Filed 6/12/14
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION TWO


THE PEOPLE,
        Plaintiff and Respondent,
                                                    A137800
v.
JULIO DAVIS,                                        (San Francisco County
                                                    Super. Ct. No. 174657)
        Defendant and Appellant.

                                    I. INTRODUCTION
        In 2000, a jury convicted Julio Davis of first degree burglary (Pen. Code, § 459)
and also found that he had four prior first degree felony burglary convictions. The trial
court imposed a sentence of 25 years to life in prison. In April 2003, this court affirmed
the judgment against Davis who is currently serving his sentence. (See People v. Davis
(Apr. 2, 2003, A094645) [nonpub. opn.] (Davis I).)1
        In 2012, the San Francisco District Attorney’s office filed a motion for discovery
of potentially relevant records from the personnel file of a police officer who testified at
trial in Davis I. The superior court conducted an in-camera review of the file and then
issued an order finding that the officer’s records are not material to Davis’s case, either as
evidence bearing on his guilt or sentence or as impeachment evidence.
        Although not a party to the 2012 post-judgment discovery motion, Davis filed a
notice of appeal seeking independent appellate review of the officer’s records to
determine whether they contain material that should have been produced to the People
pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady). In a related petition for writ

        1
         We granted Davis’s motion to augment the record in this appeal to include the
record in Davis I.


                                              1
of mandate (A139767), Davis seeks an order compelling the trial court to conduct a new
hearing on the People’s Brady motion at which Davis will have the opportunity to be
heard.
         We denied Davis’s motion to consolidate his petition for writ of mandate with his
appeal and ordered instead that the petition would be considered with the appeal. For
reasons that follow, we find that Davis has failed to establish that he has a right to appeal
the post-judgment Brady order or that he is entitled to a writ of mandate. Therefore, we
will dismiss this appeal and deny the petition by separate order.
                   II. FACTUAL AND PROCEDURAL BACKGROUND
A.       Davis I
         In the early morning hours of March 28, 1999, residents of a ground level unit of a
20-unit “mixed-use” building on Howard Street in San Francisco were awakened by
sounds of glass breaking and a person coming through a window. Through translucent
glass in their bedroom door, they saw a single person walk past that door several times.
They called 911 and police arrived at about the same time that the residents heard the
intruder climb a staircase and go into the office space above them.
         When police entered the unit, they found Davis exiting a laundry closet at the top
of the staircase. They handcuffed him and removed a screwdriver from his pocket. In
the laundry closet, the police found two items that did not belong to either of the
residents, a “wad” of foreign currency and a pair of cufflinks. They also found items that
had been removed from the kitchen counter in the unit, including a wallet, an empty
money clip, which had earlier contained $520, a pager, a cell phone charger, and a set of
car keys. Two CD players and a backpack containing a laptop computer had been moved
to the hallway near the broken window and Davis’s fingerprints were on the stereo
equipment.
         At his December 2000 jury trial, Davis’s defense was that he was guilty of
trespass but not burglary. According to this defense theory, an unknown person broke
into the victims’ unit before Davis arrived and that person stole the $520 that was missing
from the money clip. Then, when Davis arrived at the scene he found an open window


                                              2
frame, assumed the building was vacant and climbed inside because he was homeless and
needed a warm place to sleep. The jury rejected this unsupported theory, convicted Davis
of first degree burglary and also found that he had suffered four prior first degree
burglary convictions. The trial court denied a defense motion to strike those convictions,
and sentenced Davis to 25 years to life imprisonment.
       Davis appealed, alleging prosecutor misconduct, instructional error, denial of his
right to a jury trial on the priors, and that his sentence constituted cruel and unusual
punishment. On April 2, 2003, this court filed our opinion in Davis I, in which we
rejected Davis’s claims of error and affirmed the judgment against him.
B.     Officer Walker’s Testimony in Davis I
       On December 18, 2000, San Francisco Police Officer Robert Walker testified at
the trial in Davis I. However his testimony was not relevant to any issue on appeal and,
indeed, he was not even mentioned in our decision in that case.
       Walker testified that he was one of the officers who responded to the location of
the March 1999 burglary. When he arrived, he took a post on the corner of Howard and
7th Street to help establish a perimeter around the crime scene. Walker wore his regular
uniform clothes, including a short sleeved shirt and vest, and recalled that the weather
was typical for the time of year and not too cold. Walker did not enter the unit where the
crime occurred until after Davis was arrested and placed in a patrol car. Walker booked
three items of evidence that had been collected at the crime scene: the screwdriver, the
cufflinks, and the foreign cash. Walker did not collect these items himself; he received
them from another officer and then booked and sealed them in an evidence envelope.
       Defense counsel cross-examined Walker regarding the circumstances under which
he received the evidence that he booked. Walker could not recall when during the
investigation another officer gave him the evidence to book or whether he received that
evidence while still at the scene or later after he returned to the police station. Defense
counsel also asked several questions about a strip-search that was conducted at the police
station. Walker recalled that the search was authorized and did occur, but he could not
recall whether he conducted the search or if another officer did.


