Lead Opinion
Opinion
Petitioner Lee Max Barnett is under a judgment of death. He filed in the superior court a motion for postconviction discovery under Penal Code section 1054.9 (section 1054.9). We granted review to decide important issues regarding that section. We reach the following conclusions:
Because section 1054.9 provides only for specific discovery and not the proverbial “fishing expedition” for anything that might exist, defendants seeking discovery beyond recovering what the prosecution had provided to the defense before trial must show a reasonable basis to believe that specific requested materials actually exist. But they do not additionally have to show that they are material within the meaning of Brady v. Maryland (1963)
Section 1054.9 does not govern materials in the possession of out-of-state law enforcement agencies that merely provided the prosecution with information or assistance under the circumstances of this case.
I. Procedural Background
In 1988, in the Butte County Superior Court, petitiоner was convicted of first degree murder with special circumstances, as well as other crimes, and was sentenced to death. We affirmed the judgment. (People v. Barnett (1998)
We briefly summarized the facts underlying petitioner’s conviction in In re Barnett: “It suffices to note that a jury convicted petitioner in 1988 of one count of assault with a firearm, several counts of kidnapping and robbery, and one count of first degree murder. Petitioner committed his crimes upon encountering the victims unexpectedly in 1986 at a remote campsite in a Butte County gold mining area. The evidence at trial included testimony from persons present at the encounter, including petitioner, and from others who had contact with petitioner the summer befоre the crimes occurred or immediately afterward.” (In re Barnett, supra,
In July 2004, petitioner filed a discovery motion in the Butte County Superior Court pursuant to section 1054.9. As the Court of Appeal summarized, “In his discovery motion, Barnett sought various materials, including materials now missing from the numbered discovery provided during trial, materials the prosecution allegedly failed to produce in response to a discovery order during trial, and various other materials.” (Much of the following discussion is taken from the Court of Appeal opinion.) Informal communications between the parties resolved some of the discovery issues, but the parties disagreed regarding other requests, and they litigated the matter in superior court. At one point, petitioner filed a brief that identified 60 items or categories of items he was seeking to discover. After further informal discussions, petitioner’s counsel informed the court that the prosecution had produced over 300 pages of discovery materials and 64 compact discs of audiotape recordings. But areas of disagreement remained. Ultimately, the superior court issued a ruling, granting some of the disputed discovery requests and denying others.
Petitioner filed the instant petition for writ of mandate in the Court of Appeal. He sought to compel the superior court to grant the discovery requests it had denied. At issue was the superior court’s denial, in whole or in part, of 24 different discovery requests. The Court of Appeal issued an
While the case was pending in this court, the Criminal Justice Legal Foundation filed an amicus curiae brief arguing that section 1054.9 was an invalid amendment of the statutory provisions of Proposition 115, enacted in 1990. In January 2008, we transferred the case back to the Court of Appeal to decide this question in the first instance. The Court of Appeal found that section 1054.9 is valid and otherwise essentially reiterated its first opinion.
In addition to upholding section 1054.9’s validity, the Court of Appeal made three holdings now before us on review;
(1) “[A] law enforcement agency that provides a report relating to previous criminal conduct by a defendant charged with a capital offense can be deemed to have been ‘involved in the investigation or prosecution of the case’ against the defendant, such that materials in the possession of that agency are subject to discovery under section 1054.9.” Accordingly, it ordered discovery of original notes from 22 out-of-state law enforcement officers who worked for six different out-of-state law enforcement agencies and who, according to petitioner, had been involved in investigating petitioner’s prior crimes later used as aggravating evidence at the penalty phase of his trial.
(2) “ ‘[I]n moving for discovery under section 1054.9, the defendant does not have to prove the actual existence (or a good faith belief in the actual existence) of discovery materials in the possession of the prosecution and/or the relevant law enforcement authorities as a prerequisite to obtaining an order for discovery under the statute.’ ” (Quoting the same panel’s earlier opinion in People v. Superior Court (Maury) (2006)145 Cal.App.4th 473 , 485 [51 Cal.Rptr.3d 670 ]; see generally id. at pp. 479-485].)
