IN THE SUPREME COURT OF CALIFORNIA
RAYMOND EDWARD STEELE
on Habeas Corpus.
Super. Ct. No. 88-6508
Petitioner Raymond Edward Steele is under a judgment of death. He has
filed in this court a motion for postconviction discovery pursuant to recently
enacted Penal Code section 1054.9 (section 1054.9). We issued an order to show
cause to resolve important procedural and substantive issues regarding that
Procedurally, we conclude that those who seek discovery under section
1054.9 because they are preparing to file or have filed a petition for writ of habeas
corpus challenging a judgment of death or life without the possibility of parole
should generally first make the discovery motion in the trial court that rendered
the judgment. After the trial court has ruled, either party may challenge that ruling
by a petition for writ of mandate in the Court of Appeal.
Substantively, we conclude that section 1054.9’s discovery includes, and is
limited to, specific materials the prosecution or law enforcement authorities
involved in the case currently possess that the defendant can show fall into any of
these categories: (1) materials the prosecutor provided at time of trial but have
since become lost to the defendant, (2) materials the prosecution should have
provided at time of trial, or (3) materials the defendant would have been entitled to
at time of trial had the defendant specifically requested them.
In this case, the prosecution had no obligation at time of trial to provide the
discovery materials petitioner seeks—evidence regarding his own behavior in
prison that was relevant neither to the charged crime nor to any of the prosecution
evidence in aggravation at the penalty phase—absent a specific defense request.
However, if the defense had specifically requested the materials at time of trial
(the record is unclear), the prosecution would have been obligated to provide them
if it possessed them. Accordingly, we conclude that petitioner is entitled to
discovery of materials within the scope of the current request that petitioner does
not now possess but that the prosecution and law enforcement authorities involved
in the case currently possess, if any exist.
I. PROCEDURAL BACKGROUND
Petitioner was convicted of first degree murder with the special
circumstance of a prior murder conviction and sentenced to death in the Shasta
County Superior Court. We affirmed the judgment. (People v. Steele (2002) 27
Cal.4th 1230.) Details of the underlying crime are not here pertinent. It suffices
to say that petitioner murdered a young woman in 1988 and had previously been
convicted of the 1971 murder of another young woman. In aggravation, the
prosecution presented evidence of other crimes petitioner committed before he
was arrested for the first murder. Petitioner presented a mental defense at the guilt
phase and additional mitigating evidence at the penalty phase, including evidence
that he had provided to prison authorities valuable information about the Nuestra
Familia, a prison gang, while in prison for the first murder.
Petitioner filed the underlying petition for writ of habeas corpus in this
court challenging the judgment. He also filed in this court a motion for
postconviction discovery under section 1054.9. He asks us to order the
“prosecution to provide . . . [a]ny and all reports, memoranda, notes, tape
recordings, statements, transcripts, confidential files, debriefing documents, and/or
summaries documenting or referring to petitioner’s leaving the Nuestra Familia; to
information provided by petitioner regarding the Nuestra Familia, its members and
associates, and non-member collaborators; and to assistance provided by petitioner
in prosecutions pursued by the State of California and/or local prosecutors against
the Nuestra Familia and others accused of collaborating with the Nuestra Familia
in the commission of crimes.” He alleges that his current counsel “has conducted
a good faith review of trial counsel’s files and interviewed trial counsel and has
ascertained that the materials sought here were not provided to trial counsel”; and
that, accordingly, “despite his good faith efforts, habeas counsel . . . has been
unable to obtain the requested materials from trial counsel . . . .” He has also
provided a declaration from current counsel supporting these allegations. He
argues that although he presented some evidence in mitigation at trial regarding
his prison behavior, more such evidence existed, and the prosecution was and
remains obligated to provide it to him.
The Attorney General’s opposition to the motion and petitioner’s reply to
that opposition showed substantial disagreement regarding the scope of discovery
the statute provides. In order to resolve the question, we ordered the Director of
Corrections to show cause why the discovery motion should not be granted. In
addition to other relevant matters the parties chose to brief, we directed them to
brief the questions of which court should first hear the discovery motion and
“what is the scope of the prosecution’s duty, if any, to provide discovery of
materials unrelated to the charged crimes or prosecution evidence in aggravation
but that might provide penalty phase mitigating evidence.” The Attorney General,
representing the Director of Corrections, has filed a return to the order to show
cause and petitioner a traverse. At our invitation, the California Habeas Corpus
Resource Center (HCRC) has filed an amicus curiae brief addressing these issues.
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.
Effective January 1, 2003, the Legislature added section 1054.9 to the Penal
Code. (Stats. 2002, ch. 1105, § 1, enacting Sen. Bill No. 1391 (2001-2002 Reg.
Sess.) (Senate Bill 1391).) Subdivisions (a) and (b) of that section are relevant
here. Subdivision (a) provides: “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) [which relates to physical evidence], order that the defendant be
provided reasonable access to any of the materials described in subdivision (b).”
Subdivision (b) 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.”
In his discovery motion, petitioner specifically alleged that his current
attorney had made a good faith, but unsuccessful, effort to obtain the discovery
materials from trial counsel and supplied a detailed declaration from his current
attorney supporting the allegation. The Attorney General does not dispute this
allegation. Thus, the “good faith effort” requirement is not at issue here. But
other issues exist. Section 1054.9 says little about the procedure a defendant
should follow in seeking the discovery materials, such as the time and place for
making the motion. The parties also dispute the scope of permitted discovery and
whether it extends to what petitioner seeks in this case. We will consider first the
procedural questions, then the substantive questions.
