KING, J. —
On request of real party in interest Johnny Morales, the trial court entered an order requiring multiple public agencies and departments to "preserve" 22 categories of documents and other materials
The People sought review by way of petition for writ of mandate from this court, arguing that the trial court had no jurisdiction to make such an order in the absence of any pending proceeding. We agree that the order is erroneous, and will grant the relief requested.
Morales's motion requested that "materials potentially relevant to his case be kept intact so that future litigation can center on the fairness of his conviction and death sentence, and not on tangential issues such as whether materials should have been destroyed or whether destroyed materials would have favored the prosecution or appellant [(Morales)]." It appears that Morales was sentenced in 2005 and his appeal is pending before the Supreme Court of California. Morales asserted, without contradiction, that although he
It was also asserted in the motion that "the duty falls to appellate counsel to preserve all materials arguably governed by [Penal Code] section 1054.9[
The People opposed the motion on the primary ground that the trial court lacked jurisdiction to grant the requested relief in the absence of some pending recognized proceeding. The People also argued that the request imposed an undue burden on the various agencies and departments specified.
After hearing argument, the trial court made the order set out above. The People sought a writ of mandate to vacate the order and this court issued an order to show cause.
First, we have no quarrel with Morales's description of the delays in the death penalty review process. However, the issue is not whether the procedure sought by Morales is desirable, but whether it is authorized by law.
In addition to arguing that writ review is unnecessary (see fn. 4, post), Morales focuses on procedural challenges to the People's attempt to overset the ruling. He argues first that the People failed to "specifically ... allege, or allege sufficient facts to make even a prima facie showing, that it has a
We now explain our reasoning on the merits. First, it must be noted that this is not a request for actual postconviction discovery under section 1054.9. It is quite true that although that statute refers to such discovery "`[u]pon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment'" (In re Steele (2004) 32 Cal.4th 682, 690 [10 Cal.Rptr.3d 536, 85 P.3d 444]), this does not mean that an actual petition or motion must have been filed at the time discovery is sought. It is sufficient if such a request for collateral relief is proposed or in preparation. However, since this is not a request under section 1054.9
We recognize that if Morales had chosen to proceed by filing a bare-bones habeas corpus petition, there would at least have been a proceeding to which his request could have attached, and the trial court could have reached the merits.
Accordingly, we find that the trial court exceeded its jurisdiction in issuing the preservation order and we will issue the writ.
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order for preservation of evidence, and to enter a new order denying real party in interest's motion.
McKinster, Acting P. J., and Codrington, J., concurred.
That the San Bernardino County District Attorney, the San Bernardino County Sheriff-Coroner, the Montclair Police Department, the Fontana Police Department, the Colton Police Department, the Corona Police Department, the San Bernardino Police Department (including the San Bernardino Police Department Crime Lab), the San Bernardino County Sheriff's Department, the San Bernardino County Sheriff's Scientific Investigations Division, the San Bernardino County Children and Family Services and the Children's Assessment Center, the San Bernardino County Probation Department, the San Bernardino County Superior Court, the San Bernardino County Jury Commissioner, the San Bernardino County Information Services Department, the San Bernardino County Jail, West Valley Detention Center, California Department of Corrections, the Attorney General of California, and their present and former employees, agents, and representatives, to preserve files, records, evidence and other related items listed herein pending resolution of this automatic appeal and all related postconviction litigation.
