Shorts v. Superior Court ( 2018 )

Filed 6/18/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
DONALD R. SHORTS, B285710
Petitioner, Related Appeal Pending:
Supreme Court
v. No.: S189992
THE SUPERIOR COURT OF (Los Angeles County
LOS ANGELES COUNTY, Super. Ct. No. TA078911)
Respondent,
THE PEOPLE OF THE STATE
OF CALIFORNIA,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Eleanor J.
Hunter, Judge. Petition granted in part.
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.
Penal Code section 1054.9 1 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 (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 1054.9 would . . . exceed the trial court’s jurisdiction
on a motion to preserve evidence.” (Morales, at p. 535.)
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
1 Statutory references are to this code unless otherwise
stated.
2
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.
3
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.
2 The Livingston case started as a separate case but was
later consolidated with the Wynne/Watts case.
3 Shorts was serving a sentence of life without the possibility
of parole for the Brooks murder when the charges in this case
were filed against him.
4
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 proceedings 4 and disposition of all
postconviction proceedings. The court denied the motion, ruling
4 As amended by section 16 of Proposition 66, the Death
Penalty Reform and Savings Act of 2016, adopted at the
November 8, 2016 general election, Government Code
section 68662 provides an indigent state prisoner subject to a
capital sentence is entitled to the appointment by the superior
court of one or more counsel to represent the prisoner in state
postconviction proceedings. (See also Pen. Code, § 1509.) Until
habeas counsel is appointed, appellate counsel’s responsibilities
include preserving evidence that comes to her attention if that
evidence appears relevant to a potential habeas corpus
investigation. (Morales, supra, 2 Cal.5th at pp. 526-527.)
5
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, 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.
5 The renewed motion asked the superior court to order the
following entities to preserve specified files, records, evidence and
exhibits: the Los Angeles County Superior Court, the
Los Angeles County District Attorney, the Los Angeles County
Sheriff’s Department, the Los Angeles County Coroner-Medical
Examiner, the Los Angeles County Probation Department, the
Los Angeles Police Department, the San Bernardino County
Superior Court, the San Bernardino County District Attorney,
the San Bernardino County Sheriff’s Department, the San
Bernardino County Coroner-Medical Examiner, the Redlands
Police Department, the Long Beach Police Department, the
Rialto Police Department, the Fullerton Police Department, the
California Highway Patrol and the California Department of
Corrections and Rehabilitation.
6
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
murders 6 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
6 The court granted in full the request to preserve the
records of the Rialto Police Department and the California
Highway Patrol.
7 By denying the record preservation request as to the
Brooks homicide, the trial court denied the request to preserve
records from the San Bernardino County District Attorney’s
Office, the San Bernardino County Sheriff’s Department, the
Redlands Police Department, the Long Beach Police Department
and the Fullerton Police Department. As to these entities,
however, the court granted the renewed motion to the extent it
sought to preserve records pertaining to impeachment evidence.
7
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 [“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 is a danger
materials relevant to a potential habeas corpus investigation will
be destroyed, discarded or lost through inadvertence or
negligence—if the superior court’s order denying in part his
motion for a record preservation order is allowed to stand (see id.
at pp. 531, 533 [absent a preservation order, “some of the
evidence to which [an inmate] would be entitled may be at risk of
being lost, which would render moot the trial court’s power to
grant discovery” under section 1054.9; “our inability to timely
appoint habeas corpus counsel in capital cases should not operate
to deprive condemned inmates of a right otherwise available to
them”].) Like a discovery order that requires disclosure of a
8
party’s confidential information, a result that once done cannot
be undone, the loss of potentially discoverable information
because of the superior court’s arguably erroneous interpretation
of section 1054.9 and Morales is appropriately addressed by a
writ of mandate. (Code Civ. Proc., § 1085, subd. (a) [writ of
mandate may issue “to compel the performance of an act which
the law specially enjoins, as a duty resulting from an office, trust
or station”]; see Costco Wholesale Corp. v. Superior Court (2009)
47 Cal. 4th 725, 740-741 [writ review appropriate when petitioner
seeks relief from a discovery order that may undermine a
privilege]; see also In re Steele (2004) 32 Cal. 4th 682, 692
[superior court’s discovery order under section 1054.9 may be
challenged by either party by a petition for writ of mandate in the
court of appeal].)
