Judge James C. Chalfant, Case Number: 22STCP01938, Date: 2023-09-26 Tentative Ruling

Petitioner Paul John Denham (“Denham”) seeks a writ of mandate directing Respondent George Gascon in his official capacity as Los Angeles District Attorney (“DA”) to release public records responsive to Denham’s request under the California Public Records Act (“CPRA”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

Petitioner Denham filed the Petition on May 20, 2022 alleging a cause of action for mandamus for violation of the CPRA in pertinent part as follows.

From August 1992 to March 2010, the DA’s office employed Deputy District Attorney (“DDA”) Laura Laesecke (afterwards appointed as a judge but referred to herein as DDA Laesecke”). During this period, the DA employed Dale Higashi (“Higashi”) and Michelle Lepisto (“Lepisto”) of the Los Angeles County Sheriff’s Department (“LASD”) Scientific Services Bureau (“SSB”) as expert witnesses and consulting experts. Higashi and Lepisto both provided consultation services for at least one case assigned to DDA Laesecke. The DA possesses public records showing the identity of the experts used in DDA Laesecke’s criminal cases.

On January 25, 2022, Denham filed a CPRA request for public records with the DA’s office as to whether DDA Laesecke worked on any case that received assistance from the SSB, Higashi, or Lapisto. On February 8, 2022, the DA’s office denied the request. The DA’s office explained that finding those records and determining when Higashi and Lapisto were witnesses on particular cases would require searching the Prosecutor’s Information Management System (“PIMS”). It also asserted that a listing of cases on which a particular individual’s name appears on a witness list is exempt and cannot be disclosed.

On February 18, 2022, Denham responded that he did not want witness listings, but rather information about DA and LASD employees’ performance of official duties. He also asserted that the exemption did not apply because he did not seek arrest records or compilations from PIMS. He just wanted records confirming when DDA Laesecke worked with either Higashi or Lepisto. The DA’s office March 23, 2022 response reiterated the arguments from its February 8 response.

Denham seeks a writ of mandate compelling the DA’s office to produce the requested records for inspection, or alternatively show cause as to why the court should not issue such an order, and to pay Denham’s costs of this suit.

On May 17, 2022, Denham served the DA with the Petition by delivery in a prepaid envelop to prison officials for mailing.

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085. A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085.

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty or as an abuse of discretion.

The CPRA was enacted in 1968 to safeguard the accountability of government to the public. San Gabriel Tribune v. Superior Court, (1983) 143 Cal.App. 762, 771-72. Government Code[1] section 6250 declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” The CPRA’s purpose is to increase freedom of information by giving the public access to information in possession of public agencies. CBS. Inc. v. Block, (1986) 42 Cal. 3d 646, 651. The CPRA was intended to safeguard the accountability of government to the public, and it makes public access to governmental records a fundamental right of citizenship. Wilson v. Superior Court, (1996) 51 Cal.App.4th 1136, 1141. This requires maximum disclosure of the conduct of government operations. California State University Fresno Assn., Inc. v. Superior Court, (“California State University”) (2001) 90 Cal.App.4th 810, 823. In 2004, the voters endorsed the CPRA by approving Prop 59, which amended the state Constitution to declare that “the writings of public agencies…shall be open to public scrutiny.” Cal. Const. Art. I, §3(b).

The CPRA makes clear that “every person” has a right to inspect any public record. §7922.525(a). The inspection may be for any purpose; the requester’s motivation is irrelevant. §7921.300. The term “public record” is broadly defined to include “any writing containing information relating to the conduct of the people’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics. §7920.530. The definition of “state agency” excludes agencies described in Articles IV and VI of the state constitution, which describe the legislative and judicial branches, except the State Bar of California. §7920.540.

Upon receiving a request for a copy of public records, an agency must determine within ten days whether the request seeks public records in the possession of the agency that are subject to disclosure, but that deadline may be extended up to 14 days for unusual circumstances. §§ 7922.535(a)-(b). Nothing in the CPRA “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” §7922.500.