By this motion, appellant requests preservation of files, records, evidence and any other items pertaining to the prosecution of this case and relating to the investigation of the
a. All records, documents, and exhibits, including the reporter's transcript notes of proceedings which pertain to appellant, Johnny Morales (AKA "Mario Morales" and "Jose Arrisa")(DOB: 1/20/78), and People v. Johnny Morales (Superior Court Case No. FVA 015456), including confidential Penal Code sections 987.9 and 987.2 records;
b. All items admitted into evidence, or offered into evidence but excluded or withdrawn in this case, whether at the trial or any pretrial proceeding, whether such items were physical; demonstrative, illustrative, written, tape recorded, videotaped, photographed, or of some other type; and whether in possession of the San Bernardino County Superior Court, the San Bernardino County Children and Family Services and the Children's Assessment Center, the San Bernardino County District Attorney's Office, or any other law enforcement agency, including, but not limited to the Fontana Police Department, the Montclair Police Department, the Ontario Police Department, the Corona Police Department, the Colton Police Department, the San Bernardino Police Department, and the San Bernardino County Sheriff's Department,;
c. All prosecutorial and law enforcement reports, notes, tape recordings, or other memorializations of fruits of law enforcement investigation or witness interviews, all scientific and forensic reports or notes and underlying documentation (including, but not limited to, laboratory notebooks, bench notes, computer printouts, or other recordings of raw data, in whatever media), all photographs and negatives, and all other items that are in any way related to this capital case and that are in the possession of any of the city, county, or state governmental agencies or officials named above, or their agents or employees, including private individuals or institutions retained to render services in connection with this capital case;
d. All notes taken by each and every court reporter in this case, whether in
e. All custodial records relating to appellant Johnny Morales (AKA "Mario Morales" and "Jose Arrisa) (DOB: 1/20/78), including but not limited to; all jail records and/or the Complete jail packet, which includes any "writings" (as defined in Gov. Code § 6252, subd. (g)), housing records, classification records, disciplinary records, jail visiting logs and records, records of any medical and/or psychiatric treatment or evaluation occurring during appellant's incarceration, and any audiotapes, videotapes, and any other records pertaining to appellant either during or prior to the pendency of this case that are in the possession or control of the San Bernardino County Sheriff's Department, the San Bernardino Police Department, the Fontana Police Department, the Corona Police Department and the Colton Police Department;
f. All writings or other records relating to the decision by the San Bernardino County District Attorney's Office to seek the death penalty in People v. Johnny Morales (Superior Court Case No. FVA 015456), including, but not limited to all policy manuals, regulations, guidelines, policy statements, internal memoranda and other writings which have been relied upon or promulgated by the San. Bernardino County District Attorney's Office pertaining to the procedure by which a decision is made as to whether to charge special circumstances and/or seek the death penalty, and any arid all documents, writings, records, memoranda, or notes relating to the decision to allege special circumstances and to seek the death penalty in this capital case;
g. All electronic data pertaining to People v. Johnny Morales (Superior Court Case No. FVA 015456) in the possession of or maintained by the San Bernardino County Information Services Department, including any email communications;
h. All records or documents maintained or controlled by the San Bernardino County Jury Commissioner pertaining to the selection of the venire or any other matter involving the case of People v. Johnny Morales (Superior Court Case No. FVA 015456). Any records, manuals, standard operating procedures, or other documents maintained or controlled by the San Bernardino County Jury Commissioner involving procedures and
i. All records maintained or controlled by the San Bernardino County Probation Department which pertain to appellant Johnny Morales(AKA "Mario Morales" and "Jose Arrisa")(DOB: 1/20/78).
j. All materials controlled or maintained by the San Bernardino County Sheriff-Coroner's Department (or any private contractor personnel) pertaining to the investigation and autopsy of the death of Elia Torres Lopez on or about June 9, 2001;
k. All records, documents, exhibits, investigative reports, and jail records relating to prior investigations or prosecutions of appellant Johnny Morales, (AKA "Mario Morales" and "Jose Arrisa") (DOB 1/20/78), including but not limited to those pertaining to the following; San Bernardino County Case: People v. Johnny Morales, San Bernardino Court Case No: FVA011012; People v. Johnny Morales, Fontana Municipal Court Case No: MVA 021611; People v. Johnny Morales, Fontana Municipal Court Case No: MVA017382; whether in the possession or control of the San Bernardino County Superior Court, the San Bernardino County District Attorney's Office, or any other law enforcement agency, including, but not limited to the Fontana Police Department, the Montclair Police Department, the Ontario Police Department, the Corona Police Department, the Colton Police Department, the San Bernardino Police Department, and the San Bernardino County Sheriff's Department.
l. All criminal files relating to witnesses appearing in this case including the following people: Cesar Alban, Anthony Casas, Xiomara Escobar, Carlos Gutierrez, Michael Kania, Maria S. Lopez, Mayra Lopez, Margarita Martinez, Daniel J. Mendoza, Angel I. Morales, Marcela Ochoa-Martinez, Yolanda Riech, Alejandra Sanchez, Brianda Sanchez, Jennifer Sanchez, Joe Sanchez, Frank P. Sheridan, Josefina T. Tadeo, Brad Toms, Elda Velasquez and Kenneth Wolf.