A. Procedural Questions
Petitioner initially filed this motion in this court. Section 1054.9 does not
specifically state which court should hear the motion first. It just says that the
“court” shall order the appropriate discovery without designating either appellate
or trial court. Petitioner argues in his traverse, “Because of the nature of the
material sought in petitioner’s discovery motion, this court is a more appropriate
forum than the trial court for the motion in this case.” The Attorney General
contends, “A section 1054.9 request should be addressed to the court where the
prisoner has filed the related state habeas petition or motion to vacate judgment,”
which in this instance is this court. Thus, both parties argue that the motion was
properly filed first in this court, although for different reasons. The HCRC
maintains that, because section 1054.9 merely says “court,” the motion may be
filed in any court. We agree with the HCRC that either the trial or the reviewing
court has jurisdiction over the motion. But, as we explain, we believe that when,
as here, no execution is imminent, the discovery motion should first be filed in the
trial court that rendered the underlying judgment.
The Attorney General’s argument assumes a habeas corpus petition (or, in
other cases, a motion to vacate a judgment) will be pending in a state court when
the motion is filed. The assumption is unfounded. The statute permits the motion
“[u]pon the prosecution of a postconviction writ of habeas corpus . . . .”
(§ 1054.9, subd. (a).) In context, we believe the Legislature used the word
“prosecution” flexibly to include cases in which the movant is preparing the
petition as well as cases in which the movant has already filed it. In People v.
Gonzalez, supra, 51 Cal.3d at pages 1257, 1261, we said that after the judgment
had become final, nothing was pending in the trial court to which a discovery
motion may attach, and that the defendant had to state a prima facie case for relief
before he may receive discovery. Section 1054.9 modifies this rule. Defendants
are now entitled to discovery to assist in stating a prima facie case for relief. But
the only way this modification of the Gonzalez rule makes sense is to permit
defendants to seek discovery before they file the petition, i.e., before they must
state a prima facie case. Reasonably construed, the statute permits discovery as an
aid in preparing the petition, which means discovery may come before the petition
is filed. Thus, we believe a defendant is entitled to seek discovery if he or she is
preparing to file the petition as well as after the petition has been filed.
The nature of the discovery the statute permits makes the trial court
generally the appropriate place to first file the motion. As discussed below, the
statute covers specific discovery that the prosecutor did provide but has become
lost to petitioner, that the prosecution should have provided but failed to do so, and
to which the defense would have been entitled had it requested it. The trial court
that rendered the judgment is far better positioned than an appellate court to make
these determinations and then decide what specific new discovery, if any, it should
order. Moreover, we agree with the HCRC that “section 1054.9 should be
interpreted to promote informal, timely discovery between parties prior to seeking
court enforcement.” Beginning the process at the trial level encourages the
settlement of disputes at that level and maximizes the possibility that any
discovery issues can be resolved with a minimum of court involvement.
It thus makes sense for discovery motions under section 1054.9 generally to
be filed first in the trial court that rendered the judgment, even though both trial
and reviewing courts have jurisdiction over the motion. Similarly, both trial and
appellate courts have jurisdiction over habeas corpus petitions, but a reviewing
court has discretion to deny without prejudice a habeas corpus petition that was
not filed first in a proper lower court. (In re Ramirez (2001) 89 Cal.App.4th 1312,
1314, 1320; see People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 806,
fn. 3.) Thus, we conclude that when no execution is imminent, a person seeking
specific discovery under section 1054.9 should first file the motion in the trial
court that rendered the judgment.1 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.2
The considerations are different when the federal courts have denied relief
on habeas corpus (or the time for the petitioner to seek federal habeas corpus relief
has passed), and the superior court has set a specific execution date. At this late
stage of the proceedings, to expedite our consideration of any final challenges to
the judgment, a petitioner may, and usually should, file any discovery motion in
this court in the first instance.
Section 1054.9 provides no time limits for making the discovery motion or
complying with any discovery order. We believe the statute implies that the
motion, any petition challenging the trial court’s ruling, and compliance with a
discovery order must all be done within a reasonable time period. We will
consider any unreasonable delay in seeking discovery under this section in
determining whether the underlying habeas corpus petition is timely. (See
generally In re Robbins (1998) 18 Cal.4th 770; In re Clark (1993) 5 Cal.4th 750.)
We would consider a petition for writ of mandate challenging the trial court’s
order filed within 20 days after that order to be filed within a reasonable time for
these purposes. Moreover, as we are directing in this case, any discovery ordered
pursuant to section 1054.9 should be provided within a reasonable time, which
might vary depending on the nature of the order. We will also consider the date of
compliance with the order in considering the timeliness of any petition for writ of
habeas corpus that might be filed in light of the discovery.
Because petitioner filed this motion in this court first, we could simply
deny it without prejudice to filing it in the Shasta County Superior Court.
However, to provide guidance to that court and future courts confronting similar
discovery motions, we believe it appropriate to consider the merits of this motion
at this time. Accordingly, we turn to the substantive questions.
B. Substantive Questions
1. The Scope of Section 1054.9
Section 1054.9 provides that if the defendant shows that good faith efforts
to obtain the materials from trial counsel failed, the court should order the
defendant be given access to “discovery materials,” defined as “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. (b).) The
Attorney General argues that this statute is only a “file reconstruction statute,” and
the discovery it permits is limited to replacing materials that the defense once
possessed but has since lost. We disagree. Although permitting defendants to
reobtain items they once possessed but have lost is one purpose, perhaps even the
main purpose, of the statute, the statutory language is not so limited.
“The plain language of the statute establishes what was intended by the
Legislature.” (People v. Statum (2002) 28 Cal.4th 682, 690.) Here, the statute
defines the covered discovery as including materials to which the defendant
“would have been entitled at time of trial.” (§ 1054.9, subd. (b).) It does not limit
the discovery to materials the defendant actually possessed to the exclusion of
materials the defense should have possessed. If the Legislature had intended to
limit the discovery to file reconstruction it could easily have said so.
The Attorney General points out that a trial attorney is obligated to turn
over the litigation file to the client or new counsel once that attorney’s
representation has terminated. (Rose v. State Bar (1989) 49 Cal.3d 646, 655.)