As the Attorney General argues, mandate does not lie to
control the exercise of a court’s discretion. (Hurtado v. Superior
Court (1974) 11 Cal. 3d 574, 579.) But it is an appropriate remedy
to compel a court or government officer to exercise that discretion
“‘under a proper interpretation of the applicable law.’” (People v.
Rodriguez (2016) 1 Cal.5th 676, 684, quoting Anderson v. Phillips
(1975) 13 Cal. 3d 733, 737; see Babb v. Superior Court (1971)
3 Cal. 3d 841, 851 [“[a]lthough it is well established that
mandamus cannot be issued to control a court’s discretion, in
unusual circumstances the writ will lie where, under the facts,
that discretion can be exercised in only one way”].) “‘“[W]here
one has a substantial right to protect or enforce, and this may be
accomplished by such a writ, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, he [or she] is
entitled as a matter of right to the writ, or perhaps more
correctly, in other words, it would be an abuse of discretion to
9
refuse it.”’” (Powers v. City of Richmond (1995) 10 Cal. 4th 85,
114.)
2. Standard of Review; Principles of Statutory
Interpretation
Whether the superior court erred in refusing to extend its
record preservation order to materials relating to Shorts’s prior
crimes and alleged prior criminal conduct raised by the
prosecutor during the guilt and penalty phases of his trial
primarily presents a question of statutory construction. Our
review is de novo. (People v. Prunty (2015) 62 Cal. 4th 59, 71
[reviewing court must consider questions of statutory
interpretation de novo]; Rubio v. Superior Court (2016)
244 Cal. App. 4th 459, 471 [“because the issue before us turns on
the interpretation of section 1054.9, subdivision (d), our review is
de novo”].)
“‘“‘As in any case involving statutory interpretation, our
fundamental task . . . is to determine the Legislature’s intent so
as to effectuate the law's purpose.’”’” (People v. Gonzalez (2017)
2 Cal.5th 1138, 1141.) “‘“‘We begin by examining the statute’s
words, giving them a plain and commonsense meaning.’”’” (Ibid.)
We “give meaning to every word in [the] statute and . . . avoid
constructions that render words, phrases, or clauses superfluous.”
(Klein v. United States of America (2010) 50 Cal. 4th 68, 80.) “We
must follow the statute’s plain meaning, if such appears, unless
doing so would lead to absurd results the Legislature could not
have intended.” (People v. Birkett (1999) 21 Cal. 4th 226, 231.)
“If the statutory language permits more than one
reasonable interpretation, courts may consider other aids, such
as the statute’s purpose, legislative history, and public policy.”
(Coalition of Concerned Communities, Inc. v. City of
Los Angeles (2004) 34 Cal. 4th 733, 737; accord, Imperial
10
Merchant Services, Inc. v. Hunt (2009) 47 Cal. 4th 381, 388.)
“Ultimately we choose the construction that comports most
closely with the apparent intent of the lawmakers, with a view to
promoting rather than defeating the general purpose of the
statute.” (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal. 4th
222, 227.)
3. Section 1054.9
In June 1990 the voters adopted Proposition 115, which
added sections 1054 through 1054.7 to the Penal Code
establishing a comprehensive discovery system for criminal
actions and a constitutional provision declaring pretrial discovery
in those actions to be reciprocal (Cal. Const., art. I, § 30,
subd. (c)). Effective January 1, 2003, the Legislature enacted
section 1054.9, augmenting Proposition 115 by providing
“postconviction discovery in specified circumstances.” (People v.
Superior Court (Pearson) (2010) 48 Cal. 4th 564, 567 (Pearson).)
“Although the general rule is that a person seeking habeas
corpus relief from a judgment of death is not entitled to
postconviction discovery unless and until a court issues an order
to show cause” (Morales, supra, 2 Cal.5th at p. 528), the
Legislature “partially abrogated this rule by enacting Penal Code
section 1054.9.” (Ibid.) 8
Section 1054.9, subdivision (a), provides, “Upon the
prosecution of a postconviction writ of habeas corpus or a motion
8 As Justice Werdegar explained in her dissenting opinion in
Barnett v. Superior Court (2010) 50 Cal. 4th 890, 907, “In 2002,
dissatisfied with this court’s refusal to permit postconviction
discovery motions [citation], the Legislature directed courts to
provide convicted defendants with any ‘materials . . . to which
[they] would have been entitled at [the] time of trial’ [citations].”
