Burks v. Superior Court

Filed 12/1/08 Burks v. Superior Court 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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Penal Code section 1054.9 permits persons subject to the death penalty or life imprisonment without the possibility of parole to file a motion for postconviction discovery to assist in the preparation of a writ of habeas corpus. (Unspecified section references that follow are to the Penal Code.) Citing this statute and Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), petitioner Jeffrey Milo Burks sought to file such a motion to obtain investigative reports involving two correctional officers who testified against him at trial. The trial court concluded that petitioner ultimately would not be entitled to habeas relief and therefore refused to permit petitioner to file his Pitchess motion. Petitioner seeks a writ of mandate to compel the trial court to permit the filing and consideration of his motion.

We grant the requested relief.

Postconviction Discovery Process

In order to put petitioners claims in their proper context, we briefly outline the process for postconviction discovery. Section 1054.9, subdivision (a) provides in relevant part: 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, [subject to exceptions not relevant here], order that the defendant be provided reasonable access to any of the materials described in subdivision (b). That subdivision defines discovery materials as materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at time of trial. ( 1054.9, subd. (b).)

The California Supreme Court has interpreted this statute as requiring the trial court to order discovery of materials that (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. (In re Steele (2004) 32 Cal.4th 682, 697.)

With this statutory scheme in mind, we turn to the case before us.

Facts and Proceedings

In 1984, an inmate was killed in the exercise yard of Folsom Prison. Four other inmates, including petitioner, were tried for the murder. The jury acquitted two of the defendants but convicted petitioner and the other. Petitioner was sentenced to life in prison without the possibility of parole.

Petitioner appealed, raising claims concerning the prosecutors peremptory jury challenges, the admissibility of evidence, jury misconduct, and prosecutorial misconduct. We affirmed his conviction (People v. Burks (Dec. 19, 1989, C004003) [nonpub. opn.]), and the California Supreme Court denied review. Petitioners subsequent challenges in federal courts were also unsuccessful. (See Burks v. Borg (1994) 27 F.3d 1424.)

In May 2006, petitioner filed a petition for writ of habeas corpus in the superior court, asserting that he was factually innocent and that his conviction was based on perjured testimony. Petitioner also asked that he be given the opportunity to seek discovery before his petition was adjudicated.

In July 2006, the trial court denied the petition, finding that petitioner had not provided adequate justification for the delay in filing his petition and had not made a prima facie case for relief because his allegations did not demonstrate unerring innocence or reduced culpability. The court noted that petitioner had not made the requisite statutory motion for discovery, and it therefore denied petitioners request for discovery without prejudice to Petitioner filing a motion in the trial court for relief under section 1054.9.

Taking the court up on its invitation, petitioner filed a discovery motion under section 1054.9 in September 2006, but the trial court denied the motion because petitioner did not allege that he had tried to obtain the materials from trial counsel as required by section 1054.9.

In December 2006, petitioner submitted a renewed motion that included this allegation. This motion, stamped endorsed rather than filed, outlined a number of items for discovery, including material with respect to [two correctional officers], namely investigative reports generated by the Department of Corrections or any other state or federal agency, with respect to misconduct of these individuals which would corroborate petitioners claim that he was deliberately framed by [the correctional officers] and would corroborate . . . [the] claim [of one of the acquitted defendants] that [the officers] conspired to frame [petitioner]. The motion alleged that petitioner was unaware of the alleged frame-up at the time of trial but that petitioner had earlier requested an investigation into a statement made by one of the officers about his observations during the incident. Petitioner stated that he had not been able to ascertain if any such investigation took place and/or to obtain the results of such an investigation.

In its opposition, the People asserted the discovery request was untimely. The People also questioned whether the discovery sought was material, given that the court had previously denied petitioners habeas petition because there was no evidence that pointed unerringly to his innocence or reduced culpability.

The court ordered the parties to attempt to resolve their differences and, if necessary, file a supplemental pleading to outline the matters that remained at issue.

In June 2007, petitioner filed supplemental briefing requesting leave to file a Pitchess motion. He reiterated that he wanted to obtain any investigative reports involving two correctional officers with respect to the misconduct of these individuals which would corroborate his claim that he was deliberately framed by the two. He asserted that one of the officers covered up the involvement of one of the defendants acquitted in the murder in order to gain that inmates trust and use him in his plans to control gangs and violence in the prison. He alleged that the other officer saw this inmate attack the victim and also saw that petitioner was elsewhere in the yard and not involved in the attack.

Petitioner argued that any evidence that revealed that the officers engaged in similar behavior, such as framing other inmates or defendants, providing falsified testimony, and making improper alliances with prison gangs and turning a blind eye to prisoner violence, supports petitioners claims and increases the likelihood of the truth of [the] declaration [of the acquitted inmate] and of petitioners claims of actual innocence. He therefore requested leave to file and serve a properly noticed Pitchess motion based on his assertions and attached declarations showing that [the correctional officers] falsified testimony, framing petitioner for the murder[.]

The trial court denied petitioners request. As we discuss in greater detail below, the court ruled that petitioner would be entitled to this discovery only if the claim to be raised on habeas would be cognizable. The court determined that any evidence of misconduct by the officers would simply raise an inference that [the officers] had probably lied on the witness stand in [petitioners] case and would not establish the unerring innocence required for habeas relief. Consequently, the court concluded, petitioner was not entitled to discovery and it denied the petitioners request to file his motion.

Petitioner filed a petition for writ of mandate to compel the court to file and consider his Pitchess motion, and we issued an alternative writ.

Discussion

Petitioner contends that the trial court utilized the wrong standard in refusing to permit the filing of a Pitchess motion. We agree.

