Opinion
F086359
08-08-2024
THE PEOPLE, Plaintiff and Respondent, v. TYLER JAMES SUONG, Defendant and Appellant.
Douglas C. Foster, under appointment by the Court of Appeal, for Petitioner. No appearance for Respondent. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Erin Doering, Deputy Attorneys General, for Real Party in Interest.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. F07900009 Jon N. Kapetan, Judge.
Douglas C. Foster, under appointment by the Court of Appeal, for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Erin Doering, Deputy Attorneys General, for Real Party in Interest.
OPINION
THE COURT [*]
Petitioner Tyler James Suong contends on appeal that the trial court's order denying his postconviction discovery motion must be reversed and the matter remanded to the trial court with instructions to issue the postconviction discovery order. The People agree the order must be reversed and the matter remanded for further proceedings. The order is not appealable. However, we treat the appeal as a writ of mandate and consider the merits of petitioner's contentions. We reverse the court's order denying petitioner's postconviction discovery motion and remand with directions for the trial court to issue the postconviction discovery order.
PROCEDURAL SUMMARY
On November 2, 2007, the Fresno County District Attorney filed a first amended information charging petitioner with four counts of lewd acts upon a child (Pen. Code, § 288, subd. (a); counts 1, 4, 5, &8); two counts of aggravated sexual assault of a child (§ 269, subd. (a)(1); counts 2 &3); two counts of forcible oral copulation (former § 288a, subd. (c)(2); counts 6 &7); and one count of continuous sexual abuse (§ 288.5; count 9). As to count 9, it was further alleged that petitioner willfully and unlawfully engaged in three or more acts of substantial sexual conduct and three or more acts in violation of section 288 while petitioner resided with and had recurring access to the child (§§ 288, 1203.66, subd. (b)).
All statutory references are to the Penal Code.
Section 288a was renumbered as section 287. (Stats. 2018, ch. 423, § 49.)
On November 6, 2007, a jury found petitioner guilty of counts 1 through 8 and not guilty of count 9. The trial court sentenced petitioner on counts 1, 4, and 5 to 15 years to life, concurrent, and on counts 2, 3, 6, 7, and 8 to an indeterminate sentence of 75 years to life.
On December 15, 2021, approximately 19 years later, petitioner filed a postconviction discovery motion pursuant to section 1054.9. Petitioner requested the "Investigator's Case Files," "Prosecutor's Case Files, Discovery," "Police Reports," "Probation Officer's Reports," "all documents related to the alleged sexual 'Text Messages' sent between Petitioner and Jane Doe I," and "phone records and text messages" from the telephone company.
The trial court summarily denied petitioner's motion without hearing on January 5, 2023. On May 26, 2023, petitioner filed a timely notice of appeal.
In our first order in this case, filed on October 25, 2023, we found petitioner's appeal untimely. "[Petitioner] filed a notice of appeal on May 26, 2023, well beyond 60 days from the trial court's denial order ._" However, we reversed this in our order filed on November 29, 2023, when petitioner called attention to the date the notice of appeal was mailed. Although the notice of appeal was filed more than 60 days late, we deemed petitioner's notice of appeal timely because the "trial court clerk's certificate of mailing indicates the clerk did not mail appellant notice of the trial court's January 5, 2023 order until May 10th, 2023."
On November 29, 2023, while the appeal was pending, our court issued an order that established that neither the court reporter, petitioner's trial counsel, nor petitioner's appellate counsel had possession of the court records from petitioner's 2007 trial. We held that the trial court's order denying access to any of the materials requested by petitioner that may have been in possession of the court reporter or petitioner's attorneys did not affect petitioner's substantial rights because the trial court lacked "the power" to grant the request from parties who cannot produce the discovery. However, to the extent that law enforcement has possession of the requested documents, we noted that the order was "arguably appealable as a postjudgment order affecting [petitioner]'s substantial rights," narrowing the issue in this case to consideration of the trial court's order as it pertains to documents in possession of law enforcement only.
