Filed 6/30/26 Cunningham v. Superior Court CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
DAVID TERRELL CUNNINGHAM,
Petitioner,
A171196
v.
THE SUPERIOR COURT OF (Alameda County
ALAMEDA COUNTY, Super. Ct. No. 19-CR-008440)
Respondent;
THE PEOPLE,
Real Party in Interest.
This appeal is brought by petitioner David Terrell Cunningham to
challenge the trial court’s denial of his motion for discovery under Penal
Code1 section 745, subdivision (d) of the California Racial Justice Act of 2020
(Stats. 2020, ch. 317, §§ 1–7; RJA).
The trial court denied petitioner’s standalone discovery motion for lack
of jurisdiction. Normally, a trial court’s ruling on a defendant’s discovery
motion is an interlocutory, nonappealable order. However, we are exercising
our discretion to treat this purported appeal as a petition for writ of mandate.
Having done so, we direct the issuance of a peremptory writ of mandate
1 All undesignated statutory citations herein are to the Penal Code.
compelling the trial court to vacate its order and to conduct a new hearing to
reconsider petitioner’s discovery motion in a manner consistent with this
opinion.
FACTUAL AND PROCEDURAL BACKGROUND
We provide a brief recitation of those facts relevant to our disposition of
this writ proceeding.
In 2018, petitioner, a Black2 male, attempted to rob an acquaintance
during a marijuana deal. In doing so, petitioner pulled out a handgun and
fired three to five shots, two of which hit his acquaintance’s leg.
On August 11, 2021, petitioner entered a no contest plea to one count of
attempted robbery (§§ 211, 664) and admitted the special allegation that he
used a firearm during his commission of the crime (§ 12022.5, subd. (a)).3
Pursuant to his negotiated plea, petitioner was sentenced to a total prison
term of 13 years, consisting of the upper three-year term for attempted
robbery and 10 years for the firearm enhancement.
On July 9, 2024, petitioner, acting in propria persona, filed a motion
pursuant to the RJA, alleging violations of section 745, subdivisions (a)(3)
and (a)(4)(A) (RJA motion). Specifically, petitioner alleged California’s
firearm enhancement law disproportionately impacts Black defendants
because Black defendants, in Alameda County and elsewhere, are charged
with and imprisoned on firearm enhancements at far higher rates than their
White counterparts. Petitioner’s RJA motion included information and
statistics to support his claims. Petitioner also identified his race as Black
and asked the court to appoint counsel to represent him.
2 It is this Court’s practice to identify a person’s race only if relevant to
an issue raised on appeal.
3 The original complaint also included allegations that petitioner had
two prior prison terms, two prior convictions and a prior strike offense.
2
Petitioner then filed a separate motion for discovery pursuant to
section 745, subdivision (d) (discovery motion), seeking “specific discovery to
investigate a potential violation of … section 745[, subdivisions ](a)(3) and
(a)(4).” Petitioner supported his motion with data and statistics from
California and Alameda County showing that, among other things, a firearm
enhancement was imposed on 50 percent of Black defendants as compared to
five percent of White defendants. Based on this information, petitioner
sought disclosure from the Alameda County District Attorney’s Office of eight
years of information (from two years before the attempted robbery to the year
the discovery motion was filed) relating to the charging and sentencing of
firearm enhancements and the corresponding race of the defendants.
On July 22, 2024, the trial court dismissed petitioner’s discovery
motion for lack of jurisdiction, reasoning that “[s]ection 745 does not appear
to authorize standalone postconviction motions, such as the instant motion.
The statute instead authorizes a defendant to seek habeas corpus relief.
(Pen. Code §§ 745, subds. (b), (j), 1473, subd. (e).)” The court further ruled
that, “[t]o the extent that [petitioner] seeks copies of court transcripts and
public records, he must pay for such copies. Copy costs for documents, except
reporter’s transcripts, are $0.50 per page. (See Gov. Code, § 70627, subd. (a).)
