Judge: Mary H. Strobel, Case: 21STCP02149, Date: 2023-04-18 Tentative Ruling

Hon. Mary H. Strobel The clerk for Department 82 may be reached at (213) 893-0530.

Case Number: 21STCP02149    Hearing Date: April 18, 2023    Dept: 82

            Petitioner Eric L. Wright (“Petitioner”) petitions for a writ of mandate directing Respondent District Attorney of the County of Los Angeles (“Respondent”) to produce to Petitioner all documents requested in Petitioner’s request made pursuant to the California Public Records Act (“CPRA”).     

The court held a hearing on the petition on March 16, 2023.  At oral argument, Petitioner argued that People vs Gonzalez (1990) 51 Cal.3d 1179 affects the outcome of his writ petition.  Because Petitioner had not included this case in his written briefs, the court continued the hearing so Respondent could respond in a supplemental brief.  On March 23, 2023, Respondent filed and served its supplemental brief addressing Gonzalez.  For the reasons discussed below, Gonzalez does not change the court’s tentative ruling to deny the petition. 

Judicial Notice

Respondent’s Request for Judicial Notice Exhibits 1-8 – Granted.

Background and Procedural History

Petitioner’s Conviction

Petitioner was convicted of first-degree murder on March 13, 2007 in People v. Wright, Los Angeles Superior Court, Case No. BA237500.  He was sentenced to 50 years to life in prison.  Witnesses Manuel Espino and Rebecca Figueroa testified that the district attorney’s office had threatened to take their children away if they refused to testify, and they recanted their prior identification of the shooter.  On appeal, Petitioner argued that there was insufficient evidence to support the verdict because the evidence consisted largely of prior inconsistent statements.  The Court of Appeal rejected Petitioner’s substantial evidence challenge and affirmed the judgment, noting that several other witnesses made affirmative eyewitness identifications of Petitioner.  (RJN Exh. 1, 8.)  The California Supreme Court denied review.  (Id. Exh. 2.)   

            Petitioner subsequently filed petitions for writ of mandate in the Court of Appeal related to the conviction and criminal proceedings.  All were denied.  (RJN Exh. 3-5.)  In 2019, Petitioner filed a petition for writ of habeas corpus, which was denied.  (Id. Exh. 6.) 

            On April 21, 2022, Petitioner filed a Notice of Appeal, apparently in connection with the underlying criminal matter.  It appears that appeal is still pending.  (RJN Exh. 7.)

CPRA Request

            On March 4, 2021, Petitioner submitted to Respondent a request under the CPRA (hereafter “CPRA Request” or “Request”) for 40 categories of records related to the underlying criminal matter, including juvenile court records, arrest records, and police reports related to Manuel Espino, and arrest, conviction, and other records related to Rebecca Figueroa.  Petitioner also sought various records related to several other prosecution witnesses; 911 records; all documents related to the felony complaint for his arrest and subsequent arrest; and all documents related to the month, day, and year Petitioner was first documented as a gang member.  (Wright Decl. filed 6/14/21 (“Wright Decl.”) ¶ 3 and Exh. A.)

            On April 8 and May 5, 2021, Petitioner sent follow-up letters regarding his March 4 request.  (Id. ¶¶ 7-8, Exh. B, C.) 

On May 27, 2021, the Los Angeles County District Attorney’s Office responded to Petitioner’s May 5, 2021correspondence. (Id. ¶ 9, Exh. D.) The District Attorney’s Office advised it had not received Petitioner’s March 4 request or April 8 letter. The District Attorney’s Office objected to Petitioner’s Request on grounds it seeks disclosure of records associated with Petitioner’s criminal case, which is subject to discovery procedures set forth at Penal Code section 1054 et seq. In addition, the District Attorney’s Office identified the following specific statutory exemptions for the records themselves: Government Code sections 6254(a), 6254(c), 6254(f), and 6254(k); Penal Code sections 841,5, 1054.6, 11140, and 13300; and rules against disclosure of third-party juvenile records.  (Ibid.) 

Analysis

Discovery Procedures under Penal Code Section 1054, et seq.

            Respondent argues that “Petitioner’s requests constitute an improper attempt to evade the procedures mandated by Penal Code section 1054.9, because they expressly seek post-conviction discovery related to alleged constitutional infirmities in his trial supporting a petition for habeas corpus.”  (Oppo. 8.)  Relatedly, Respondent contends that Petitioner should have sought relief under section 1054.9 in the criminal court.  (Oppo. 9:8-9.) 