Our November 29, 2023 order stated:
"The trial court reporter, [petitioner]'s trial counsel, and [petitioner]'s appellate counsel have all advised that they no longer possess [petitioner]'s court records from 2007. An order denying a motion for relief that the trial court lacked the power to grant generally does not affect a [petitioner]'s substantial rights, and therefore is not appealable. [Citations.] But [petitioner] also requested additional 'discovery materials' potentially in the possession of law enforcement and the prosecution. [Citation.] That portion of the request is arguably appealable as a postjudgment order affecting [petitioner]'s substantial rights. [Citation.]
"Briefing on the merits may further address the appealability of this matter."
We omit the underlying facts from this opinion, as they are irrelevant to petitioner's appeal, which concerns only his postconviction discovery motion.
I. APPEALABILITY
As a threshold matter, petitioner contends the order is appealable as an order made after a judgment affecting his substantial rights, pursuant to section 1237, subdivision (b), because he is appealing the denial of a statutorily authorized motion, and that his right to pretrial discovery is significantly limited by the clear error in the trial court's ruling. "Thus," he contends, "the 'challenged order [clearly] affected [his] substantial rights' and should be appealable under [section] 1237[, subdivision] (b)." Alternatively, he argues that, to the extent his prayer for relief was made via the wrong procedural vehicle, we may deem his appeal to be a writ of mandate because the trial court's order was clearly in error and there is no need for any redetermination of the facts. The People contend petitioner's appeal must be deemed a writ of mandate because petitioner's direct appeal contravenes the procedural requirement that a challenge to the denial of a postconviction motion for discovery under section 1054.9 be addressed by a petition for writ of mandate. We agree and deem petitioner's appeal a writ of mandate.
The question of whether a postjudgment order is appealable "does not turn on whether that party's claim is meritorious, but instead on the nature of the claim and the court's ruling thereto." (Teal v. Superior Court (2014) 60 Cal.4th 595, 600.) Section 1237, subdivision (b) permits a petitioner to appeal "[f]rom any order made after judgment, affecting the substantial rights" of that petitioner. (§ 1237, subd. (b).) For section 1237, subdivision (b) to apply, the order which is the subject of the appeal may not concern a matter that could have been reviewed upon timely appeal from the judgment itself. (People v. Cantrell (1961) 197 Cal.App.2d 40, 44.)
Here, however, petitioner's direct appeal contravenes the procedural requirement that a challenge to the denial of a postconviction motion for discovery under section 1054.9 be addressed by a petition for writ of mandate. (See In re Steele (2004) 32 Cal.4th 682, 692 ["A reviewing court can, and generally should, deny without prejudice a discovery motion that was not first filed in the trial court. We are confident that most discovery matters can be resolved expeditiously in the trial court (or informally between the parties). But if necessary, after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate in the Court of Appeal."].) Petitioner concedes this point, stating, "[I]n reference to [section] 1054.9, the California Supreme Court has suggested that 'after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate.' ([Steele, at p. 691].)."
However, we can also treat the appeal as an application for writ of mandate and dispose of the case on its merits in the interest of justice. (People v. Payne (1988) 202 Cal.App.3d 933, 937 [appeal from nonappealable order treated as application for writ of mandate]; see also People v. Picklesimer (2010) 48 Cal.4th 330, 335 ["A court may in its discretion treat such a postjudgment motion as a mislabeled petition for writ of mandate."].) Where "the facts justify ... relief it is immaterial that [petitioner] has prayed for the wrong remedy .." (Owens v. Superior Court (1959) 52 Cal.2d 822, 827, citing Boren v. State Personnel Board (1951) 37 Cal.2d 634, 638 ["All that is required is that [petitioner] state facts entitling him to some type of relief," and form of pleading is "unimportant."].) It is appropriate to issue a writ, "when, without the redetermination of any facts, the judgment may be corrected to 'accord with the only other possible determination in the circumstances.'" (Neal v. State of California (1960) 55 Cal.2d 11, 17, overruled on other grounds in People v. Correa (2012) 54 Cal.4th 331, 334, quoting In re McInturff (1951) 37 Cal.2d 876, 881.) Accordingly, we treat petitioner's direct appeal as a writ of mandate and address its merits below.