11
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, except as provided in subdivision (c), order that
the defendant be provided reasonable access to any of the
materials described in subdivision (b).” Section 1054.9,
subdivision (b), in turn, provides, “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.”
“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.” (Barnett v. Superior
Court (2010) 50 Cal. 4th 890, 897.) However, although file
reconstruction “is one purpose, perhaps even the main purpose, of
the statute, the statutory language is not so limited” (In re Steele,
supra, 32 Cal.4th at p. 693) and includes discovery of materials
“to which a defendant would have been entitled had he or she
requested them” at the time of trial (id. at p. 696). “Discovery on
habeas corpus is necessarily directed at issues raised or
potentially raised on habeas corpus, which may or may not relate
to any of the evidence presented or not presented in the
underlying criminal trial.” (Pearson, supra, 48 Cal.4th at p. 572.)
As the Steele Court explained, section 1054.9 entitles a
defendant to “discovery of specific materials currently in the
possession of the prosecution or law enforcement authorities
involved in the investigation or prosecution of the case that the
defendant can show either (1) the prosecution did provide at time
12
of trial but have since become lost to the defendant; (2) the
prosecution should have provided at time of trial because they
came within the scope of a discovery order the trial court actually
issued at that time, a statutory duty to provide discovery, or the
constitutional duty to disclose exculpatory evidence; (3) the
prosecution should have provided at time of trial because the
defense specifically requested them at that time and was entitled
to receive them; or (4) the prosecution had no obligation to
provide at time of trial absent a specific defense request, but to
which the defendant would have been entitled at time of trial had
the defendant specifically requested them.” (In re Steele, supra,
32 Cal.4th at p. 697.)
Although section 1054.9 “does not allow ‘free-floating’
discovery asking for virtually anything the prosecution possesses”
(In re Steele, supra, 32 Cal.4th at p. 695), it “carves out particular
categories of material as subject to postconviction discovery”
(Morales, supra, 2 Cal.5th at p. 533) to which the discovery
chapter “may provide guidance in crafting discovery orders on
habeas corpus.” (Pearson, supra, 48 Cal.4th at p. 572; see
Barnett v. Superior Court, supra, 50 Cal.4th at p. 902 [“Because
we did not read section 1054.9 as creating a broader
postconviction discovery right than exists pretrial, we concluded
[in Steele] that the ‘law enforcement authorities’ referred to in
section 1054.9 are similar to the ‘investigating agencies’ referred
to in Penal Code section 1054.1. [Citation.] We also found
instructive the provisions of Penal Code section 1054.5,
subdivision (a), which seemed to define further what
investigating agencies the pretrial discovery provisions cover.”].)
13
4. The Morales Decision
In Morales, supra, 2 Cal.5th 523 the Supreme Court
considered whether a superior court has jurisdiction to grant a
motion to preserve evidence potentially discoverable under
section 1054.9 relating to a capital case then pending review on
automatic appeal to the Supreme Court. The court of appeal in
Morales had issued a peremptory writ directing the superior
court to vacate the preservation order it had issued, reasoning
the superior court lacked jurisdiction to grant a motion for
preservation when, because of the appeal pending in the Supreme
Court, no criminal proceeding was then before it. (Morales, at
p. 530.)
