People v. Harbor CA2/3 ( 2021 )


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  • Filed 7/1/21 P. v. Harbor CA2/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    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    has not been certified for publication or ordered published for purposes of rule 8.1115.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
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,                                                     B302806
    Plaintiff and Respondent,                             (Los Angeles County
    Super. Ct. No. NA065766)
    v.
    TRAVYON CHARLES HARBOR,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County, William C. Ryan, Judge. Affirmed in part and
    dismissed in part.
    Karyn H. Bucur, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Assistant
    Attorney General, Roberta L. Davis and William H. Shin, Deputy
    Attorneys General, for Plaintiff and Respondent.
    ——————————
    Travyon Charles Harbor was convicted of second degree
    murder and premeditated attempted murder in 2005.
    Approximately 14 years later, he filed a petition for writ of error
    coram nobis claiming that the prosecutor failed to disclose secret
    recordings of witness interviews, and that newly discovered
    evidence of witnesses recanting their trial testimony proved his
    actual innocence. Harbor also requested postconviction discovery
    of evidence related to the recorded witness interviews, among
    other things. The court denied Harbor’s petition and his request
    for discovery. We affirm the court’s denial of Harbor’s petition
    and dismiss his appeal of the court’s denial of his request for
    postconviction discovery.
    BACKGROUND
    I.    Trial
    The following factual summary is taken from our opinion in
    Harbor’s direct appeal. (People v. Harbor (Nov. 20, 2007,
    B187911) [nonpub. opn.].)
    “[A.] Prosecution evidence.
    “Dwayne Saulsberry testified that, on July 26, 2002, at
    about 6:00 p.m., he drove Kieanii K. and her brother home
    to . . . East Cruces Street in Wilmington. Saulsberry and
    Kieanii [K.]’s uncle, Timothy Fox, got into an argument.
    Kieanii [K.] told Saulsberry to leave. As he was returning to his
    car, Saulsberry heard Fox whistle. Then, just as Saulsberry
    started to drive away, a vehicle ‘came charging at’ him. To avoid
    a head-on collision, Saulsberry swerved. The oncoming vehicle
    sideswiped Saulsberry’s car. Saulsberry heard gunfire, six or
    seven rounds fired in rapid succession, as he kept driving away.
    2
    He reached the end of the block and turned onto Watson Avenue.
    Saulsberry did not see who was shooting at him.
    “When the police subsequently searched Saulsberry’s car,
    they found 11 rounds of .32-caliber ammunition. Saulsberry
    claimed the ammunition was old and that he did not know it was
    in his car. He denied having had a gun with him on the day of
    the shooting.
    “Kieanii [K.] told police[1] that during the argument
    between Fox and Saulsberry, Fox ‘was basically belittling him
    because of his handicap.’ (Saulsberry was missing his right leg
    and he had suffered some kind of permanent injury to his left
    arm.) Saulsberry pulled a gun from his pocket, showed it to Fox
    and said, ‘I’m not a punk. I can take care of myself.’ Kieanii [K.]
    told Saulsberry, ‘Look, you better get out of here. They are gonna
    shoot you.’ According to Kieanii [K.], Saulsberry ‘went back to
    his car, threw the gun on the floorboard, got into his car,
    and . . . started to take off. And then she saw [defendant Harbor]
    come from a parked car, shoot at [Saulsberry, who] collided into a
    car that was coming up the street, and then . . . [Harbor] began to
    shoot as [Saulsberry] kept going west until he got to Watson.’[2]
    1 “At trial, Kieanii [K.] denied having been in Saulsberry’s
    car that day. She testified Saulsberry arrived at her house
    unexpectedly. After speaking to him briefly, she closed the front
    door and did not witness what happened outside. At the same
    time, however, Kieanii [K.] acknowledged she had told the police
    Harbor shot at Saulsberry.”
    2 “Watson Avenue was the first cross-street west of the
    block of East Cruces on which both Kieanii [K.] and Harbor
    lived.”
    3
    Kieanii [K.] did not see anyone except Harbor fire a gun during
    this incident.
    “Regina Smith testified she lived with her boyfriend, Willie
    Harbor, who was defendant Harbor’s uncle, across the street and
    west of Kieanii [K.]’s house. At the time of the shooting, Smith
    was sitting in her Volkswagen Rabbit in front of the Harbor
    house smoking PCP. Smith told police she saw Saulsberry run to
    his car and start to drive away. A blue Cadillac appeared and
    collided with Saulsberry, who kept driving down East Cruces.
