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

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.

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

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

otherwise available to them"].) Like a discovery order that requires disclosure of a 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, 101 Cal.Rptr.3d 758 , 219 P.3d 736 [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, 10 Cal.Rptr.3d 536 , 85 P.3d 444 [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, 114 Cal.Rptr. 106 , 522 P.2d 666 .) 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, 206 Cal.Rptr.3d 588 , 377 P.3d 832 , quoting Anderson v. Phillips (1975) 13 Cal.3d 733 , 737, 119 Cal.Rptr. 879 , 532 P.2d 1247 ; see Babb v. Superior Court (1971) 3 Cal.3d 841 , 851, 92 Cal.Rptr. 179 , 479 P.2d 379 ["[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 refuse it." ' " ( Powers v. City of Richmond (1995) 10 Cal.4th 85 , 114, 40 Cal.Rptr.2d 839 , 893 P.2d 1160 .)

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. (

lead to absurd results the Legislature could not have intended." ( People v. Birkett (1999) 21 Cal.4th 226 , 231, 87 Cal.Rptr.2d 205 , 980 P.2d 912 .)

"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, 21 Cal.Rptr.3d 676 , 101 P.3d 563 ; accord, Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381 , 388, 97 Cal.Rptr.3d 464 , 212 P.3d 736 .) "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, 120 Cal.Rptr.2d 795 , 47 P.3d 639 .)

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, 107 Cal.Rptr.3d 265 , 227 P.3d 858 ( 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

had he or she requested them" at the time of trial ( id . at p. 696, 10 Cal.Rptr.3d 536 , 85 P.3d 444 ). "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, 107 Cal.Rptr.3d 265 , 227 P.3d 858 .)

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 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

than it occur after sentencing and in the prosecution of a habeas corpus petition. ( Morales , supra , 2 Cal.5th at pp. 530-531, 213 Cal.Rptr.3d 581 , 388 P.3d 811 .) Thus, the superior court had jurisdiction to entertain a motion under section 1054.9, which Morales sought to invoke. ( Morales , at p. 531, 213 Cal.Rptr.3d 581 , 388 P.3d 811 .) 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. (

habeas corpus counsel is entitled to an order preserving all materials potentially discoverable under section 1054.9. (

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, 19 Cal.Rptr.2d 248 , 851 P.2d 42 ["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 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.

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, 213 Cal.Rptr.3d 581 , 388 P.3d 811 .) 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,

would ... 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

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

People v. Prunty (2015) 62 Cal.4th 59 , 71, 192 Cal.Rptr.3d 309 , 355 P.3d 480 [reviewing court must consider questions of statutory interpretation de novo]; Rubio v. Superior Court (2016) 244 Cal.App.4th 459 , 471, 197 Cal.Rptr.3d 891 ["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, 218 Cal.Rptr.3d 150 , 394 P.3d 1074 .) " ' " '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, 112 Cal.Rptr.3d 722 , 235 P.3d 42 .) "We must follow the statute's plain meaning, if such appears, unless doing so would

(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, 10 Cal.Rptr.3d 536 , 85 P.3d 444 .)

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, 10 Cal.Rptr.3d 536 , 85 P.3d 444 ), it "carves out particular categories of material as subject to postconviction discovery" ( Morales , supra , 2 Cal.5th at p. 533, 213 Cal.Rptr.3d 581 , 388 P.3d 811 ) to which the discovery chapter "may provide guidance in crafting discovery orders on habeas corpus." ( Pearson , supra , 48 Cal.4th at p. 572, 107 Cal.Rptr.3d 265 , 227 P.3d 858 ; see Barnett v. Superior Court , supra , 50 Cal.4th at p. 902, 114 Cal.Rptr.3d 576 , 237 P.3d 980 ["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."].)

4. The Morales Decision

In Morales , supra , 2 Cal.5th 523 , 213 Cal.Rptr.3d 581 , 388 P.3d 811 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 Morale s 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, 213 Cal.Rptr.3d 581 , 388 P.3d 811 .)

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

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, 10 Cal.Rptr.3d 536 , 85 P.3d 444 ; see also Morales , supra , 2 Cal.5th at p. 534, 213 Cal.Rptr.3d 581 , 388 P.3d 811 [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,

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 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, 10 Cal.Rptr.3d 536 , 85 P.3d 444 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, 10 Cal.Rptr.3d 536 , 85 P.3d 444 ), contends only those records in the prosecutor's possession are subject to a

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, 147 Cal.Rptr.3d 527 , 286 P.3d 442 [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, 88 Cal.Rptr.3d 847 ["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."].)

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.

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, 213 Cal.Rptr.3d 581 , 388 P.3d 811 .) 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, 213 Cal.Rptr.3d 581 , 388 P.3d 811 .) 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 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, 213 Cal.Rptr.3d 581 , 388 P.3d 811 ), and "[a]n order purporting to require the preservation of materials beyond