                                              3
       Defense counsel also probed Walker about his recollection as to whether Davis
was homeless and what the weather was like when the crime occurred. Walker testified
that he did not know if Davis was homeless; that he had not inquired about that subject at
the time of the burglary; that he did not prepare the police report associated with the
crime; and that he did not recall whether the report reflected that Davis was homeless.
Walker could not recall what the temperature was outside when he arrived at the crime
scene and he did not specifically recall whether he put on items of clothing before he got
out of his patrol car that morning.
C.     The 2012 Discovery Motion
       On September 4, 2012, the San Francisco District Attorney filed a motion for
discovery of Officer Walker’s personnel records pursuant to Brady, supra, 373 U.S. 83
and Evidence Code sections 1043 and 1045, subdivision (e). The trial court was
specifically requested “to conduct an in camera review of said officer’s personnel file or
relevant portions thereof, to disclose to the District Attorney’s Office and the defense any
Brady material located in the personnel file, and to issue a protective order to protect the
officer’s statutory right of privacy in the personnel file.” The People served their motion
and accompanying papers on both the San Francisco Police Department and on Erwin
Fredrich, the defense attorney in Davis I.
       The People’s motion was accompanied by two declarations by an assistant district
attorney. According to one of them, the People were notified about potential Brady
material in Walker’s file in August 2010. In this regard, the declaration states: “Pursuant
to Bureau Order No. 2010-01, dated August 13, 2010, the San Francisco Police
Department has informed the District Attorney’s office that [Walker] has material in his
or her personnel file that may be subject to disclosure under Brady v. Maryland (1963)
373 U.S. 83. . . .” On information and belief, the assistant district attorney stated that the
police department would not disclose Walker’s records without a court order.




                                              4
       With their declarations, the People advised the court that Davis had been
convicted of violating Penal Code section 459,2 that Officer Walker was a prosecution
witness at Davis’s trial who testified on “the issue of the defendant’s possession of
burglary tools,” and that Walker’s credibility as a witness “may have been placed at
issue.” One declaration also states that Walker “testified that he received the burglary
tools that were attributed to the defendant from another officer, and that he booked those
tools into evidence.”
       On September 27, 2012, the superior court held a hearing on the People’s
discovery motion. Apparently, that hearing was not transcribed. However, a minute
order reflects that Mr. Fredrich, defense counsel in Davis I, appeared and was appointed
private counsel for Davis in this matter, and that Davis’s appearance was waived. A
custodian of records for the police department appeared at the hearing and produced a file
of documents that was lodged with the court.
       On October 1, 2012, the Honorable Angela Bradstreet issued an order which
states: “The Court having conducted an in camera review of documents produced by the
Custodian of Records of the San Francisco Police Department on 10/1, 2012 pursuant to
the People’s motion for discovery under Brady and Evidence Code Section 1043 et seq.,
and good cause appearing, HEREBY ORDERS that none of the documents reviewed be
produced to the District Attorney for possible disclosure. The Court finds that none
of the documents produced fall within the standard articulated in Brady v. Maryland 373
U.S. 83. None of the documents are material to the innocence or guilt of the defendant,
none are material to punishment, none constitute conduct which is moral turpitude and
none constitute relevant impeachment evidence.” (Bolding in original.)
       On October 1, 2012, the superior court also filed a “Sealing Order,” which
directed that an attached document, a 77-page San Francisco Police Department Internal