II. SECTION 1054.9
Petitioner contends the trial court abused its discretion when it denied petitioner's postconviction discovery motion because section 1054.9 entitles petitioner to the discovery materials that he would have had access to at trial. The People agree, as do we.
A. Background
Our November 29, 2023 order states, "The trial court reporter, [petitioner]'s trial counsel, and [petitioner]'s counsel have all advised that they no longer possess [petitioner]'s court records from 2007. An order denying a motion for relief that the trial court lacked the power to grant generally does not affect a [petitioner]'s substantial rights, and therefore is not appealable. [Citations.] But [petitioner] also requested additional 'discovery materials' potentially in the possession of law enforcement and the prosecution. [Citation.] That portion of the request is arguably appealable as a postjudgment order affecting [petitioner]'s substantial rights." (Emphasis added.)
B. Law
Section 1054.9 grants petitioners convicted of serious or violent felonies resulting in sentences of 15 years or more a right of access to discovery materials possessed by the prosecution and law enforcement authorities, which the petitioner would have been entitled to during his trial. (§ 1054.9, subds. (a), (c).) The statute mandates trial courts to order the discovery of the specific materials upon a showing of good faith effort by the petitioner to obtain the materials from trial counsel. (In re Steele, supra, 32 Cal.4th at p. 697.) The petitioner must also show that the materials either (1) were provided by the prosecution at the time of trial but are lost to the petitioner; (2) should have been provided by the prosecution at trial under a discovery order, statutory duty, or constitutional duty; (3) should have been provided by the prosecution because the defense specifically requested them at trial; or (4) the petitioner would have been entitled to them at the time of trial if the petitioner had specifically requested them. (Ibid.) The purpose behind the statute "is to allow defendants to receive materials they have reason to believe they are missing." (Barnett v Superior Court (2010) 50 Cal.4th 890, 899-900.) However, the statute provides "only limited discovery. It does not allow 'free-floating' discovery asking for virtually anything the prosecution possesses." (Steele, at p. 695.)
The abuse of discretion standard is generally applicable to evaluate a trial court's ruling on discovery matters. (People v. Thompson (2016) 1 Cal.5th 1043, 1105.) "[W]hen the trial court denies a defendant's discovery request under section 1054.9 and the defendant seeks writ relief in the appellate court, the defendant must show the appellate court he would have been entitled to the materials he requested at [the] time of trial. Absent such a showing, the defendant cannot carry his burden of showing the trial court abused its discretion in denying his discovery request." (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 363.) "[I]t is not sufficient for the defendant to simply offer a plausible justification for disclosure of information he has described with some specificity. Instead, as the Supreme Court explained in Steele, 'section 1054.9's discovery ... is limited to, specific materials ... that the defendant can show fall into any of the[] categories' of materials to which the defendant would have been entitled at [the] time of trial." (Id. at p. 371.)
C. Analysis
Here, the trial court abused its discretion by summarily denying petitioner's postconviction discovery motion.
In accordance with section 1054.9, a trial court is required to allow "reasonable access" to any requested discovery that is in the possession or constructive possession of the prosecution that a petitioner would be entitled to at trial. (§ 1054.9, subd. (a).) Petitioner should be granted reasonable access to anything available that he would have been entitled to during his 2007 trial, including requested documents of which the prosecution has constructive possession.
Petitioner has demonstrated he made previous efforts to obtain these requested documents. Accordingly, the trial court's summary denial of the motion was an abuse of discretion. Even though the record is clear that the prosecution no longer has any materials from the 2007 trial, the record is not clear as to whether law enforcement still has the requested documents. Accordingly, there is the possibility that the requested documents are in the constructive possession of the prosecution and therefore potentially discoverable through the section 1054.9 process. Thus, we remand the matter to the trial court with directions to issue the postconviction discovery order.
DISPOSITION
The court's order denying petitioner's postconviction discovery motion is reversed and the matter remanded with directions for the trial court to issue the postconviction discovery order.
[*] Before Levy, Acting P. J., Poochigian, J. and DeSantos, J.