Opinion
D079680
08-09-2023
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL GERALD DIKES, Defendant and Appellant.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, and Robin Urbanski and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCN333404, Brad A. Weinreb, Judge.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland, Assistant Attorneys General, and Robin Urbanski and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
O'ROURKE, J.
After Michael Gerald Dikes appealed his convictions and this court returned its remittitur, he twice unsuccessfully moved the superior court (Judge Robert Kearney) for an order to compel his appointed counsel from the San Diego County Public Defender's office to hand over to him certain documents he claims belong to him. Dikes contends Judge Kearney erroneously concluded he lacked jurisdiction to rule on Dikes's motions. Dikes alternatively contends another superior court judge (Judge Brad Weinreb) erroneously denied his petition for writ of mandate seeking the same relief. Dikes appeals the order denying his writ petition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, a jury convicted Dikes of 22 counts of sexually abusing his two stepdaughters, who were minors. The court sentenced him to 305 years to life in state prison.
In 2018, this court affirmed the judgment on appeal, but remanded for modification of the abstract of judgment. (People v. Dikes (March 29, 2018, D070972) [nonpub. opn.].) The California Supreme Court denied review. Dikes did not seek review in the United States Supreme Court.
Dikes unsuccessfully sought state and federal habeas relief. (In re Dikes (June 19, 2019, D076031) [nonpub. order]; In re Dikes (July 31, 2019, HCN1600) [superior court order denying relief]; In re Dikes (September 3, 2019, D076328) [nonpub. order]; In re Dikes (January 22, 2020, S257962) [nonpub. order]; Dikes v. Allison (May 17, 2022, 20-CV-335) [federal district court order denying relief].)
In November 2020, Dikes, who was self-represented, filed a "motion for order compelling former attorney to surrender client file(s) and trial exhibit(s)." In December 2020, Judge Kearney denied the motion for lack of jurisdiction. Dikes did not appeal this decision.
In October 2021, Dikes, again self-represented, filed a "petition for writ of mandate" in the superior court, requesting the court compel his trial counsel "to turn over and surrender all of client/former client materials and property." Dikes claimed his attorney, the real party in interest, had retained correspondence, deposition transcripts, expert reports, exhibits, physical evidence and electronic discovery, among other items, that he was required to turn over to Dikes under California Rules of Professional Conduct, rule 1-16(e). Dikes stated he had "a beneficial interest as all items requested . . . belong to [him]." Dikes alleged he had "tried to contact" his former attorney "through letters and filings in Superior Court." Dikes claimed he was entitled to writ relief because he had "exhausted all other remedies and has no other plain, speedy, and adequate remedy in the ordinary course of law . . . in that [he had] filed all papers in concert [sic] to respondent . . . to try and compel." Claiming his attorney's conduct had caused him "debilitating mental anguish and diminishing mental health," Dikes sought damages in the amount of $10,000 plus $300 in costs. He did not support his allegations with affidavits, declarations, or evidentiary materials.
Dikes's petition did not have a filing number, but in it he referred to the documents sought as being those in the underlying case. The court in its ruling assigned the underlying case number to this case.
Rules of Professional Conduct, rule 1.16 (e) provides in part: "Upon the termination of a representation for any reason: . . . subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property. 'Client materials and property' includes correspondence, pleadings, deposition transcripts, experts' reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client's representation, whether the client has paid for them or not."
In October 2021, Judge Weinreb denied the petition for writ of mandate, concluding Dikes had "failed to make a sufficient showing" to support his claim. The judge ruled: "[Dikes] has failed to provide any documentation showing that [his trial counsel] failed or refused to turn over the client materials and property which are in his possession. Though he claims to have tried to contact his former attorney through letters and filings, his claim is vague and he has not provided any documentation to support this claim. He has also failed to file a complaint with the State Bar of California in order to obtain the return of the client materials and property which he claims have not been turned over." Dikes appeals from this order.
Later that same month, Dikes again moved the superior court for an order compelling his trial counsel to surrender client files and trial exhibits. Judge Kearney again denied the motion for lack of jurisdiction. Dikes did not appeal this decision.
DISCUSSION
I. Motions to Compel Documents
Dikes contends Judge Kearney erroneously concluded he lacked jurisdiction to rule on his motions, and requests we remand the matter with directions that the court issue an order to show cause and determine whether Dikes is entitled to additional documents from his trial counsel under California Rules of Professional Conduct, rule 1-16(e). Dikes further argues: "Judge Kearney's failure to act implicated the Canons of Judicial Ethics, which require a judge to intervene when a violation of the rules of professional conduct are brought to a judge's attention."
The People filed a responsive appellate brief, but as Dikes and the People acknowledge, the People are not a party in interest in this proceeding. However, Dikes regards the People's brief as an amicus brief, and does not oppose it on lack of standing grounds.
Dikes did not appeal Judge Kearney's rulings. But setting that aside, Dikes filed his motions after this court had issued a remittitur resolving his first appeal. As a result, the trial court lost jurisdiction over the underlying case, as "a motion is not an independent remedy. It is ancillary to an ongoing action." (Lewis v. Superior Court (2008) 169 Cal.App.4th 70, 77.) In People v. Sparks (1952) 112 Cal.App.2d 120, the petitioner some years after his conviction filed a "motion for . . . records," seeking trial records to help him decide if he would pursue a writ petition. (Id. at p. 121.) The Court of Appeal affirmed the trial court's denial of the motion, ruling the trial court lacked jurisdiction to entertain the motion because there was no proceeding pending before it at that time. (Ibid.)
