People v. Serrano ( 2024 )

Filed 10/29/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C100856
Plaintiff and Respondent, (Super. Ct. No. 97F03702)
v.
ANDRES SERRANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Bunmi O.
Awoniyi, Judge. Dismissed.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, and Erin Doering, Deputy Attorney General, for
Plaintiff and Respondent.
1
Defendant Andres Serrano1 seeks to appeal from an order denying a stand-alone
postjudgment motion for discovery related to potential violations of the California Racial
Justice Act (Act). (Pen. Code,2 § 745, subd. (d).) At issue is whether the trial court’s
order is appealable. Although the trial court denied defendant’s motion on the merits, we
must first address the threshold question of whether the trial court had jurisdiction to
consider the motion in the first instance. We conclude that it did, and that the Act
permits a defendant to file a stand-alone postjudgment discovery motion before filing a
habeas corpus petition, like defendant did in the trial court. In so holding, we agree with
the holding of our colleagues in Division One of the Fourth Appellate District in
In re Montgomery (2024) 104 Cal.App.5th 1062, 1071-1072, petition for review pending,
petition filed October 11, 2024, S287339 (Montgomery), that an order denying a
postjudgment discovery motion under the Act is not appealable, while disagreeing with
their conclusion that the trial court lacks authority to entertain the motion. The Act’s
plain language permits discovery, and in doing so, it does not differentiate between
preconviction and postconviction proceedings. As we shall explain, the Act’s language
contemplates that discovery has occurred before a defendant files a petition for writ of
habeas corpus. We find support for our holding in our Supreme Court’s interpretation of
section 1054.9 as allowing discovery prior to filing a habeas corpus petition and for
review of a discovery order in mandate rather than by appeal. (See In re Steele (2004)
32 Cal.4th 682, 688 (Steele).) Accordingly, we dismiss the appeal.
1 While defendant’s name also appears in the record as “Andres M. Serrano” and
“Andres Mosqueda Serrano,” we use defendant’s name as it appears on the notice of
appeal and the order appealed.
2 Undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
In 1998, a jury found defendant guilty of assault with a deadly weapon and found
he had two prior serious felony convictions. Defendant admitted having served a prior
prison term within the meaning of section 667.5, subdivision (b). The trial court initially
sentenced defendant to 25 years to life in prison, plus 11 years for the enhancements. In
December 2023, the trial court resentenced defendant to 25 years to life.
In January 2024, defendant filed a “Motion for Discovery Pursuant to the Racial
Justice Act” in the trial court, seeking information and statistics to support a claim that
the Sacramento County District Attorney’s Office “ ‘engages in racially disparate
charging’ ” in violation of section 745, subdivision (a)(3). Defendant did not file the
motion as part of, or in connection with, a petition for writ of habeas corpus or any other
pending proceeding. The trial court did not evaluate whether it had jurisdiction to
consider the motion. Rather, the trial court explained that “[u]nder section 745,
subdivision (d), a defendant may file a motion requesting disclosure to the defense of all
evidence relevant to a potential violation of section 745, subdivision (a), in the possession
or control of the state.” The court denied the motion, finding that defendant “failed to
advance a plausible factual foundation, based on specific facts, that a violation of section
745 could or might have occurred.” Defendant filed a timely notice of appeal.
Defendant also filed, in propria persona, a separate petition for writ of mandate
challenging the same order. (Serrano v. Superior Court, filed Aug. 16, 2024, C101836.)3
While this appeal was pending, the Fourth Appellate District, Division One, issued
its decision in Montgomery, holding that an order denying a motion for discovery under
the Act is not appealable. (Montgomery, supra, 104 Cal.App.5th at p. 1066.)
3 We deny defendant’s request to consolidate defendant’s petition for writ of
mandate with this appeal.
3
After counsel was appointed for defendant, we asked the parties to address
whether the trial court’s order is appealable, as well as Montgomery, supra,
104 Cal.App.5th 1062.
DISCUSSION
Effective January 1, 2021, the Act was “codified in a scheme of interrelated
statutes in the Penal Code (§§ 745, 1473, subd. (f),[4] 1473.7, subd. (a)(3)).” (Young v.
