IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Petitioner,
S171117
v.
Ct.App. 1/5 A120430
THE SUPERIOR COURT OF
CONTRA COSTA COUNTY,
Contra Costa County
Respondent;
Super. Ct. No. 05-951701-2
MICHAEL NEVAIL PEARSON,
Real Party in Interest.
Proposition 115 passed in 1990. Among other things, it added a new
chapter to the Penal Code providing for reciprocal pretrial discovery in criminal
cases. (Pen. Code, § 1054 et seq.; see Pen. Code, pt. 2, tit. 6, ch. 10.)1 The new
chapter states that “[n]o order requiring discovery shall be made in criminal cases
except as provided by this chapter,” and that the “chapter shall be the only means
by which the defendant may compel” discovery from prosecutors or law
enforcement agencies. (§ 1054.5, subd. (a).) The Legislature may amend
Proposition 115‟s statutory provisions, but only by a two-thirds majority vote in
1
All further statutory citations are to the Penal Code unless otherwise
indicated.
1
each house. In 2002, acting with less than a two-thirds majority, the Legislature
enacted section 1054.9, which requires a court to order that a defendant under a
sentence of death or life in prison without the possibility of parole be provided
postconviction discovery in specified circumstances.
We must decide whether section 1054.9 is invalid because it amended
Proposition 115 without the requisite two-thirds majority. We conclude section
1054.9 does not amend Proposition 115 because that proposition governs only
pretrial discovery and does not prohibit postconviction discovery of the kind that
section 1054.9 provides.
I. PROCEDURAL HISTORY
Real party in interest Michael Nevail Pearson (hereafter defendant) is
currently under a judgment of death, and his automatic appeal is pending in this
court.
On May 22, 2007, defendant, represented by the Habeas Corpus Resource
Center, filed in the Contra Costa County Superior Court a motion for
postconviction discovery under section 1054.9 to aid in preparing a petition for
writ of habeas corpus challenging his death judgment. In response, the Contra
Costa County District Attorney, representing the People, argued that section
1054.9 was an invalid attempt to amend Proposition 115. The superior court
found section 1054.9 valid and granted some of the requested discovery.
The district attorney filed the instant petition for writ of mandate in the
Court of Appeal, arguing that section 1054.9 is invalid. After issuing an order to
show cause, the Court of Appeal held that section 1054.9 is valid and denied the
petition. We granted the district attorney‟s petition for review, which presented
only the issue regarding section 1054.9‟s validity. Originally, we deferred briefing
in this case pending consideration and disposition of the issue in Barnett v.
Superior Court (review granted Sept. 17, 2008, S165522). Later, we ordered
2
briefing in this case and also stated that, in deciding the issue, we would consider
the relevant amicus curiae briefs and the briefs replying to those briefs that were
filed in Barnett.
II. DISCUSSION
Proposition 115, an initiative measure adopted on June 5, 1990, added a
new chapter to the Penal Code authorizing reciprocal discovery in criminal cases.
(§ 1054 et seq.; see generally Izazaga v. Superior Court (1991) 54 Cal.3d 356.)
Because this new chapter is part of an initiative measure, the Legislature has
limited ability to amend it. The Legislature may not amend an initiative statute
without subsequent voter approval unless the initiative permits such amendment,
“and then only upon whatever conditions the voters attached to the Legislature‟s
amendatory powers.” (Proposition 103 Enforcement Project v. Quackenbush
(1998) 64 Cal.App.4th 1473, 1483-1484; see Cal. Const., art. II, § 10, subd. (c);
Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251.)
An uncodified section of Proposition 115 provides: “The statutory
provisions contained in this measure may not be amended by the Legislature
except by statute passed in each house by rollcall vote entered in the journal, two-
thirds of the membership concurring, or by a statute that becomes effective only
when approved by the electors.” (Stats. 1990, § 30, p. A-256.) Thus, the
Legislature may amend Proposition 115‟s statutory provisions without voter
approval, but only by a two-thirds vote of each house.
