Shorts v. Superior Court of L. A. Cnty.

• Decision Date: 18 June 2018
• Docket Number: B285710
• Citation: 234 Cal.Rptr.3d 392,24 Cal.App.5th 709
• Court: California Court of Appeals Court of Appeals
• Parties: Donald R. SHORTS, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, The People of the State of California, Real Party in Interest.

24 Cal.App.5th 709

234 Cal.Rptr.3d 392

Donald R. SHORTS, Petitioner,

v. The SUPERIOR COURT of Los Angeles County, Respondent,The People of the State of California, Real Party in Interest.

B285710

Court of Appeal, Second District, Division 7, California.

Filed June 18, 2018

Mary K. McComb, State Public Defender, and Andrea G. Asaro, Senior Deputy State Public Defender, for Petitioner.

No appearance for Respondent.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Joseph P. Lee and Idan Ivri, Deputy Attorneys General, for Real Party in Interest.

PERLUSS, P.J.

Penal Code section 1054.9¹ establishes a mechanism for postconviction discovery of 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 cases in which a sentence of death or life in prison without the possibility of parole has been imposed. In People v. Superior Court (Morales ) (2017) 2 Cal.5th 523, 213 Cal.Rptr.3d 581, 388 P.3d 811 ( Morales ) the Supreme Court held the superior court has jurisdiction pursuant to Code of Civil Procedure section 187 to grant a motion to preserve evidence potentially discoverable under section 1054.9 during the pendency of an automatic appeal of a capital case to the Supreme Court. However, the Court warned, "An order purporting to require the preservation of materials beyond the scope of Penal Code section 1054.9would ... exceed the trial court’s jurisdiction on a motion to preserve evidence." ( Morales , at p. 535, 213 Cal.Rptr.3d 581, 388 P.3d 811.)

Here, narrowly construing its authority under section 1054.9 and Morales , the superior court denied in part the motion to preserve evidence filed by Donald R. Shorts, whose automatic appeal following his conviction for murder and sentence to death is pending in the Supreme Court. Shorts’s petition for a writ of mandate asks us to define more precisely the permissible scope of record preservation in capital cases. In particular, Shorts contends a defendant sentenced to death is entitled to an order preserving materials pertaining to prior crimes and alleged prior criminal conduct that were the subject of evidence introduced by the prosecutor at the guilt and penalty phases of his capital trial, including offenses identified in the People’s notice of evidence in aggravation, not only materials related to the specific crimes charged in the case. Shorts also asserts, notwithstanding the Supreme Court’s caution in Morales as to the limits of the superior court’s jurisdiction, the underlying rationale of that case authorizes an order to preserve judicial records, including superior court files and probation department records, from his prior cases, his codefendant’s cases and the prosecution witnesses' cases, as well as from his own capital trial.

In response to the first issue, we agree with Shorts that he is entitled to an order preserving potentially discoverable materials in the possession of the prosecution and law enforcement authorities relating to all crimes discussed during his trial, whether at the guilt or penalty phase. The trial court’s failure to order preservation of those materials was an abuse of its discretion. As to the second issue, we agree with the Attorney General and the superior court that only material potentially discoverable under section 1054.9 is properly subject to a preservation order. Accordingly, we grant Shorts’s petition for a writ of mandate in part and direct the superior court to enter a new order granting, in addition to those materials previously ordered to be preserved, those portions of Shorts’s motion that sought to preserve potentially discoverable materials in the possession of the prosecution and law enforcement authorities relating to all prior crimes and alleged prior criminal conduct that were the subject of evidence introduced by the prosecutor at the guilt and penalty phases of his capital trial, including offenses identified in the People’s notice of evidence in aggravation.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Capital Trial

Shorts was charged with three counts of capital murder for the shooting deaths of Charlie Wynne, Kevin Watts and Michael Livingston.² The People alleged as special circumstances that Shorts had previously been convicted of murder, Shorts was guilty of multiple murders as charged in the pending case, the murders were perpetrated by the intentional discharge of a firearm from a motor vehicle and the murders were carried out to further the activities of a criminal street gang. (§ 190.2, subd. (a)(2), (3), (21) & (22).)