       2
        All further undesignated statutory references are to the Penal Code unless
otherwise noted.


                                             5
Affairs report, was to “be sealed and not opened absent further order of the court.”
(Capitalization omitted.)
D.     The Appeal and Writ Petition
       On October 18, 2012, Davis filed an in pro per notice of appeal from the October
1, 2012, order and also requested the appointment of counsel for that appeal. Appellate
counsel was appointed on March 18, 2013. With the assistance of counsel, Davis argues
that (1) he is entitled to appellate review of the superior court’s finding that Walker’s file
does not contain Brady material; and (2) he was denied due process at the Brady hearing
in the superior court. In their Respondent’s Brief, the People raise the question whether
the October 1 order is appealable.
       On September 17, 2013, Davis filed a petition for writ of mandate in this court in
which he reasserts his claim that he was denied due process at the Brady hearing.
Pursuant to that petition, Davis seeks an order compelling the superior court to conduct a
new hearing on the People’s discovery motion, to appoint counsel to represent Davis at
the hearing, and to afford him an opportunity to participate in that hearing.
                                     III. DISCUSSION
A.     Legal Principles
       The issues before us implicate two sometimes related but clearly distinct legal
principles: (1) the People’s obligation to disclose material evidence that is favorable to
the defense under Brady, supra, 373 U.S. 83, and (2) a criminal defendant’s right to
discover confidential records in a peace officer’s personnel files under Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess).
       “Under Brady, supra, 373 U.S. 83, 87, the prosecution must disclose to the
defense any evidence that is ‘favorable to the accused’ and is ‘material’ on the issue of
either guilt or punishment. Failure to do so violates the accused’s constitutional right to
due process. [Citation.] Evidence is material under the Brady standard ‘if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.’ [Citation.]” (City of Los Angeles v. Superior
Court (2002) 29 Cal.4th 1, 7 (City of Los Angeles).) “The prosecution’s disclosure duty


                                              6
under Brady applies even without a request by the accused; it pertains not only to
exculpatory evidence but also to impeachment evidence. [Citations.]” (Id. at p. 8; see
also People v. Cook (2006) 39 Cal.4th 566, 587 [“Evidence that is material to defendant’s
guilt, innocence or punishment and that impeaches a prosecution witness must be
disclosed.”].)
       “Although Brady disclosure issues may arise ‘in advance of,’ ‘during,’ or ‘after
trial’ [citation], the test is always the same. [Citation.] Brady materiality is a
‘constitutional standard’ required to ensure that nondisclosure will not ‘result in the
denial of defendant’s [due process] right to a fair trial.’ [Citation.] [¶] “Because the
Brady rule encompasses evidence ‘known only to police investigators and not to the
prosecutor,’ it is incumbent upon the prosecutor to learn of any favorable evidence
‘known to the others acting on the government’s behalf in [a] case, including the police.’
[Citations.]” (City of Los Angeles, supra, 29 Cal.4th at p. 8.)
       Independent of Brady and its requirements, the California Supreme court has
recognized that in criminal cases involving police officer testimony, evidence in the
officer’s personnel files may be relevant to and discoverable by the defense. (Pitchess,
supra, 11 Cal.3d 531.) To provide for the discovery of such material while also
protecting the privacy rights of the affected officer, the California Legislature codified
the privileges and procedures that govern what is now commonly referred to as “Pitchess
motions” through the enactment of sections 832.7 and 832.8 and Evidence Code sections
1043 through 1045. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.)
       “ ‘The Penal Code provisions define “personnel records” ( . . . § 832.8) and
provide that such records are “confidential” and subject to discovery only pursuant to the
procedures set forth in the Evidence Code. ( . . . § 832.7.) Evidence Code sections 1043
and 1045 set out the procedures for discovery in detail. . . . [S]ection 1043, subdivision
(a) requires a written motion and notice to the governmental agency which has custody of
the records sought, and subdivision (b) provides that such motion shall include, inter alia,
“(2) A description of the type of records or information sought; and [¶] (3) Affidavits
showing good cause for the discovery or disclosure sought, setting forth the materiality


