Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 911489-3
Jenkins, J.
This case poses the question whether postconviction discovery pursuant to Penal Code section 1054.9 encompasses taking new testimony from witnesses regarding missing or, possibly, altered physical evidence. Because it does not, we issue a writ of mandate, directing the superior court to vacate its September 5, 2008 order granting an evidentiary hearing and to enter a new order denying the request for the hearing.
FACTUAL & PROCEDURAL HISTORY
In 1993 real party Robert Lee Smith (Smith) was convicted of two counts of first degree murder with special circumstances and was sentenced to death on both counts. The conviction and death sentence were affirmed by the Supreme Court in February 2007. (People v. Smith (2007) 40 Cal.4th 483.)
On June 6, 2006 Smith filed a habeas petition in the Supreme Court, alleging inter alia that the police employed “unconstitutionally coercive means to compel [him] to confess complicity in the robbery-murder[s]” and that they then intentionally erased or failed to preserve evidence of their coercive questioning to prevent him from successfully being able to move to suppress his confession. In his petition, Smith alleges that after he was arrested, the police interrogated him in the evening and early morning of March 25-26, 1991, tape-recording his interrogation on six audio tapes, which were produced to the defense. The audio tapes were the subject of a suppression hearing, where the defense attorney acknowledged that one side of one of the tapes was blank, but concluded that the “chronology continued on . . . the next tape.” Smith contends that his trial counsel failed to realize that one-half hour of recording was missing. He asserts in his petition that “[t]he missing audio recording was not of some inconsequential moment during the interrogation,” but the critical time when he was induced to “admit[] he was present at the scene of the homicides.”
With respect to the possibility that some portion of the recording of the interrogation was missing, the testifying officer, Detective Kimura, gave somewhat conflicting testimony. According to Smith’s Supreme Court petition, the detective initially testified at the suppression hearing:
I don’t recall exactly how the one tape discussed earlier in this hearing, how one side of that tape is unrecorded, okay? I don’t recall if it’s because I just went to a new tape, because I — at the time I’m changing the tape I didn’t know whether I’d already recorded on that one side and just decided to start with a new tape or it [,] when I turned it over I didn’t push the right buttons and I could have conceivably lost a half an hour at that point.
(Exh. B at 155). However, he also testified that the entire interview had been recorded and the recording had been placed into evidence.
Based on Smith’s habeas petition, the Supreme Court requested informal briefing; the People filed the opposition in March, 2007, and Smith has not yet filed his reply. In February 2007, however, Smith moved the Contra Costa County Superior Court for an evidentiary hearing to examine evidence concerning the gap in the recording; the court did not rule on that motion. At the superior court’s suggestion, Smith then moved for an evidentiary hearing pursuant to Penal Code section 1054.9 and Brady v. Maryland (1963) 373 U.S. 83, seeking an evidentiary hearing to determine “the underlying facts regarding a thirty- minute gap in [his] 1991 police interrogation.” Smith argued that under In re Steele (2004) 32 Cal.4th 682, his postconviction right to obtain the statements of all defendants (including his own statements) and evidence of an alleged constitutional violation is undiminished from his pre-trial right to do so. Since he could have obtained a full copy of his statement to the police before his trial, affording him the right to cross-examine law enforcement authorities about any missing portion of his statement, Smith argues that postconviction he is entitled to an evidentiary hearing to determine the circumstances surrounding the missing portion of the recording of March 25, 1991 interrogation.
On September 5, 2008, the superior court granted Smith’s motion, setting an evidentiary hearing for September 29. On September 17, 2008, the People (Petitioner) filed a Petition for Writ of Prohibition and/or Writ of Mandate in this court and requested that we stay the September 29 evidentiary hearing pending resolution of the writ petition. The next day we stayed the hearing, requested informal briefing, and gave notice pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 that if circumstances warranted, we might issue a peremptory writ in the first instance.
The Supreme Court has approved the procedure in capital cases where execution is not imminent, in which unresolved section 1054.9 discovery disputes are decided, in the first instance, by the superior court, subject to writ review in the appellate court. (In re Steele, supra, 32 Cal.4th at p. 692.)
In support of his opposition to the petition, Smith submitted two exhibits: a supplemental report, authored by Detective Kimura, one of the interrogating officers, and a letter from Durand R. Begault, Ph.D., Director, Audio Forensic Center. In his supplemental report, Detective Kimura summarized what transpired in the unrecorded section of the interrogation: until they confronted Smith, the police had led him to believe that they were investigating an auto theft, rather than a double homicide. When they confronted him with their belief that he had been present at the murders, he admitted he was there. Before admitting he was present at the murders, his account of his whereabouts had been “vague and conflicting.”