Superior Court (2022) 79 Cal.App.5th 138, 147 (Young).) Section 745, subdivision (a)
prohibits the state from “seek[ing] or obtain[ing] a criminal conviction or seek[ing],
obtain[ing], or impos[ing] a sentence on the basis of race, ethnicity, or national origin.”
As part of the Act, the Legislature empowered a defendant to “file a motion requesting
disclosure to the defense of all evidence relevant to a potential violation of
subdivision (a) in the possession or control of the state. . . . Upon a showing of good
cause, the court shall order the records to be released.” (§ 745, subd. (d), italics added.)
To our knowledge, Montgomery is the first published opinion to address whether
an order denying a request for postconviction discovery under the Act is appealable.
(Montgomery, supra, 104 Cal.App.5th at p. 1066.) That case arose in a slightly different
procedural context than this case because the defendant in that case sought postconviction
discovery in connection with “habeas [corpus] claims.” (Ibid.) The trial court denied
defendant’s “freestanding” discovery motion for lack of jurisdiction after concluding the
defendant had failed to state a prima facie case for relief on his habeas corpus claims.
(Id. at p. 1067.) The majority concluded the Act “only authorizes discovery in a pending
proceeding in which the defendant has [sufficiently] alleged a violation of section 745,
subdivision (a),” in other words, after a trial court issues an order to show cause in habeas
4 Section 1473, subdivision (f) has since been renumbered subdivision (e), but
section 745 continues to refer to section 1473, subdivision (f). (See Stats. 2023, ch. 381,
§ 1.)
4
corpus proceedings. (Montgomery, at p. 1071.) After concluding the trial court lacked
jurisdiction to grant the motion where it was not filed in connection with a pending
proceeding, the court concluded the order was not appealable because it did not affect the
substantial rights of the defendant. (Id. at p. 1072.) In a concurring opinion, Justice
Kelety concluded the Act permits a defendant to seek discovery in conjunction with the
filing of a habeas corpus petition, but that an order denying such a motion is likewise not
appealable, and that the defendant’s remedy was either by a writ of mandate or a new
petition for writ of habeas corpus in the Court of Appeal. (Montgomery, at pp. 1073-
1076 (conc. opn. Kelety, J.).)
I
The Act Authorizes Individuals To File Stand-alone Postconviction Discovery Motions
Defendant contends the Act authorizes a defendant to file a stand-alone
postjudgment motion for disclosure of Act discovery to gather evidence of potential
racial or ethnic bias. In response, the People argue the Act “does not authorize
freestanding discovery requests” and maintain that a defendant may file a habeas corpus
petition or motion to vacate a conviction, and file a discovery motion “[a]s part of these
proceedings.” We agree with defendant.
Whether the Legislature intended to allow a defendant to file a stand-alone or
freestanding postjudgment discovery motion depends on whether the “Legislature has
expressly authorized such a motion,” which is a matter of statutory construction. (See,
e.g., People v. Picklesimer (2010) 48 Cal.4th 330, 337-338 & fn. 2 [“exceptions to the
rule precluding postjudgment motions . . . generally arise in instances where the
Legislature has expressly authorized such a motion”].)
“We review de novo questions of statutory construction.” (People v. Blackburn
(2015) 61 Cal.4th 1113, 1123.) “ ‘It is well settled that the proper goal of statutory
construction “is to ascertain and effectuate legislative intent, giving the words of the
statute their usual and ordinary meaning. When the statutory language is clear, we need
5
go no further.” ’ [Citation.] We consider the language in the context of the entire statute
and the statutory scheme of which it is a part [citation], harmonizing provisions relating
to the same subject matter, to the extent possible.” (Satele v. Superior Court (2019)
7 Cal.5th 852, 858-859.)
“Uncodified legislative findings may also be consulted. While legislative findings
‘ “ ‘ “do not confer power, determine rights, or enlarge the scope” ’ ” ’ of the Act itself as
codified, they ‘ “ ‘ “properly may be utilized as an aid in construing” [a statute].’ ” ’
[Citation.] [¶] Because uncodified findings of legislative intent are voted upon by the
entire legislative body, enrolled and signed by the Governor, they may be entitled to
somewhat greater weight than traditional legislative history materials (e.g., draft language
of bills, committee reports, bill analyses).” (Young, supra, 79 Cal.App.5th at pp. 156-
157.)