                                               7
thereof to the subject matter involved in the pending litigation and stating upon
reasonable belief that such governmental agency identified has such records or
information from such records.” ’ [Citation.]” (City of Los Angeles, supra, 29 Cal.4th at
pp. 8-9.)
B.     The Appeal
       Davis attempts to raise two claims via his appeal: (1) that he is entitled to
independent appellate review of Officer Walker’s file to determine whether the trial court
erred by concluding that it does not contain any material discoverable under Brady, and
(2) that the trial court violated his due process rights by denying him the opportunity to
be heard at the discovery hearing. The People contend that this appeal must be dismissed
because Davis has failed to identify an appealable order.
       Preliminarily, the People object that the notice of appeal lacks sufficient
specificity because it does not identify either a judgment or order but refers only to a
filing date of October 1, 2012. We disagree with this contention. Rule 8.304(a)(4) of the
California Rules of Court establishes that a “notice of appeal must be liberally construed”
and that “the notice is sufficient if it identifies the particular judgment or order being
appealed.” Applying this rule here, we conclude that Davis’s pro per notice of appeal
sufficiently identifies either or both of the orders filed by the superior court on October 1,
2012. Davis’s appellate briefs, which were prepared after counsel was appointed for him,
clarify that Davis is challenging the superior court’s finding that Officer Walker’s file
does not contain any discoverable material. Thus, when we refer to the October 1 order
in this opinion, we are referencing the order containing that finding.
       However, the more difficult question is whether the October 1 order is appealable.
“ ‘It is settled that the right of appeal is statutory and that a judgment or order is not
appealable unless expressly made so by statute.’ [Citations.]” (People v. Mazurette
(2001) 24 Cal.4th 789, 792.) Here, Davis contends that the October 1 order is appealable
under Penal Code section 1237, subdivision (b) (section 1237(b)), which states that the
defendant may take an appeal “From any order made after judgment, affecting the
substantial rights of the party.” Unquestionably, the October 1 order is an order made


                                               8
after judgment in Davis I. The issue, however, is whether it affects Davis’s substantial
rights.
          In addressing this issue, Davis characterizes the October 1 order as a “denial of
Brady disclosure.” This characterization of the October 1 order is potentially very
misleading. The superior court did not deny a request to conduct a review of a
confidential file for Brady material. Nor did it deny a request to order production of
evidence that satisfies the Brady materiality standard. Rather, the superior court granted
the People’s request to conduct an in camera review of an officer’s confidential file and
concluded, based on that review, that information in the file was not material under
Brady.
          Thus, the question raised by this appeal is whether a post-judgment order that a
police officer’s confidential file does not contain Brady material affects Davis’s
substantial rights. Two facts that Davis fails to squarely acknowledge indicate to us that
the October 1 order does not affect Davis’s substantial rights.
          First, the October 1 order resolves a motion that Davis did not and could not have
made himself. Prior to judgment, Davis could have filed a Pitchess motion had he
believed that Officer Walker’s credibility was relevant to his defense. Apparently, that
was not the case since no such motion was filed. In any event, there are jurisdictional
limits on a court’s authority to entertain a convicted defendant’s post-judgment motion.
          As a general rule, there “ ‘is no statutory authority for a trial court to entertain a
postjudgment motion that is unrelated to any proceeding then pending before the court.
[Citation.] Indeed, a motion is not an independent remedy. It is ancillary to an on-going
action and “ ‘implies the pendency of a suit between the parties and is confined to
incidental matters in the progress of the cause. As the rule is sometimes expressed, a
motion relates to some question collateral to the main object of the action and is
connected with, and dependent on, the principal remedy.’ ” [Citation.] In most cases,
after the judgment has become final, there is nothing pending to which a motion may
attach.’ [Citation.]” (People v. Picklesimer (2010) 48 Cal.4th 330, 337 (Picklesimer).)