In 2002, the Legislature enacted section 1054.9. Subdivision (a) of that
section provides as relevant: “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, . . .
the court shall . . . order that the defendant be provided reasonable access to any of
the materials described in subdivision (b).” Subdivision (b) of that section
3
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.”2
Senate Bill No. 1391 (2001-2002 Reg. Sess.), the legislation that enacted
section 1054.9, did not receive two-thirds majority support in either house of the
Legislature. Twenty-one of the 40 members of the Senate and 42 of the 80
members of the Assembly voted for the bill. (3 Sen. J. (2001-2002 Reg. Sess.) p.
4500; 5 Assem. J. (2001-2002 Reg. Sess.) p. 8239; see Cal. Const., art. IV, § 2.)
Section 1054.9 was never submitted to a vote by the electorate. Accordingly, if
section 1054.9 amended Proposition 115, it is invalid.
2
In its entirety, section 1054.9 provides: “(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), [the] 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.” (Stats. 2002, ch. 1105, § 1.)
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The district attorney contends that section 1054.9 does amend Proposition
115. He relies on section 1054.5, subdivision (a), part of Proposition 115‟s
statutory provisions, which provides: “No order requiring discovery shall be made
in criminal cases except as provided in this chapter. This chapter shall be the only
means by which the defendant may compel the disclosure or production of
information from prosecuting attorneys, law enforcement agencies which
investigated or prepared the case against the defendant, or any other persons or
agencies which the prosecuting attorney or investigating agency may have
employed to assist them in performing their duties.” The question before us is
whether the discovery provided in section 1054.9 violates this prohibition.
Proposition 115 provides only for pretrial discovery to aid in the trial
process. The chapter‟s purposes make this clear. Section 1054 provides: “This
chapter shall be interpreted to give effect to all of the following purposes:
“(a) To promote the ascertainment of truth in trials by requiring timely
pretrial discovery.
“(b) To save court time by requiring that discovery be conducted
informally between and among the parties before judicial enforcement is
requested.
“(c) To save court time in trial and avoid the necessity for frequent
interruptions and postponements.
“(d) To protect victims and witnesses from danger, harassment, and undue
delay of the proceedings.
“(e) To provide that no discovery shall occur in criminal cases except as
provided by this chapter, other express statutory provisions, or as mandated by the
Constitution of the United States.”
Most of these purposes, and particularly those stated in section 1054,
subdivisions (a) and (c), relate solely to the trial phase of the case. Arguably,
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protecting victims and witnesses (§ 1054, subd. (d)) might relate to postconviction
proceedings, but even this purpose seems primarily directed to the trial.
Moreover, the substance of the discovery requirements relates entirely to evidence
that might be presented at trial (§§ 1054.1, 1054.2), and the time limits for
providing the discovery require the discovery to be provided before trial
(§ 1054.7). These circumstances also show that the discovery referred to is
pretrial.
The parties agree that Proposition 115 provides only for pretrial discovery.
Where they disagree is whether it prohibits posttrial discovery. We conclude it
does not do so.
Section 1054.9 clearly augments Proposition 115‟s discovery provisions. It
provides for discovery not provided for in Proposition 115. That circumstance
alone does not mean it amended Proposition 115. We have described an
amendment as “a legislative act designed to change an existing initiative statute by
adding or taking from it some particular provision.” (People v. Cooper (2002) 27
Cal.4th 38, 44.) But this does not mean that any legislation that concerns the same
subject matter as an initiative, or even augments an initiative‟s provisions, is
necessarily an amendment for these purposes. “The Legislature remains free to
address a „ “related but distinct area” ‟ [citations] or a matter that an initiative
measure „does not specifically authorize or prohibit.‟ ” (People v. Kelly (2010)
47 Cal.4th 1008, 1025-1026; see also Cooper, supra, at p. 47; County of San
Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 830.) In deciding
whether this particular provision amends Proposition 115, we simply need to ask
whether it prohibits what the initiative authorizes, or authorizes what the initiative
prohibits.
Section 1054.9 does not prohibit anything that Proposition 115 authorizes.
