People v. Lopez CA4/2 ( 2024 )

Filed 10/16/24 P. v. Lopez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081716
v. (Super.Ct.No. FSB702103)
JAIME LOPEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steve Malone,
Judge. Affirmed.
Britton Donaldson and Heather Beugen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and
Kristen K. Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In 2009, a jury found defendant and appellant Jaime Lopez guilty of two counts of
misdemeanor battery (Pen. Code1, § 242, counts 1 & 2) and three counts of committing a
lewd act upon a child under the age of 14 (§ 288, subd. (a), counts 3-5). The jury also
found true the allegation that he committed counts 3 through 5 against multiple victims in
the same case. (§ 667.61, subds. (b), (c) & (e).) A trial court sentenced defendant to
serve a total term of 45 years to life. In 2023, defendant filed a post-conviction motion
for discovery, pursuant to section 1054.9, subdivision (a). The court denied the motion,
finding no good cause.
Defendant filed a notice of appeal, challenging the court’s order denying his
motion for discovery. We affirm.
FACTUAL BACKGROUND2
In 2001, a Wal-Mart employee notified the police that defendant had dropped off
film to be developed. The film contained inappropriate photographs of naked girls in the
shower, and photos of girls blindfolded, wearing lingerie. The police determined that
defendant’s stepdaughters, C.H. and N.E., were the girls in the photographs. An officer
went to defendant’s apartment, and both C.H. and N.E. (the victims) told him defendant
had taken the pictures. The officer spoke with defendant a few days later. The officer
1 All statutory references will be to the Penal Code unless otherwise indicated.
2 This brief summary of the facts is based on the factual background stated in
People v. Lopez (2010) 185 Cal.App.4th 1220 (Lopez), defendant’s prior appeal.
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asked defendant about the photos of the victims naked in the shower, and defendant said
it was “horseplay.” (Lopez, supra, 185 Cal.App.4th at p. 1225.) A Child Protective
Services worker and the police officer subsequently interviewed the victims, and they
denied ever being touched inappropriately. Defendant was not charged with any crime at
that time. (Id. at p. 1226.) However, in 2007, N.E. told her school counselor that
defendant had been molesting her. (Ibid.) Defendant was then arrested and charged.
(Id. at p. 1227.)
At trial, both victims testified that defendant touched them inappropriately
multiple times. They also testified that he took pictures of them in the shower and made
them dress in their mother’s lingerie. (Lopez, supra, 185 Cal.App.4th at pp. 1226-1227.)
PROCEDURAL BACKGROUND
On January 13, 2022, defendant filed a “Post-conviction Motion For Discovery
Materials Pursuant to Penal Code section 1054.9(a),” in propria persona. As relevant
here, the motion requested a court order requiring the prosecution to provide the
following documents and items to be used in support of a forthcoming writ of habeas
corpus petition:
(1) Audio/video recording taken by Detectives Anita Deutcher and Kelly Tolber of
N.E. on June 6, 2007, at the Redlands Police Department. Defendant alleged he had
reason to believe the interview was recorded because he noticed video recording
equipment in the interview room when he was interviewed there. He believed the
recording of N.E.’s interview “will contain impeaching statements.”
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(2) “Immunity/contingency agreements with [N.E.] and/or her adult boyfriend
Matthew Capstick.” Defendant alleged the prosecutor elected not to file charges against
Capstick for the statutory rape of N.E., and defendant found it “suspect” that Capstick
would testify against him, when Capstick himself had committed statutory rape against
N.E. Defendant further stated he believed the agreements existed because N.E. admitted
that he “did no wrong,” and defendant “infer[red] that [N.E.] reverted back to the original
untrue version of events due to prosecutorial threat, or implication, that the freedom of
[her] boyfriend” was contingent upon her adhering “to her original spiel.” Defendant
stated that “[s]uch agreements were not disclosed to the defense.”
(3) A “complete unredacted copy of pretext phonecall recording” and the related
police report describing the event. Defendant alleged the pretext phone call recording
was not allowed at trial, but he became aware of the call from his trial counsel.
Defendant alleged he was aware of the specifics regarding the call and “knows that the
police report has been redacted of impeaching statements contrary to trial testimony.” He
alleged he lost his copy of the redacted police report and claimed the phone call recording
was exculpatory.
(4) Any and all search warrants obtained by the police to permit the entry and
search of his home and garage. Defendant alleged he “wished to argue” that the items
collected (photographs, negatives, and a video recorder) were the result of an illegal
search and seizure. He claimed that “[p]roof of the nonexistence of search warrants will
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support a forthcoming habeas demonstrating ineffective assistance of counsel and police
misconduct.”
The motion alleged that, pursuant to the requirements of section 1054.9, defendant
“made numerous wasted attempts at acquiring [the] requested discovery items from trial
counsel.” He referred to several exhibits in support of this claim.
Exhibit 1 was a copy of a letter from the State Bar of California (the State Bar),
dated February 24, 2011, indicating it had received his complaint filed against his trial
counsel, James Gass. The State Bar stated it was closing his complaint, since there was
insufficient evidence of any ethical violations on the part of his attorney.