(3) “[W]hen a defendant seeks discovery under section 1054.9 on the theory that he would have been entitled to the requested materials at time of trial under Brady[, supra,373 U.S. 83 ], the defendant bears the burden of establishing the materiality of the evidence he seеks.”
Both the People and petitioner sought review. In their respective petitions, the People challenged the first two of these holdings and petitioner the third. We granted both petitions and, on our own motion, ordered review of section
H. Discussion
In 2002, the Legislature enacted section 1054.9, providing for post-conviction discovery in certain circumstances. Subdivisions (a) and (b) of that section, the portions relevant here, provide: “(a) 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, excеpt as provided in subdivision (c) [relating to physical evidence], order that the defendant be provided reasonable access to any of the materials described in subdivision (b).
“(b) For 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 In re Steele (2004)
A. Whether Defendants Have a Burden to Show Entitlement to Discovery Materials
The legislative history behind section 1054.9 shows that the Legislature’s main purpose was to enable defendants efficiently to reconstruct defense attorneys’ trial files that might have become lost or destroyed after trial. (See Steele, supra,
“According to the sponsor, ‘The problem that occurs all too often is this: a defendant’s files are lost or destroyed after trial and habeas counsel is unable to obtain the original documents because the State has no legal obligation to
“ ‘Currently, as expressed in People v. Gonzalez (1990)
The Legislature’s purpose of enabling file reconstruction should not be difficult to implement. Defendants should first seek to obtain their trial files from trial counsel. But if a defendant can show a legitimate reason for believing trial counsel’s current files are incomplete (for example, if, as here, not all numbered discovery is available), thе defendant should be able to work with the prosecution to obtain copies of any missing discovery materials it had provided to the defense before trial (assuming it still possesses them). (See Steele, supra,
A problem exists, however, because, as we explained in Steele, although “the bill’s main focus was to permit reconstruction of lost files . . . ,” the stаtutory language provides for more than that. (Steele, supra,
In Steele, we stated that “section 1054.9 does provide only limited discovery. It does not allow ‘free-floating’ discovery asking for virtually аnything the prosecution possesses.” (Steele, supra, 32 Cal.4th at p. 695.) In discussing what materials beyond file reconstruction defendants were entitled to obtain, we repeatedly used the word “specific.” For example, we said the obtainable discovery “includes specific materials that the defendant can show the prosecution should have provided (but did not provide) at the time of trial because they came within the scope of a discovery order the trial court actually issued at time of trial or a statutory duty to provide discovery.” (Ibid.) We also noted Evidence Code section 664’s presumption that an official duty has been regularly performed and said that, before being entitled to discovery under section 1054.9, the defendant must overcome this “presumption as to specific evidence.” (Steele, supra, at p. 694.) As we have explained, the Legislature was primarily concerned with preventing the problems that occur when the trial attorney’s files no longer exist through no fault of the defendant. This concern, together with the Legislature’s evident intent to make section 1054.9 an efficient method of discovery, causes us to conclude that section 1054.9 requires defendants who seek discovery beyond file reconstruction to show a reasonable basis to believe that other specific materials actually exist. Otherwise, a discovery request can always become, as this one has, a free-floating request for anything the prosecution team may possess.
In concluding that defendants need not make such a showing, the Court of Appeal cited its opinion in an earlier case, which had said that such a requirement “erects a standard that is virtually impossible, if not absolutely impossible, for a defendant to meet.” (People v. Superior Court (Maury), supra,
Requiring defendants to show they have reason to believe specific materials actually exist does not place an onerous burden on them. Defendants have access to the trial record and to the discovery materials the prosecution provided to the defense before trial. Defendants may obtain those materials either from trial counsel or through file reconstruction. As the Attorney General notes, a person could use these resources “to make the necessary showing. For example, if a witness testifies about a particular report that the petitioner does not possess, the petitioner would have sufficient evidence to justify a request for that report under section 1054.9. It would also be appropriate for a petitioner to seek access to a report he or she does not possess that is cross-referenced in a police report possessed by the petitioner. Similarly, if evidence in the record indicates that a particular witness was interviewed three times and the petitioner has reports documenting only two interviews, that petitioner could make the necessary showing, based on the record, that a third report likely exists.”