The Legislature enacted the Act to “eliminate racial bias from California’s
criminal justice system.” (Stats. 2020, ch. 317, § 2(i).) The Legislature explained that
“[i]t is the further intent of the Legislature to provide remedies that will eliminate racially
discriminatory practices in the criminal justice system, in addition to intentional
discrimination. It is the further intent of the Legislature to ensure that individuals have
access to all relevant evidence, including statistical evidence, regarding potential
discrimination in seeking or obtaining convictions or imposing sentences.” (Stats. 2020,
ch. 317, § 2(j), italics added.)
Section 745, subdivision (j)(1) provides that section 745 applies to “all cases in
which judgment is not final.” As amended, section 745, subdivision (j)(2) through (5)
specifies dates, beginning January 1, 2023, from which section 745 will apply to various
6
classes of defendants seeking relief by a petition for writ of habeas corpus or by a motion
to vacate a conviction or sentence. (Stats. 2022, ch. 739, § 2.)5
In defendant’s view, “section 745, subdivision (d) creates a freestanding
disclosure/discovery mechanism for all [Act] claimants” that “is not merely collateral to
another proceeding.” The People disagree and argue the trial court lacks jurisdiction to
consider a freestanding discovery request.
Although the People do not explain why the Act does not authorize freestanding
discovery, presumably it is because trial courts generally “ ‘[lack authority] to entertain a
postjudgment discovery motion [that] is unrelated to any proceeding then pending before
that court.’ ” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1257.) This rule exists
because “ ‘a discovery motion is not an independent right or remedy. It is ancillary to an
ongoing action or proceeding. After the judgment has become final, there is nothing
pending in the trial court to which a discovery motion may attach.’ ” (Ibid.) “A trial
court does not regain jurisdiction over a criminal judgment through habeas corpus until
the court issues an order finding that a habeas corpus petition has set forth a prima facie
case for relief.” (People v. Esquivias (2024) 103 Cal.App.5th 969, 976, review granted
Oct. 2, 2024, S286371, citing In re Serrano (1995) 10 Cal.App.4th 447, 455.) Thus,
discovery ancillary to habeas corpus proceedings is available only after a court issues an
order to show cause. (See In re Scott (2003) 29 Cal.4th 783, 813-814; Gonzalez, at
pp. 1257, 1261; Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212,
1241-1242.)
5 Effective January 1, 2025, section 745 will additionally apply to habeas corpus
petitions raising Act claims, and motions to vacate a conviction or sentence, “in which
judgment became final for a felony conviction or juvenile disposition that resulted in a
commitment to the Division of Juvenile Justice on or after January 1, 2015.” (§ 745,
subd. (j)(4).)
7
By its plain terms, section 745, subdivision (d) provides a mechanism for
defendants to obtain discovery in support of any “potential violation” of the Act.
Although the statute is not explicit about the scope of its application, the plain language
of subdivision (d) does not limit the availability of discovery to pretrial proceedings and
habeas corpus proceedings. And section 745 contains provisions that allow for relief
under the Act in both the preconviction and postconviction context. (§ 745, subd. (j)(1)-
(5).) The only provisions that are expressly limited to postconviction habeas corpus relief
are contained in section 745, subdivision (j), which limits when a petition may be filed,
and subdivision (k), which limits relief for certain violations if the “state proves beyond a
reasonable doubt that the violation did not contribute to the judgment.” “[T]he
Legislature has expressed its intention to allow defendants to obtain discovery of
evidence in the possession or control of the state that is plausibly relevant to a potential
violation” of the Act “regardless of the finality of the underlying conviction or the
mechanism the defendant uses to assert their [Act] claim.” (Montgomery, supra,
104 Cal.App.5th at p. 1073 (conc. opn. of Kelety, J.), italics added.)
Moreover, while section 745, subdivision (j) cross-references section 1473
(relating to petitions for writs of habeas corpus), section 745, subdivision (d) contains no
such reference, which suggests that the Legislature did not want discovery under the Act
tethered to a habeas corpus petition. To that end, section 745, subdivision (d) specifically
contemplates the filing of a “motion,” and not a petition for writ of habeas corpus with a
request for discovery.6
The language in section 1473 likewise supports our conclusion. Section 1473,
subdivision (e) provides, in relevant part, “Notwithstanding any other law, a writ of
6 We are aware that the current version of the Judicial Council habeas corpus form
embeds the request for disclosure with the filing of a petition for writ of habeas corpus.