            Penal Code section 1054.9(a) states: “In a case in which 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, except as provided in subdivision (b) or (d), order that the defendant be provided reasonable access to any of the materials described in subdivision (c).”  (bold italics added.) 

            Section 1054.9(c) states that “[f]or 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.”

            In his opening brief and reply, Petitioner concedes that, by his petition for writ of mandate brought pursuant to the CPRA, he seeks to compel discovery pursuant to Penal Code section 1054.9.  In the opening brief, Petitioner argues that if the showing required by section 1054.9 “is made, the defendant is entitled to discovery.”  (Opening Brief (“OB”) 2.)  Petitioner states that “he has attempted to obtain these documents from his trial counsel on numerous occasions, all to no avail.”  (OB 3, citing Exh. E.)  Petitioner further states that “the requested information will prove his innocence, by showing that the L.A.P.D. and the (then) L.A. County D.A.'s Office engaged in unlawful, illegal and corrupt practices and tactics in the investigation and prosecution of criminal case number BA237500. The requested information will highlight in particular the coercion of key state witnesses, namely: Mr. Manuiel Espino and Rebecca Ann Figueroa.”  (OB 3, citing Exh. F.)

In reply, in a section titled “Argument,” Petitioner asserts that he “has established a [right] to post-conviction discovery under Penal Code Section 1054, et seq.”  (Reply 2.)  Later in reply, Petitioner argues that he seeks criminal discovery materials to expose “corrupt law enforcement officer’s conduct concerning him" and because Petitioner seeks to “exonerate himself” in court based on such materials.  (Reply 5-6.) 

The court may reasonably rely on Petitioner’s admissions in his briefs to conclude that Petitioner seeks to use his CPRA Request and this CPRA writ petition to obtain discovery materials that he otherwise would need to obtain pursuant to Penal Code section 1054, et seq. 

As further support for this conclusion, Petitioner’s CPRA Request is addressed to the District Attorney’s Office and references People v. Wright, Ct. No. BA237500.  As argued by Respondent, and not disputed by Petitioner in reply, the CPRA Request seeks “discovery materials” within the meaning of section 1054.9 that may be in the possession of the District Attorney’s Office, including records related to prosecution witnesses and records related to Petitioner’s arrest, conviction, and gang affiliation.   (See Oppo. 6-7 and 8:21-27.)  Thus, as examples, Petitioner seeks juvenile court records, arrest records, gang affiliations, video and audio recorded interviews, and police reports and notes related to Manuel Espino, a key prosecution witness.  He seeks records related to Rebecca Figueroa, Luz Garcia, Martha Solis, and other persons who appear, from the record and reasonable inferences from it, to be prosecution witnesses or otherwise connected with the criminal case.  (See e.g. Pet. Exh. A and RJN Exh. 8 [Court of Appeal decision affirming judgment].)  Notably, in his opening brief and reply, Petitioner has not argued that any of the CPRA requests are not related to the underlying criminal case or not intended to obtain discovery materials within the meaning of section 1054.9 from the District Attorney’s Office.

            Petitioner is a convicted felon subject to Penal Code section 1054.9 and he admittedly seeks to use the materials sought in the CPRA Request for “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.”  Thus, a preliminary issue is whether Petitioner can use the CPRA to obtain discovery subject to Penal Code section 1054, et seq.  Neither party cites a case directly on point.  However, In re Steele (2004) 32 Cal.4th 682, cited by Respondent, provides some guidance.  In that case, a defendant convicted of first-degree murder filed a motion with the Supreme Court for postconviction discovery pursuant to section 1054, et seq.  Our Supreme Court held, as follows:

The nature of the discovery the statute permits makes the trial court generally the appropriate place to first file the motion. As discussed below, the statute covers specific discovery that the prosecutor did provide but has become lost to petitioner, that the prosecution should have provided but failed to do so, and to that to which the defense would have been entitled had it requested it. The trial court that rendered the judgment is far better positioned than an appellate court to make these determinations and then decide what specific new discovery, if any, it should order. Moreover, we agree with the HCRC that “section 1054.9 should be interpreted to promote informal, timely discovery between parties prior to seeking court enforcement.” Beginning the process at the trial level encourages the settlement of disputes at that level and maximizes the possibility that any discovery issues can be resolved with a minimum of court involvement.

…. Thus, we conclude that when no execution is imminent, a person seeking specific discovery under section 1054.9 should first file the motion in the trial court that rendered the judgment. 