The Supreme Court acknowledged the court of appeal was
generally correct that a discovery motion “is not an independent
right or remedy but rather is ancillary to an ongoing action or
proceeding,” but explained there is no requirement a habeas
corpus petition must have been filed at the time discovery under
section 1054.9 is sought and the statute imposes no constraint on
the timing of the motion other than it occur after sentencing and
in the prosecution of a habeas corpus petition. (Morales, supra,
2 Cal.5th at pp. 530-531.) Thus, the superior court had
jurisdiction to entertain a motion under section 1054.9, which
Morales sought to invoke. (Morales, at p. 531.) However, habeas
corpus counsel had not yet been appointed for Morales, and might
not be for many years; and filing a section 1054.9 discovery
motion was outside the scope of his appellate counsel’s
appointment. (Morales, at p. 531.) Under these circumstances
and to avoid the risk of loss of evidence to which Morales would
be entitled under section 1054.9, the Supreme Court held
granting a preservation motion falls within the superior court’s
14
inherent power under Code of Civil Procedure section 187 9 to
adopt any suitable method of practice not specified by statute to
protect its jurisdiction: “[T]rial courts, which have jurisdiction
under Penal Code section 1054.9 to grant condemned inmates’
motions for postconviction discovery, have the inherent power to
protect that jurisdiction by entertaining motions for the
preservation of evidence that will ultimately be subject to
discovery under that statute when the movant is appointed
habeas corpus counsel.” (Morales, at p. 533.)
The Morales Court articulated several significant
limitations on the scope of section 1054.9 and the superior court’s
authority to issue record preservation orders. First, it cautioned
that section 1054.9 did not supersede the traditional rule that
discovery is unavailable in habeas corpus matters before the
court has issued an order to show cause. “The statute carves out
particular categories of material as subject to postconviction
discovery, and nothing in its language or the legislative history
suggests the Legislature intended the statute to serve as a
predicate for more wide-ranging postconviction discovery.”
(Morales, supra, 2 Cal.5th at p. 533.) Second, the Court repeated
its observation from In re Steele, supra, 32 Cal.4th at page 696,
that section 1054.9 “‘does not extend to all law enforcement
authorities everywhere in world,’” but only to “‘law enforcement
9 Code of Civil Procedure section 187 provides, “When
jurisdiction is, by the Constitution or this Code, or by any other
statute, conferred on a Court or judicial officer, all the means
necessary to carry it into effect are also given; and in the exercise
of this jurisdiction, if the course of proceeding be not specifically
pointed out by this Code or the statute, any suitable process or
mode of proceeding may be adopted which may appear most
conformable to the spirit of this code.”
15
authorities who were involved in the investigation or prosecution
of the case.’” (Morales, at p. 534.) Third, the Court stated
section 1054.9 “does not extend to judicial or other non-law-
enforcement agencies.” (Morales, at p. 534.) Finally, the Court
warned, “An order purporting to require the preservation of
materials beyond the scope of Penal Code section 1054.9 would
thus exceed the trial court’s jurisdiction on a motion to preserve
evidence.” (Id. at p. 535.)
5. The Record Preservation Order Should Have Covered
Materials Relating to Shorts’s Prior Crimes and Alleged
Prior Criminal Conduct Beyond Those Maintained in the
District Attorney’s Files for the Prosecution of the Wynne,
Watts and Livingston Murders
Under Morales a condemned inmate who does not yet have
appointed habeas corpus counsel is entitled to an order
preserving all materials potentially discoverable under
section 1054.9. (Morales, supra, 2 Cal.5th at p. 534 [“[q]uestions
as to whether a movant is actually entitled to discovery of the
material to be preserved . . . will await the eventual filing and
determination of the postconviction discovery motion”].) Thus,
the range of materials within the scope of the preservation order
should mirror the breadth of potential section 1054.9 discovery,
which, as discussed, includes, upon a proper showing of a good
faith effort to obtain the materials from trial counsel, items “to
which the defendant would have been entitled at time of trial had
the defendant specifically requested them.” (In re Steele, supra,
32 Cal.4th at p. 697.)
The Attorney General does not dispute that the Brooks
murder, charged as one of the special circumstances, the
unadjudicated Parker homicide and the other criminal conduct
identified as aggravating circumstances in the penalty phase of
16
Shorts’s capital trial were proper subjects for pretrial discovery,
that is, the prosecution and related law enforcement authorities
would have been obligated to turn over material relating to those
matters had there been a specific defense request. Indeed, he
conceded in the superior court that evidence relating to Shorts’s
prior convictions or uncharged conduct was properly subject to a
preservation order to the extent it was part of the records of the
Wynne/Watts/Livingston prosecutors. (See People v. Superior
Court (Mitchell) (1993) 5 Cal. 4th 1229, 1233, 1236 [“the penalty
phase of a capital trial is merely a part of a single, unitary
criminal proceeding”; the reciprocal discovery obligations of
section 1054 et seq. apply to “penalty phase evidence”].) At least
as to this category of evidence, the dispute is not about what
material is subject to a preservation order, but to whom that
order may be directed.