In Smith’s second exhibit, Dr. Begault explains that one side of one of the tapes had no audio signal, but there are indications that side was erased. He suggests that the gap on the tape was produced either by a malfunctioning microphone or by a deliberate manipulation to erase what had previously been recorded.
I. PENAL CODE SECTION 1054.9 DOES NOT ENCOMPASS TAKING NEW TESTIMONY FROM LAW ENFORCEMENT WITNESSES REGARDING MISSING, OR POSSIBLY ALTERED, PHYSICAL EVIDENCE.
Penal Code section 1054.9 states in pertinent part:
“(a) Upon the prosecution of a postconviction writ of habeas corpus or a motion 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).
(b) 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.”
(Penal Code § 1054.9, subsections (a) & (b).)
In support of their argument that the trial court exceeded the statutory limits imposed by section 1054.9, Petitioner draws the court’s attention to the definition of “discovery materials” found in sub-section (b) of the statute. Sub-section (b) states in pertinent part: “ ‘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.”
Petitioner argues that subsection (b) has been interpreted by the California Supreme Court as limited to the “discovery of specific materials currently in the possession of the prosecution or law enforcement authorities involved in the investigation or prosecution of the case.” (In re Steele, supra at 697 (emphasis added).) Because section 1054.9 limits discovery to specific materials currently in the possession of prosecution or law enforcement officials and Smith’s request seeks discovery, beyond that previously tendered by the prosecution, related to how the missing “gap” occurred (i.e. by way of inadvertent or intentional conduct), Petitioner argues that Smith’s request exceeds the permissible limits of discovery under the statute. We agree.
Petitioner has informed real party in interest and the superior court that it has no further materials to produce for inspection regarding the audio recording gap.
The leading case interpreting section 1054.9, In re Steele (2004) 32 Cal.4th 682, firmly supports the Petitioner’s position. It concludes that section 1054.9 provides for only “limited discovery.” The discoverable materials are limited to what is currently in the prosecution’s possession. The statutes imposes neither a duty to preserve evidence nor one to search for or obtain materials that the prosecution does not currently have. (Id. at p. 695.) It follows then, that this statute, creating a limited postconviction discovery right, does not encompass the creation of new evidence from police officers’ memories. The fact that had the defense realized that the tape had a gap, it would have had the right to cross-examine prosecution witnesses about the gap does not expand the reach of the statute in any way. The testimony which Smith seeks to compel does not constitute “material” in the prosecution’s current possession and, thus, falls beyond the scope of Penal Code section 1054.9.
Smith argues that officers’ recollections are available and he must cross-examine them under oath to determine why the gap is there and whether, if as he suspects, law enforcement intentionally erased the recording to cover-up their improper interrogation. Ultimately, of course, the Supreme Court may agree and issue an order to show cause and require an evidentiary hearing on this issue. At such a hearing Smith may have the opportunity to test law enforcement’s explanation regarding the gap. But that does not transform that substantive question into a discovery issue about which Smith is entitled to compel testimony at this stage of the proceedings. At this stage, Smith is entitled to the production of existing materials in law enforcement/prosecution’s current possession in the four categories outlined in Steele. Penal Code section 1054.9 does not entitle him to obtain non-existent testimony concerning how the gap was created.
These are (1) materials the prosecution provided at trial, but which the defendant has since lost; (2) materials the prosecution should have provided because it was required to by court order, a statutory duty, or a constitutional duty; (3) materials the prosecution should have provided at trial because the defense was entitled to them and requested them; and (4) materials which the prosecution was not obligated to provide at the time of trial absent a defense request to do so, but which the defendant would have been entitled to obtain had he requested them.
DISPOSITION
The accelerated Palma procedure is appropriate “when petitioner’s entitlement to relief is so obvious that no purpose could reasonably be served by plenary consideration of the issue.” (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, and 1240-1241.) Here the briefing has adequately addressed the sole legal issue presented, whether section 1054.9 entitles a defendant to compel new testimony from law enforcement. It does not. Consequently, let a peremptory writ of mandate issue commanding respondent superior court to vacate its September 5, 2008 order granting an evidentiary hearing pursuant to Penal Code section 1054.9 and to issue a new order denying Smith’s request for that hearing. The stay previously issued by this court on September 18, 2008 is dissolved.
We concur: McGuiness, P. J., Pollak, J.