Even significant expense to the agency will not excuse an agency from conducting a thorough search for responsive records unless it constitutes an undue burden. See, e.g., CBS Broadcasting Inc. v. Superior Ct., (2001) 91 Cal. App. 4th 892, 909 ($43,000 cost to agency to compile responsive public records was not valid reason to deny CPRA request). “Reasonable efforts do not require that agencies undertake extraordinarily extensive or intrusive searches, however. In general, the scope of an agency’s search for public records ‘need only be reasonably calculated to locate responsive documents.’” City of San Jose v. Superior Court, (2017) 2 Cal.5th 608, 627 (citation omitted). The “CPRA does not prescribe specific methods of searching for those documents and agencies may develop their own internal policies for conducting searches. Some general principles have emerged, however. Once an agency receives a CPRA request, it must “‘communicate the scope of the information requested to the custodians of its records,’ although it need not use the precise language of the request...” Ibid. (citation omitted).

The right to inspect is subject to certain exemptions, which are narrowly construed. California State University, 90 Cal.App.4th at 831. The exemptions are found in sections 6254 and 6255. In pertinent part, public records exempt from disclosure include records for which disclosure “is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege” §7927.705.

Additionally, if a state or local agency discloses a public record that is otherwise exempt to a member of the public, this disclosure shall constitute a waiver of the applicable exemptions. §7921.505. However, this does not apply to disclosures (1) made through legal proceedings or as otherwise required by law (§7921.505(c)(2)); (2) within the scope of disclosure of a statute that limits disclosure of specified writings to certain purposes (§7921.505(c)(3)); or (3) made to a governmental agency that agrees to treat the disclosed material as confidential (§7921.505(c)(5)). Furthermore, exempt records do not lose their protected status if they are disclosed to the district attorney. §7921.710; Fagan v. Superior Court (2003) 111 Cal.App.4th 607, 617.

The burden of demonstrating that exemptions apply lies with the governmental entity. §7922.000.

If the agency determines that the requested records are subject to disclosure, it must state in the determination “the estimated date and time when the records will be made available.” Ibid. There is no deadline expressed in number of days for producing the records. Rather, the agency “shall make the records promptly available.” §7922.530(a).

If the agency determines that the requested records are not subject to disclosure, the agency promptly must notify the person making the request and provide the reasons for its determination. Ibid. The agency must justify withholding a responsive record by demonstrating it is exempt or that on the facts of the case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. §7922.000. The determination that the request is denied must be made in writing. §7922.540(a).

A CPRA claim to compel compliance with a public records request may proceed through either mandamus or declaratory relief. §7923.000. Because the petitioner may proceed through either mandamus or declaratory relief, the trial court independently decides whether disclosure is required. See City of San Jose v. Superior Court, (“City of San Jose”) (1999) 74 Cal.App.4th 1008, 1018 (appellate court independently reviews trial court CPRA decision). No administrative record is required, and the parties must submit admissible evidence.

No order requiring discovery shall be made in criminal cases except as provided in Penal Code sections 1054 et seq. Penal Code §1054.5(a). That chapter also provides the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties. Id.

Penal Code section 1054.9 partially abrogates the general rule that a petitioner seeking habeas corpus relief is not entitled to post-conviction discovery unless and until the criminal court issues an order to show cause. In re Steele, (“Steele”) (2004) 32 Cal.4th 682, 690. If a defendant is or has ever been convicted of a serious felony or a violent felony resulting in a sentence of 15 years or more, upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment, or in preparation to file that writ or motion, and on a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful, the court shall order that the defendant be provided reasonable access to discovery materials from that case. Penal Code §1054.9(a). “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. Penal Code §1054.9(c).

If a sentence other than death or life in prison without the possibility of parole is or has ever been imposed and the court has entered a previous order granting discovery, it has discretion to issue a subsequent order granting discovery. Penal Code §1054.9(b). A party who requests discovery subject to this discretion shall submit a statement as to whether that person has previously been granted an order for discovery pursuant to this section. Id.

The scope of permissible discovery includes materials currently in the possession of the prosecution or law enforcement authorities involved in the prosecution, which (1) the prosecution did provide at the time of trial but have since become lost to the defendant; (2) the prosecution should have provided at the time of trial because they came within the scope of a discovery order, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence; (3) the prosecution should have provided at the time because the defense specifically requested them; and (4) the prosecution had no obligation to provide absent a specific defense request, but to which the defendant would have been entitled upon a specific request. Steele, supra, 32 Cal.4th at 697. The scope of permissible discovery is limited to only those law enforcement agencies that were involved in the investigation or prosecution of the case. Id. at 696.