    Then Harbor, who was standing in the driveway of the Harbor
    house, started shooting at Saulsberry: ‘[T]hen the car went
    towards Watson on Cruces and [Harbor kept] shooting at the
    car . . . .’ When Saulsberry reached Watson Avenue, he turned
    left and Smith heard more gunshots. Later, after the ambulance
    came, Smith went into the house and saw Harbor trying to climb
    through the back window. When she asked what he was doing
    Harbor said, ‘I got to get out of here.’ Smith did not see anyone
    besides Harbor shooting a gun during the incident.
    “Walfred Marroquin and his wife, Rosa Garcia,
    lived . . . across Watson Avenue from, and west of, both
    Kieanii [K.]’s house and the Harbor house. When the shooting
    occurred, Marroquin and Garcia were just returning home.
    Garcia got out of the car and went to open the driveway gate.
    Then she fell to the ground. Marroquin ran over and saw she
    was bleeding from the head. Garcia never regained
    consciousness and she died two days later. It turned out she was
    six weeks’ pregnant. Detective Goodman attended the autopsy
    and saw a bullet entry wound in the side of Garcia’s head.
    “Leticia Huerta lived . . . a couple of houses west of
    Kieanii [K.]’s house. Huerta heard the gunshots and, when the
    4
    shooting was over, she looked out her bedroom window. She saw
    Fox shaking hands with Harbor on the sidewalk across the street.
    Huerta told police she heard a single shot, a pause, and then
    rapid gunfire.
    “Huerta’s husband, Rigoberto Martinez, looked out the
    living room window when the shooting stopped. He saw Harbor
    by the sidewalk across the street, crouched behind a white
    Cherokee which was parked in front of 1405 East Cruces Street,
    behind Smith’s car. Harbor appeared to be putting a gun into his
    waistband. Martinez then saw Fox and Harbor shaking hands in
    a congratulatory way.
    “Five .40-caliber bullet casings were found spread out in
    front of 1405 East Cruces Street. One casing was found on the
    sidewalk close to a gate belonging to 1405 East Cruces Street,
    and four casings were found in the driveway area. Detective
    Goodman testified this physical evidence was consistent with
    Martinez’s statement about where he had seen Harbor when the
    shooting stopped.
    “Detective Goodman testified it appeared gunfire had hit
    the front of a Buick Regal, which was parked very close to where
    Garcia had been standing when she was shot.
    “[B]. Defense evidence.
    “Harbor’s uncle, Willie, testified he was inside the house
    when he heard shooting. He went outside when it stopped and
    saw Smith sitting in her car, smoking cocaine. Smith said to
    him, ‘It’s another drive-by shooting.’ Willie did not see Harbor or
    anyone with a gun.”
    “Harbor’s cousin, Tim Fox, testified he had been at
    Kieanii [K.]’s house that afternoon. He denied having seen
    Saulsberry there. Fox testified he was in the yard when he heard
    5
    shooting and he got on the ground to avoid being hit. When he
    got up, he saw Smith in her parked car and went over to check on
    her. Fox did not see Harbor; nor did he see anyone with a gun.
    He denied having told police a car drove up, that the driver spoke
    to Fox and a man named Shane, but Fox ignored the driver
    because he didn’t know him.
    “[C]. Rebuttal evidence.
    “Detective Goodman testified he interviewed Fox, who said
    he was in front of Kieanii [K.]’s house, talking to someone named
    Shane, when a man drove up and said, ‘ “What’s up, homey?” or,
    ‘ “Hey, what’s up?” ’ Fox did not know the man, so he ignored
    him. The man drove away and a few seconds later Fox heard five
    or six gunshots.” (People v. Harbor, supra, B187911 [pp. 2–5].)
    II.   Procedure
    On August 25, 2005, a jury convicted Harbor of second
    degree murder (Pen. Code,3 § 187, subd. (a)) and premeditated
    attempted murder (§§ 664, 187, subd. (a)), with firearm and prior
    serious felony conviction enhancements (§§ 667, subd. (a)–(i),
    12022.53). The court sentenced Harbor to 200 years to life.
    Harbor moved for a new trial on October 5, 2005, arguing
    that there was newly discovered evidence that he acted in self-
    defense. He submitted interview statements from Aretha Bonner
    who stated she saw Saulsberry fire multiple shots towards
    Harbor, and Natealie Sherman who stated that only Saulsberry
    and an unidentified Hispanic man fired shots towards the victim
    Garcia. The court denied the motion and Harbor appealed.