… [¶] … [¶] Alternatively, [petitioner] may request copies of case documents
from the attorney who represented him at trial.” Petitioner filed a timely
notice of appeal.
DISCUSSION
Petitioner contends the trial court erred in (1) denying his discovery
motion for lack of jurisdiction, (2) failing to exercise its mandatory duty to
assess whether he was entitled to appointment of counsel to assist him in
bringing claims under the RJA, and (3) advising that he will be responsible
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for paying the cost of copies of any court records and transcripts sought in
connection with his RJA claims. We address each issue in turn, post.
I. This appeal is deemed a petition for writ of mandate to vacate
the challenged order.
The RJA was enacted the year before petitioner was convicted and
sentenced. (Stats. 2020, ch. 317; Assem. Bill No. 2542 (2019–2020 Reg.
Sess.).) In asserting several postconviction RJA claims, petitioner relies on
section 745, subdivision (a), which prohibits the state from “seek[ing] or
obtain[ing] a criminal conviction or seek[ing], obtain[ing], or impos[ing] a
sentence on the basis of race, ethnicity, or national origin.” To that end,
section 745, subdivision (d) authorizes a defendant to “file a motion
requesting disclosure to the defense of all evidence relevant to a potential
violation of subdivision (a) in the possession or control of the state. … Upon a
showing of good cause, the court shall order the records to be released.”
Contending the challenged order violates section 745, subdivision (d),
petitioner insists (1) the trial court had jurisdiction to rule on his standalone
discovery motion, and (2) he made the requisite showing of good cause to
obtain discovery of the information he seeks from the Alameda County
District Attorney’s Office. The People dispute both claims and assert the
court’s order is not appealable.
As an initial matter, we note that petitioner is only authorized to bring
an RJA claim by way of a petition for writ of habeas corpus because he is
incarcerated and his judgment is already final. (§ 745, subds. (b)–(c), (e),
(j); §§ 1473, subd. (e), 1473.7, subd. (a)(3); see People v. Hodge (2024) 107
Cal.App.5th 985, 999–1000; People v. Serrano (2024) 106 Cal.App.5th 276,
292–293 (Serrano); In re Montgomery (2024) 104 Cal.App.5th 1062, 1070–
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1072 (Montgomery), review granted Dec. 11, 2024, S287339.) Petitioner has
not filed such a petition.
Moreover, until recently, appellate courts disagreed as to whether
courts have jurisdiction to rule on a postjudgment RJA discovery motion
unattached to a petition for writ of habeas corpus. (Montgomery, supra, 104
Cal.App.5th at p. 1069 [“a discovery motion under section 745, subdivision (d)
is authorized only in a pending proceeding”], rev.gr.; Serrano, supra, 106
Cal.App.5th at p. 291 [defendants may bring standalone discovery motion
under § 745, subd. (d)].) This dispute, however, was resolved when the
Legislature enacted Assembly Bill No. 1071 (2025–2026 Reg. Sess.) section 3,
effective January 1, 2026, which added Penal Code section 1473, subdivision
(e)(2). This new provision expressly authorizes a petitioner, or their counsel,
to file a discovery motion under section 745, subdivision (d), “upon the
prosecution of a petition under this subdivision, or in preparation to file a
petition.” (Italics added.) Thus, under Serrano and newly enacted section
1473, subdivision (e)(2), petitioner was indeed entitled to bring a standalone
discovery motion.
Even so, the trial court’s erroneous denial of petitioner’s discovery
motion, as an interlocutory order, is not appealable and is challengeable only
by petition for writ of mandate. (Serrano, supra, 106 Cal.App.5th at pp. 292–
293; Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36, 53–54
(Gonzales) [“ ‘Writ review is appropriate in discovery matters where, as here,
it is necessary to address “questions of first impression that are of general
importance to the trial courts and to the [legal] profession, and where general
guidelines can be laid down for future cases.” ’ ”].) Petitioner asks that we
exercise our discretion to treat his purported appeal as such a petition. We
will do so, given that both parties have fully briefed the merits of petitioner’s
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claim of a right to discovery under section 745, subdivision (d). (Olson v. Cory
(1983) 35 Cal.3d 390, 401 [treating an appeal as a writ petition is appropriate
when an issue under review “has been thoroughly briefed and argued,” such
that dismissing the appeal would be “ ‘ “unnecessarily dilatory and
circuitous” ’ ”].) We thus turn to the relevant law.
