Barnett v. Superior Court, No. C051311.

CourtCalifornia Court of Appeals
Writing for the CourtRobie
Citation54 Cal.Rptr.3d 283,146 Cal.App.4th 344
PartiesLee Max BARNETT, Petitioner, v. The SUPERIOR COURT of Butte County, Respondent; The People, Real Party in Interest.
Decision Date05 December 2006
Docket NumberNo. C051311.
54 Cal.Rptr.3d 283
146 Cal.App.4th 344
Lee Max BARNETT, Petitioner,
The SUPERIOR COURT of Butte County, Respondent;
The People, Real Party in Interest.
No. C051311.
Court of Appeal, Third District.
December 5, 2006.
As Modified on Denial of Rehearing January 2, 2007.

[54 Cal.Rptr.3d 289]

Daniel J. Broderick, Acting Federal Defender, Jennifer M. Corey, Assistant Federal Defender; Robert D. Bacon, for Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Ward A. Campbell, Supervising Deputy Attorney General, Eric L. Christoffersen, Deputy Attorney General, for Real Party in Interest.


Penal Code 1 section 1054.9 allows persons subject to a sentence of death or life in prison without the possibility of parole to file a motion for postconviction discovery to assist in seeking a writ of habeas corpus or an order vacating the judgment. In In re Steele (2004) 32 Cal.4th 682, 10 Cal.Rptr.3d 536, 85 P.3d 444, the California Supreme Court resolved a number of "important procedural and substantive issues regarding that section," (id. at p. 688, 10 Cal.Rptr.3d 536, 85 P.3d 444) but the court left many other issues unresolved.

Here, we have occasion to continue the work begun in Steele. In 2004, shortly after the publication of Steele, petitioner Lee Max Barnett filed a comprehensive motion for discovery under section 1054.9 in Butte County Superior Court. Ultimately, the court granted many of Barnett's requests but denied many others. Barnett brought this writ proceeding to challenge the denials.

As will be shown, we conclude the trial court did not abuse its discretion in denying most of Barnett's requests but did abuse its discretion in denying some, and therefore we will grant Barnett's petition in part and deny it in part. In reaching that result, we conclude (among other things) that: (1) the Legislature did not intend to require a defendant seeking discovery under section 1054.9 to prove the actual existence (or a good faith belief in the actual existence) of materials in the possession of the prosecution and/or the relevant law enforcement authorities before the court can order discovery under the statute; (2) in requesting materials pursuant to section 1054.9, a defendant does not have to provide the People with an inventory of every single document or other item the defendant possesses already;

54 Cal.Rptr.3d 290

(3) section 1054.9 does not give a defendant the right to have the court order duplicative discovery; (4) section 1054.9 does not provide a vehicle for a defendant to enforce any obligation the People may have to produce exculpatory evidence they did not possess at time of trial; and (5) an unsworn denial of the existence of any further responsive documents is not a valid basis for upholding the denial of a defendant's motion for discovery under section 1054.9.


In 1988 in Butts County, Barnett was convicted of the murder of Richard Eggett (as well as other crimes) and sentenced to death. In 1998, the California Supreme Court affirmed his convictions and sentence. (People v. Barnett (1998) 17 Cal.4th 1044, 1075, 1104, 1183, 74 Cal. Rptr.2d 121, 954 P.2d 384.)

In July 2004, Barnett filed a discovery motion pursuant to section 1054.9.2 At the time, he had two petitions for habeas corpus pending in the California Supreme Court and one pending in federal court.3

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.

At a hearing on the motion in November 2004, in front of the same judge who had served as the trial judge 16 years earlier, the prosecutor told the court the parties had been working together outside of court to narrow the issues. Barnett's counsel agreed they had "made a lot of progress," but both sides acknowledged there would be areas of disagreement. Ultimately, the parties agreed to meet and confer on a proposed briefing schedule to address those areas of disagreement.

In December 2004, the court entered an order setting a briefing schedule to address "each specific item remaining at issue" and setting a further hearing for March 2005. Pursuant to the briefing schedule, Barnett filed a supplemental brief that identified 60 different items or categories of items that he was seeking to discover.