II. Petition for Writ of Mandate
To obtain relief, a petitioner must demonstrate (1) no "plain, speedy, and adequate" alternative remedy exists (Code Civ. Proc., § 1086); (2) "a clear, present, . . . ministerial duty on the part of the respondent"; and (3) a correlative "clear, present, and beneficial right in the petitioner to the performance of that duty." (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 529, 539-540; see Code Civ. Proc., §§ 1085-1086.)" 'In a petition for writ of mandate brought pursuant to Code of Civil Procedure section 1085, . . . the petitioner bears the burden of pleading and proving the facts on which the claim for relief is based. [Citations.]" [Citation.] In reviewing the trial court's ruling on a writ of mandate, we ordinarily are confined to an inquiry of whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] In doing so, we view the evidence in the light most favorable to the prevailing party." (Los Angeles Police Protective League v. City of Los Angeles (2014) 232 Cal.App.4th 136, 140-141.)
We first address Dikes's concession that "his [trial] attorney provided him with some but not all of the materials constituting his client file." Dikes cites to his declaration accompanying his second motion to compel the documents, in which he asserted: "Despite frequent demands that these items be surrendered to me in full, [trial counsel] refuses to do so and has only 'piece mealed' out of the file.... I am demanding complete file, not limited items." On appeal, Dikes has not established, with reference to the record or legal authority, the threshold issues of whether the documents sought even exist, and if they do, who owns them. He has not shown the documents, if any, are his property, as opposed to that of the Public Defender's office or trial counsel. Dikes has also failed to specify which documents trial counsel returned, and his basis for claiming trial counsel is retaining other files that properly belong to him. There is no basis in the record to believe that additional documents exist. We could dismiss Dikes's contentions for his failure to support these contentions." '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.'" (People v. Stanley (1995) 10 Cal.4th 764, 793.)
But even addressing Dikes's contentions on the merits, we conclude the trial court did not err by denying Dikes's petition for writ of mandate because he failed to meet his burden of showing he lacked an adequate and speedy remedy at law. "[A] writ of mandate may not be issued where the petitioner's rights are otherwise adequately protected." (Agosto v. Board of Trustees of the Grossmont-Cuyamaca Community College District (2010) 189 Cal.App.4th 330, 345; Code Civ. Proc., § 1086.) "If the petitioner has an adequate remedy in the form of an ordinary cause of action . . . a writ of mandate must be denied." (Agosto, at p. 336.) As Judge Weinreb pointed out, Dikes failed to show that he could not obtain effective relief by, for example, filing a complaint with the California State Bar, or by filing a civil suit. In fact, Dikes relies on a distinguishable case, White v. Molfetta (2021) 64 Cal.App.5th 628, in which the plaintiff, unlike Dikes, "brought the present action in tort after his criminal defense lawyer . . . failed to respond to repeated requests for his case file."
Contrary to Dikes's interpretation of the court's ruling, it did not require him to first file a complaint with the California State Bar; rather, the court was merely illustrating an alternative relief available to Dikes that could undermine his claim for writ relief. Likewise, the court did not require Dikes to produce his correspondence with his trial counsel regarding their dispute; instead, it simply pointed out the kind of evidence he could have adduced to support his petition.
With no citation to authority, Dikes contends: "Judge Weinreb concluded appellant had made an insufficient showing for a writ petition, but he did so without seeking a response of any kind from trial counsel. Had a response been sought from trial counsel, the court could have narrowed the scope of the issues by allowing counsel to identify what documents had been produced, and what documents had been withheld, and the reasons why they were withheld." As stated, we may treat an appellant's unsupported claims as waived. (People v. Stanley, supra, 10 Cal.4th at p. 793.) Dikes has not shown that on this record he was entitled to a hearing, as opposed to a resolution on the papers. As this court has pointed out, in some instances, a writ may be resolved on the papers:" '[I]n a proceeding for a writ of mandate, when the matter is heard only on written evidence, all conflicts in the written evidence are resolved in favor of the prevailing party, and factual findings are examined for substantial evidence.'" (Agosto v. Board of Trustees of the Grossmont-Cuyamaca Community College District, supra, 189 Cal.App.4th at p. 345, quoting Capo for Better Representation v. Kelley (2008) 158 Cal.App.4th 1455, 1462.) In any event, we conclude substantial evidence supported Judge Weinreb's finding that Dikes failed to show he lacked an adequate remedy. (Code Civ. Proc., § 1086.) It is the petitioner's burden to show he does not have an adequate remedy. (Phelan v. Superior Ct. (1950) 35 Cal.2d 363, 366.) "[G]eneral allegations, without reference to any facts, are not sufficient to sustain [the] burden of showing that [an alternative] remedy . . . would be inadequate." (Id. at p. 370.)
We disagree with Dikes's claim that his "three written pleadings plainly put the superior court on notice that he contended his trial counsel had failed to comply with California Rules of Professional Conduct, rule 1.16(e)(1), therefore the trial court had a duty to take corrective action" under the Canons of Judicial Ethics. Just as Dikes's showing was insufficient for purposes of supporting his writ petition, he has not shown it is adequate for purposes of the Canon of Judicial Ethics, canon 3 D(2), which states: "Whenever a judge has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority." Dikes did not present any evidence to show the trial court had "personal knowledge" of attorney misconduct. Further, even if the court had such knowledge, the "appropriate corrective action" it was required to take does not necessarily include granting Dikes's writ petition. The advisory committee commentary to that canon states: "Appropriate corrective action could include direct communication with the judge or lawyer who has committed the violation, writing about the misconduct in a judicial decision, or other direct action, such as a confidential referral to a judicial or lawyer assistance program, or a report of the violation to the presiding judge, appropriate authority, or other agency or body."
DISPOSITION
The order is affirmed.
WE CONCUR: HUFFMAN, Acting P. J. DO, J.