As previously noted, postconviction discovery is available under Penal Code section 1054.9, and personnel records of peace officers are among the types of materials that may be subject to discovery. (See Evid. Code, 1043, 1045; Pitchess, supra, 11 Cal.3d at pp. 537-540.) Correctional officers are peace officers. (Pen. Code, 830.5, subd. (b).)

The Supreme Court recently reiterated that Pitchess established that a criminal defendant could compel discovery of certain relevant information in the personnel files of [peace] officers by making general allegations which establish some cause for discovery of that information and by showing how it would support a defense to the charge against him. [] . . . To initiate discovery, the defendant must file a motion supported by affidavits showing good cause for the discovery, first by demonstrating the materiality of the information to the pending litigation, and second by stating upon reasonable belief that the [appropriate] agency has the records or information at issue. [Citation.] This two-part showing of good cause is a relatively low threshold for discovery. [Citation.] []  If the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019 [Warrick].)

[A] showing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officers version of events. (Warrick, supra, 35 Cal.4th at p. 1021.) What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. (Id. at p. 1025.)

To determine whether the defendant has established good cause for in-chambers review of an officers personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsels affidavit in support of the Pitchess motion adequately responds to these questions, and states upon reasonable belief that the governmental agency identified has the records or information from the records [citation], then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the [peace] officer accused of misconduct against the defendant. (Warwick, supra, 35 Cal.4th at pp. 1026-1027.)

Here, however, the trial court did not reach this level of analysis to determine what information, if any, was properly discoverable. Instead, the court refused to permit petitioner to even file his motion. In making this ruling, the court relied on Hurd v. Superior Court (2006) 144 Cal.App.4th 1100, a case in which the court found that the items being sought in discovery were not material because the claims to be made in the proposed habeas corpus petition simply restated claims rejected on appeal. (Id. at p. 1112.) These claims would not be cognizable on habeas corpus and therefore discovery was denied.

In the present case, the trial court did not find that the issues to be raised in the habeas proceeding were identical to those previously litigated and rejected on appeal or in the earlier habeas proceeding, but instead extended the rationale of Hurd, and concluded that under the Hurd holding it would appear that when discovery is sought under Pitchess to support a claim that will be procedurally barred for any other reason, the Pitchess discovery is to be denied.

The court then proceeded to analyze the soundness of the proposed habeas petition. Citing numerous cases, the court noted that a habeas petition may be barred for untimeliness or as presenting a successive claim unless certain circumstances are present, most notably, that the petition alleges facts which, if proven, would establish that a fundamental miscarriage of justice occurred as a result of the proceedings leading to conviction or that the petitioner is presenting newly discovered claims after demonstrating due diligence. (See In re Clark (1993) 5 Cal.4th 750, 774-775.) The court also noted that a fundamental miscarriage of justice occurs only in limited situations, two of which might apply to this proceeding: (1) an error of constitutional magnitude led to a trial that was so fundamentally unfair that absent the error no reasonable judge or jury would have convicted the petitioner, [or] (2) the petitioner is actually innocent of the crime or crimes of which the petitioner is convicted[.] (See id. at pp. 787-798.)

The trial court stated that [t]o claim an exception to [this] bar based on either newly discovered evidence, a fundamentally unfair trial due to constitutional error, or actual innocence, the defendant must show unerring innocence. It concluded that because petitioner was seeking to demonstrate only that the two officers in question on other occasions had committed misconduct, no such showing could be made and petitioners habeas claim would not be cognizable. The court therefore denied petitioners request to file a Pitchess motion.

The trial courts ruling was erroneous.

First, petitioners motion was to file a postconviction discovery motion, and the court refused to permit him to do so. Petitioner met the standard for filing such a motion because he would have been entitled to this discovery at trial. ( 1054.9; In re Steele, supra, 32 Cal.4th at p. 697.) The court had no basis for refusing to accept the petition for filing.

Second, the court misconstrued the import of Hurd v. Superior Court, supra, 144 Cal.App.4th 1100. That case dealt with one limited situation, namely, a defendant who had filed a motion for Pitchess discovery in order to raise, in habeas proceedings, the identical issues that had been litigated and rejected on appeal. (Id. at p. 1112.) The trial court here, however, did not conclude that the issues petitioner sought to raise were the same as those that had been raised in earlier proceedings. Instead, the court stated that if the habeas petition would not be cognizable for any reason, the motion must be denied. Since, according to the trial court, petitioner would not be able to demonstrate factual innocence, he was not entitled to discovery.

Hurd cannot be read in such an expansive manner. To do so essentially prejudges the merits of the writ petition without knowing what evidence might be discovered. Whether a subsequent habeas petition should be granted is a decision separate and apart from whether discovery should be allowed, particularly given the relatively low threshold required for Pitchess discovery. (Warrick, supra, 36 Cal.4th at p. 1019.)

At this point, no petition for habeas corpus has been filed and whatever specific claims petitioner might include in such a petition are matters of speculation. Only when discovery is completed and a petition filed can the merits of that petition be judged. If discovery does not reveal information entitling petitioner to writ relief, the petition will be denied. But since it is unknown what might be discovered in the records petitioner seeks, it is simply too early to state definitively that petitioner will not be able to establish an appropriate basis for relief. The trial court erred in making that determination at this stage of the proceeding.

Disposition

Let a peremptory writ of mandate issue directing the respondent court to accept petitioners Pitchess motion for filing and to consider the motion. The alternative writ has served its purpose and is discharged.

HULL, J.

We concur:

SCOTLAND , P. J.

BUTZ , J.

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