The People were to file their brief in January 2005, but failed to do so. In February, pursuant to the ordered briefing schedule, Barnett filed his reply brief asking the court to "grant discovery of all items requested in the amended discovery motion" due to the People's failure to file their brief.

At the hearing in March, the prosecutor apologized for failing to file his brief and said he would "like to try another round of

54 Cal.Rptr.3d 291

informal [discussion with opposing counsel] before we involve the Court." Barnett's counsel agreed.

At a status conference in April, at the request of Barnett's counsel, the court ordered the People to produce by May 12 everything they were going to agree to produce. The parties and the court would then address "any areas of disagreement" at another status conference already set for July.

At the July status conference, Barnett's counsel acknowledged that the People had produced over 300 pages of discovery materials and 64 compact discs of audio tape recordings. Ultimately, it was agreed Barnett would file a further supplemental brief in August, with the People's response to follow in September.

In their response, the People argued, among other things, that: (1) "in requesting materials pursuant to section 1054.9, a petitioner must show that the requested materials are not in his possession"; (2) to be entitled to an order for the production of documents, the prosecution was required, but failed, to disclose at trial, "a petitioner must overcome a presumption that the prosecution properly fulfilled its discovery obligations at trial"; and (3) to succeed on a motion under section 1054.9, "a petitioner must establish a good faith basis to believe the materials requested actually exist." The People also specifically responded to many of Barnett's discovery requests by noting that "[n]othing exists as to this request beyond that already disclosed to petitioner."

A further hearing on the discovery motion was held in October 2005, and in November the trial court issued its ruling, granting some requests and denying others. As to the requests the trial court granted, the court ordered that "if there [are] no discovery materials or no further discovery materials to be provided beyond what has already been provided, then the [People] should so state in a written declaration to be provided petitioner-defendant on or before the discovery deadline. [¶] The declaration should state the factual basis for the conclusion, quote, nothing exists to be discovered as to this item of discovery, end quote; or, quote, nothing exists as to the discovery item beyond what has already been provided, end quote, [¶] The declaration should address what efforts were made to find the item or items of discovery, including what, if any, agencies or individuals were contacted and their responses."

As to the requests the trial court denied, the court did not offer a separate reason for its ruling as to each request, but stated only that it was doing so "because I find that particular request falls outside the guidelines set forth in the Steele decision."

On November 30, 2005, Barnett commenced this proceeding by filing a petition for writ of mandate in this court seeking to compel the trial court to grant the various discovery requests it had denied. We ordered the issuance of an alternative writ of mandate.


At issue in this proceeding is the trial court's denial, in whole or in part, of 24 different discovery requests.4 We will address each of those requests separately.

Home Addresses Of Law Enforcement Witnesses

In February 1987, on a motion by Barnett to compel discovery, the trial

54 Cal.Rptr.3d 292

court ordered the People to make available to Barnett "[t]he names, addresses and telephone numbers of all witnesses, prepared in a written list, who may be called to testify by the prosecution at any hearing or phase of the trial in this case, including but not limited to the guilt trial and penalty phase."

In his motion for discovery under section 1054.9, Barnett asserted that "[t]he state never provided such a list." Barnett claimed "[t]he district attorney did provide a list of potential witnesses ..., but many of the witnesses who testified at trial are not on the list." Barnett requested "a complete and accurate witness list as was ordered in the trial court's discovery order."

The People asserted they had "no memory or documentation that such a specific list was given other than a partial subpoena list used for internal purposes." The People did, however, "attempt[ ] to reconstruct the missing witness list with other information that existed in the People's files from the trial," but did not include in that list the home addresses of any law enforcement officers who testified. According to the People, the "home addresses of police ... witnesses ... were not reconstructed" because "a peace officer's home address is not to be disclosed."

The trial court; ordered the People to provide the requested witness list, with the exception that "[n]o home addresses or telephone numbers of law enforcement officers are required to be disclosed."

Barnett contends the trial court erred in refusing to order the People to disclose the home addresses of the 15 law enforcement officers who testified at trial. He contends the home addresses of the law enforcement witnesses...

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