Thus, he argues, the statutory requirement that the defendant make a good faith
effort to obtain the materials from trial counsel “only makes sense when section
1054.9 is read as a means to reconstruct defendants’ trial files when trial counsel
have failed to fulfill their duties.” Again, we disagree. The reason for the good
faith effort requirement of section 1054.9, subdivision (a), is not difficult to
discern—to prevent defendants from clogging the courts with requests to obtain
materials they could simply get from trial counsel. The requirement does not
modify the definition of discovery materials contained in subdivision (b) of that
The Attorney General also argues that, as we pointed out in People v.
Gonzalez, supra, 51 Cal.3d at pages 1260-1261, prosecutors have a continuing
duty to disclose information favorable to the defense, and we expect and assume
that they will perform this duty promptly and fully; and, moreover, that “[i]t is
presumed that official duty has been regularly performed.” (Evid. Code, § 664.)
Accordingly, he urges, any interpretation of section 1054.9 that extends to
discovery the prosecution should have provided at time of trial makes it redundant
of other law. However, the expectation and assumption we stated in Gonzalez
merely mean that normally, and unless the defendant overcomes Evidence Code
section 664’s presumption as to specific evidence, there will be no discovery for
the trial court to order that the prosecutor should have provided at trial. None of
this changes the plain meaning of the statute’s inclusion of materials to which the
defendant “would have been entitled.”
The Attorney General also cites legislative history materials in support of
his narrow reading of section 1054.9. Although legislative history often can help
interpret an ambiguous statute, it cannot change the plain meaning of clear
language. (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 269; Torres v.
Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003.) The plain language
here does not limit the discovery materials to materials the defense once actually
possessed to the exclusion of materials the defense did not possess but to which it
would have been entitled at time of trial. Moreover, the legislative history does
not strongly support a narrow interpretation. Various committee reports on the bill
that became section 1054.9 discuss the problem that occurs when a defendant’s
files are lost or destroyed after trial; they note that the bill would provide a means
to reconstruct destroyed or missing files. The reports do not mention other
problems such as the possibility that prosecutors did not fulfill their duty to
provide discovery. But this circumstance simply means that the bill’s main focus
was to permit reconstruction of lost files, not that the bill was limited to solving
that problem. Indeed, one of the reports the Attorney General cites also states,
“The purpose of the proposed legislation is to provide a reasonable avenue for
habeas counsel to obtain documents to which trial counsel was already legally
entitled.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. Bill 1391,
as amended Aug. 26, 2002, p. 5.) Obtaining documents to which trial counsel was
legally entitled is broader than mere file reconstruction.
Thus, the Attorney General’s interpretation is too narrow. But section
1054.9 does provide only limited discovery. It does not allow “free-floating”
discovery asking for virtually anything the prosecution possesses.
(People v. Gonzalez, supra, 51 Cal.3d at p. 1256.) First, it includes only materials
“in the possession of the prosecution and law enforcement authorities,” which we
take to mean in their possession currently. The statute imposes no preservation
duties that do not otherwise exist. It also does not impose a duty to search for or
obtain materials not currently possessed. The statute also covers only materials to
which “defendant would have been entitled at time of trial” but does not currently
possess. As the Attorney General notes, the limited nature of the discovery
materials becomes clear on comparing the ultimate statute with an earlier version
of the bill. As amended on April 10, 2002, Senate Bill 1391 defined the discovery
materials as including materials “to which the defendant was entitled at time of
trial, or to which the defendant would have been entitled had the discovery
materials been known . . . .” (Italics added.) The italicized language was deleted
before the bill became law. Thus, the statute is limited to materials to which the
defendant would have been entitled at the time of trial. We must decide exactly
what types of materials this includes.
As the Attorney General acknowledges, section 1054.9 clearly permits
record reconstruction; thus, the defendant is entitled to materials the prosecution
provided at trial but that the defendant can show have since been lost. We believe
it also includes materials to which the defendant was actually entitled at time of
trial, but did not receive. This category includes specific materials that the
defendant can show the prosecution should have provided (but did not provide) at
the time of trial because they came within the scope of a discovery order the trial
court actually issued at time of trial or a statutory duty to provide discovery. (See
Pen. Code, § 1054 et seq.)3 Additionally, “The prosecution has a duty under the
Fourteenth Amendment’s due process clause to disclose evidence to a criminal
defendant” that is “both favorable to the defendant and material on either guilt or
punishment.” (In re Sassounian (1995) 9 Cal.4th 535, 543; see also Brady v.
Maryland (1963) 373 U.S. 83 (Brady).) Finally, this category includes materials
the prosecution should have provided at time of trial because the defense
specifically requested them at that time.
Penal Code section 1054 et seq. is a comprehensive statutory scheme
governing discovery at trial. (See generally Izazaga v. Superior Court (1991) 54
Cal.3d 356.) It was enacted on June 5, 1990, during the penalty phase of the trial
in this case, and hence did not govern pretrial discovery here.
But section 1054.9 is not limited to these materials. The statute includes
not just materials to which the defendant was actually entitled, but “materials in
the possession of the prosecution and law enforcement authorities to which the
same defendant would have been entitled at time of trial.” (Ibid., italics added.)
Use of the subjunctive mood—“would have been”—indicates the Legislature
intended broader discovery than just materials to which the defendant was entitled.
This gives rise to another category of materials we believe the statute covers:
materials that the prosecution would have been obligated to provide had there been
a specific defense request at trial, but was not actually obligated to provide
because no such request was made. These are materials to which the defendant
would have been entitled had he or she requested them. We conclude that the
Legislature has required the prosecution and related law enforcement authorities to
disclose specific materials currently in their possession that they would have been
obligated to turn over at time of trial had there been a specific defense request.