    3 All   further statutory references are to the Penal Code.
    6
    We affirmed the court’s denial of Harbor’s motion for a new
    trial but remanded the matter for resentencing. On remand,
    Harbor was resentenced to 95 years to life.
    In May 2008, Harbor moved again for a new trial, arguing
    that newly discovered evidence showed that he acted in self-
    defense and the prosecutor failed to disclose exculpatory
    evidence. In addition to the interview statements from Bonner
    and Sherman, Harbor attached handwritten investigation notes
    from two detectives that indicated they interviewed a witness
    who saw Saulsberry shoot three times from his car. The court
    construed Harbor’s motion for a new trial as a petition for writ of
    habeas corpus and denied the petition. “The court finds that the
    ‘new evidence’ of . . . Sherman was previously presented in a new
    trial motion which was denied and affirmed on appeal. The
    statement of . . . Bonner does not exonerate the defendant as to
    the final two shots and does not justify a habeas corpus hearing.”
    From July 2008 through March 2018, Harbor filed multiple
    habeas petitions, including three in this court, two in our
    Supreme Court, and one in the United States District Court.
    Each petition was denied.
    In April 2019, Harbor filed another habeas petition in the
    superior court. The petition alleged that: (1) the prosecutor
    committed a Brady4 violation by failing to disclose evidence
    related to detectives’ recordings of witness interviews; (2) the
    prosecutor and police obtained Smith’s false testimony by bribing
    her with promises to return her children to her custody and to
    help her relocate; (3) the police obtained Kieanii K.’s false
    testimony by threatening to remand her to juvenile custody; and
    4 Brady   v. Maryland (1963) 
    373 U.S. 83
    .
    7
    (4) Kieanii K.’s and Smith’s recantations demonstrated that
    Harbor was actually innocent. Along with his petition, Harbor
    submitted declarations from Kieanii K. and Smith signed in
    2010, a police tape recording log, and the same handwritten
    investigation notes from detectives. Kieanii K.’s declaration
    stated that she saw Harbor walk toward Saulsberry before
    Saulsberry fired once in Harbor’s direction. Kieanii K. also
    stated that, “While I later told detectives that [Harbor] was the
    only person shooting that was untrue. I said that after the
    detectives told me that I could not have any adults or my
    guardian present during the interview. Detectives told me that
    they knew that I saw . . . Harbor do the shooting. I was a
    14[-]year[-]old girl at the time and the officer[s] were very
    demanding and intimidating to me. I was frightened and told
    them what they wanted to hear, the detectives gave me the
    impression that they would have me remanded to jail if I didn’t
    tell them . . . Harbor was the only person shooting that day,
    although they didn’t actually say that.” Smith’s declaration
    stated that she lied to detectives when she told them she saw
    Harbor shoot because she was under the impression that helping
    the police would result in getting custody of her children and
    relocation.
    In May 2019, the court denied the petition. The court
    found that Harbor’s “claims of witness tampering and bribery and
    his actual innocence are successive in that those two claims were
    denied in the court’s September 22, 2017 order denying one of
    [Harbor]’s prior habeas petitions.” The “court is aware of at least
    three prior petitions filed by [Harbor] in this court alone.
    Furthermore, all exhibits attached to the Petition predate the
    previous petition that was denied in 2017. [Harbor] offers no
    8
    explanation as to why he was unable to raise these current
    contentions in his prior petitions.”
    One month later, Harbor petitioned for writ of error coram
    nobis, repeating the same allegations contained in his previously
    rejected habeas petition, including the claims that the prosecutor
    failed to disclose the existence of secretly recorded witness
    interview tapes, the police bribed Smith and threatened
    Kieanii K. to elicit their false testimony, and Harbor is actually
    innocent based on Kieanii K.’s recantation testimony.5 Harbor
    submitted the same exhibits previously attached to his last
    habeas petition, including the handwritten investigation notes,
    the police tape recording log, and Kieanii K.’s declaration.
    The People filed an informal response, arguing that
    Harbor’s claims should have been presented in a petition for writ
    of habeas corpus and, in any event, his coram nobis petition was
    untimely and successive.
    Harbor also moved for postconviction discovery under
    section 1054.9. He requested the tape recordings of witness
    statements; detectives’ handwritten notes of all those recorded
    witness statements; the taped interview of a witness who was
    interviewed by Detective Goodman who stated that he or she saw
    Saulsberry shoot at Harbor on the day of the murder; and any
    other known exculpatory, material, or impeachment evidence
    favorable to Harbor.