(Judicial Council Forms, form HC-001, § 18(f).)
8
habeas corpus may also be prosecuted after judgment has been entered based on evidence
that a criminal conviction or sentence was sought, obtained, or imposed in violation of
subdivision (a) of [s]ection 745, if that section applies based on the date of judgment as
provided in subdivision (k) of [s]ection 745. A petition raising a claim of this nature for
the first time, or on the basis of new discovery provided by the state or other new
evidence that could not have been previously known by the petitioner with due diligence,
shall not be deemed a successive or abusive petition. If the petitioner has a habeas corpus
petition pending in state court, but it has not yet been decided, the petitioner may amend
the existing petition with a claim that the petitioner’s conviction or sentence was sought,
obtained, or imposed in violation of subdivision (a) of [s]ection 745. . . . The court shall
review a petition raising a claim pursuant to [s]ection 745 and shall determine if the
petitioner has made a prima facie showing of entitlement to relief. If the petitioner makes
a prima facie showing that the petitioner is entitled to relief, the court shall issue an order
to show cause why relief shall not be granted and hold an evidentiary hearing, unless the
state declines to show cause.” (Italics added.)
Inclusion of the complementary phrases “in the possession or control of the state”
in section 745, subdivision (d) and “provided by the state” in section 1473,
subdivision (e) suggests that the Legislature intended to allow a defendant to obtain
discovery from the state before filing a habeas corpus petition under the Act. “Requiring
a defendant who files a writ of habeas corpus to meet the prima facie burden before
considering a related request for discovery inverses that relationship and places a notably
higher burden on defendants pursuing relief through the habeas corpus process.”
(Montgomery, supra, 104 Cal.App.5th at p. 1075 (conc. opn. Kelety, J.).)
While section 1473, subdivision (e) indeed permits a defendant to amend an
existing habeas corpus petition to include an Act claim, the statutory language suggests
this amendment be made before the court determines if the defendant has made a prima
facie showing of entitlement to relief. An interpretation of section 745, subdivision (d)
9
that would require a defendant to await issuance of an order to show cause in pending
habeas corpus proceedings before being able to seek discovery, would require the
defendant to amend the petition after obtaining discovery, and the court to twice
determine if the defendant has set forth a prima facie case in the same proceeding.
We give considerable weight to the Legislature’s stated intent “to ensure that
individuals have access to all relevant evidence, including statistical evidence, regarding
potential discrimination in seeking or obtaining convictions or imposing sentences.”
(Stats. 2020, ch. 317, § 2(j).) To only allow for discovery after a trial court issues an
order to show cause, as the majority in Montgomery concluded, would place defendants
in the Catch-22 circumstance of having to establish a violation before being allowed to
seek discovery of a “potential violation.” (§ 745, subd. (d), italics added; see
Montgomery, supra, 104 Cal.App.5th at p. 1071; Young, supra, 79 Cal.App.5th at p. 143
[discussing discovery of a “potential violation” of § 745, subd. (a) in a pretrial context].)
Nothing in the statute indicates the Legislature intended to place a more onerous burden
on defendants whose convictions are final and potentially more vulnerable to the very
problems the Act aims to remedy.
In our view, to read section 745, subdivision (d) as permitting a defendant to seek
discovery in conjunction with the filing of a habeas corpus petition, as the concurrence in
Montgomery held, also does not go far enough. (Montgomery, supra, 104 Cal.App.5th at
pp. 1073-1076 (conc. opn. Kelety, J.).) Absent a statutory right to seek discovery before
seeking habeas corpus relief, a defendant would be forced to file a “shell” petition that
seeks discovery while conceding that the defendant cannot make a prima facie showing.
This runs afoul of standard habeas corpus procedure, as noted above, that makes
discovery available only after the trial court issues an order to show cause, i.e., after the
court has determined the defendant has stated a prima facie case. (See In re Scott, supra,
29 Cal.4th at pp. 813-814; People v. Gonzalez, supra, 51 Cal.3d at p. 1261; Board of
Prison Terms v. Superior Court, supra, 130 Cal.App.4th at pp. 1241-1242; see also
10
§ 1484.) Section 1473, subdivision (c), which states, “This section does not change the
existing procedures for habeas [corpus] relief,” further bolsters our conclusion that
defendants must be able to obtain discovery to support an Act claim before they attempt
to file a petition that states a prima facie case that would warrant issuance of an order to
show cause. Were a court to allow for discovery in a pending habeas corpus petition
prior to the issuance of an order to show cause, it would fundamentally change the
procedures that apply in such a proceeding.