No one contends otherwise. But the district attorney argues that it authorizes what
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Proposition 115 prohibits, i.e., additional discovery in criminal cases. In resolving
the question, we must decide what the voters contemplated. “[T]he voters should
get what they enacted, not more and not less.” (Hodges v. Superior Court (1999)
21 Cal.4th 109, 114.)
This is a question of statutory interpretation. When we interpret an
initiative, we apply the same principles governing statutory construction. We first
consider the initiative‟s language, giving the words their ordinary meaning and
construing this language in the context of the statute and initiative as a whole. If
the language is not ambiguous, we presume the voters intended the meaning
apparent from that language, and we may not add to the statute or rewrite it to
conform to some assumed intent not apparent from that language. If the language
is ambiguous, courts may consider ballot summaries and arguments in determining
the voters‟ intent and understanding of a ballot measure. (Professional Engineers
in California Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)
We thus turn to the initiative‟s language. Section 1054.5, subdivision (a),
states that “[n]o order requiring discovery shall be made in criminal cases except
as provided in this chapter.” (Italics added.) As relevant here, section 1054.9,
subdivision (a), permits postconviction discovery “[u]pon the prosecution of a
postconviction writ of habeas corpus . . . .” (Italics added.) In In re Steele (2004)
32 Cal.4th 682, 691, we interpreted this language as permitting discovery to aid in
preparing a habeas corpus petition even before the actual petition has been filed.
Thus, the narrow question is whether discovery to prosecute (or prepare) a habeas
corpus matter comes within a “criminal case[]” under section 1054.5. We do not
believe so. A habeas corpus matter has long been considered a separate matter
from the criminal case itself. (See In re Carpenter (1995) 9 Cal.4th 634, 645-646
[superior court that had no jurisdiction over underlying criminal case because it
7
was on appeal had jurisdiction over habeas corpus matter challenging the
underlying judgment].)
“In People v. Gonzalez (1990) 51 Cal.3d 1179, we held that a person
seeking habeas corpus relief from a judgment of death is not entitled to court-
ordered discovery unless and until this court has issued an order to show cause and
thus has determined that the petition has stated a prima facie case for relief. (Id. at
pp. 1255-1261.)” (In re Steele, supra, 32 Cal.4th at p. 690.) But section 1054.9
changed this rule. “Defendants are now entitled to discovery to assist in stating a
prima facie case for relief,” i.e., before they actually file the petition. (Steele,
supra, at p. 691.) Although section 1054.9‟s discovery may occur before the
actual habeas corpus petition is filed, it is part of the prosecution of the habeas
corpus matter, not part of the underlying criminal case.
Proposition 115‟s discovery provisions all deal with the underlying trial.
For this reason, we have held that they do not apply to habeas corpus matters
(although they may provide guidance in crafting discovery orders on habeas
corpus). (In re Scott (2003) 29 Cal.4th 783, 813-814.) Indeed, Proposition 115‟s
discovery provisions are a bad fit for habeas corpus. The issue on habeas corpus is
not defendant‟s guilt or innocence or the appropriate punishment but whether the
defendant (designated the petitioner on habeas corpus) can establish some basis
for overturning the underlying judgment. A court issues an order to show cause in
a habeas corpus matter only when the petitioner has stated a prima facie case for
relief on one or more claims. The order, and the new cause thereby created, is
limited to that specific claim or claims, and the petitioner bears the burden of
establishing the invalidity of the underlying judgment. (See People v. Duvall
(1995) 9 Cal.4th 464, 474; People v. Romero (1994) 8 Cal.4th 728, 737-740.)
Discovery on habeas corpus is necessarily directed at issues raised or potentially
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raised on habeas corpus, which may or may not relate to any of the evidence
presented or not presented in the underlying criminal trial.
Because of the differences between the underlying criminal case and a
habeas corpus matter challenging that underlying case, we do not believe the
electorate that passed Proposition 115, in providing for pretrial discovery in a
criminal case, intended either to provide for or to prohibit discovery in a separate
habeas corpus matter. Section 1054.9 addresses an area that is related to
Proposition 115‟s discovery provisions but, crucially, it is also a distinct area.
(People v. Kelly, supra, 47 Cal.4th at p. 1025.) Proposition 115 does not prohibit
section 1054.9‟s discovery.
The district attorney also argues that the Legislature‟s use of the word
“defendant” rather than “petitioner” in section 1054.9, and its placing that section
in the same chapter as Proposition 115‟s discovery provisions, shows that the
Legislature amended those discovery provisions and did not create discovery in a
separate habeas corpus matter. We disagree. The substance, not the form, is what
matters. If, as we conclude, Proposition 115 does not prohibit postconviction
discovery to aid in the prosecution of a habeas corpus matter, section 1054.9‟s use
of particular party designations and its location in the Penal Code provide no basis
to invalidate the section.