As the Supreme Court explained in In re Steele, supra,
32 Cal.4th at page 696, section 1054.9 “presents the question of
exactly who must possess the materials for them to come within
its scope.” Section 1054.9, subdivision (b), limits postconviction
discovery to “‘materials in the possession of the prosecution and
law enforcement authorities.’” Although that provision “does not
require that the prosecutor know the materials are in the
possession of investigating agencies” (Steele, at p. 696), 10 the
10 Drawing a parallel to cases involving a prosecutor’s
constitutional duty to disclose exculpatory information, the Steele
Court noted that “‘any favorable evidence known to the others
acting on the government’s behalf is imputed to the
prosecution. . . .’ [T]he prosecution is responsible not only for
evidence in its own files but also for information possessed by
others acting on the government’s behalf that were gathered in
connection with the investigation.’” (In re Steele, supra,
17
Court held, in light of the general discovery provisions of
section 1054 et seq., the reference to “law enforcement
authorities” in section 1054.9 is properly limited to “law
enforcement authorities involved in the investigation or
prosecution of the case.” (Steele, at p. 697; see also Morales,
supra, 2 Cal.5th at p. 534 [quoting Steele’s language].)
The Attorney General argues, and the superior court found,
only those law enforcement agencies that had actively
investigated the Wynne/Watts/Livingston murders, rather than
Shorts’s prior crimes and other alleged prior criminal conduct
that were also placed at issue during the guilt and penalty
phases of Shorts’s capital trial, were “involved in the
investigation or prosecution of the case.” The Attorney General’s
gloss on the Supreme Court’s language in Steele and Morales is
far too narrow.
Shorts’s prosecutor from the Los Angeles District
Attorney’s Office had access to the information gathered by the
various law enforcement agencies that investigated the Brooks
murder (in both Los Angeles and San Bernardino Counties), the
Parker homicide and the other incidents identified in the People’s
notice of evidence of aggravation; and that information was
discoverable prior to trial. (See In re Littlefield (1993) 5 Cal. 4th
122, 135 [“materials discoverable by the defense include
information in the possession of all agencies (to which the
prosecution has access) that are part of the criminal justice
system, and not solely information ‘in the hands of the
prosecutor’”].) As discussed, during the guilt phase of the trial
Shorts was cross-examined about his role in Brooks’s and
32 Cal.4th at p. 697, quoting People v. Superior Court (Barrett)
(2000) 80 Cal. App. 4th 1305, 1315.)
18
Parker’s deaths. At the penalty phase 14 witnesses, including
from law enforcement, testified about the circumstances
underlying his conviction for Brooks’s murder; nine witnesses,
again including law enforcement officials, testified regarding the
Parker homicide; 29 witnesses testified regarding other incidents
listed in the notice of evidence in aggravation.
In sum, far from having been involved only in “extraneous
cases,” as the Attorney General argued in the superior court, law
enforcement officials from each of the Los Angeles and San
Bernardino County agencies identified in the renewed motion to
preserve evidence were active participants in the investigation
and prosecution of the capital case against Shorts. Even though
originally created or collected in connection with Shorts’s prior
criminal cases, the law enforcement records from those cases
would have been discoverable at the time of trial under
section 1054.5, subdivision (a), which authorizes discovery at trial
not only from the “prosecuting attorneys [and] law enforcement
agencies which investigated or prepared the case against the
defendant,” but also from “any other persons or agencies which
the prosecuting attorney or investigating agency may have
employed to assist them in performing their duties.” Accordingly,
Shorts was entitled to an order that those records be preserved
under section 1054.9.
6. Shorts’s CDCR Records Should Have Been Preserved
The superior court granted Shorts’s request to preserve
CDCR materials limited to “records pertaining to the
investigation or prosecution of appellant in this case only.”