Moreover, the Act itself codifies different standards for what constitutes a prima
facie case and an adequate showing for discovery. The Act specifically defines
“ ‘[p]rima facie showing’ ” to mean “the defendant produces facts that, if true, establish
that there is a substantial likelihood that a violation of [section 745,] subdivision (a)
occurred. For purposes of this section, a ‘substantial likelihood’ requires more than a
mere possibility, but less than a standard of more likely than not.” (§ 745, subd. (h)(2).)
On the other hand, discovery is compelled upon a showing of “good cause.” (§ 745,
subd. (d); see Young, supra, 79 Cal.App.5th at pp. 148, 156, 160.) An interpretation of
the Act that does not allow for discovery to facilitate the defendant making the requisite
prima facie showing would subvert both habeas corpus procedure and the Act.
Our conclusion is consistent with our Supreme Court’s decision in Steele, which
addressed section 1054.9 and its allowance for postconviction discovery before a
defendant files a habeas corpus petition. (Steele, supra, 32 Cal.4th at pp. 690-691.) The
majority in Montgomery neither acknowledges nor discusses the import of this decision.
Section 1054.9 currently enables defendants “convicted of a serious felony or a violent
felony resulting in a sentence of 15 years or more,” to seek postconviction discovery in
preparation for filing a “postconviction writ of habeas corpus or a motion to vacate a
judgment.” (§ 1054.9, subd. (a).) When our Supreme Court addressed whether section
1054.9 permitted a defendant to obtain discovery before filing a petition for writ of
habeas corpus, the plain language of section 1054.9 only allowed for discovery “ ‘[u]pon
11
the prosecution of a postconviction writ of habeas corpus or a motion to vacate
judgment.’ ”7 (Steele, supra, 32 Cal.4th at p. 690, quoting former § 1054.9, subd. (a); see
Stats. 2002, ch. 1105, § 1.) The court rejected an interpretation of the word
“ ‘prosecution’ ” that assumed a habeas corpus petition was “pending,” and instead
interpreted the language “flexibly to include cases in which the movant is preparing [a]
petition” and held the statute must be “[r]easonably construed” to permit “discovery as an
aid in preparing the petition” before making the requisite prima facie showing to
necessitate issuance of an order to show cause. (Steele, at pp. 690-691.) The court
reasoned the only way to interpret section 1054.9 and conform with habeas corpus
procedure that “makes sense is to permit defendants to seek discovery before they file the
petition, i.e., before they must state a prima facie case.” (Steele, at p. 691.)
Likewise, the “only way” Penal Code section 745, subdivision (d) can be
harmonized in the context of postconviction habeas corpus relief “is to permit defendants
to seek [Act] discovery before they file [a habeas corpus] petition.” (Steele, supra,
32 Cal.4th at p. 691.) Such a reading is also consistent with the court’s inherent power to
order discovery of a “potential violation.” (Pen. Code, § 745, subd. (d); see People v.
Superior Court (Morales) (2017) 2 Cal.5th 523, 534 [“because the [trial] court has
jurisdiction under Penal Code section 1054.9 to grant postconviction discovery to the
extent consistent with the statute, the court has the inherent power under Code of Civil
Procedure section 187 to order preservation of evidence that would potentially be subject
to such discovery”].)
Given the stated goal of “eliminat[ing] racial bias from California’s criminal
justice system” (Stats. 2020, ch. 317, § 2(i)), we see no reason that defendants whose
7 Section 1054.9 has since been amended to expressly allow a defendant reasonable
access to discovery materials “in preparation to file” a habeas corpus petition or motion
to vacate the judgment. (§ 1054.9, subd. (a); see Stats. 2018, ch. 482, § 2.)
12
convictions are final and wish to seek relief in habeas corpus should have to make a
prima facie showing for relief under section 745, subdivision (a) before they may seek
discovery. Moreover, the Legislature has stated its “intent . . . to apply the California
Racial Justice Act of 2020 retroactively, to ensure equal access to justice for all.” (Stats.