(In re Steele, supra, 32 Cal.4th at 692 [bold italics added].)

Because Petitioner admittedly seeks discovery pursuant to section 1054.9, under the holding of In re Steele Petitioner should have filed a motion for discovery in the trial court that rendered the judgment in his criminal case, or at least in the criminal court. 

Significantly to the court, Penal Code section 1054.5(a) states: “No order requiring discovery shall be made in criminal cases except as provided in this chapter. This chapter shall be 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.”  (Bold italics added.)

As stated by our Supreme Court, “Section 1054.9 is part of the general discovery provisions of Penal Code section 1054 et seq. Those provisions limit trial discovery to materials the prosecutor possesses or knows ‘to be in the possession of the investigating agencies....’ (Pen.Code, § 1054.1, italics added.) They also provide that the statutory provisions are the only means for the defendant to compel discovery ‘from prosecuting attorneys….”  (In re Steele, supra, 32 Cal.4th at 696; see also Rutter, Cal. Crim. Procedure, § 16:11 [“These provisions are the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys”].) 

Here, Petitioner admittedly seeks the disclosure of “discovery materials” within the meaning of section 1054.9 from “prosecuting attorneys.”  Section 1054.5(a) is strong evidence of legislative intent that a convicted person may only compel such discovery through a motion filed pursuant to section 1054, et seq.  Accordingly, the court denies the writ to the extent it is attempting to use the Public Records Act as a means of obtaining post-conviction discovery covered by Penal Code section 1054.9.  To the extent Petitioner claims any of his requests are outside of the post-conviction discovery procedures contained in Penal Code section 1054.9, he should identify those requests at the hearing.

People v. Gonzalez Predates Penal Code Section 1054.9 and Is Not Controlling

            At the hearing on March 16, 2023, Petitioner argued that People vs Gonzalez (1990) 51 Cal.3d 1179 affects the outcome of his writ petition.  In Gonzalez, a jury convicted the defendant of first-degree murder. After the trial had ended, the defendant  moved in the trial court to discover official file information about the jailhouse informant who testified against him.  (Id. at 1256.)  In response, the trial court “ordered the Los Angeles County Counsel, District Attorney, and Sheriff, and the Attorney General, to produce all their file materials about Acker, ‘limited to discovery matters within the period commencing January 1, 1978 and ending upon the date of the completion of ... Acker's testimony in [defendant's] second penalty trial ... (on or about April 29, 1981) ....’”  (Ibid.)  The People sought mandate to overturn the discovery order, and our California Supreme Court granted the writ. 

Citing then-current law, the Court held that “the trial court exceeded its jurisdiction by ordering postconviction discovery in the absence of any proceeding pending before that court.”  (Id. at 1261; see also Id. at 1257, citing People v. Ainsworth (1990) 217 Cal.App.3d 247.)  This holding in Gonzalez has been superseded by statute, specifically section 1054.9.  (See In re Steele, supra, 32 Cal.4th at 691.)  Enacted in 2002, section 1054.9 “partially abrogated the general rule that a person seeking habeas corpus relief from a judgment of death is not entitled to postconviction discovery until a court issues an order to show cause.” (Satelle v. Superior Court (2019) 7 Cal.5th 852, 857.)  Section 1054.9 “vests jurisdiction in the trial court to grant discovery and order the preservation of evidence within the statute's scope.”  (Satelle, supra at 857.) 

Our Supreme Court has explained this change in the law and the impact on Gonzalez, as follows: “In People v. Gonzalez, supra, 51 Cal.3d at pages 1257, 1261, 275 Cal.Rptr. 729, 800 P.2d 1159, we said that after the judgment had become final, nothing was pending in the trial court to which a discovery motion may attach, and that the defendant had to state a prima facie case for relief before he may receive discovery. Section 1054.9 modifies this rule. Defendants are now entitled to discovery to assist in stating a prima facie case for relief. But the only way this modification of the Gonzalez rule makes sense is to permit defendants to seek discovery

before they file the petition, i.e., before they must state a prima facie case. Reasonably construed, the statute permits discovery as an aid in preparing the petition, which means discovery may come before the petition is filed. Thus, we believe a defendant is entitled to seek discovery if he or she is preparing to file the petition as well as after the petition has been filed.”  (In re Steele, supra, 32 Cal.4th at 691 [italics added].) 