Concerned about the narrow interpretation of “this case”
advocated by the Attorney General and apparently adopted by
the superior court, Shorts argues he is entitled to an order
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preserving CDCR records “pertaining to incidents offered to
impeach him at the guilt phase or in aggravation at the penalty
phase,” not just records relating to his incarceration during the
trial. In response, the Attorney General acknowledges the
Supreme Court in In re Steele, supra, 32 Cal.4th at page 701 held
CDCR records relating to the defendant’s criminal conduct may
be discoverable even if the prosecution’s case “had nothing to do
with them,” but, emphasizing that in Steele the prosecutor and an
investigator had reviewed the defendant’s prison records (id. at
p. 702), contends only those records in the prosecutor’s possession
are subject to a preservation order under section 1054.9. 11
Restricting the preservation order to CDCR records
actually reviewed by the prosecutor prior to trial is unwarranted.
To the extent the CDCR has records relating to any of the
incidents about which Shorts was cross-examined during the
guilt phase of his trial or that were introduced as evidence of
aggravating circumstances in the penalty phase, the prosecutor
had access to that information, whether such access was utilized
or not; the material would have been discoverable at trial by
Shorts, and is properly preserved under Morales and
section 1054.9.
11 The court of appeal in People v. Superior Court (Barrett),
supra, 80 Cal.App.4th at pages 1317-1318, described the CDCR
as having both investigatory and administrative responsibilities.
Records generated while performing the former function, the
court held, are subject to the reciprocal discovery obligations set
forth in section 1054 et seq. Documents kept in the course of
running the prison system, if discoverable at all, were obtainable
by subpoena duces tecum. The Attorney General does not argue
that the CDCR records sought to be preserved by Shorts fall into
this latter category.
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7. Records from the County Coroner-Medical Examiners
Are Subject to Preservation
Shorts sought preservation of the records of the Los
Angeles County Coroner-Medical Examiner relating to the
investigation into the deaths of Wynne, Watts and Livingston,
the victims of the three murders at issue in his capital trial, as
well as material relating to the death of Parker. He also sought
preservation of the records of the San Bernardino County
Coroner-Medical Examiner relating to the investigation into
Brooks’s death. The superior court denied the request as to both
entities “on the grounds that the entities are not law enforcement
agencies involved in the investigation or prosecution of this case,
within the meaning of People v. Superior Court (Morales) . . . .”
The court’s analysis was doubly flawed.
Autopsies by county coroner-medical examiners serve more
than a single purpose. (See People v. Dungo (2012) 55 Cal. 4th
608, 621 [autopsy reports are used for multiple purposes,
including “criminal investigation and prosecution”].) Here,
information from the autopsies of the three victims allegedly
murdered by Shorts was introduced at his trial; and the
pathologists who performed the Brooks and Parker autopsies
testified during the penalty phase of the trial. To that extent, the
coroner-medical examiner offices are properly considered law
enforcement agencies. (See Dixon v. Superior Court (2009)
170 Cal. App. 4th 1271, 1277 [“It is through the coroner and
autopsy investigatory reports that the coroner ‘inquire[s] into and
determine[s] the circumstances, manner, and cause’ of criminally-
related deaths. ([Gov. Code, ]§ 27491.) And officially inquiring
into and determining the circumstances, manner and cause of a
criminally-related death is certainly part of law enforcement
investigation.”].)
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In any event, because, as discussed, the right to a
preservation order under Morales and section 1054.9 extends to
information from “other persons or agencies which the
prosecuting attorney or investigating agency may have employed
to assist them in performing their duties” (§ 1054.5, subd. (a)),
Shorts was entitled to an order preserving the records of the two
coroners offices relating to the deaths of Wynne, Watts,
Livingston, Brooks and Parker. Those offices unquestionably
assisted the prosecutor to prepare the capital case against Shorts.
