (Resp. RJN Ex. 35 at 357.)

E.           Petitioner’s Request for Conviction Review

On January 13, 2021, petitioner submitted an application to respondent to investigate his 1998 criminal conviction. (Denham Decl. ¶ 2 & Ex. B to Ex 1 at 31-103.) Petitioner asserted that his conviction resulted from the false testimony of Long Beach Detective Bryan McMahon and Los Angeles County Sheriff’s Department criminal forensic experts Michelle Lepisto and Dale Higashi, as well as the concealment of exculpatory evidence which was belatedly disclosed from 2013-2015. (Denham Decl. ¶ 2 & Ex. B to Ex 1 at 32-33.)

On February 1, 2021, petitioner supplemented his request. (Denham Decl. ¶ 2 & Ex. C to Ex 1 at 105-07.) Petitioner noted that his criminal conviction is “borne from official misconduct” “requiring meaningful review and investigation” “as outlined in [respondent’s] Special Directive.” (Denham Decl. ¶ 2 & Ex. C to Ex 1 at 106.) Petitioner argued that “physical evidence…has the potential to substantiate [petitioner’s] claim of actual innocence because favorable results will show: [¶] (A) The state’s criminalist altered crime scene evidence on silencer to manufacture a match with [petitioner] that otherwise would not exist, then introduced false testimony; [¶] (B) State’s ballistician introduced false testimony regarding [ballistics] from [petitioner] matching crime scene ballistics; and [¶] (C) Lead detectives manufactured handwritten document and introduced false testimony that they discovered the document in [petitioner’s] belongings. The document inferred that [petitioner] planned flights into the Los Angeles area to commit the murder.” (Denham Decl. ¶ 2 & Ex. C to Ex 1 at 105-06.) Petitioner asserted that his case was prosecuted with LADA and that he is “actually innocent of the 1995 attempted murder and March 1995 murder of Edward Weinman that [he] was convicted of in 1998.” (Denham Decl. ¶ 2 & Ex. C to Ex 1 at 105.)

F.           Resentencing Unit’s Independent Review

On March 4, 2021, respondent directed a letter to petitioner advising him that his case was being considered for resentencing pursuant to Special Directives providing for an “unprecedented effort to re-evaluate and resentence thousands of cases.” (Denham Decl. ¶ 2 & Ex. D to Ex 1 at 109.) However, respondent advised petitioner of “an enormous backlog of existing cases from the prior administration,” and stated that petitioner would be contacted once his case fell within the list of cases being prioritized. (Denham Decl. ¶ 2 & Ex. D to Ex 1 at 109.) A similar letter followed in July 2021. (Denham Decl. ¶ 2 & Ex. D to Ex 1 at 111.)

II.      Procedural History

            On May 23, 2023, petitioner Paul John Denham filed a verified Petition for Writ of Mandate. On January 18, 2024, respondent filed an Answer.

            On March 13, 2024, petitioner filed an opening brief. On April 19, 2024, respondent filed an opposition. On May 15, 2024, petitioner filed a reply.

            On June 18, 2024, the Court continued the hearing on the instant Petition. The Court ordered respondent to file a sur-reply to address two issues: (1) whether voluntarily instituting Special Directive 20-13 created any ministerial duty; and (2) if any ministerial duty was created, whether respondent failed to perform it. The Court also allowed petitioner to file a response to the sur-reply.

            On July 12, 2024, respondent filed a sur-reply. On July 29, 2024, petitioner filed a response to the sur-reply.

III.     Standard of Review

CCP § 1085(a) provides: “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, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.” “An action in ordinary mandamus is proper where…the claim is that an agency has failed to act as required by law.” (California Assn. for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 705.) In a CCP § 1085 writ petition, the petitioner generally bears the burden of proof. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

“When a party seeks review of an administrative decision pursuant to Code of Civil Procedure section 1085, judicial review is limited to examining the agency proceedings to ascertain whether the agency's action has been arbitrary, capricious or lacking entirely in evidentiary support, or whether the agency failed to follow the proper procedure and give notices required by law.” (Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301, 311, citing Pomona Police Officers' Assn. v. City of Pomona (1997) 58 Cal.App.4th 578, 584.) In independently reviewing legal questions, “An administrative agency's interpretation does not bind judicial review but it is entitled to consideration and respect.” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343.) An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.)

