Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SC53524
HULL, Acting P. J.Petitioner was sentenced to life in prison without the possibility of parole for first degree murder with special circumstances in 1993. On February 22, 2008, he filed a motion in respondent superior court to compel discovery pursuant to Penal Code section 1054.9.
Penal Code section 1054.9 provides for postconviction discovery in special circumstance cases:
“(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.
“(c) In response to a writ or motion satisfying the conditions in subdivision (a), court may order that the defendant be provided access to physical evidence for the purpose of examination, including, but not limited to, any physical evidence relating to the investigation, arrest, and prosecution of the defendant only upon a showing that there is good cause to believe that access to physical evidence is reasonably necessary to the defendant's effort to obtain relief. The procedures for obtaining access to physical evidence for purposes of postconviction DNA testing are provided in Section 1405, and nothing in this section shall provide an alternative means of access to physical evidence for those purposes.
“(d) The actual costs of examination or copying pursuant to this section shall be borne or reimbursed by the defendant.” (Pen. Code, § 1054.9.)
According to the San Joaquin County Superior Court docket sheet in this case provided by the People, no court action has been taken on the discovery motion as of August 10, 2009, more than 18 months after it was filed. The docket sheet also shows that petitioner filed a request for a ruling on June 12, 2008. The court has not ruled on this request.
Petitioner filed a petition for a writ of mandate in this court on July 13, 2009, seeking an order directing respondent court to respond to the outstanding discovery motion. A writ of mandate is proper to require a court to rule and to challenge a ruling after the trial court has ruled on a postconviction discovery motion. (In re Steele (2004) 32 Cal.4th 682, 692; Robinson v. Superior Court (1950) 35 Cal.2d 379, 383 [“The law is well settled that a trial court is under a duty to hear and determine the merits of all matters properly before it which are within its jurisdiction and that mandate may be used to compel the performance of this duty. This is so even where the trial court’s refusal to pass on the merits is based on the considered but erroneous belief that it has no jurisdiction as a matter of law to grant the relief requested”]
On July 31, 2009, this court notified all parties that it was considering issuing a peremptory writ of mandate in the first instance (i.e., without first issuing an alternative writ). (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)
The Attorney General, counsel for real party in interest, responded that he did not oppose the petition, or object to petitioner’s request that this court direct the trial court to respond to petitioner’s outstanding discovery motion.
On August 18, 2009, petitioner filed a reply, appending a letter date-stamped August 12, 2009, purportedly from the San Joaquin County Superior Court. The letter can be charitably described as inexplicable and ungrammatical. (See appendix A.) The letter has an illegible signature by a “legal process clerk.” The body of the letter states:
“After Judge’s review of your request regarding Motions- [sic] court orders ‘No Action Taken’. [sic]”
This letter does not include a case number or a judge’s name. It was not sent to this court. Indeed, respondent court has not filed any pleadings in this case. The statement in this letter, that “No Action” would be taken, is mystifying.
On August 26, 2009, after receiving the copy of the letter, a deputy clerk of this court called the San Joaquin Superior Court to obtain a copy of the “order.” She was told that there was no order, but that whoever signed the letter was “new.”
The fact that this motion, complete with multiple supporting declarations and an adequate memorandum of points and authorities, has languished for 19 months without a hearing, responsive pleadings, or a ruling, is unacceptable.
Disposition
Having complied with the procedural requirements for issuance of a peremptory writ in the first instance, we are authorized to issue the writ. (See, Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d 171.)
Let a peremptory writ of mandate issue directing respondent superior court to commence proceedings forthwith to determine petitioner’s motion for discovery on the merits.
We concur: ROBIE , J., BUTZ , J.