    On November 1, 2019, the court denied Harbor’s petition
    for writ of error coram nobis and his motion for postconviction
    5 Harbor’s petition did not rely on Smith’s declaration,
    however, in his reply brief, Harbor asks us to consider Smith’s
    declaration as well.
    9
    discovery. The court agreed with the People that Harbor’s claims
    should have been presented through a petition for writ of habeas
    corpus, but concluded, regardless of the petition’s label, Harbor
    was not entitled to relief. The court found that Harbor’s petition
    was successive and that it was “essentially a request for
    reconsideration of the motion for new trial that was made in
    2005, as well as the first petition for writ of habeas corpus filed in
    2008, and numerous other petitions, where [Harbor] claimed that
    the Office of the District Attorney failed to produce or suppressed
    exculpatory evidence.” With respect to the postconviction
    discovery motion, the court found that Harbor had not shown a
    good faith effort to obtain discovery materials from trial counsel
    that were unsuccessful. It appears that Harbor’s discovery
    request was denied without prejudice.
    Harbor appealed.
    DISCUSSION
    Harbor contends the court erred in denying his petition for
    writ of error coram nobis and his motion for postconviction
    discovery under section 1054.9. Both contentions fail.
    I.    Petition for writ of error coram nobis
    As an initial matter, the People argue that Harbor’s appeal
    should be summarily dismissed because he should have
    presented his claims in a petition for writ of habeas corpus.
    Harbor concedes that he should have filed a habeas petition, but
    asks us to exercise our original jurisdiction and consider his
    coram nobis petition as one for habeas. Irrespective of the
    10
    petition’s label, we find that it is procedurally barred as untimely
    and successive.6
    A.    Timeliness
    Both habeas petitions and coram nobis petitions must be
    filed within a reasonable time after the petitioner or counsel
    knew, or with due diligence should have known, the facts
    underlying the claim as well as the legal basis of the claim.
    (People v. Kim (2009) 
    45 Cal.4th 1078
    , 1097.) The petition must
    be filed “as promptly as the circumstances allow.” (In re Clark
    (1993) 
    5 Cal.4th 750
    , 765, fn. 5.) A court will not consider the
    merits of a petition brought after substantial delay unless the
    petitioner can show good cause. (In re Robbins (1998) 
    18 Cal.4th 770
    , 780.) Delay is “measured from the time the petitioner or his
    or her counsel knew, or reasonably should have known,” of the
    grounds on which he seeks relief. (Ibid.)
    Here, Harbor’s petition is untimely because he was actually
    aware of the facts underlying his claims at the time of trial or, at
    the latest, in 2010. Harbor knew about the secretly recorded
    witness interviews at the time of trial because Detective
    Goodman admitted he recorded witnesses without their consent.
    Indeed, Smith’s recorded interview was played to the jury, during
    which, she discusses her children’s safety and possible relocation.
    6 While  the court’s denial of a petition for writ of error
    coram nobis is reviewed for abuse of discretion and we review a
    petition for writ of habeas corpus for whether it states a prima
    facie case, our standard of review does not change the outcome
    here. (People v. Romero (1994) 
    8 Cal.4th 728
    ; People v. Mbaabu
    (2013) 
    213 Cal.App.4th 1139
    , 1146.) Under either standard, our
    conclusion that the petition is procedurally barred does not
    change.
    11
    Regarding Harbor’s claim that Smith was bribed by police with
    promises to gain custody of her children, this evidence was
    known to Harbor at the latest by 2010 when Smith signed her
    declaration. Harbor has not explained the delay in presenting
    Smith’s declaration. As such, he failed to demonstrate good cause
    for the delay.
    Similarly, Harbor’s claims related to Kieanii K.’s testimony
    are untimely. At trial, Kieanii K. testified that she was scared of
    detectives and that they denied her request to have a guardian
    present during her interview. She also testified that, during her
    interview, she told detectives “what they wanted to hear” to avoid
    jail time. Harbor was therefore aware of the problems with
    Kieanii K.’s testimony at the time of trial. To the extent Harbor
    relies on Kieanii K.’s recantation testimony that she saw
    Saulsberry shoot at him, Harbor has known about this version of
    events since 2010 as well. Again, without an explanation, Harbor
    has failed to demonstrate good cause for the substantial delay.
    As Harbor’s claims are nearly a decade old or older, his
    petition is untimely.