                                                  9
       Consistent with this general rule, our supreme court has held that a trial court does
not have authority “to order ‘free-floating’ postjudgment discovery” which is unrelated to
any proceeding pending before the court. (People v. Gonzales (1990) 51 Cal.3d 1179,
1256, 1261; see also In re Steele (2004) 32 Cal.4th 682, 691.)
       Section 1054.9 modifies the rule precluding a convicted defendant from seeking
post-judgment discovery, but only in cases in which the defendant has been sentenced to
death or life in prison without the possibility of parole. (In re Steele, supra, 32 Cal.4th at
p. 691.) “[F]or defendants sentenced to death or life in prison without the possibility of
parole, section 1054.9 authorizes a first-time, pre-habeas corpus motion for discovery of
peace officer personnel records. According to the literal language of section 1054.9, the
scope of such discovery is the materials ‘to which the same defendant would have been
entitled at time of trial.’ (§ 1054.9, subd. (b).)” (Hurd v. Superior Court (2006) 144
Cal.App.4th 1100, 1110.) Here, Davis does not and indeed cannot rely on section
1054.9.3
       In this case, the post-judgment discovery proceeding was initiated by the People
not the defendant. That proceeding took the form of a Pitchess motion, but it was
authorized by Brady itself because, as noted earlier in our discussion, the People’s
obligations under Brady are ongoing, even post-judgment. (City of Los Angeles, supra,
29 Cal.4th at p. 8.) However, as we also discuss above, the People’s Brady obligations
are distinct from the defendant’s right to obtain discovery from an officer’s confidential
files. A convicted defendant does not have a right to a post-judgment discovery order
“based on Brady alone, independent of section 1054.9.” (Kennedy v. Superior Court
(2006) 145 Cal.App.4th 359, 369.)




       3
          However, Davis does mistakenly rely on out-of-context passages from Curl v.
Superior Court (2006) 140 Cal.App.4th 310, 323-324, a writ proceeding which involved
a post-conviction motion for discovery under section 1054.9 and thus has no relevance to
the issue presented here. Furthermore, Davis fails to acknowledge that Curl was
disapproved in Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.


                                              10
       A second important factor affecting our conclusion is that Davis did not use the
People’s Brady motion as a basis for pursuing his own request for post-judgment
discovery. Arguably, once the People filed a post-judgment Brady motion, there was a
pending proceeding to which Davis could have attached his own discovery request.
However that question is not presented by this appeal. Even in cases in which a
defendant can obtain post-judgment discovery, for example pursuant to section 1054.9,
he must comply with the Pitchess procedure and requirements which include showing
that the discovery sought is material to pending litigation. In the present case, the
appellate record does not contain any evidence that Davis attempted to file his own
Pitchess motion or otherwise intervene in the post-judgment proceeding that the People
initiated by filing their Brady motion.
       The circumstances outlined above support the conclusion that the October 1 order
did not affect Davis’s substantial rights. Prior to trial, Davis had the right to seek
discovery from Officer Walker’s files if he believed Walker’s credibility was relevant to
his defense. However, during the post-judgment stage of his criminal case, Davis does
not have a free-floating right to discovery. As explained above, Brady imposes
disclosure obligations on the prosecution but it does not confer discovery rights on a
convicted defendant. Thus, Davis himself had no right to seek post-judgment discovery
from Officer Walker’s files. Nor did he make any effort to join in the proceeding
initiated by the People. Under these circumstances, the order entered after an in camera
review of the confidential file that was conducted solely on behalf of the People did not
affect Davis’s substantial rights.
       Claiming that the October 1 order does affect his substantial rights, Davis
mistakenly relies on People v. Totari (2002) 28 Cal.4th 876 (Totari). In 1985, the Totari
defendant entered guilty pleas in two cases charging him with drug possession and check
fraud. Two years later, he was granted limited expungement of his record. Then, in
1998, the defendant filed a motion to vacate his 1985 convictions pursuant to section
1016.5 on the ground that he was not advised of the immigration consequences of his