II. The good cause showing for RJA discovery (§ 745, subd. (d)) is
more lenient than the prima facie showing for RJA relief (§ 745,
subd. (a)).
A petitioner seeking to pursue an RJA claim must show “good cause” to
obtain discovery in anticipation of filing a petition for writ of habeas corpus.
(§ 745, subd. (d).) This good cause standard under section 745, subdivision
(d) is more lenient than the prima facie showing required for obtaining relief
under section 745, subdivision (a). Nonetheless, the statute’s good cause
language “serve[s] a gatekeeping function. (See Young [v. Superior Court
(2022)] 79 Cal.App.5th [138,] 166 [‘whether the allegations underscoring [the
petitioner’s] racial profiling theory are enough to support a plausible
justification that a violation of section 745, subdivision (a) could or might
have occurred in his [or her] case is an issue for the trial court to assess,
exercising its discretion upon an application of the correct legal standard
governing good cause’]; see also Montgomery, supra, 104 Cal.App.5th at
p. 1075 (conc. opn. of Kelety, J.) [‘Nor would an interpretation of section 745,
subdivision (d) that allows habeas corpus petitioners to obtain such discovery
trigger a right to unlimited discovery’].)” (Serrano, supra, 106 Cal.App.5th at
p. 293.)
“In Young v. Superior Court[, supra,] 79 Cal.App.5th 138 … , the
appellate court concluded that the ‘good cause’ standard for discovery under
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the RJA is akin to the ‘good cause’ standard for Pitchess[4] motions. (Young,
at pp. 158–159.) The Young court observed that the Pitchess good cause
standard includes the ‘requirement for a defendant to establish a “plausible
factual foundation” for officer misconduct.’ (Young, at p. 158.) The Young
court concluded that the same standard applies in RJA cases— ‘[I]n order to
establish good cause for discovery under the Racial Justice Act, a defendant
is required only to advance a plausible factual foundation, based on specific
facts, that a violation of the Racial Justice Act “could or might have occurred”
in his case.’ ” (People v. Superior Court (Lalo) (2025) 114 Cal.App.5th 707,
712; see McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244
(McDaniel).)
Young v. Superior Court, supra, 79 Cal.App.5th 138 (Young) further
held that, under the RJA, “a showing of plausible justification is merely a
threshold consideration [of the good cause standard]. ‘The trial court, in
deciding whether the defendant shall be permitted to obtain discovery of the
requested material, must consider and balance a number of [other] factors’
(City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134 … ),
‘[s]pecifically … (1) whether the material requested is adequately described,
(2) whether the requested material is reasonably available to the
governmental entity from which it is sought (and not readily available to the
defendant from other sources), (3) whether production of the records
containing the requested information would violate (i) third party
confidentiality or privacy rights or (ii) any protected governmental interest,
(4) whether the defendant has acted in a timely manner, (5) whether the time
required to produce the requested information will necessitate an
unreasonable delay of defendant’s trial, [and] (6) whether the production of
4 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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the records containing the requested information would place an
unreasonable burden on the governmental entity involved’ ” (Young, at
pp. 144–145.)
In this case, petitioner sought discovery of information regarding: (1)
all Alameda County cases for an eight-year period, January 1, 2016, to
January 1, 2024, where the district attorney’s office could have charged, and
did charge, a firearm use allegation under section 12022.5 and, in each such
case, the defendant’s race, the charges brought and the outcome; (2) for
purposes of all cases identified under (1), whether the district attorney
opposed a section 1385 motion brought by the defense; (3) all Alameda
County cases from January 1, 2016, to January 1, 2024, where the district
attorney’s office was referred a case that had a firearm use allegation and
thereafter declined to file a case or resolved the case outside of court; and (4)
copies of all e-mails, records, studies, or investigative reports filed or created
by the district attorney’s office regarding racial disparities in charging in
Alameda County.