At trial, in addition to evidence of Shorts’s role in the murders of Wynne, Watts and Livingston, the prosecutor presented evidence underlying Shorts’s conviction for the 2005 murder of Gerald Brooks in San Bernardino County.³ Shorts, who testified at trial, was cross-examined at the guilt phase about the Brooks murder, and victim impact testimony relating to that crime was presented at the penalty phase.

Shorts was also questioned at trial regarding his alleged participation in the unadjudicated homicide of Isiah Parker. (Although Shorts had initially been charged in connection with Parker’s death, those charges were later dismissed.) Victim impact testimony about the Parker murder was presented at the penalty phase.

In addition to evidence about the Brooks and Parker murders, the penalty phase also included evidence of other criminal activity by Shorts in Los Angeles and San Bernardino Counties. Each of these crimes was identified in the notice of evidence in aggravation filed by the Los Angeles County District Attorney’s Office. (§ 190.3, 4th par.)

The jury convicted Shorts on all three counts of murder; the four special circumstances allegations were found true. On November 29, 2010 Shorts was sentenced to death for the murders of Wynne and Watts and to life without the possibility of parole for Livingston’s murder. His automatic appeal is pending before the California Supreme Court.

2. The Record Preservation Motion

The Supreme Court appointed the State Public Defender to serve as appellate counsel for Shorts in February 2015. In July 2016 appellate counsel filed a motion in the superior court on Shorts’s behalf to preserve evidence, exhibits and other potentially discoverable material pending appointment of counsel for habeas corpus proceedings⁴ and disposition of all postconviction proceedings. The court denied the motion, ruling it lacked jurisdiction to issue a record preservation order, but without prejudice in light of the then-pending Morales case.

After the Supreme Court decided Morales , supra , 2 Cal.5th 523, 213 Cal.Rptr.3d 581, 388 P.3d 811, recognizing the superior court’s jurisdiction to order record preservation in capital cases, counsel filed a renewed motion, which requested an order requiring preservation of files, records, evidence and exhibits relating to the Wynne, Watts, Livingston, Parker and Brooks homicides. Shorts also sought preservation of prosecution and law enforcement investigative records as to other crimes set forth in the People’s notice of aggravation and introduced at trial.⁵

The People opposed the motion in part, arguing it sought preservation of materials from "extraneous cases" beyond the scope of section 1054.9 : "[O]nly materials which are held by law enforcement agencies and that concern the investigation or prosecution of the defendant’s capital case may be ordered preserved." The opposition also argued that judicial records were not subject to preservation under Morales .

On August 15, 2017 the superior court granted in part and denied in part Shorts’s renewed motion to preserve evidence. With respect to the Los Angeles District Attorney, the court granted the request as to materials involving the Wynne, Watts and Livingston murders, but denied the request as to the Parker homicide and the other incidents introduced as evidence of aggravation (noting that, to some extent, that material would be preserved as part of the order directed to the District Attorney’s files relating to the Wynne, Watts and Livingston prosecutions). The request to preserve records of the San Bernardino District Attorney regarding the Brooks prior conviction was denied.

With respect to the request to preserve materials held by various law enforcement agencies, the court granted the motion only as to records related to the Wynne, Watts and Livingston murders⁶ and denied the request as it pertained to the Brooks homicide,⁷ the Parker homicide and the evidence listed in the notice of aggravation. The court limited the records sought from the California Department of Corrections and Rehabilitation (CDCR) and the Los Angeles County Probation Department to reports generated in connection with "this case," and denied the request as to the Los Angeles County Coroner-Medical Examiner and the San Bernardino County Coroner-Medical Examiner. The court also declined to order the Los Angeles Superior Court or the San Bernardino Superior Court to preserve judicial records.

Shorts petitioned this court for a writ of mandate, alleging the superior court had breached its ministerial duty to order the preservation of potentially discoverable prosecutorial and law enforcement materials. After receiving opposition from the Attorney General and a reply in support of Shorts’s petition, we issued an order to show cause why the relief requested in the petition should not be granted.

DISCUSSION

1. The Need for Extraordinary Writ Relief

Shorts contends he has a right to an order preserving all materials potentially discoverable under section 1054.9 (see Morales , supra , 2 Cal.5th at p. 531, 213 Cal.Rptr.3d 581, 388 P.3d 811 ["discovery is available as a matter of right under Penal Code section 1054.9, provided the motion satisfies the statutory requirements"] ) and that this right may be substantially impaired—that is, there...