8. Morales Precludes An Order Preserving Judicial Records
(Los Angeles and San Bernardino Superior Court Files)
In addition to the preservation of materials in the
possession of the prosecution and law enforcement authorities
within the meaning of section 1054.9, subdivision (b), Shorts
moved for preservation of documents, records, exhibits and
reporter transcripts and notes in the possession of the
Los Angeles Superior Court relating to the capital case itself, the
Parker homicide and other prior criminal cases in which he had
been involved and the San Bernardino Superior Court regarding
the Brooks murder conviction. Relying upon the Morales Court’s
discussion of the scope of Code of Civil Procedure section 187, and
citing various statutes that mandate retention of court records
relating to capital cases, 12 Shorts argued the superior court had
12 Shorts cited Government Code section 68152,
subdivision (c), which provides in a case in which the defendant is
sentenced to death, the court records are to be “retain[ed]
permanently, including records of the cases of any codefendants
and any related cases, regardless of the disposition.” He also
cited Penal Code sections 1417.1, subdivision (d), which provides
in cases in which the death penalty has been imposed that no
order shall be made for the destruction of an exhibit until
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inherent authority to preserve judicial records under Code of
Civil Procedure sections 128, subdivision (a)(5), and 187. The
court denied this part of the record preservation motion, ruling it
had no authority to order preservation of records other than as
specified in Morales.
While Shorts’s observation about the breadth of the
superior court’s inherent powers is generally accurate, his
argument is foreclosed by Morales. As discussed, the Supreme
Court in Morales recognized the general rule before
section 1054.9’s effective date was that a person seeking habeas
corpus relief from a judgment of death was not entitled to
postconviction discovery until an order to show cause had issued.
(Morales, supra, 2 Cal.5th at p. 528.) Although section 1054.9
“partially abrogated” that rule, permitting habeas corpus counsel
to seek particular categories of discovery even before filing the
petition, the Court emphasized that discovery outside the
circumscribed scope of section 1054.9 was not exempt from the
general timing rule. (Morales, at p. 533.) Thus, although Shorts
is correct that section 1054, subdivision (e), preserves a
defendant’s right to pretrial discovery as provided by statutes
other than sections 1050 et seq. or mandated by the United
States Constitution, the superior court has no jurisdiction to
order pre-petition, postconviction discovery except as authorized
by section 1054.9.
As the Morales Court explained, a condemned inmate with
appointed habeas corpus counsel could immediately obtain
discovery of section 1054.9 material. In light of the inordinate
“30 days after the date of execution of sentence,” or, if “the
defendant dies while awaiting execution, one year after the date
of the defendant’s death.”
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delay in appointment of such counsel (more than 20 years after
imposition of the sentence of death in some cases), to protect the
superior court’s jurisdiction to permit that discovery, Morales
recognized that court’s authority under Code of Civil Procedure
section 187 to issue a record preservation order. But the Court
clearly held section 1054.9 “does not extend to judicial or other
non-law-enforcement agencies” (Morales, supra, 2 Cal.5th at
p. 534), and “[a]n order purporting to require the preservation of
materials beyond the scope of Penal Code section 1054.9 would
thus exceed the trial court’s jurisdiction on a motion to preserve
evidence.” (Id. at p. 535.) The superior court properly denied this
aspect of Shorts’s motion.
9. Shorts Is Not Entitled to an Expanded Preservation
Order Directed to the Los Angeles County Probation
Department
Shorts requested preservation of material potentially held
by the Los Angeles County Probation Department, whether as a
juvenile or an adult, including records of his custody in juvenile
facilities in connection with prior offenses. The superior court
granted the request in part, limited to probation department
reports generated in connection with Shorts’s capital case.
In his argument to the superior court Shorts characterized
these materials as in the possession of a law enforcement agency.
However, as he recognized in his petition to this court, “probation
department records are court records.” (County of Placer v.
Superior Court (2005) 130 Cal. App. 4th 807, 812; see § 1203.10
[“[t]he record of the probation officer is a part of the records of the
court”]; McGuire v. Superior Court (1993) 12 Cal. App. 4th 1685,
1687 [“the probation file is a court record”].) Accordingly, for the
reasons discussed in the preceding section, Shorts is not entitled
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to an order to preserve additional probation department
materials.
DISPOSITION
Let a peremptory writ of mandate issue directing
respondent superior court to vacate that part of its August 15,
2017 order denying Shorts’s record preservation request as it
relates to law enforcement or other agency records, including
records of the CDCR and the Los Angeles County and San
Bernardino County Coroner-Medical Examiners, pertaining 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 aggravation, and to issue a new order
granting Shorts’s motion for a record preservation order with
respect those materials.
PERLUSS, P. J.
We concur:
ZELON, J.
FEUER, J. *
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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