IV.     Analysis

A.           Evidentiary Matters

Respondent’s requests for judicial notice are ruled on as follows:

Exhibits 1, 3-28, and 30 – GRANTED (Evid. Code § 452(d).)

            Exhibits 2 and 29 – GRANTED, but only for the existence of the documents and not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)

Exhibits 32-35 – GRANTED (Evid. Code § 452(b).)

Petitioner’s evidentiary objections are ruled on as follows:

Nos. 1 and 2 – OVERRULED because arguments in respondent’s opposition is not evidence that is subject to striking. (See Hebberd-Kulow Enterprises, Inc. v. Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283 [“An attorney's argument in pleadings is not evidence”].)

No. 3 – OVERRULED because information relating to petitioner’s criminal conviction is relevant background information.

            No. 4 – OVERRULED because information and exhibits relating to petitioner’s post-conviction challenges are relevant to background of proceedings.

            Petitioner’s requests for judicial notice as to Exhibits 1-3 are GRANTED, pursuant to Evidence Code § 452(d).

B.           Merits

Petitioner seeks traditional mandate relief under CCP § 1085. (Pet. ¶ 4; Opening Br. at 6:19-27.) A writ of mandate pursuant to Code of Civil Procedure section 1085 is available when: (1) the petitioner has “no plain, speedy, and adequate alternative remedy”; (2) the respondent has “a clear, present and usually ministerial duty to perform”; and (3) the petitioner has “a clear, present and beneficial right to performance.” (Conlan v. Bonta (2002) 102 Cal.App.4th 745, 751-52.)

“A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists.” (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279, quoting Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916, internal quotations omitted.) “‘Discretionary acts are those wherein there is no hard and fast rule as to the course of conduct that one must or must not take and, if there is a clearly defined rule, such would eliminate discretion.’ [Citation.]” (Redwood Coast Watersheds Alliance v. State Bd. of Forestry and Fire Protection (1999) 70 Cal.App.4th 962, 970.) “A ‘published procedure’ adopted by a public entity which provides that the public entity will do a certain thing (such as calculate, in a particular manner, a bid with an apparent discrepancy in it) can provide the basis for a ministerial duty that may be enforced by means of a writ of mandate.” (Galzinski v. Somers (2016) 2 Cal.App.5th 1164, 1172, citing Pozar v. Department of Transportation (1983) 145 Cal.App.3d 269.)

Under Special Directive 20-13, the Conviction Integrity Unit “shall accept for review” cases where (1) the applicant was prosecuted by LADA, (2) there is a claim of actual innocence or wrongful conviction, and (3) the CIU identifies one or more avenues of investigation that have the potential to substantiate the applicant’s claims. (Resp. RJN Ex. 32 at 322-23.) The first two elements to obtain review by the CIU are not in dispute. (See Opp. at 6:15.) Petitioner was prosecuted and convicted by LADA. (Pet. ¶ 7; Ans. ¶ 7.) Petitioner also claims that he is actually innocent and wrongfully convicted based on fabricated evidence and concealment of exculpatory evidence. (Denham Decl. ¶ 2 & Ex. B to Ex 1 at 32-33; Denham Decl. ¶ 2 & Ex. C to Ex 1 at 105-06.)