    B.    The petition is successive.
    Harbor’s petition also fails because it is successive. “As
    with petitions for writs of habeas corpus, one seeking relief via
    coram nobis may not attack a final judgment in piecemeal
    fashion, in proceedings filed seriatim, in the hopes of finally
    convincing a court to issue the writ.” (People v. Kim, 
    supra,
    45 Cal.4th at p. 1101.) A petitioner is not permitted to try out his
    or her contentions by successive proceedings attacking the
    validity of the judgment. (In re Connor (1940) 
    16 Cal.2d 701
    ,
    705.) Courts will not consider repeated petitions presenting
    claims that were previously rejected unless there was a change in
    12
    the applicable law or facts. (In re Martinez (2009) 
    46 Cal.4th 945
    ,
    956.) “ ‘Such rules are necessary both to deter use of the writ to
    unjustifiably delay implementation of the law, and to avoid the
    need to set aside final judgments of conviction when retrial would
    be difficult or impossible.’ ” (Ibid.) “Successive
    petitions . . . waste scarce judicial resources as the court must
    repeatedly review the record of the trial in order to assess the
    merits of the petitioner’s claims and assess the prejudicial impact
    of the constitutional deprivation of which he complains.” (In re
    Clark, 
    supra,
     5 Cal.4th at p. 770.)
    Here, the record shows that the instant petition is the
    latest of many that raises similar or identical claims. Notably,
    after obtaining the 2010 declarations of Smith and Kieanii K.,
    Harbor has filed multiple habeas petitions in state and federal
    courts. In denying Harbor’s most recent habeas petition, the
    court noted that Harbor’s “actual innocence [claim is] successive
    in that [the] . . . claim[ ] w[as] denied in the court’s September 22,
    2017 order denying one of [Harbor]’s prior habeas petitions.”
    Indeed, Harbor’s petition for writ of error coram nobis repeats the
    same allegations contained in his previously rejected habeas
    petitions, including the claims that the prosecutor failed to
    disclose Brady evidence of the secretly recorded witness interview
    tapes, the police bribed Smith and coerced Kieanii K. to obtain
    their false testimony, and Harbor is actually innocent based on
    Kieanii K.’s recantation testimony. In fact, he submitted the
    same exhibits previously attached to his most recent habeas
    petition that was denied just one month earlier.
    Accordingly, Harbor’s instant petition is barred as
    successive.
    13
    C.    Harbor has not met his burden to show that new
    evidence demonstrates he is actually innocent.
    Even though Harbor’s petition is untimely, successive, and
    fails to demonstrate good cause for the substantial delay, he
    nevertheless urges us to consider the merits of his petition
    because Kieanii K.’s and Smith’s declarations demonstrate he is
    actually innocent of Garcia’s murder.
    We will consider the merits of an untimely and successive
    petition if the petitioner demonstrates that he “is actually
    innocent of the crime or crimes of which he or she was convicted.”
    (In re Robbins, 
    supra,
     18 Cal.4th at p. 780.) “ ‘Absent the
    unusual circumstance of some critical evidence that is truly
    “newly discovered” under our law, or a change in the law, such
    successive petitions rarely raise an issue even remotely plausible,
    let alone state a prima facie case for actual relief.” (Briggs v.
    Brown (2017) 
    3 Cal.5th 808
    , 843.) In the past, to obtain relief on
    the grounds that newly discovered evidence demonstrated the
    petitioner’s actual innocence, he or she had to show that the
    evidence cast fundamental doubt on the accuracy and reliability
    of the proceedings, undermined the entire prosecution case, and
    pointed unerringly to innocence. (In re Lawley (2008) 
    42 Cal.4th 1231
    , 1239.) Effective January 1, 2017, a petitioner need only
    present “[n]ew evidence . . . that is credible, material, presented
    without substantial delay, and of such decisive force and value
    that it would have more likely than not changed the outcome at
    trial.” (§ 1473, subd. (b)(3)(A); Larsen v. California Victim Comp.
    Bd. (2021) 
    64 Cal.App.5th 112
    , 132.) “ ‘[N]ew evidence’ means
    evidence that has been discovered after trial, that could not have
    been discovered prior to trial by the exercise of due diligence, and
    is admissible and not merely cumulative, corroborative,
    14
    collateral, or impeaching.” (§ 1473, subd. (b)(3)(B).) “ ‘The
    petitioner bears the burden to plead and then prove all of the
    relevant allegations.’ ” (Robinson v. Lewis (2020) 
    9 Cal.5th 883
    ,
    898.)