Exhibit 2 was a letter from the State Bar from 2014 in response to defendant’s
request for Mr. Gass’s most recent address.
Exhibit 3 was a letter from the State Bar from 2014, acknowledging that defendant
filed another complaint against Mr. Gass which stated he requested the client file, but Mr.
Gass had not released it to him. The State Bar informed defendant that it advised Mr.
Gass to contact him to make arrangements to provide his client file.
Exhibit 4 was a letter from the State Bar from 2017, acknowledging that defendant
filed a complaint against Mr. Gass and another attorney, Simi Bobbi Mann. The letter
requested more specific information from defendant regarding the nature of his
complaint.
Exhibit 5 was a letter from Mr. Gass to defendant from 2020 stating that he had
provided his entire trial file to defendant. Mr. Gass noted that defendant had requested
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the trial transcript, but he (Gass) did not have them and never did. Mr. Gass advised
defendant that sometimes appellate counsel is willing to provide them; otherwise,
defendant could pay the court reporter for a copy of the transcript.
Defendant also alleged he made “further attempts” with the superior court and
pointed to Exhibit 6, which contained two letters. One was a letter from defendant
requesting a copy of the reporter’s transcript from a 2008 Marsden hearing, the 2021
“[r]ecant statement” with investigators and N.E., a copy of specific pages of the trial
transcripts “concerning a pretext phone call,” and a copy of the transcript of the pretext
phone call. The superior court received defendant’s letter on June 1, 2022. The other
was a letter from the San Bernardino superior court, dated February 17, 2021, in
reference to defendant’s case, noting that reporting notes may be destroyed after 10 years,
and the reporting notes from his case had been destroyed.
On June 6, 2023, the court issued a minute order stating it read and considered
defendant’s motion requesting the discovery. The court denied the request because it did
not find good cause. It added that Mr. Gass wrote defendant a letter stating his entire file
was turned over to defendant and that the transcripts were available for appellate counsel.
DISCUSSION
The Trial Court Properly Denied Defendant’s Motion
Defendant argues the court erred in denying his section 1054.9 motion for
discovery because the court assumed the four items requested were contained in the file
given to him by his trial counsel. He points out that the court did not indicate the
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requested items were actually in the file. Defendant then speculates that the items “could
still be in the possession of either the prosecution or the law enforcement authorities” and
contends the court should have granted him reasonable access to those items. We
conclude the court properly denied defendant’s motion.
At the outset, the People argue that defendant’s claim is procedurally barred
because it was not raised in a petition for writ of mandate. The People properly assert
that a trial court’s ruling on a section 1054.9 motion should be challenged by filing a
petition for writ of mandate. (In re Steele (2004) 32 Cal.4th 682, 692 (Steele) [“after the
trial court has ruled, either party may challenge that ruling by a petition for writ of
mandate in the Court of Appeal”].) In his reply brief, defendant notes that he filed his
motion in propria persona and would not have known the proper procedure or time to file
a challenge to the denial of such motion. The People state that they do not oppose this
court treating defendant’s appeal as a “mislabeled petition for writ of mandate” and
addressing the merits of defendant’s claim. In the interest of judicial economy, we will
treat defendant’s purported appeal as a petition for writ of mandate and address
defendant’s claim.
A. Section 1054.9
Section 1054.9, subdivision (a) provides: “In a case in which a defendant is or has
ever been convicted of a serious felony or a violent felony resulting in a sentence of 15
years or more, upon the prosecution of a postconviction writ of habeas corpus or a motion
to vacate a judgment, or in preparation to file that writ or motion, and on a showing that
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good faith efforts to obtain discovery materials from trial counsel were made and were
unsuccessful, the court shall, except as provided in subdivision (b) or (d), order that the
defendant be provided reasonable access to any of the materials described in subdivision
(c).”
Subdivision (c) provides: “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.” Thus, section
1054.9 permits defendants preparing to file a habeas corpus petition to obtain “discovery
to assist in stating a prima facie case for relief.” (Steele, supra, 32 Cal.4th at p. 691.)
The Legislature’s main purpose in enacting section 1054.9 “was to enable
defendants efficiently to reconstruct defense attorneys’ trial files that might have become
lost or destroyed after trial.” (Barnett v. Superior Court (2010) 50 Cal.4th 890, 897
(Barnett).) The Supreme Court has held that “[d]efendants should first seek to obtain
their trial files from trial counsel. But if a defendant can show a legitimate reason for
believing trial counsel’s current files are incomplete (for example, if, as here, not all
numbered discovery is available), the defendant should be able to work with the
prosecution to obtain copies of any missing discovery materials it had provided to the
defense before trial (assuming it still possesses them).” (Id. at p. 898; see Steele, supra,32 Cal.4th at p. 692 [suggesting informal efforts to resolve discovery matters].) “If
necessary, the trial court can order the prosecution to provide any materials it still
possesses that it had provided at time of trial.” (Barnett, at p. 898.)