The statute also presents the question of exactly who must possess the
materials for them to come within its scope. Section 1054.9, subdivision (b),
refers to “materials in the possession of the prosecution and law enforcement
authorities . . . .” Thus, the materials include not only those the prosecution itself
possesses but those that law enforcement authorities possess. The discovery
obligation, however, does not extend to all law enforcement authorities
everywhere in the world but, we believe, only to law enforcement authorities who
were involved in the investigation or prosecution of the case. This conclusion
becomes clear on reading the statue in context. Section 1054.9 is part of the
general discovery provisions of Penal Code section 1054 et seq. Those provisions
limit trial discovery to materials the prosecutor possesses or knows “to be in the
possession of the investigating agencies . . . .” (Pen. Code, § 1054.1, italics
added.) They also provide that the statutory provisions are the only means for the
defendant to compel discovery “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.” (Pen. Code,
§ 1054.5, subd. (a).) Section 1054.9 does not require that the prosecutor know the
materials are in the possession of the investigating agencies, but we believe the
reference to “law enforcement authorities” in section 1054.9, subdivision (b), must
be read in light of these other provisions. At trial, these discovery obligations do
not extend to materials possessed by law enforcement agencies that were not
involved in investigating or preparing the case against the defendant. Section
1054.9, subdivision (b), should not be read as creating a broader postconviction
This conclusion is consistent with the scope of the prosecution’s
constitutional duty to disclose exculpatory information. “The scope of this
disclosure obligation extends beyond the contents of the prosecutor’s case file and
encompasses the duty to ascertain as well as divulge ‘any favorable evidence
known to the others acting on the government’s behalf . . . .’ ” (In re Brown
(1998) 17 Cal.4th 873, 879, italics added, quoting Kyles v. Whitley (1995) 514
U.S. 419, 437.) “As a concomitant of this duty, any favorable evidence known to
the others acting on the government’s behalf is imputed to the prosecution. ‘The
individual prosecutor is presumed to have knowledge of all information gathered
in connection with the government’s investigation.’ ” (In re Brown, supra, at p.
879, italics added, quoting U.S. v. Payne (2d Cir. 1995) 63 F.3d 1200, 1208.)
Thus, the prosecution is responsible not only for evidence in its own files but also
for information possessed by others acting on the government’s behalf that were
gathered in connection with the investigation. But the prosecution cannot
reasonably be held responsible for evidence in the possession of all governmental
agencies, including those not involved in the investigation or prosecution of the
case. “Conversely, a prosecutor does not have a duty to disclose exculpatory
evidence or information to a defendant unless the prosecution team actually or
constructively possesses that evidence or information. Thus, information
possessed by an agency that has no connection to the investigation or prosecution
of the criminal charge against the defendant is not possessed by the prosecution
team, and the prosecutor does not have the duty to search for or to disclose such
material.” (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305,
Accordingly, we interpret 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; 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.
2. Application to this Case
Petitioner argues that he was entitled at trial to the discovery he seeks
because it was “Brady material.” (Brady, supra, 373 U.S. 83.) As noted, Brady
and other cases have made clear that the prosecution has a general duty to disclose
evidence favorable to the defense. That this duty extends generally to evidence
favorable on punishment as well as guilt was made clear in Brady itself, which
referred to evidence “material either to guilt or to punishment . . . .” (Brady,
supra, at p. 87.) “Such evidence is material ‘if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.’ ” (Strickler v. Green (1999) 527 U.S. 263, 280,
quoting United States v. Bagley (1985) 473 U.S. 667, 682.)
Petitioner argues that information regarding his behavior in prison was
mitigating evidence, and thus the prosecution had a duty to disclose it at trial. We
disagree that the prosecution had the duty to disclose such evidence at trial absent
a specific defense request for that information.
In a capital case, evidence favorable to the defendant bearing on
punishment is of two kinds. First is evidence that mitigates the impact of the
prosecution evidence, in other words, evidence that either reduces the defendant’s
culpability for the charged crimes or other crimes the prosecution proves at the
penalty phase or weakens the strength of other aggravating evidence the
prosecution presents. The prosecution’s duty clearly extends to providing
favorable evidence of this kind. If the prosecution proves a crime against the
defendant or presents other aggravating evidence, it has a duty to disclose any
evidence on these matters materially favorable to the defendant. Brady, supra,
373 U.S. 83, provides an example of this type of evidence relating to punishment.
In Brady, Brady and a companion, Boblit, were convicted of first degree murder
and sentenced to death. The prosecution had withheld from Brady evidence that
Boblit had admitted actually committing the homicide. This evidence did not
materially aid Brady regarding guilt, for both perpetrators could properly be
convicted of first degree murder under state law without being the actual killer.
(Id. at pp. 88, 90.) However, by suggesting that Boblit, and not Brady, was the
actual killer, the admission was relevant to punishment, i.e., to whether Brady
should have received the death penalty for the murder. (Id. at pp. 87-88; see
United States v. Agurs (1976) 427 U.S. 97, 105-106 [explaining this aspect of
But evidence favorable to the defendant in a capital case can extend beyond
evidence relating to the prosecution evidence or theory of the case. It includes a
second kind of evidence: anything regarding the defendant personally that he or
she offers as mitigating. “The Eighth and Fourteenth Amendments require that the
sentencer in a capital case not be precluded from considering any relevant
mitigating evidence, that is, evidence regarding ‘any aspect of a defendant’s
character or record and any of the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.’ ” (People v. Frye (1998) 18
Cal.4th 894, 1015, quoting Lockett v. Ohio (1978) 438 U.S. 586, 604, italics
added.) The second kind of evidence reflected in the italicized language permits
the defendant to introduce “a broad range of evidence mitigating imposition of the
death penalty.” (People v. Frye, supra, at p. 1015.)