    Harbor cannot meet his burden. The only evidence in
    Smith’s declaration not presented at trial was her statement that
    she lied to detectives because she thought it would help gain
    custody of her children. The jury heard Smith’s admission that
    she initially lied to detectives because she did not like Harbor
    and did not get along with him. She also testified that she did
    not see the shooter because she ducked down when she heard the
    shots. The jury also heard Smith’s recorded interview where she
    discussed her children’s safety and possible relocation if she
    testified against Harbor. Considering the jury heard evidence
    that Smith lied to detectives and still found Harbor guilty, it is
    unlikely that an additional reason for Smith’s untruthfulness
    would have changed the outcome of the trial.
    Kieanii K.’s new testimony also does not satisfy Harbor’s
    burden to show his actual innocence based on new evidence.
    Harbor argues that Kieanii K.’s statement that Saulsberry fired
    at him first necessarily establishes that he acted in self-defense
    or defense of others. Even if the jury heard Kieanii K.’s new
    testimony, it would consider it in conjunction with her prior
    identification, recantation, and impeachment. To date,
    Kieanii K. has given several different accounts of what happened
    on the night of the shooting. She initially told detectives that she
    saw Harbor shoot at Saulsberry and identified him as the shooter
    in a six-pack. She also identified Harbor as the only shooter at
    the preliminary hearing. Then, at trial, Kieanii K. recanted and
    said she did not see Harbor that night. When confronted with
    15
    her previous statements identifying Harbor as the shooter,
    Kieanii K. stated she could not recall her prior statements and
    admitted she lied to detectives. Kieanii K.’s 2010 declaration
    offers yet another version of events where Saulsberry shot at
    Harbor. Moreover, recantations are viewed with suspicion. (In re
    Cox (2003) 
    30 Cal.4th 974
    , 998.) In this context, Kieanii K.’s
    2010 declaration, further recanting her prior statements, does
    not have such decisive force that it would have more likely than
    not changed the outcome at trial. More fundamentally, this issue
    was already disputed at trial when Kieanii K. first recanted. In
    other words, Kieanii K.’s declaration is “impeaching” and does no
    more than conflict with trial evidence, so by definition, it is not
    “ ‘new evidence.’ ” (§ 1473, subd. (b)(3)(B); People v. Gonzalez
    (1990) 
    51 Cal.3d 1179
    , 1247.)
    Further, there was other evidence that Saulsberry did not
    shoot at Harbor. Saulsberry testified that he did not have a gun
    with him on the day of the shooting. The jury also heard Smith’s
    recorded interview in which she identified Harbor as the only
    shooter. Another witness saw Harbor put a gun into his
    waistband after hearing the shooting. The shell casings found at
    the scene were consistent with the witness’s statement of where
    Harbor was seen when the shooting stopped.
    Thus, Harbor’s claim of actual innocence fails.
    II.   Postconviction discovery motion
    Harbor contends the court also erred when it denied his
    request for postconviction discovery under section 1054.9. Like
    the court’s denial of Harbor’s petition, review of the court’s denial
    of his request for discovery is also procedurally barred.
    “ ‘It is settled that the right of appeal is statutory and that
    a judgment or order is not appealable unless expressly made so
    16
    by statute.’ ” (People v. Mazurette (2001) 
    24 Cal.4th 789
    , 792.) A
    criminal defendant may appeal from a final judgment or from any
    order made after judgment, affecting his or her substantial
    rights. (§ 1237.) The California Supreme Court explained in In
    re Steele (2004) 
    32 Cal.4th 682
    , 688 that “those who seek
    discovery under section 1054.9 because they are preparing to file
    or have filed a petition for writ of habeas corpus challenging a
    judgment of death or life without the possibility of parole should
    generally first make the discovery motion in the trial court that
    rendered the judgment. After the trial court has ruled, either
    party may challenge that ruling by a petition for writ of mandate
    in the Court of Appeal.”
    Here, to challenge the court’s ruling denying his motion for
    postconviction discovery, Harbor needed to file a petition for a
    writ of mandate. He did not do so and his challenge to the court’s
    denial of his request for discovery is dismissed on that ground.
    17
    DISPOSITION
    The portion of the order denying Travyon Charles Harbor’s
    petition for error coram nobis is affirmed while his appeal of the
    court’s denial of his motion for postconviction discovery is
    dismissed.
    NOT TO BE PUBLISHED.
    KALRA, J.*
    We concur:
    LAVIN, Acting P. J.
    EGERTON, J.
    *Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    18