2022, ch. 739, § 1.) To only permit defendants convicted of serious or violent felonies
serving lengthy sentences to seek postconviction discovery before filing a habeas corpus
petition (§ 1054.9, subd. (a)), runs counter to the Legislature’s stated intent of “ensur[ing]
equal access to justice for all” (Stats. 2022, ch. 739, § 1).
We are not persuaded by the majority’s opinion in Montgomery, that “[t]he
Legislature did not create an exception to the general rule for discovery motions filed
under the [Act].” (Montgomery, supra, 104 Cal.App.5th at p. 1069.) The majority
reasoned that the Act “manifests no intent to depart from the general rule that ‘a
discovery motion is not an independent right or remedy but rather is ancillary to an
ongoing action or proceeding.’ ” (Montgomery, at pp. 1070-1071.) The majority noted
the “absence from the [Act] of language similar to that of section 1054.9 authorizing
discovery outside a pending proceeding is another indication the Act does not authorize
such discovery.” (Montgomery, at p. 1071, fn. 1.) The court thus held, “[T]he [Act] does
not authorize a freestanding motion for discovery; it only authorizes discovery in a
pending proceeding in which the defendant has alleged a violation of section 745,
subdivision (a).” (Montgomery, at p. 1071, italics added.)
As noted above, the majority opinion in Montgomery did not discuss Steele.
While the majority included a footnote referencing section 1054.9, it failed to specifically
acknowledge that the current language of section 1054.9, subdivision (a), which includes
the phrase “in preparation to file” a habeas corpus petition, was not previously found in
its statutory language. (Compare Stats. 2002, ch. 1105, § 1 with Stats. 2018, ch. 482, § 2;
see also Montgomery, supra, 104 Cal.App.5th at p. 1071, fn. 1 [discussing § 1054.9].)
The language our Supreme Court addressed that referred to permitting discovery only
13
“ ‘[u]pon the prosecution’ ” of a habeas corpus petition might reasonably have been
interpreted in a manner similar to how the Montgomery majority interpreted the Act, i.e.,
so as not to authorize discovery independent and in advance of the filing of a habeas
corpus petition. (Steele, supra, 32 Cal.4th at pp. 690-691; see Montgomery, at p. 1071.)
But, as we have explained, our Supreme Court instead interpreted section 1054.9 to allow
for freestanding discovery. (Steele, at p. 691.) This conclusion was reached after
reconciling ambiguous statutory language with habeas corpus procedure and the purposes
underlying the postconviction discovery statute at issue. (Ibid.) There is no magic
language the Legislature must use. (See Montgomery, at p. 1075 (conc. opn. of
Kelety, J.) [rejecting the majority’s conclusion that the Legislature had to use “ ‘in
preparation to file’ language . . . to establish a defendant’s ability to obtain discovery
aimed at setting forth a prima facie showing of an [Act] violation”].)
According, we conclude eligible defendants may seek postjudgment discovery
under section 745, subdivision (d) in anticipation of filing a habeas corpus petition.
II
An Order Denying A Postjudgment Act Discovery Motion Is Not An Appealable Order
Defendant argues the order denying discovery under the Act is appealable
pursuant to section 1237, subdivision (b) as a postjudgment order “ ‘affecting the
substantial rights of the party.’ ” He reasons that “[t]he purpose of the [Act], including
the disclosure process, directly affects [his] substantial rights to undergo judicial
proceedings free of explicit or implicit bias.” In response, the People argue that because
there was no pending proceeding in the trial court, the trial court lacked jurisdiction to
consider defendant’s motion, and as such, the denial does not affect defendant’s
substantial rights. We agree the order is not appealable, but not for the reasons the
People urge.
“ ‘ “[T]he right of appeal is statutory and . . . a judgment or order is not appealable
unless expressly made so by statute.” ’ ” (Teal v. Superior Court (2014) 60 Cal.4th 595,
14
598.) Defendant’s appeal is cognizable only if the denial of his discovery request is an
order after judgment affecting his substantial rights. (§ 1237, subd. (b).)