To support his requests for this information, petitioner offered
statistical data drawn from the Department of Corrections and Rehabilitation
demonstrating that, in 410 cases in Alameda County from 2016 to 2024
wherein a firearm use enhancement was alleged, 21 percent involved White
defendants whereas 43 percent involved Black defendants. He also offered
data demonstrating that, in California, Black defendants comprised
approximately 64 percent of those convicted of a robbery crime with a firearm
enhancement, while White defendants comprised approximately four percent
of those convicted of the same. Finally, he offered data demonstrating that,
in Alameda County, non-White defendants were 20 times more likely to be
convicted of a firearm enhancement than White defendants.
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Based on this evidence, we conclude petitioner met the foundational
requirement of presenting a plausible justification for discovery under section
745, subdivision (d). (Young, supra, 79 Cal.App.5th at pp. 144–145.)
Petitioner offered specific facts from California and Alameda County data to
support his request for discovery to investigate potential RJA violations.
This offer included data relating to the specific crime for which he was
charged and convicted: robbery with a firearm use enhancement. No further
offer of proof is required at this stage. (McDaniel, supra, 111 Cal.App.5th at
pp. 245–246 [“specific facts of actual racial disparities in gang and gang
enhancement charges brought by prosecutors in San Mateo County” were
“sufficient to support a plausible claim that gang charges could or might be
impacted by racial bias”]; Gonzales, supra, 108 Cal.App.5th Supp. at p. 66
[defendant’s statistical evidence “that Latinx people may have been
disproportionately charged with resisting arrest and that non-Latinx people
who were similarly situated by engaging in similar conduct may have been
treated more leniently by not being so charged, [was] sufficient to show that
an RJA violation could or might have occurred”].)
The People are correct, of course, that to establish an actual RJA
violation, petitioner must prove he was charged with or convicted of a more
serious offense than non-Black defendants who are “similarly situated” and
engaged “in similar conduct.” (Italics omitted.) However, we are only at the
discovery stage. As our First District colleagues in Division Three recently
held, in seeking discovery under the RJA, “parties only need to show
plausibility based on ‘specific facts.’ (Young, supra, 79 Cal.App.5th at
p. 159.) That showing could be met by case-specific facts, as offered
in Young. Or it could be met by specific statistical facts relevant to the
charges and individuals involved, as in Gonzales. Or both. Neither the RJA
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nor Young requires any particular type of ‘specific facts.’ … Rather, courts
should focus on the relevance of the proffered facts to the claims of racial bias
to determine whether a minimally plausible basis exists to grant discovery—
a low threshold.” (McDaniel, supra, 111 Cal.App.5th at p. 244.) And, as the
Gonzales court aptly noted: “[a defendant] cannot make a more specific
demonstration of any kind of RJA violation without the discovery he [or she]
seeks from the People.” (Gonzales, supra, 108 Cal.App.5th Supp. at p. 66.)
The RJA cannot serve its intended purpose if courts impede defendants from
requesting and obtaining the very information that would, if discovered,
establish a violation.
Accordingly, following the guidance of Young, McDaniel, and Gonzales,
we conclude the proper course of action is to direct the issuance of a
peremptory writ of mandate compelling the trial court to vacate its denial of
petitioner’s discovery motion. On remand, the trial court shall engage in a
discretionary weighing of the remaining Alhambra factors to determine
whether there is good cause for discovery under section 745, subdivision (d),
“including the potential probative value of the information [petitioner] seeks,
and the burdens of gathering the requested ‘records or information’ for
disclosure.” (McDaniel, supra, 111 Cal.App.5th at p. 249; see id. at pp. 248–
249; Young, supra, 79 Cal.App.5th at pp. 160, 168–169.)