Thus, Gonzalez does not provide legal support for any contention by Petitioner that he could not seek post-conviction discovery under section 1054.9 before a petition for writ of habeas corpus, motion to vacate judgment, or similar post-conviction criminal case is pending. 

Petitioner focuses on the following from Gonzalez:

Of course, the prosecution has a well-established duty to disclose information materially favorable to the defense, even absent a request therefor. [Citations.]  “... At trial this duty is enforced by the requirements of due process, but [even] after a conviction the prosecutor ... is bound by the ethics of his office to inform the appropriate authority of ... information that casts doubt upon the correctness of the conviction.” [Citations.]

We expect and assume that if the People's lawyers have such information in this or any other case, they will disclose it promptly and fully. Statutory procedures and remedies not employed in this case may also be of assistance in compelling official disclosure of pertinent information. (See, e.g., Gov. Code, § 6250 et seq.) 

(Id. at 1260-61 [bold italics added].)

Respondent contends that the Supreme Court’s reference to the CPRA, § 6250 et seq. was dicta “because Gonzalez did not present a public records act request, and as a result the California Supreme Court did not address that issue.”  (Suppl. Br. 2.)  “Dicta consists of observations and statements unnecessary to the appellate court's resolution of the case.”  (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158-1159.)  The defendant in Gonzalez did not seek post-conviction discovery pursuant to a request made under the CPRA.  To resolve the case, it was unnecessary for the Court to decide whether the defendant could seek post-conviction discovery under the CPRA.  Thus, the Court’s observation that such statutory procedures “may” be of assistance was dicta.

Further, Gonzalez was decided before section 1054.9 had been enacted.   when Gonzalez was decided.  At that time there was not a specific statute, as there is now, providing a means of obtaining post-conviction discovery related to a criminal matter.  That proceeding is now governed by Penal Code section 1054.9.

Based on the foregoing, Gonzalez does not support Petitioner’s argument that he can seek post-conviction discovery, which otherwise falls within the scope of section 1054.9, in a petition filed pursuant to the CPRA.

Compliance with Penal Code Section 1054, et seq.

Respondent contends that Petitioner has not complied with the mandatory requirements of section 1054.9, including “good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful.”  (Oppo. 9; see Penal Code § 1054.9(a).)  In reply, Petitioner argues and presents evidence that he has complied.  The court does not resolve this issue because the petition or motion must be heard in the criminal court.

CPRA Exemptions

In response to the CPRA Request, the District Attorney’s Office also identified some specific statutory exemptions it contends apply to the records requested: Government Code sections 6254(a), 6254(c), 6254(f), and 6254(k); Penal Code sections 841,5, 1054.6, 11140, and 13300; and rules against disclosure of third-party juvenile records.  (Pet. Exh. D.) However neither party has adequately analyzed these exemptions as they specifically pertain to the 40 CPRA requests at issue.  Given the court’s conclusion that the request is governed by Penal Code section 1054.9, the court does not further analyze whether any exemptions would apply to the documents requested.  At the hearing Petitioner stated he believed some of his requests fell outside the scope of documents covered by Penal Code section 1094.5.  However, after inquiry by the court, rather than articulate which requests fit that description, Petitioner stated he would just be relying on Gonzalez.

Timing of District Attorney’s Response to CPRA Request

            Petitioner argues that Respondent did not timely respond to his CPRA Request.  (OB 2:10-23 and Reply 6.)  On May 27, 2021, the Los Angeles County District Attorney’s Office responded to Petitioner’s correspondence of May 5, 2021. (Pet. Exh. D.) The District Attorney’s Office advised it had not received Petitioner’s March 4 request or April 8 letter.  (Ibid.)  The court has insufficient basis to disbelieve that statement.  (See Evid. Code § 664.)  Moreover, even if the response was untimely, that violation of the CPRA would not, in itself, entitle Petitioner to production of the requested records.  Nor did Petitioner plead a claim for declaratory relief related to the timing of the response.   

In Camera Review

Petitioner requests in camera review of the records sought in the CPRA Request.  (OB 4:1-4.)  Based on the court’s conclusion that the entire writ petition should be heard in the criminal court pursuant to Penal Code section 1054, et seq., in camera review is denied.

Conclusion

The petition is denied without prejudice to Petitioner filing a request under Penal Code section 1054.9 in the criminal court.  The request should indicate it is being made pursuant to Penal Code section 1054.9, and should be filed in the Clara Shortridge Foltz courthouse, room 100.