Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF116883A
RAYE, P. J.Petitioner Patricia Lopez is charged with murdering her live baby, Baby Jane Doe, after her birth. She seeks a writ of mandate to overturn an order by respondent San Joaquin County Superior Court permitting the release of the remains of Baby Jane Doe to the biological father before petitioner’s expert could independently determine whether the baby had been born alive. Petitioner contends that due process requires that the remains be preserved pending a determination by respondent court that a defense expert may examine the remains. We agree.
Petitioner, then 17 years old, was charged by a complaint filed February 10, 2011, with the premeditated murder of Baby Jane Doe with use of a weapon. Respondent superior court issued an order on February 15, 2011, preserving the infant’s remains, as follows:
“Good cause appearing therefore, IT IS HEREBY ORDERED, that the San Joaquin County Sheriff-Coroner and its agents, including, but not limited to Bennet Omalu, M.D. are ordered to keep and preserve for reasonable inspection Baby Jane Doe, the placenta, the umbilical cord, fluids, tissue and any other biological samples obtained in this case until further Court Order.”
On April 5, 2011, Maxiliano Navarro, determined through paternity testing to be the father of the baby, appeared in respondent court and requested release of the baby’s remains to him. The district attorney stated the autopsy report had not been completed because a sample of the placenta had been sent to an expert to determine the age of the infant. Petitioner’s counsel explained she had notified the sheriff-coroner that the defense had retained a perinatal pathologist to examine the infant’s remains. Nevertheless, respondent court vacated its earlier order preserving the remains and ordered that the infant’s remains be released to the biological father.
On April 6, 2011, petitioner’s counsel filed a declaration from Galen S. Schauer, M.D., a perinatal pathologist experienced in postmortem examination of infants and children. Dr. Schauer’s declaration explained that an accurate postmortem evaluation of a fetus or infant required examination of an intact body and organs by a qualified expert, which is a different examination than that required for adults. Dr. Schauer explained that examination of slides or samples obtained by a pathologist without perinatal training was seldom adequate to assess the pertinent features of infants. Respondent court declined to vacate its order releasing the infant’s remains.
Petitioner then filed a petition for a writ of mandate in this court seeking vacation of respondent court’s order permitting release of the infant’s remains to the father. We stayed that order pending receipt of opposition and further order of this court. The People, real party in interest, filed a “Notice of Conditional Non-opposition to Mandamus Petition, ” which did not oppose the relief sought by petitioner.
We issued a Palma notice, advising the parties that we were considering issuing a peremptory writ of mandate in the first instance. The Attorney General informed this court that the People did not intend to file any opposition to the petition for a writ of mandate.
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180 (Palma).
Petitioner contends that the preservation of the infant’s body, given Dr. Schauer’s declaration, is of critical importance to the preservation of her due process right to a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution, and article I, sections 7, 15, and 24 of the California Constitution.
We agree that the prosecution team has the general duty to preserve potentially useful evidence in the absence of bad faith. (Arizona v. Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d 281, 289].) The prosecution may not intentionally destroy evidence with knowledge of its critical nature. (People v. Frye (1998) 18 Cal.4th 894, 943, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Given Dr. Schauer’s unrefuted declaration and the failure of real parties in interest to oppose the petition, there is no question that the prosecution knows the importance of this evidence.
There is no statutory or other automatic right to an independent autopsy by the defense without a showing of particularized need. (See, e.g., People v. Roehler (1985) 167 Cal.App.3d 353, 381; People v. Vick (1970) 11 Cal.App.3d 1058.) In Roehler, the court found that the same standard for the preservation of evidence applied to bodies as it did to other evidence. (Roehler, at pp. 384-385.) However, in that case, no error was found because the defendant had not demonstrated the value of another examination, the first autopsy had concluded that the deaths were accidental, and the defendant had not been charged with a crime when the bodies were released. (Ibid.)
We review denial of discovery under the deferential abuse of discretion standard. We conclude that respondent court did abuse its discretion by prematurely ordering the release of the infant’s remains before the coroner’s report was released, and before the defense had an opportunity to seek and obtain a court order releasing the remains to its expert for independent examination.
In this case, notification of the expert’s retention was speedily filed with the sheriff-coroner specifying the reasons why an independent examination of the infant’s remains by a perinatal pathologist was necessary, rather than a mere review of autopsy reports or selected samples. Moreover, petitioner has been charged with first degree murder. The purpose of this examination is to determine whether the infant was born alive -- the pivotal fact in this homicide prosecution. We are mindful that the family wishes immediate release of the infant’s remains for disposition, particularly because the coroner has retained them for several months. Nevertheless, under the unusual circumstances of this case, we hold that respondent court did abuse its discretion by prematurely ordering release of the infant’s remains.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent San Joaquin County Superior Court to vacate its April 5, 2011, and April 6, 2011, orders permitting release of the remains of baby Jane Doe to her biological father; to reinstate its February 15, 2011, order; and to conduct further discovery proceedings in light of this opinion. The stay previously issued is vacated. This order is final forthwith. (Cal. Rules of Court, rule 8.490(b)(3).)
We concur: BLEASE, J. BUTZ, J.