Petitioner has not cited, and we are unaware of, authority holding that the
prosecution has a duty, absent a specific request, to disclose evidence of the
second kind, that is, evidence relevant solely to a defendant’s character or record.4
The HCRC cites three cases it claims supports the argument that the duty
extends to evidence relating solely to the defendant. Two of the cases include
language referring to evidence material to punishment similar to the language of
Brady, supra, 373 U.S. at page 87, but they too involved evidence relevant to the
charged crime or other prosecution evidence and not evidence relating only to the
defendant personally. (U.S. v. Frank (S.D.N.Y. 1998) 11 F.Supp.2d 322, 326-328;
U.S. v. Beckford (E.D.Va. 1997) 962 F.Supp. 804, 807-811.) The third case does
include broad language that the duty extends to evidence relating to mitigating
factors including the defendant’s background or character. (U.S. v. Storey (D.Kan.
1997) 956 F.Supp. 934, 939-940.) But that case refers to no such specific
evidence and, because the prosecution agreed to provide the defendant essentially
The broad statement in Brady, supra, 373 U.S. at page 87, that the duty extends to
evidence material to punishment must be read in context. Brady involved
evidence relevant to the defendant’s culpability for the crime and not just evidence
regarding the defendant unrelated to the charged crime or any other prosecution
evidence. Its purpose was to prevent the obvious unfairness of allowing the
prosecution to withhold information that undermines its own case. Implicitly,
Brady requires the prosecution to disclose only evidence that is favorable and
material under the prosecution’s evidence or theory of the case. Otherwise, the
prosecution effectively would be required to do what Brady does not require, that
is, to “deliver [its] entire file to defense counsel” (United States v. Bagley, supra,
473 U.S. at p. 675) in order to avoid withholding evidence that may, or may not,
become favorable and material depending on whatever unknown and unknowable
theory of the case that the defendant might choose to adopt.
The duty of disclosure exists to avoid “an unfair trial to the accused”
(Brady, supra, 373 U.S. at p. 87) or “to ensure that a miscarriage of justice does
not occur” (United States v. Bagley, supra, 473 U.S. at p. 675). Requiring the
prosecution, on its own, to disclose information that might fit some defense theory
but is irrelevant to the prosecution evidence or theory of the case is generally not
necessary to ensure a fair trial. Because mitigation is often “ ‘ “in the eye of the
beholder” ’ ” (Burger v. Kemp (1987) 483 U.S. 776, 794), the defense will know
far better than the prosecution what evidence fits its theory of the case and what
evidence does not. Because the defense can offer virtually anything about the
defendant personally that it considers mitigating, virtually anything regarding the
defendant can be exculpatory if the defense considers it so. Thus, evidence whose
everything it had, it does not discuss the point. The court simply denied the
discovery request as moot in light of the prosecution’s representations that it had
provided all such evidence.
exculpatory nature is not obvious might become exculpatory whenever the defense
so claims. But the duty to disclose evidence cannot extend to evidence the
prosecution had no reason to believe the defense would consider exculpatory.
Requiring the prosecution to, as the high court put it, “assist the defense in making
its case” (United States v. Bagley, supra, at p. 675, fn. 6) is unnecessary when it
comes to potential mitigating evidence regarding the defendant personally. It
would also be overly burdensome. It is one thing to expect the prosecution to
know about its own case and to provide the defense with evidence weakening that
case. It is quite different to expect it to be alert to information unrelated to its case
that might support a defense theory, especially given the unlimited range of
potentially mitigating evidence.
If the defendant had specifically asked the prosecution to provide this
information, the situation may be different. In some circumstances, the obligation
to disclose evidence favorable to the defendant may require the prosecution to
provide materials that the defendant specifically requests as potential exculpatory
materials even if their potential exculpatory nature would not otherwise be
apparent to the prosecution.
In general, “the duty to disclose such evidence is applicable even though
there has been no request by the accused . . . .” (Strickler v. Greene, supra, 527
U.S. at p. 280.) The high court has stated that its test for materiality is
“sufficiently flexible to cover the ‘no request,’ ‘general request,’ and ‘specific
request’ cases of prosecutorial failure to disclose evidence favorable to the
accused: The evidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” (United States v. Bagley, supra, 473 U.S. at p. 682 (plur.
opn. of Blackman, J.); see also id. at p. 685 (conc. opn. of White, J.).) But the
presence or absence of a specific request at trial is relevant to whether evidence is
material under this test. “The Government notes that an incomplete response to a
specific request not only deprives the defense of certain evidence, but also has the
effect of representing to the defense that the evidence does not exist. In reliance
on this misleading representation, the defense might abandon lines of independent
investigation, defenses, or trial strategies that it otherwise would have pursued.
[Citation.] [¶] We agree that the prosecutor’s failure to respond fully to a Brady
request may impair the adversary process in this manner. And the more
specifically the defense requests certain evidence, thus putting the prosecutor on
notice of its value, the more reasonable it is for the defense to assume from the
nondisclosure that the evidence does not exist, and to make pretrial and trial
decisions on the basis of this assumption.” (Id. at pp. 682-683 (plur. opn. of
Blackman, J.).) Accordingly, in determining whether evidence was material, “the
reviewing court may consider directly any adverse effect that the prosecutor’s
failure to respond might have had on the preparation or presentation of the
defendant’s case.” (Id. at p. 683 (plur. opn. of Blackman, J.).)
Another reason a request may be significant is that the request can inform
the prosecution that certain evidence is potentially exculpatory when the
exculpatory nature of the evidence would not otherwise be apparent. Then the
prosecution would be on notice both that the defense considered the evidence
potentially exculpatory and that the defense did not have it and presumably could
not get it by itself. In such a case, the prosecution could cull through the evidence,
viewing it in light of the defendant’s request as well as its own theory of the case.
Thus, if the defense requests at trial specific evidence relevant to mitigation that
the prosecution possesses, the prosecution should disclose it whether or not it
relates to any of the prosecution evidence. But absent a specific request at trial,
the Brady duty does not extend to evidence that relates solely to the defendant
personally and whose exculpatory nature would therefore not otherwise be
apparent to the prosecution. Such evidence is not material in the Brady sense.5
The information petitioner seeks here involves his own behavior in prison.