Petitioner challenges our reliance in Steele on Evidence Code section 664’s presumption that official duties have been regularly performed. He argues it is merely an evidentiary presumption for trial purposes. But the United States Supreme Court has cited a similar presumption as a reason to deny discovery regarding speculative misconduct claims. (Bracy v. Gramley (1997)
This brings us to a related question. The Court of Appeal held that in order to receive potentially exculpatory materials, petitioner “bears the burden of establishing the materiality of the evidence he seeks.” This holding was based on the circumstance that, to establish a violation of the prosecution’s duty to disclose exculpatory evidence, a defendant challenging a conviction must establish not only that the prosecution withheld the evidenсe but also that the evidence was material, meaning that it is reasonably
In summary, we conclude that, to be entitled to receive discovery beyond merely recovering items that the prosecutor had provided to defense counsel before trial, defendants must show they have a reasonable basis to believe that the specific materials they seek actually exist. To obviate one concern that petitioner has expressed, we note that a reasonable basis to believe that the prosecution had possessed the materials in the past would аlso provide a reasonable basis to believe the prosecution still possesses the materials. Petitioner need not make some additional showing that the prosecution still possesses the materials, a showing that would be impossible to make. (However, as we explained in Steele, § 1054.9 “imposes no preservation duties that do not otherwise exist.” (Steele, supra,
B. Whether Penal Code Section 1054.9 Extends to Materials in the Possession of Out-of-state Law Enforcement Agencies
In Steele, supra,
In Steele, we explained that “[s]ection 1054.9, subdivision (b), refers to ‘materials in the possession of the prosecution and law enforcement authorities . . . .’ Thus, the materials include not only those the prosecution itself possesses but those that law enforcement authorities possess. The discovery obligation, however, does not extend to all law enforcement authorities everywhere in the world but, we believe, only to law enforcement authorities who were involved in the investigation or prosecution of the case.” (Steele, supra,
Steele further explained that this “conclusion is consistent with the scope of the prosecution’s constitutional duty to disclose exculpatory information. ‘The scope of this disclosure obligation extends beyond the contents of the prosecutor’s case file and encompasses the duty to ascertain as well as divulge “any favorable evidence known to the others acting on the government’s behalf. . . .” ’ (In re Brown (1998)
We must decide how these principles apply to out-of-state law enforcement agencies. Petitioner argues that the out-of-state law enforcement agencies involved in this case are part of the prosecution team under section 1054.9. In this regard, he filed in this court a “motion to take documentary evidence or for other aрpropriate relief.” Attached to the motion are copies of correspondence in 1987 between the Butte County District Attorney and a New York law enforcement agency. Those documents, which are not otherwise part of the record in this case, show that the New York authorities supplied the district attorney with information concerning crimes petitioner had committed in New York and helped put the California authorities in touch with at least one of the victims, who testified at petitioner’s capital trial in California. The Attorney General stated he does not object to this court’s considering these documents. Accordingly, we issued an order granting the motion and have considered the documents attached to petitioner’s motion to be part of the record in this case. These and other records show that the out-of-state agencies provided assistance and perhaps conducted a few interviews of potential witnеsses.