III. The remaining issues are not ripe.
Lastly, we decline to address petitioner’s claims that the trial court
erred in failing to consider his request for appointment of counsel and
requiring him to pay for copies of court records and transcripts. These issues
are not properly before us.
First, petitioner’s discovery motion did not include a request for
appointment of counsel and, as such, the trial court did not consider the issue
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when denying the motion. While petitioner did request appointment of
counsel in his separately filed RJA motion, that motion is not the subject of
our review. In any event, “[r]egarding appointment of counsel for a habeas
corpus petition raising a Racial Justice Act claim, section 1473, subdivision
(e)(5) [effective January 1, 2026] provides: ‘The petition shall state if the
petitioner requests appointment of counsel and the court shall appoint
counsel if the petitioner cannot afford counsel and either the petition pleads
a plausible allegation of a violation of subdivision (a) of Section 745 or the
State Public Defender requests counsel be appointed. Newly appointed
counsel may amend a petition filed before their appointment.’ ” (In re Lynex
(2026) 118 Cal.App.5th 756, 769; see McIntosh v. Superior Court (2025) 110
Cal.App.5th 33, 46 [threshold showing for appointment of counsel does not
require a prima facie showing under the RJA].) We leave it to the trial court
to apply this standard to petitioner’s request for appointment of counsel when
and if appropriate.
Second, as the People note, petitioner has never filed a motion or
request in the trial court for an order requiring the state or its agents to
provide him free copies of any court records or transcripts. Nonetheless, the
trial court, after concluding it lacked jurisdiction to consider petitioner’s
discovery motion, inexplicably stated: “To the extent that [petitioner] seeks
copies of court transcripts and public records [in the future], he must pay for
such copies.” It is not the role of an appellate court to
“ ‘resol[ve] … hypothetical situations’ ” that have not yet manifested.
(Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531,
540.) Nonetheless, we provide the following guidance to assist the parties on
remand.
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The RJA does not expressly afford a defendant the right to receive free
copies of discoverable materials from the state. Indeed, the RJA does not
articulate any rules governing the cost of producing discovery. In
comparison, section 1054.9, a statute governing postconviction discovery
where a defendant has been convicted of a serious or violent felony and
sentenced to prison, provides that, when a defendant is unable to obtain
discovery materials from trial counsel despite a good faith effort, the superior
court “shall … order that the defendant be provided reasonable access to” the
relevant discovery materials. (§ 1054.9, subds. (a), (c).) However, “[t]he
actual costs of examination or copying pursuant to this section shall be borne
or reimbursed by the defendant.” (§ 1054.9, subd. (e).)
Notwithstanding these provisions, it has long been the law that a
“criminal defendant who has established his indigent status is
constitutionally entitled to those defense services for which he demonstrates
a need,” which services may include “discovery costs, investigative costs,
transcript costs, expert fees, etc.” (Schaffer v. Superior Court (2010) 185
Cal.App.4th 1235, 1245.) In this matter, petitioner did not assert in the
superior court a right to free copies of discovery materials with a
demonstration of his indigent status. Unless or until petitioner does so, he is
not entitled to free copies of any material discoverable under the RJA.
(Cf. Schaffer, at p. 1245 [“it does not offend the Constitution to require a
nonindigent defendant to pay reasonable fees for duplicating discovery
materials disclosed by the district attorney pursuant to section 1054.1”].)
DISPOSITION
We deem the appeal a petition for writ of mandate. Let issue a
peremptory writ of mandate directing the trial court to vacate its order of
July 22, 2024, denying petitioner’s discovery motion under section 745,
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subdivision (d), and to conduct a new hearing to reconsider his motion in a
manner consistent with this opinion, including engaging in the discretionary
weighing of the Alhambra factors.
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JACKSON, P. J.
WE CONCUR:
SIMONS, J.
CHOU, J.
Cunningham v. The Superior Court of Alameda County (A171196)
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