But the prosecution’s case had nothing to do with petitioner’s prison behavior.
The instant charge was a murder committed after he was released from prison.
The prosecution case in aggravation involved entirely of crimes committed before
he was in prison. Prison officials did not investigate or help prosecute any of these
crimes. Thus, the prosecution was generally not responsible for information
prison officials possessed that might help the defense. (See People v. Superior
Court (Barrett), supra, 80 Cal.App.4th 1305 [the prosecutor’s duty to disclose
information favorable to the defense does not extend to information the California
Department of Corrections possesses unrelated to the charges].)
In this case, it appears the prosecution did provide the defense with some
documents regarding petitioner’s behavior in prison although, petitioner claims,
not everything. This circumstance suggests, as petitioner argues, that defense
counsel may have requested some such records at time of trial. But the defense
was not misled into believing that no other information existed. In his reply to the
opposition to the discovery motion, which he adopted by reference in his traverse,
petitioner attached a copy of a report that he says the prosecutor disclosed to the
defense before trial. The report was by a prosecution investigator stating that he
Another example of when the prosecution might have to disclose
potentially exculpatory evidence only on request is when, unknown to the
prosecution, the defendant intends to present a defense that a certain third person,
rather than the defendant, committed the charged crime, and the prosecution
possesses information about that person’s prior record that might assist this
defense. If the prosecution had no reason to suppose the third person had any
connection to the case, it cannot be expected to disclose that information on its
own. However, if the defendant specifically requests that information as
potentially exculpatory, the prosecution might, in that circumstance, have to
and the prosecutor had reviewed prison records regarding petitioner. The two of
them “went through all of these papers and picked out various ones that were felt
to be relevant,” and arranged for them to be copied and forwarded to the district
attorney’s office. This document clearly indicated that the investigator did not
obtain all the records regarding petitioner, but only those the prosecution felt were
relevant. Of course, what the prosecution felt was relevant may be very different
from what the defense feels is relevant as possible mitigating evidence. By giving
the defense documents that it found relevant, the prosecution did not assume,
absent a specific request, the obligation to provide all prison records that the
defense may have found relevant.
On the instant record, it is not clear whether petitioner specifically
requested additional records at time of trial. Whether the defense did make such a
request does not matter for purposes of discovery under section 1054.9. If the
defense had specifically requested the prosecution to provide all of petitioner’s
prison records in its possession, assuming the records were otherwise material, the
prosecution would have been obligated to provide them. The request would have
informed the prosecution the records might be exculpatory. Accordingly, this is
information to which the defendant would have been entitled at time of trial had
the defendant specifically requested them. The current request—to provide
documentary and similar evidence regarding “petitioner’s leaving the Nuestra
Familia”; “information provided by petitioner regarding the Nuestra Familia, its
members and associates, and non-member collaborators”; and “assistance
provided by petitioner in prosecutions pursued by the State of California and/or
local prosecutors against the Nuestra Familia and others accused of collaborating
with the Nuestra Familia in the commission of crimes”—is also reasonably
specific. This is not just a free-floating request for anything the prosecution has
that may be relevant to the case, but a focused request for specific information.
Accordingly, this information comes within the scope of section 1054.9.
For these reasons, we believe petitioner is entitled to a discovery order. We
have no reason to suppose there will be any difficulty with compliance or
enforcement of the order, but if further proceedings are necessary, they should be
conducted in the trial court, which can resolve any difficulties much easier than
this court. Accordingly, we will remand the matter to the trial court with
directions to issue the discovery order.
We remand the matter to the Shasta County Superior Court with directions
to order the respondent to provide to petitioner, within a reasonable time, materials
petitioner does not now possess regarding “petitioner’s leaving the Nuestra
Familia”; “information provided by petitioner regarding the Nuestra Familia, its
members and associates, and non-member collaborators”; and “assistance
provided by petitioner in prosecutions pursued by the State of California and/or
local prosecutors against the Nuestra Familia and others accused of collaborating
with the Nuestra Familia in the commission of crimes” that the prosecution or law
enforcement agencies involved in the investigation or prosecution of this case
possess today, if any exist.
Because it has served its purpose, we also discharge the order to show
CONCURRING OPINION BY WERDEGAR, J.
I concur entirely in the majority opinion, with one exception: I find its
suggestion that a petitioner having an execution date “may, and usually should”
(maj. opn., ante, at p. 7, fn. 1), file any discovery motion in this court in the first
instance not readily inferable from Penal Code section 1054.9. Notwithstanding
its persuasive rationale for directing petitioners generally to file discovery motions
in the superior court in the first instance (maj. opn., ante, at pp. 6-7), the majority
seemingly fails to recognize that the filing of a discovery motion directly in this
court would be more expeditious in only those exceptional instances when the
motion is patently meritorious or nonmeritorious as a matter of law. At any rate,
however sound the suggestion as a matter of judicial convenience, and irrespective
of whether the Judicial Council might have the power to adopt suitable rules
pertaining thereto, the suggestion—which, in not even purporting to bind
petitioners, seems scarcely likely to “expedite” in any reliable way “our
consideration of any final challenges to the judgment” (id. at p. 7, fn. 1)—is one
that more appropriately should be implemented by legislative amendment.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion In re Steele on Habeas Corpus
Date Filed: March 8, 2004
Judge: William R. Lund, Jr.
Attorneys for Appellant:Gregory Marshall, under appointment by the Supreme Court, for Petitioner Raymond Edward Steele.
Michael Laurence, Jeannie R. Sternberg and Cristina Bordé for Habeas Corpus Resource Center as Amicus
Curiae on behalf of Petitioner Raymond Edward Steele.