On January 25, 2022, Denham mailed his CPRA request to the DA. Denham Decl., ¶3, Ex. A. He sought disclosure of any records that showed whether DDA Laesecke worked on any case that received assistance from SSB employees Higashi or Lepisto. Denham Decl., ¶3, Ex. A.[3]

On February 8, 2022[4], DA responded that the requested records were exempt from disclosure. Denham Decl., ¶4, Ex. B. The request would require the DA to search PIMS to determine in which cases Higashi or Lepisrto were identified as witnesses. Denham Decl., ¶4, Ex. B. The DA cited 89 Ops. Cal. Atty. Gen. 204, 215 (2006), in which the California Attorney General determined that listings of cases on which a particular individual’s name appeared on a witness list are exempt and cannot be disclosed. Denham Decl., ¶4, Ex. B.

On February 18, 2022, Denham responded that he did not want “listings” regarding “individuals.” Denham Decl., ¶5, Ex. C. He wanted official information about the performance of official duties by DA and LASD officials. Denham Decl., ¶5, Ex. C. The Attorney General opinion addresses the release of criminal offender information where access is restricted pursuant to Penal Code section 13300. Denham Decl., ¶5, Ex. C. The responsive records for his request are not arrest records or compilations from PIMS. Denham Decl., ¶5, Ex. C. He only wanted records confirming whether DDA Laesecke worked with either Higashi or Lepisto on any case. Denham Decl., ¶5, Ex. C. A “yes” or “no” in response would suffice without infringing on arrested person’s privacy rights. Denham Decl., ¶5, Ex. C.

On March 23, 2022, the DA responded that no record contains all the information needed to answer the “yes” or “no” question. Denham Decl., Ex. D. The DA is not required to generate such a document when it does not already exist. Denham Decl., Ex. D.[5]

On March 2, 2023, DA Principal Application Developer Richmond Chua (“Chua”) filed a declaration asserting that 6,287 pages of potentially responsive documents are imaged and accessible on PIMS. Denham Decl., ¶9, Ex. F.

On April 10, 2023, DA informed Denham it identified three classes of documents responsive to the CPRA request: criminal case detail listings, preliminary hearing transcripts, and internal witness lists. Denham Decl., ¶10, Ex. G. For the witness lists, DA again cited the Attorney General’s determination that witness lists are exempt and cannot be disclosed. Denham Decl., ¶10, Ex. G. For all three classes of documents, Denham could not compel production via the CPRA and must instead comply with Penal Code section 1054.9. Denham Decl., ¶10, Ex. G.

On February 6, 1998, Denham was convicted of murder in People v. Denham, (“Denham I”) Case No. NA031090. Jardin Decl., ¶2, Ex. 1. Higashi and Lepisto testified at the trial. Jardin Decl., ¶3, Ex. 2, pp. 90-104. On September 24, 1998, Denham was sentenced to life imprisonment without the possibility of parole. Jardin Decl., ¶2, Ex. 1.

Denham appealed the conviction. Jardin Decl., ¶4, Ex. 3. On January 27, 2000, the appellate court affirmed Denham’s conviction with modifications. Jardin Decl., ¶4, Ex. 3. Denham has since filed 21 challenges to the conviction, challenges to the denial of requests for post-conviction discovery, and petitions for writ of mandamus to challenge DDA Laesecke’s requests for post-conviction discovery. Jardin Decl., ¶¶ 5-25, Exs. 4-24.

On September 22, 2020, Denham filed a request to appoint counsel to investigate and file a motion for DNA testing if appropriate. Jardin Decl., ¶26, Ex. 25. Counsel did file such a motion, but Department 100 denied it on September 26, 2022. Jardin Decl., ¶¶ 26-27, Exs. 25-26. The court noted the state’s argument that this was an attempt to bootstrap litigation regarding a previous order from DDA Laesecke as to a discovery motion under Penal Code section 1054.9. Jardin Decl., ¶27, Ex. 26.

Also on September 26, 2022, Department 100 granted a motion to allow Denham to view and photograph exhibits from his trial. Jardin Decl., ¶28, Ex. 27. On October 18, 2022, the court ordered the release of ballistic evidence for testing. Jardin Decl., ¶29, Ex. 28.