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Superior Court (Pearson)
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 2/6/09 – 1st Dist., Div. 5Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S171117Date Filed: April 8, 2010
__________________________________________________________________________________
Court:
SuperiorCounty: Contra Costa
Judge: Leslie G. Landau
__________________________________________________________________________________
Attorneys for Appellant:
Robert J. Kochly, District Attorney, and Doug MacMaster, Deputy District Attorney, for Petitioner.__________________________________________________________________________________
Attorneys for Respondent:
No appearance for Respondent.Habeas Corpus Resource Center, Gary D. Sowards, Susan Garvey and David Lane for Real Party in
Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Doug MacMasterDeputy District Attorney
900 Ward Street, 4th Floor
Martinez, CA 94553
(925) 957-2222
David Lane
Habeas Corpus Resource Center
303 Second Street, Suite 400 South
San Francisco, CA 94107
(415) 348-3800
Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. The court ordered briefing deferred pending decision in Barnett v. Superior Court (S165522), which presents issues concerning post-conviction discovery under Penal Code section 1054.9.
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 04/08/2010 | 48 Cal. 4th 564, 227 P.3d 858, 107 Cal. Rptr. 3d 265 | S171117 | Review - Criminal Appeal | submitted/opinion due | BARNETT v. S.C. (PEOPLE) (S165522) |
| 1 | The People (Petitioner) Represented by Douglass Charles MacMaster Office of the Contra Costa County District Attorney 900 Ward Street, 4th Floor Martinez, CA |
| 2 | Superior Court of Contra Costa County (Respondent) P.O. Box 911 Martinez, CA 94553 |
| 3 | Pearson, Michael Nevail (Real Party in Interest) Represented by Susan Elizabeth Garvey Habeas Corpus Resource Center 303 Second Street, Suite 400 South San Francisco, CA |
| 4 | Pearson, Michael Nevail (Real Party in Interest) Represented by Gary D. Sowards Habeas Corpus Resource Center 303 Second Street, Suite 400 South San Francisco, CA |
| 5 | Pearson, Michael Nevail (Real Party in Interest) Represented by David Lane Habeas Corpus Resource Center 303 Second Street, Suite 400 South San Francisco, CA |
| Opinion Authors | |
| Opinion | Justice Ming W. Chin |
| Dockets | |
| Mar 11 2009 | Record requested |
| Mar 11 2009 | Petition for review with request for stay filed (criminal) People, petnr. Doug MacMaster, DDA |
| Mar 11 2009 | Received Court of Appeal record 1 accordion file/loose briefs |
| Apr 1 2009 | Answer to petition for review filed Real Party in Interest: Pearson, Michael NevailAttorney: David Lane |
| Apr 15 2009 | Petition for review granted; briefing deferred (rule 8.512(d)(2)) The application for stay and petition for review are granted. Further action is this matter is deferred pending consideration and disposition of a related issue in Barnett v. Superior Court, S165522 (see Cal. rules of Court, rule 8.524 (c)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.528, is deferred pending further order of the court. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Jun 10 2009 | Briefing ordered in previously Held case Review was granted in this matter on April 15, 2009, and briefing ordered deferred pending consideration and disposition of a related issue in Barnett v. Superior Court, S165522. The court has now determined that it should order briefing in this case also. Petitioner, the People, are directed to serve and file a Brief on the Merits on or before July 10, 2009. Additional briefing is to be served and filed in a timely fashion. (See Cal. Rules of Court, rule 8.520(a).) In deciding the issue of this case, the court will consider all amicus curiae briefs and the briefs filed in reply thereto regarding this issue in Barnett v. Superior Court, S165522. Accordingly, such briefs need not be refiled in this case. |
| Jul 9 2009 | Request for extension of time filed Doug MacMaster, Deputy District Attorney, counsel for Petitioner requesting to August 10, 2009, to file opening brief on the merits (to court for permission to file) |
| Jul 10 2009 | Extension of time granted On application of petitioner and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 10, 2009. |
| Aug 7 2009 | Received: Opening Brief on the Merits (oversized). Submitted by Doug MacMaster counsel for petitioner. NOTE: Requested from counsel an application for permission to file oversize brief - forthcoming. |