By analogy, in Steele, our Supreme Court held either party may challenge a ruling
on a postjudgment discovery motion pursuant to section 1054.9 by a petition for writ of
mandate in the Court of Appeal. (Steele, supra, 32 Cal.4th at p. 688.) As we have
explained, there is no reason to differentiate between the procedure for pursuing
postconviction discovery under section 1054.9 and the procedure under the Act pursuant
to section 745. Consequently, there is no reason to conclude that the remedy would be
anything other than that specified in Steele. Moreover, our Supreme Court has reasoned
that “ ‘[a] habeas corpus matter has long been considered a separate matter from the
criminal case itself,’ and . . . section 1054.9 discovery is ‘part of the prosecution of the
habeas corpus matter, not part of the underlying criminal case.’ ” (People v. Superior
Court (Morales), supra, 2 Cal.5th at pp. 530-531.) Thus, an appeal from the denial of
such discovery is not an order “after judgment” (§ 1237, subd. (b)) in the criminal action,
but from an interlocutory order in a current or future habeas proceeding.
Like a motion for postconviction discovery under section 1054.9, a postjudgment
discovery motion under the Act is merely a precursor to a criminal defendant asserting a
claim under the Act, not an end in itself. Whether or not discovery is disclosed will not
directly affect defendant’s custody status, conviction, or sentence. Postjudgment
discovery sought under the Act in connection with or in preparation for filing a petition
for writ of habeas corpus is likewise an interlocutory order in connection with the
anticipated filing of that habeas corpus petition. Accordingly, this appeal must be
dismissed.
III
Implications Of Our Decision
We are mindful that our opinion today may have an impact on the workload of
trial courts, Courts of Appeal, and the offices of the Attorney General and county
15
prosecutors. Unlike section 1054.9, which limits the availability of discovery to those
convicted of serious or violent felonies and requires the defendant to bear the costs of
examination and copying (§ 1054.9, subd. (e)), section 745, subdivision (d) is not so
limited. Like our colleagues in Division Four of the First Appellate District, we read the
Act to remove barriers to discovery, even though our holding today may open the
floodgates of litigation (and requests for relevant evidence in the possession or control of
the state). (See Young, supra, 79 Cal.App.5th at pp. 152-153, 163.) As the court in
Young explained, “The Legislature was focused . . . on creating a discovery-triggering
standard that is low enough to facilitate potentially substantial claims, even if it came at
some cost to prosecutorial time and resources. That is a policy choice the Legislature had
the prerogative to make.” (Id. at p. 163.) For all the reasons discussed, we find the Act
compels our conclusion that defendants may seek postjudgment discovery under section
745, subdivision (d) in anticipation of filing a habeas corpus petition. Whether
compliance with the Act requires—or whether the Legislature should allocate—
additional resources in light of this new burden is beyond the scope of our consideration
of the current appeal.
Nevertheless, at least some trial courts are currently addressing the merits of
stand-alone postjudgment discovery motions, like the one filed in this case. And, because
defendants must still show “good cause” to obtain discovery, we believe the statute’s
language will serve a gatekeeping function. (See Young, supra, 79 Cal.App.5th at p. 166
[“whether the allegations underscoring [the defendant’s] racial profiling theory are
enough to support a plausible justification that a violation of section 745, subdivision (a)
could or might have occurred in his [or her] case is an issue for the trial court to assess,
exercising its discretion upon an application of the correct legal standard governing good
cause”]; see also Montgomery, supra, 104 Cal.App.5th at p. 1075 (conc. opn. Kelety, J.)
[“Nor would an interpretation of section 745, subdivision (d) that allows habeas corpus
petitioners to obtain such discovery trigger a right to unlimited discovery”].)
16
Further, our holding today that review of such orders lies in mandate as our
Supreme Court concluded with respect to section 1054.9, allows for expeditious
resolution of such matters. (See Brown, Winfield & Canzoneri, Inc. v. Superior Court
(2010) 47 Cal.4th 1233, 1250, fn. 10; see also People v. Kelly (2006) 40 Cal.4th 106, 109
[Cal. Const., art. VI, § 14 requires that “ ‘[d]ecisions of the Supreme Court and courts of
appeal that determine causes shall be in writing with reasons stated’ ”]); Omaha
Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1271 [“Only rarely does
the court give detailed reasons for its rejection of a petition”].)
DISPOSITION
The appeal is dismissed.
/s/
ROBIE, Acting P. J.
We concur:
/s/
KRAUSE, J.
/s/ ,
BOULWARE EURIE, J.
17