With respect to the third element to obtain review, respondent contends that petitioner fails to identify a ministerial duty because the third element requires the CIU to exercise its discretion in determining whether “one or more avenues of investigation…have the potential to substantiate” petitioner’s claims of actual innocence and wrongful conviction. Respondent also argues that the district attorney exercises discretion in implementing Special Directive 20-13. (See Gov. Code § 26500.5 [“The district attorney may sponsor, supervise, or participate in any project or program to improve the administration of justice”].) Respondent is correct insofar as the third element is discretionary in that the CIU is charged with identifying whether one or more avenues of investigation have the potential to substantiate petitioner’s claims.  (See Resp. RJN Ex. 32 at 323.)  It is well-established that this Court “could not compel the [government entity] through mandamus to exercise its discretion in any particular manner.” (Los Angeles Waterkeeper v. State Water Resources Control Bd. (2023) 92 Cal.App.5th 230, 278.)

However, it is also true that “a court may issue a writ of mandamus to compel some action when an agency has failed to exercise its discretion at all.”  (Los Angeles Waterkeeper, 92 Cal.App.5th at 278, emphasis in original.)  Here, respondent has made no decision on whether to accept petitioner’s case for review at all. Petitioner sent his applications for conviction review on January 13, 2021 and February 1, 2021. (Denham Decl. ¶ 2 & Ex. B to Ex 1 at 31-103; Denham Decl. ¶ 2 & Ex. C to Ex 1 at 105-06.)  For over three and one-half years, respondent has failed to act.  (Denham Decl. ¶ 2 & Ex. D to Ex 1 at 109 [March 2021 letter]; Denham Decl. ¶ 2 & Ex. D to Ex 1 at 111 [July 2021 letter].)

The Court recognizes that Special Directive 20-13 does not identify a timeframe for acceptance or rejection of review.  Were it otherwise, surely this Court could command respondent to make a decision in accordance with the required time frame. (State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (2016) 248 Cal.App.4th 349, 370 [“[W]here an administrative body is required to act within a specified time and it fails to do so, a writ of mandate will lie to compel the body to act”]; see, e.g., California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1148 [holding that time limits of Government Code § 18671.1 “are directory” and “may be enforced by petition for writ of mandate to compel the Board to hear and decide a case”].)

Nonetheless, even though the absence of any mandated time frame would seem to render the timing within which respondent must make its determination discretionary,[1] the exercise of such discretion is not unbounded. A traditional writ of mandate is available not just to enforce ministerial duties but also “when a public agency has abused its discretion in carrying out a discretionary function.” (CV Amalgamated LLC v. City of Chula Vista (2022) 82 Cal.App.5th 265, 279.) “Mandamus may also issue to correct the exercise of discretionary legislative power, but only where the action amounts to an abuse of discretion as a matter of law because it is so palpably unreasonable and arbitrary.” (Ellena v. Department of Ins. (2014) 230 Cal.App.4th 198, 206.) Thus, while the determination of which requests for conviction review merit consideration or are entitled to priority involves the exercise of discretion, respondent cannot delay exercising such discretion in perpetuity.

Here, respondent has failed to act for years, and respondent’s only proffered reason for that failure is the claim that it is awaiting the outcome of petitioner’s request for DNA testing pursuant to Penal Code section 1405. (Carrillo Decl. ¶¶ 10-12.)  That stated reason is based on a demonstrably false premise.  As petitioner points out in response to respondent’s sur-reply, his counsel withdrew the DNA request on May 4, 2022. (Resp. RJN Ex. 26 at 280.)  Accordingly, given the multi-year delay and erroneous explanation for the failure to act, the Court concludes under the circumstances that respondent’s decision to delay acting on petitioner’s applications is arbitrary, capricious, and entirely without evidentiary support.[2] (See Alameda Health System v. Alameda County Employees' Retirement Assn. (2024) 100 Cal.App.5th 1159, 1177.)

V.      Conclusion

For the foregoing reasons, in light of respondent’s failure to exercise its discretion whether to accept petitioner case for review within a time frame that is not arbitrary or capricious, the Court concludes that petitioner has demonstrated a basis for issuance of a traditional writ of mandate.[3]

The petition is GRANTED.  Judgment shall issue in accordance herewith, directing issuance of a writ of mandate requiring respondent to make a determination whether to accept petitioner’s case for review in accordance with Special Directive 20-13 within 90 days.