Attorneys for Respondent:Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,
Assistant Attorney General, Ward A. Campbell and Eric L. Christoffersen, Deputy Attorneys General, for
Respondent the People.
Counsel who argued in Supreme Court (not intended for publication with opinion):Gregory Marshall
P. O. Box 996
Palo Cedro, CA 96073
Habeas Corpus Resource Center
50 Fremont Street, Suite 1800
San Francisco, CA 94105
Eric L. Christoffersen
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
|1||Steele, Raymond Edward (Petitioner)|
San Quentin State Prison
Represented by Gregory R. Marshall
Attorney at Law
P.O. Box 996
Palo Cedro, CA
|2||Department Of Corrections (Non-Title Respondent)|
Represented by Attorney General - Sacramento Office
Eric Christoffersen, Deputy Attorney General
P.O. Box 944255
|Mar 8 2004||Opinion: OSC discharged|
|Mar 25 2003||Petition for writ of (AA-related) Habeas Corpus filed|
by attorney Gregory Marshall. (311 pp.)
|Mar 25 2003||Filed:|
4 vols. of exhibits in support of petition.
|Mar 25 2003||Request to file document under seal filed (AA case)|
by petitioner to file Exhibits A and B (contained in Vol. V of exhibits) to petition under seal. (Note: vol. V of exhibits received under seal pending court order.)
|Mar 26 2003||Informal response requested|
(Rule 60); due 4/25/2003. Any reply due within 30 days of service and filing of response. If counsel find it necessary to request additional time, the court will consider requests for extensions of time in 30-day increments only.
|Apr 7 2003||Opposition filed|
to motion to file exhibits A and B under seal.
|Apr 11 2003||Motion for discovery (in AA case)|
Motion by petitioner for post-conviction discovery.
|Apr 15 2003||Filed:|
Supplemental proof of service of petitin for writ of habeas corpus, exhibits to petition and motion to seal exhibits A and B.
|Apr 15 2003||Filed:|
Proof of service of "supplemental proof of service."
|Apr 17 2003||Motion for access to sealed record filed|
"Request for sealed records pursuant to Penal Code section 987.9, subdivision (d)."
|Apr 17 2003||Request for extension of time filed|
to file informal response. (1st request)
|Apr 22 2003||Extension of time granted|
to 5/27/2003 to file the informal response to the petition for writ of habeas corpus. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Eric L. Christoffersen's representation that he anticiaptes filing that document by 6/25/2003.
|Apr 25 2003||Opposition filed|
to motion for post-conviction discovery.
|Apr 30 2003||Application to file document under seal denied|
Petitioner's motion "to file exhibits A and B to petition for habeas corpus under seal," filed March 25, 2003, is denied. The clerk is directed to return volume V of the exhibits to the petition, which contains exhibits A and B and is currently conditionally under seal, to the moving party. (See Cal. Rules of Court, rule 12.5(e)(7).)
|Apr 30 2003||Letter sent to:|
petitioner: In light of the allegations in the petition for writ of habeas corpus, the court is contemplating unsealing on its own motion the following currently sealed reporter's transcripts of in camera hearings in the case of People v. Steele, S016730: (1) a hearing on 7-21-89 (RT 189-209); (2) a hearing on 7-31-89 (RT 213-221); (3) a hearing on 11-22-89 (RT 255-260); and (4) a hearing on 1-12-90 (RT 284-289). Any opposition to unsealing these transcripts dues on or before 5-15-2003.
|May 12 2003||Filed:|
Petitioner's response to request for sealed records pursuant to Penal Code section 987.9, subdivision (d).
|May 14 2003||Order filed|
The court invites the California Habeas Corpus Resource Center to file an amicus curiae brief addressing the matters upon which an order to show cause has been issued. Such a brief should be filed within the time period set forth in rule 29.1(f) of the California Rules of Court.
|May 14 2003||Order to show cause issued|
The Director of Corrections is ordered to show cause before this court, when the matter is placed on calendar, why this court should not grant petitioner's "motion for post-conviction discovery," filed April 8, 2003. In addition to anything else relevant to this question the parties choose to brief, the parties are directed to brief the questions of which court should first hear a discovery motion pursuant to Penal Code section 1054.9, and what is the scope of the prosecution's duty, if any, to provide discovery of materials unrelated to the charged crimes or prosecution evidence in aggravation but that might provide penalty phase mitigating evidence. The return shall be filed on or before June 13, 2003. Final resolution of the petition for writ of habeas corpus is deferred pending this discovery matter, but this order does not affect the preparation and filing of an informal response to the petition and the reply to that response. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
|May 15 2003||Request for extension of time filed|
to file informal response. (2nd request)
|May 16 2003||Filed:|
Reply to opposition to motion for post-conviction discovery.
|May 21 2003||Extension of time granted|
to 6/26/2003 to file the informal response to the petition for writ of habeas corups. After that date, only two further extensions totaling about 50 additional days are contemplated. Extension is granted based upon Deputy Attorney General Eric L. Christoffersen's representation that he anticipates filing that document by 8/15/2003.
|Jun 5 2003||Filed:|
Exhibits to petition for writ of habeas corpus. (Volume V- Exhibits A & B)
|Jun 6 2003||Request for extension of time filed|
to file return to order to show cause. (1st request)
|Jun 11 2003||Record ordered unsealed|
On the court's own motion, after giving the parties notice and an opportunity to be heard, the clerk is directed to unseal and provide copies to counsel for petitioner and the Attorney General the following portions of the reporter's transcript in the record on appeal in People v. Raymond Edward Steele, S016730: (1) a hearing on July 21, 1989 (RT 189-209); (2) a hearing on July 31, 1989 (RT 213-221); (3) a hearing on November 22, 1989 (RT 255-260); and (4) a hearing on January 12, 1990 (RT 284-289).