Although the out-of state law enforcement agencies acted on behalf of the prosecution in a limited sense, we believe that they are not part of the “ ‘prosecution team’- ” as discussed in Steele, supra,
A federal court that had to decide whether an agency was part of the prosecution team for Brady purposes considered three relevant questions: “ ‘(1) whether the party with knowledge of the information is acting on the government’s “behalf’ or is under its “control”; (2) the extent to which state and federal governments are part of a “team,” are participating in a “joint investigation” or are sharing resources; and (3) whether the entity charged with constructive possession has “ready access” to the evidence.’ ” (U.S. v. Reyeros (3d Cir. 2008)
Two federal decisions are closely on point. In Moon v. Head (11th Cir. 2002)
In U.S. v. Kern (8th Cir. 1993)
In this case, the Court of Appeal found that Moon v. Head, supra,
We disagree. We have ourselves used the term “prosecution team” to describe the extent of the prosecutor’s Brady obligations. (Steele, supra,
Accordingly, we conclude the prosecution is not required to provide discovery of materials from the out-of-state law enforcement agencies of this case that the prosecution does not itself possess.
III. Conclusion
We believe the instant discovery dispute is best resolved by remanding the matter back to the trial court, where the parties can try to settle it informally consistent with the views expressed in this opinion. If informal efforts fail, the trial court can issue a new order consistent with this opinion. If necessary, either party may then challenge the new order by a writ proceeding in the Court of Appeal.
We reverse the judgment of the Court of Appeal and remand the matter to that court with directions to remand the matter to the trial court for further proceedings consistent with this opinion.
George, C. 1, Baxter, 1, and Corrigan, J., concurred.
Dissenting Opinion
The United States Constitution requires certain minimum procedural protections in criminal cases generally аnd capital cases in particular. The states, however, are “absolutely free” to provide defendants with greater protection. (Arizona v. Evans (1995)
I. Threshold Burden
In Steele, supra,
To hold that a defendant must prove specific undisclosed materials еxist before requesting their production will inevitably have the pernicious effect of shielding both negligent and intentional failures to produce relevant evidence. This is not speculation. In the case before us, the prosecutor’s inadvertent failure to produce police reports that fell within the scope of a specific pretrial discovery order came to light only when defendant requested such materials in posttrial discovery. Under today’s holding, defendant’s request would have been denied at the outset because he had no way to prove the reports existed, and they would never have come to light.
Seeking to play down the newly created threshold burden, the majority suggests the record will occasionally give the defense a basis for proving that specific undisclosed materials do exist. For example, if a witness testifies about a particular report the defendant does not possess, or if a disclosed report cross-references an additional, undisclosed report, the defendant would presumably have sufficient evidence to justify a discovery request under section 1054.9. (See maj. opn., ante, at p. 901.) I do not doubt that, in a few rare cases, random events may reveal that the prosecution has in fact failed to comply with its disclosure obligations. But the Legislature cannot reasonably be thought to have intended to condition an important statutory right on fortuities.
In any event, nothing in the language of the postconviction discovery statute supports the majority’s decision to impose a threshold burden of proof on the defense. Section 1054.9 provides simply that a defendant is entitled to
In its zeal to protect the People from the supposed burden of complying with their postconviction discovery obligations, the majority goes even farther than the People ask the court to go. At oral argument, the People contended that defendant’s request for interview notes prepared by the New York State Police should be denied because defendant is unable to show precisely what the New York agency did at the Butte County prosecutor’s request, even though correspondence between the two agencies shows New York enthusiastically provided witness-related assistance that Butte County described as “very helpful.” The People thus correctly anticipated, and proposed to apply, the majority’s holding imposing a threshold burden of proof on the defense. But later, in response to questioning from the bench, the People conсeded “it might be appropriate” for the trial court to ask the prosecutor precisely what assistance New York provided because the prosecutor is “in a position to know,” and that to require the prosecutor to answer the question would not impose “a huge burden.” The majority’s failure to accept the People’s concession makes it impossible to accept today’s holding as necessary to make the postconviction discovery statute workable and efficient.