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Further, “section 1054.9 requires defendants who seek discovery beyond file
reconstruction to show a reasonable basis to believe that other specific materials actually
exist.” (Barnett, supra, 50 Cal.4th at p. 899.) In other words, “[b]ecause section 1054.9
provides only for specific discovery and not the proverbial ‘fishing expedition’ for
anything that might exist, defendants seeking discovery beyond recovering what the
prosecution had provided to the defense before trial must show a reasonable basis to
believe that specific requested materials actually exist.” (Id. at p. 894.)
The Supreme Court has interpreted section 1054.9 to “require the trial court, on a
proper showing of a good faith effort to obtain the materials from trial counsel, to order
discovery of specific materials currently in the possession of the prosecution or law
enforcement authorities involved in the investigation or prosecution of the case that the
defendant can show either (1) the prosecution did provide at time of trial but have since
become lost to the defendant; (2) the prosecution should have provided at time of trial
because they came within the scope of a discovery order the trial court actually issued at
that time, a statutory duty to provide discovery, or the constitutional duty to disclose
exculpatory evidence; (3) the prosecution should have provided at time of trial because
the defense specifically requested them at that time and was entitled to receive them; or
(4) the prosecution had no obligation to provide at time of trial absent a specific defense
request, but to which the defendant would have been entitled at time of trial had the
defendant specifically requested them.” (Steele, supra, 32 Cal.4th at p. 697.)
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B. Defendant Failed to Show the Requested Items Actually Existed or That He
Was Entitled to Them
The court denied defendant’s motion because it “[did] not find good cause.” We
agree there was no good cause. The evidence shows that defendant properly sought to
obtain his trial counsel’s files and that his counsel provided him with the entire case file.
Nonetheless, defendant filed the current motion, requesting the four specified items. We
observe that, although defendant asserted in his motion that he made “numerous wasted
attempts at acquiring [the] requested discovery items from trial counsel,” the exhibits he
points to do not support this assertion. The exhibits mostly consisted of letters from the
State Bar demonstrating that he filed an ethical complaint against his trial counsel, Mr.
Gass, in 2011, which was closed due to insufficient evidence; that he requested Mr.
Gass’s current address; that, in 2014, he filed a complaint against Mr. Gass for not
releasing his client file; and that he filed a complaint against Mr. Gass and another
attorney in 2017. Another exhibit showed that Mr. Gass did provide his entire trial case
file to defendant. Other exhibits showed that defendant requested pages from the
reporter’s transcript from the superior court, but the reporting notes from his case had
been destroyed since they were more than 10 years old. None of these exhibits aided
defendant’s section 1054.9 motion, since they failed to show he made good faith efforts
to obtain the specific discovery materials he was requesting from trial counsel. (§
1054.9, subd. (a).)
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Moreover, while defendant undisputedly obtained his trial counsel’s entire case
file, he failed to “show a legitimate reason for believing trial counsel’s current files
[were] incomplete.” (Barnett, supra, 50 Cal.4th at p. 898.) In other words, he did not
show the file was missing discovery materials the prosecution had provided to the
defense before trial. (See Ibid.) Therefore, in filing his discovery motion, it appears that
defendant was “seeking discovery beyond recovering what the prosecution had provided
to the defense.” (Id. at p. 894.)
“[S]ection 1054.9 requires defendants who seek discovery beyond file
reconstruction to show a reasonable basis to believe that other specific materials actually
exist.” (Id. at p. 899.) Defendant failed to do so. For example, in requesting
“immunity/contingency agreements with [N.E.] and/or her adult boyfriend,” defendant
merely speculated that any such agreements exist. He alleged the prosecutor elected not
to file charges against the boyfriend for the statutory rape of N.E., and he (defendant)
found it “suspect” that the boyfriend testified against him. Defendant then alleged “[i]t
[was] not farfetched . . . to infer that [N.E., after having allegedly said defendant did no
wrong] reverted back to the original untrue version of events due to prosecutorial threat,
or implication, that the freedom of [her] boyfriend” was based on her “adhering to her
original spiel.” Defendant’s suspicions and inferences do not provide a reasonable basis
to believe the requested immunity agreements exist.
Ultimately, defendant’s motion failed to satisfy the statutory requirements of
section 1054.9. (People v. Superior Court (Morales) (2017) 2 Cal.5th 523, 531
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[“discovery is available as a matter of right under Penal Code section 1054.9, provided
the motion satisfies the statutory requirements”].) Defendant failed to show that the
requested items were “materials in the possession of the prosecution and law enforcement
authorities to which the same defendant would have been entitled at time of trial.”
(§ 1054.9, subd. (c).) Defendant did not show the requested items were: (1) provided by
the prosecution at trial but have since been lost; (2) items the prosecution should have
provided at the time of trial; (3) items the prosecution should have provided at the time of
trial because the defense specifically requested them; or (4) items the prosecution had no
obligation to provide at time of trial absent a specific defense request, but to which he
would have been entitled to had he requested them. (Steele, supra, 32 Cal.4th at p. 697.)
In sum, trial counsel provided defendant with the entire case file, defendant did
not show a reasonable basis to believe the requested materials were missing or actually
existed, and defendant failed to meet the statutory requirements of section 1054.9. On
this record, we conclude the court properly denied his motion.
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DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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