| Aug 11 2009 | Application filed to file oversized brief from Doug MacMaster counsel for petitioner (to court for permission) |
| Aug 11 2009 | Opening brief on the merits filed Petitioner: The PeopleAttorney: Douglass Charles MacMaster The People, Petitioner Doug MacMaster, Deputy District Attorney (filed with permission) |
| Sep 1 2009 | Request for extension of time filed Requesting to October 12, 2009, by Gary D. Soward, counsel for RPI Michael Pearson (to court for permission) |
| Sep 3 2009 | Extension of time granted On application of real party in interest and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 12, 2009. |
| Oct 13 2009 | Answer brief on the merits filed Real Party in Interest: Pearson, Michael NevailAttorney: Gary D. Sowards |
| Nov 5 2009 | Request for extension of time filed petitioner requesting to 11/23/09 to file reply brief on the merits (to court for permission) |
| Nov 6 2009 | Extension of time granted On application of petitioner and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including November 23, 2009. |
| Nov 19 2009 | Reply brief filed (case fully briefed) Petitioner: The PeopleAttorney: Douglass Charles MacMaster |
| Feb 3 2010 | Case ordered on calendar to be argued Wednesday, March 3, 2010, at 9:00 a.m., in San Francisco |
| Feb 16 2010 | Supplemental brief filed Petitioner: The PeopleAttorney: Douglass Charles MacMaster |
| Mar 3 2010 | Cause argued and submitted |
| Apr 7 2010 | Notice of forthcoming opinion posted To be filed Thursday, April 8, 2010 at 10 a.m. |
| Briefs | |
| Aug 11 2009 | Opening brief on the merits filed Petitioner: The PeopleAttorney: Douglass Charles MacMaster |
| Oct 13 2009 | Answer brief on the merits filed Real Party in Interest: Pearson, Michael NevailAttorney: Gary D. Sowards |
| Nov 19 2009 | Reply brief filed (case fully briefed) Petitioner: The PeopleAttorney: Douglass Charles MacMaster |
| Brief Downloads | |
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| May 17, 2011 Annotated by Sarah Edwards | FACTS: In 1990 the citizens of California passed Proposition 115. Proposition 115 added a new chapter to the Penal Code that provided for reciprocal pretrial discovery in criminal cases. The chapter also specified that it was the only way defendants could compel discovery from the prosecution. The legislature could amend Proposition 115, but only by a two-thirds majority in each house, not by a simple majority. Section 1054.9 of the Penal Code was enacted by the legislature without a two-thirds majority. It provides for postconviction discovery for criminal defendants in specified circumstances, if the defendant is under a death sentence, or a sentence of life in prison without parole. PROCEDURAL POSTURE: Pearson, who is under a death sentence with his automatic appeal pending, filed a motion for postconviction discovery under section 1054.9 in Contra Costa Sounty Superioer Court in May of 2007. The superior court granted some of the discovery, and the district attorney then filed a petition for write of mandate in the Court of Appeal, arguing that section 1054.9 is invalid. The Court of Appeal held 1054.9 valid. The California Supreme Court granted the district attorney's petition for review, and decided the case after deferring consideration pending disposition of Barnett v. Superior Court. ISSUE: Does section 1054.9 of the California Penal Code improperly amend Proposition 115, rendering section 1054.9 invalid? HOLDING: Section 1054.9 does not amend Proposition 115, and so section 1054.9 is not invalidated. REASONING: If section 1054.9 amended Proposition 115 then it is invalid, because section 1054.9 was not enacted by a two-thirds majority in each legislative house. The Court found that section 1054.9 augments Proposition 115's discovery provisions, but distinguished augment from amendment. Legislation can concern the same subject matter as an initiative without amending it. The language of Proposition 115 deals with criminal cases, and section 1054.9 permits postconviction discovery in habeas corpus cases. Because a habeas corpus case is a separate matter from the underlying criminal case the Court concluded that the people of California did not intend to either provide for or prohibit discovery in habeas corpus matters when they passed Proposition 115. Thus, section 1054.9 does not improperly amend Proposition 115 and so section 1054.9 is not invalidated. TAGS: discovery, habeas corpus, post-conviction discovery, section 1054.9, Proposition 115 Annotated by Sarah E. Edwards |