The majority also concludes defendant is not entitled to any witness interview notes prepared by out-of-state law enforcement agencies at the specific request of the Butte County prosecutor’s office. (Maj. opn., ante, at pp. 895, 903, 905.) Although the relevant facts have not yet been fully developed, defendant has shown that various out-of-state law enforcement agencies
The New York State Police, in particular, enthusiastically acted as the prosecutor’s agents in the penalty phase investigation. In January 1987, the Butte County District Attorney’s Office, in a letter to the New York State Police (NYSP), specifically requested New York’s “assistance in locating and re-interviewing the key witnesses in two [New York] investigations, with a view towards their ultimate testimony in our court in the penalty phase trial.” A commanding officer of the NYSP’s Bureau of Criminal Investigation (BCI) responded by directing a troop commander to “assign a member of the BCI to conduct the appropriate investigation as requested” and to provide further, continuing assistance upon “any additional request of the [Butte County] District Attorney’s Office telephonically conveyed . . . .” The commanding officer emphasized to his subordinates that “[d]ue to the severity of the charges, the possible ultimate judgment and certain time considerations in the California Judicial System, the assigned member is to expedite this investigation as a priority matter. The result of this investigation and locating of the pertinent witnesses will be instrumental and extremely important to the prosecution’s position at the penalty trial.” (Italics added.) The New York agencies did as California asked. In a followup letter requesting further assistance with respect to a particular penalty phase witness, the Butte County prosecutor’s office noted that its efforts had “been much assisted by [a named] Investigator .... of your troop in East Greenbush” and that the New York State Police “have been very helpful in our efforts and we are very appreciative.”
In view of these facts, candor would seem to require us to acknowledge that the New York State Police did act on behalf of the Butte County prosecutor in gathering information in connection with the penalty phase investigation. (See Steele, supra,
Seeking to avoid this conclusion, the majority observes, among other things, that out-of-state law enforcement agencies are not under the Butte County prosecutor’s control. (Maj. opn., ante, at p. 904.) But defendant has shown that New York, at least,
In this case, the record leaves no doubt that information from New York is reasonably available to the Butte County prosecutor. The People conceded as much at oral argument, and agreed that Butte County’s lack of control over an out-of-state agency is not determinative when “[t]he prosecutor actively engages another agency and asks them to ‘please, go out and develop this
Rushing, J.,
Petitioner’s petition for a rehearing was denied October 13, 2010. Kennard, J., did not participate therein. Werdegar, J., Moreno, J., and Rushing, J.,* were of the opinion that the petition should be granted.
Notes
All further statutory citations are to the Penal Code, except as noted.
I agree with the majority on one point only: A defendant seeking information through postjudgment discovery under section 1054.9 need not prove the information is material. (See maj. opn., ante, at pp. 894, 901.)
In Bracy v. Gramley (1997)
Specifically, the New York State Police, the Miami-Dade Police Department (Florida), the Miami-Dade Office of the State Attorney (Florida), and the Calgary Police Service (Alberta, Canada).
As the majority notes (maj. opn., ante, at p. 903), we granted defendant’s motion to consider this documentary evidence.
The majority fails entirely to mention the nature and scope of the assistance provided by law enforcement officers in Miami-Dade County and Calgary. Yet defendant asserted in his motion for postconviction discovery that officers in both locations interviewed witnesses at the Butte County prosecutor’s request, and the People do not challenge the accuracy of defendant’s assertions.
The majority states that “we need not decide definitively whether the out-of-state agencies would have been considered part of the prosecution team under pretrial discovery rules” because “[sjection 1054.9 is a posttrial discovery provision.” (Maj. opn., ante, at p. 906.) I find this statement mysterious and, thus, potentially mischievous, because the statutory right to postconviction discovery expressly extends to materials “to which the . . . defendant would have been entitled at [the] time of trial.” (§ 1054.9, subd. (b).)
Presiding Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Concurrence Opinion
I agree with part II.A. of the majority opinion that defendants seeking postconviction discovery under Penal Code section 1054.9 must show a reasonable basis to believe that those items actually exist, but do not have to show further that those items are material within the meaning of Brady v. Maryland (1963)
I agree with part II. of Justice Werdegar’s dissent, post, that, at the least, petitioner is entitled to discover information in the possession of the New York State Police that relates to the information that agency gathered for the prosecution in this case. I dissent from the majority’s contrary holding.