Petitioner Denham seeks to compel the DA to produce the criminal case detail listings and preliminary hearing transcripts which it admits are responsive to his request for records that show whether DDA Laesecke worked on any case that received assistance from SSB employees Higashi or Lepisto.[6]

Denham argues that the DA has the burden of showing that a specific exemption applies. See §7922.000. He relies on Weaver v. Superior Court, (2014) 224 Cal.App.4^th 746, which considered a CPRA request by a prisoner sentenced to death for all charging documents filed by the DA in homicide cases over a certain period, for the purpose of assisting his argument that the district attorney impermissibly sought the death penalty against him based on race. Id. at 747-48. The district attorney objected to production based on the investigatory file exemption, privacy rights of victims and defendants, and undue burden. Id. at 749. The district attorney admitted that the records were “court documents” that had been filed in court. Id. In light of this fact, the court rejected the district attorney’s argument of victim and defendant privacy. Id. at 751. The district 1054.9(b); attorney claimed that Penal Code section 13302, which forbids a local criminal justice agency from furnishing a record to a person not authorized by law to receive it, but the court noticed that Penal Code section 13302 had been amended to state that disclosure under the CPRA is an exemption. Id. at 751. Finally, the court rejected the district attorneys’ undue burden claim and ordered the requested production of complaints. Id. at 752-53.

Denham contends that Weaver holds that the DA’s copies of documents filed in superior court, are note exempt from disclosure and must be made available to the public upon request. In so ruling, Weaver found the petitioner’s post-conviction motions under Penal Code section 1054.9 to be irrelevant because “under the CPRA there are no limitations on access to a public record based on the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” Id. at 749. Pet. Op. Br. at 4-5. Denham concludes that the DA cannot rely on Penal Code section 1054.9 to justify withholding the responsive criminal case detail listings and preliminary hearing transcripts because the purpose for which he requests public records is irrelevant. Pet. Op. Br. at 5, 7.

The DA’s sole defense is that Denham’s request is barred by Penal Code section 1054.9. Prior to 2003, an inmate seeking habeas relief was not entitled to court-ordered discovery unless and until an order to show cause was issued. Steele, supra, 32 Cal.4^th at 690. Effective January 1, 2003, the Legislature added Penal Code section 1054.9, which allows post-conviction discovery in connection with a habeas petition where death or life in prison has been imposed on a showing of good faith efforts to obtain the discovery materials from his lawyer. Id. The scope of section 1054.9 concerns discovery materials in the possession of the prosecution and law enforcement to which the defendant would have been entitled at time of trial. Penal Code §1054.9(c) Steele, supra, 32 Cal.4^th at 693. Such materials include reconstruction of a lost case file, but also include materials the prosecution should have provided and materials that the prosecution would have been obligated to provide upon request but no request at trial was made. Id. at 697.

The DA argues that Denhan is serving a sentence of life without parole and Penal Code section 1054.9 applies to him. He has made no attempt to comply with its procedure and instead has made an improper attempt to seek post-conviction discovery related to alleged constitutional infirmities in his trial related to ballistic and physical evidence. Those matters have already been addressed in Denham’s post-conviction discovery requests in the criminal court. See Jardin Decl., ¶¶ 26-29, Exs, 25-28. The DA notes that Weaver’s reference to the inmate’s post-conviction discovery motions was not part of its holding and therefore did not address whether an inmate must comply with Penal Code section 1054.9 to obtain post-conviction discovery. Opp. at 5-6.

The court need not decide whether an inmate making a CPRA request to the prosecution or law enforcement must instead seek post-conviction discovery pursuant to Penal Code section 1054.9 because the DA does not show that the requested information – records which show whether DDA Laesecke worked on any case with SSB employees Higashi or Lepisto – is material the prosecution should have provided or would have been obligated to provide upon request, in Denham’s criminal case. See Steele, supra, 32 Cal.4^th at 697. On their face, records showing that the prosecutor and criminalists worked on other cases together would not normally be provided as discovery in a criminal case. Whether they should be provided upon request by the defense is a closer question, but the DA has the burden of showing that to be true and has not met that burden. Thus, the DA must provide the records sought by Denham.

The court recognizes the DA’s evidence that Denham has made 21 challenges to his conviction or the denial of his requests for post-conviction discovery, and the burden that may imposed (Opp. at 3), but the criminal courts are equipped to handle these issues. Should Denham make multiple CPRA requests or file other civil actions that merely harass, the DA has the remedy available of a motion pursuant to the vexatious litigant statutes, CCP section 391 et seq.