|Jun 11 2003||Motion for access to sealed record granted|
The Attorney General's "request for sealed records pursuant to Penal Code section 987.9, subdivision (d)," filed April 17, 2003, is granted. The clerk is directed to provide to the Attorney General a copy of the trial court funding records (pp. 7-61 of the "Clerk's Supplemental Transcript on Appeal") in the record on appeal in People v. Raymond Edward Steele, S016730, which shall otherwise remain under seal. The Attorney General is authorized to use these records solely in the pending proceeding. (Pen. Code, section 987.9, subd. (d).)
|Jun 13 2003||Extension of time granted|
to 6-30-2003 to file return. After that date, no further extension is contemplated. Extension granted based upon Deputy AG Christoffersen's representation that he anticipates filing the return by 6-28-2003.
|Jun 17 2003||Request for extension of time filed|
to file informal response. (3rd request)
|Jun 25 2003||Extension of time granted|
to 7/25/2003 to file the informal response to the petition for writ of habeas corpus. After that date, only one further extension totaling about 20 additional days is contemplated. Extension is granted based upon Deputy Attorney General Eric L. Christoffersen's representation that he anticiptes filing that document by 8/15/203.
|Jun 27 2003||Written return filed|
by Respondent. (24 pp. - excluding attached exhibits)
|Jul 17 2003||Request for extension of time filed|
to file informal response. (4th request)
|Jul 23 2003||Extension of time granted|
to 8-15-2003 to file informal response. After that date, no further extension is contemplated. Extension granted based upon Deputy AG Eric Christoffersen's representation that he anticipates filing the document by 8-15-2003.
|Jul 23 2003||Request for extension of time filed|
to file traverse. (1st request)
|Jul 25 2003||Extension of time granted|
to 8-26-2003 to file traverse to return to OSC.
|Jul 29 2003||Order filed|
The order filed on 7-25-2003, is amended to read as follows: "On application of petitioner and good cause appearing, it is ordered that the time to serve and file petitioner's traverse to the return to the order to show cause is extended to and including August 26, 2003. No further extensions of time will be granted."
|Aug 7 2003||Request for extension of time filed|
to file informal response. (5th request)
|Aug 14 2003||Extension of time granted|
to 8/29/2003 to file the informal response to the petition for writ of habeas corpus. Extension is granted based upon Deputy Attorney General Eric L. Christoffersen's representation that he anticipates filing that document by 8/29/2003. After that date, no further extension will be granted.
|Aug 26 2003||Request for extension of time filed|
to file traverse. (2nd request)
|Aug 28 2003||Extension of time granted|
to 9-5-2003 to file traverse. After that date, no further extension will be granted. Extension granted based upon counsel Gregory Marshall's representation that he anticipates filing the pleading by 9-5-2003.
|Aug 29 2003||Informal Response filed (AA)|
by Respondent. (85 pp.)
|Sep 8 2003||Traverse to return filed|
by attorney Gregory Marshall. (22 pp. - excluding attached exhibits)
|Sep 25 2003||Request for extension of time filed|
to file reply to informal response. (1st request)
|Oct 1 2003||Filed:|
Supplemental declaration in support of application for extension of time to file reply to informal response.
|Oct 3 2003||Extension of time granted|
to 10/29/2003 to file the reply to the informal response to the petition for writ of habeas corpus. After that date, only one further extension totaling 30 additional days will be granted. Extension is granted based upon counsel Gregory Marshall's representation that he anticipates filing that document by 11/21/2003.
|Oct 6 2003||Amicus curiae brief filed|
by the Habeas Corpus Resource Center. (32 pp.- excluding attachments)
|Oct 8 2003||Filed:|
Amended proof of service to amicus brief.
|Oct 27 2003||Request for extension of time filed|
to file reply to informal response. (2nd request)
|Oct 30 2003||Extension of time granted|
to 12/1/2003 to file the reply to the informal response to the petition for writ of habeas corpus. After that date, no further extension will be granted. Extension is granted based upon counsel Gregory Marshall's prior representation that he anticipates filing that document by 11/21/2003.
|Nov 25 2003||Case ordered on calendar|
1-7-04, 9am, S.F. (was 1-6-04, 1:30pm, S.F.)
|Dec 1 2003||Reply to Informal Response filed (AA)|
by attorney Gregory Marshall (35 pp. - excluding attached exhibit)
|Dec 10 2003||Filed:|
"Petitioner's Application to Divide Time at Oral Argument."
|Dec 10 2003||Order filed|
The request of counsel for Petitioner in the above-referenced cause to allow two counsel to argue on behalf of Petitioner at oral argument is hereby granted
|Dec 10 2003||Order filed|
The request of Petitioner to allocate to amicus curiae Habeas Corpus Resource Center 15 minutes of Petitioner's 30-minute allotted time for oral argument is granted.
|Jan 7 2004||Cause argued and submitted|
|Mar 8 2004||Opinion filed: OSC discharged|
Remanded with directions to Shasta County Superior Court. Majority opinion by Chin, J. -- joined by George C.J., Kennard, Baxter, Brown & Moreno JJ. Concurring Opinion by Werdegar, J.
|Jul 14 2004||Petition for writ of habeas corpus denied (AA)|
The petition for writ of habeas corpus filed on March 25, 2003, is denied. All claims are denied on the merits. Claim VII is also, separately and independently, procedurally barred as repetitive of a claim raised and rejected on appeal. (See In re Harris (1993) 5 Cal.4th 813, 824-829; In re Waltreus (1965) 62 Cal.2d 218, 225.) Claim IX is also, separately and independently, barred because petitioner did not object at trial to admission of any of the convictions. (Evid. Code, Section 353; People v. Hayes (1999) 21 Cal.4th 1211, 1261.) Brown, J., would deny the petition solely on the merits.
|Jun 27 2003||Written return filed|
|Sep 8 2003||Traverse to return filed|
|Oct 6 2003||Amicus curiae brief filed|