m. All California Department of Corrections records regarding Johnny Morales (AKA "Mario Morales" and "Jose Arrisa")(DOB 1/20/78) including, but not limited to,
n. All notes taken by each and every court reporter, whether in Superior or Municipal court, during the proceedings of appellant's co-defendant, Xiomara Escobar (San Bernardino County" Case No. FVA 015456), in which appellant was not present.
o. All records, manuals, standard operating procedures, policies or documents maintained or controlled by the San Bernardino County Indigent Defense Program pertaining to the selection of and qualifications for members of the county conflict panel between 2001 to 2004; and any other records or other documents maintained or controlled by the program involving the appointment and payment of counsel in the case of People v. Johnny Morales (Superior Court Case No: FVA 015456).
p. All records, manuals, standard operating procedures, policies or documents maintained or controlled by the San Bernardino County Indigent Defense Program, San Bernardino Superior Court and the Law Offices of Earl Carter pertaining to the procuring and awarding of contracts for the operation of the San Bernardino County Conflict Panel. selection of and qualifications for members of the county conflict panel between 2001 to 2004;
q. All records, manuals, standard operating procedures, policies or documents maintained or controlled by the San Bernardino County Superior Court pertaining to the appointment of counsel for indigent defendants from the county conflict panel between 2001 to 2004; and any other records or other documents maintained or controlled by the court involving the appointment and counsel in the case of People v. Johnny Morales (Superior Court Case No. FVA 015456).
r. All prosecutorial and law enforcement reports, notes, tape recordings, or other memorializations of fruits of law enforcement investigation or witness interviews, all photographs and negatives, and all other items that are in any way related to People v. Wayne Rozenberg (Superior Court Case No. FSB046236) and that are in the possession of any of the city, county, or state governmental agencies or officials named above, or their agents or employees, including private individuals or institutions retained to render services
s. All records, documents, exhibits, investigative reports, and jail records relating to prior investigations or prosecutions of Mario Izaguirre, including but not limited to those pertaining to the following; San Bernardino County Case: People v. Mario Izaguirre, San Bernardino Court Case No: FVA022952.
t. All criminal files relating to other suspects and/or witnesses related to this case including the following: Junior Ivan Escobar, Javier Ever Flores (DOB 9/7/79), Mario Flores (DOB 7/28/78), Melvin Falla, Melvin Hernandez, Jorge Morales, Jossy Remberto Aleman-Cruz (DOB: 6/24/79) (AKA "Jossy Cruz-Aleman" or "Josy" or "Carlos Rodriquez"), Enrique Lujan (AKA "Kuique"or "Kiki"), Henry Lujan (AKA "Garra" or "Garras"), Noe Sevilla-Ochoa, Jorge Luis Sifuentes, Joe Vant and Rigoberto Zavala (AKA "Rico") whether in the possession or control of the San Bernardino County Superior Court, the San Bernardino County District Attorney's Office, or any other law enforcement agency, including, but not limited to the Fontana Police Department, the Montclair Police Department, the Ontario Police Department, the Corona Police Department, the Colton. Police Department, the San Bernardino Police Department, and the San Bernardino County Sheriff's Department.
u. All files, reports, notes, tape recordings, other memorializations of fruits forensic interviews of Joe Sanchez, Jennifer Sanchez, Brianda. Sanchez, Crystal Izaguirre and David Gutierrez by staff at the San Bernardino County Children's Assessment Center that were in any way related to law enforcement investigation or prosecution of either: (1) the death of Elia Torres Sanchez or (2) the home invasion robbery of Carlos Gutierrez on or about June 9, 2001 whether in the possession or control of the San Bernardino County Children's Assessment Center, the San Bernardino County Superior Court, the San Bernardino County District Attorney's Office, or any other law enforcement agency, including, but not limited to the Fontana Police Department, the San Bernardino Police Department, and the San Bernardino County Sheriff's Department.
v. All records, documents, exhibits, investigative reports, and jail records relating to prior investigations or prosecutions related or pertaining to the following;
Appellant requests that this order for preservation remain in effect until either: (1) thirty days after execution of the death sentence, or (2) non-preservation of such items or materials is approved by a court of competent jurisdiction after at least ninety (90) days written notice of any intention to destroy or allow destruction of such evidence has been given to appellant, his counsel, the San Bernardino County District Attorney, and the Attorney General of California.
Appellant further moves for disclosure by the agencies named in this motion as to whether any of the items or materials mentioned above are in the possession of any other governmental unit, entity, official, employee or former employee and/or whether any of such material has been destroyed.