The Petition is granted. As Denham appears to seek only information showing any cases on which DDA Laesecke worked SSB employees Higashi or Lepisto, it may be sufficient that the DA provide any document(s) providing this information for all such cases without providing all the documents showing that information. The court will address this issue with the parties at hearing.

[1]All further statutory references are to the Government Code unless expressly stated otherwise.

[2] The DA requests judicial notice of (1) the Criminal Case Summary for People v. Denham, (“Denham I”) Case No. NA031090 (Jardin Decl., Ex. 1); and (2) the preliminary hearing transcript in Denham I (Jardin Decl., Ex. 2). The requests are granted. Evid. Code §452(d).

The DA also requests judicial notice of the Appellate Case Summaries for (1) People v. Denham, Case No. B126943 (Jardin Decl., Ex. 3); (2) Denham v. People, Case No. B140196 (Jardin Decl., Ex. 4); (3) Denham v. People, Case No. B148857 (Jardin Decl., Ex. 5); (4) Denham v. People, Case No. B176664 (Jardin Decl., Ex. 6); (5) In re Denham, Case No. B236957 (Jardin Decl., Ex. 7); (6) Denham v. People, Case No. B260195 (Jardin Decl., Ex. 8); (7) In re Denham, Case No. B276368 (Jardin Decl., Ex. 9); (8) In re Denham, Case No. B277003 (Jardin Decl., Ex. 10); (9) In re Denham, Case No. B278326 (Jardin Decl., Ex. 11); (10) Denham v. Superior Court, Case No. B282555 (Jardin Decl., Ex. 12); (11) Denham v. Superior Court, Case No. B288606 (Jardin Decl., Ex. 13); (12) In re Denham, Case No. B292804 (Jardin Decl., Ex. 14); (13) In re Denham, Case No. B293900 (Jardin Decl., Ex. 15); (14) In re Denham, Case No. B296377 (Jardin Decl., Ex. 16); (15) In re Denham, Case No. B298689 (Jardin Decl., Ex. 17); (16) In re Denham, Case No. B307384 (Jardin Decl., Ex. 18); (17) In re Denham, Case No. B309093 (Jardin Decl., Ex. 19); (18) In re Denham, Case No. B310825 (Jardin Decl., Ex. 20); (19) In re Denham, Case No. B313415 (Jardin Decl., Ex. 21); (20) In re Denham, Case No. B314015 (Jardin Decl., Ex. 22); (21) In re Denham, Case No. B315238 (Jardin Decl., Ex. 23); and (22) In re Denham, Case No. B315357 (Jardin Decl., Ex. 24). These other cases are not relevant the requests are denied. Evid. Code §452(d).

The DA also requests judicial notice of minute orders from People v. Denham, Case No. NA031090, dated (1) February 14, 2022 (Jardin Decl., Ex. 25). (2) September 26, 2022 (Jardin Decl., Exs. 26-27). and (3) October 18, 2022 (Jardin Decl., Ex. 26). The requests are granted. Evid. Code §452(d).

Finally, the DA requests judicial notice of (1) Denham’s CPRA request attached to the Petition (Jardin Decl., Ex. 29), (2) DA’s response to the CPRA request (Jardin Decl., Ex. 30), (3) Denham’s reply to the DA’s response (Jardin Decl., Ex. 31), and (4) the DA’s response thereto (Jardin Decl., Ex. 32). These documents are not subject to judicial notice and the requests are denied. To the extent that these documents are attached to the Petition, the court need not judicially notice them because it is always free to review the court file in the pending case. See Jardin Decl., ¶¶ 30-31.

[3] The CPRA request also asked for DDA Laesecke’s starting and ending dates with the DA. Denham Decl., Ex. A. The DA provided this information. Denham Decl., Ex. B.

[4] The DA’s responses are dated 2021 but in context appear to be written in 2022.

[5] Dunham incorrectly asserts that the DA’s March 22 letter reiterates the arguments from the DA’s February 8 response. Denham Decl., ¶6. They are not the same.

[6] Denham has not pursued the third class of responsive documents: witness lists. The DA correctly argues that request is waived. Opp. at 6.