                                              11
guilty pleas.4 The trial court denied the motion to vacate, and the defendant’s appeal was
dismissed on the ground that the trial court’s order was nonappealable. The Supreme
Court reversed that decision.
       The Totari court recognized that, although section 1016.5 creates the remedy of a
motion to vacate, that statute does not expressly authorize an appeal from the denial of
such a motion. (Totari, supra, 28 Cal.4th at p. 882.) However, the court found that the
denial of this statutory motion was appealable pursuant to section 1237(b) as an order
made after judgment affecting the substantial rights of the defendant. The court reasoned
that the Legislature enacted section 1016.5 for the express purpose of protecting “alien
defendants who pleaded guilty without knowing that their guilty plea could lead to
immigration consequences.” (Id. at p. 883.) The court also relied on its own prior
authority establishing that a noncitizen defendant has a “ ‘substantial right’ ” to be given
complete advisements under section 1016.5. (Id. at p. 883, quoting People v. Superior
Court (Zamudio) (2000) 23 Cal.4th 183, 199-200.)
       The Totari court rejected the People’s contention that, assuming the denial of a
section 1016.5 motion can affect a defendant’s substantial rights, the record showed that
this particular defendant’s substantial rights were not violated. (Totari, supra, 28 Cal.4th
at p. 884.) That factual claim went to the merits of the dispute as opposed to the question
whether the order itself was appealable. (Id. at pp. 884-887.) Ultimately, the Totari court
held: “Once the Legislature has determined that a noncitizen defendant has a substantial
right to be given complete advisements and affords defendant a means to obtain relief by
way of a statutory postjudgment motion to vacate, the ‘no second appeal’ rule loses its



       4
         Section 1016.5 imposes an obligation on trial courts to advise criminal
defendants of the immigration consequences of pleading guilty or nolo contendere and
also provides that if the court fails to give the required advisement, “the court, on
defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the
plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the
court provided the advisement required by this section, the defendant shall be presumed
not to have received the required advisement.” (§ 1016.5, subd. (b).)


                                             12
urgency and a denial order qualifies as an ‘order made after judgment, affecting the
substantial rights of the party.’ ” (Id. at p. 886-887.)
       Totari is factually inapposite. That case involved a post-judgment motion (1) filed
by the defendant, (2) that was expressly authorized by statute, and (3) that had nothing to
do with post-judgment discovery. Furthermore, none of the factors which supported the
Totari court’s legal conclusion are found here. The Legislature has not found that a
convicted defendant has a substantial right to seek post-judgment discovery, except when
section 1054.9 applies. Nor has Davis identified any authority entitling him to participate
in a post-judgment Brady proceeding. As explained above, Brady imposes disclosure
obligations on a prosecutor, but it does not authorize a convicted defendant to seek post-
judgment discovery.
       In his Reply Brief, Davis argues that this appeal “is the established appellate
procedure for . . . reviewing [Brady] material,” citing People v. Myles (2012) 53 Cal.4th
1181, 1209. However, Myles is inapposite as that case was a direct appeal from a
judgment of death and the issue the court addressed was whether the trial court erred by
denying a pre-conviction defense motion for disclosure of confidential records of law
enforcement officers involved in the investigation of the case. (Id. at pp. 1208-1209.)
       Davis insists that he is seeking redress for a right that was denied to him at trial in
Davis I. He reasons that “if appellant was denied his federal constitutional right to
relevant and material impeachment evidence at trial, then he was not convicted after a
fair trial” and his conviction is open to challenge. This theory highlights two flaws that
run throughout Davis’s arguments in this case.
       First, the defense right to discover evidence from the confidential file of a police
officer involved in his case derives solely from Pitchess. Brady imposes disclosure
obligations on the prosecution, and, as far as we are aware, a criminal defendant does not
have the constitutional right to participate in the procedure that the prosecution uses to
ensure compliance with its obligations under Brady. Second, Davis is attempting to use
the appellate process to seek a remedy for a potential harm that is not the subject of this
proceeding. If Davis believes that the People violated Brady in Davis I, that is an


                                              13
independent claim that was not alleged, supported, or in any way addressed in the
superior court proceeding that resulted in the October 1 order.
       We reiterate that the superior court did not refuse to conduct a Brady inquiry. Nor
did it refuse to order the production of documents that were discoverable under Brady. If
those facts were present, our analysis could be very different. As it is though, Davis has
failed to establish that the October 1 order affected his substantial rights. Nor has he
identified any other rule or statute authorizing this appeal. Therefore, Davis’s appeal is
dismissed.
C.     The Writ Petition
       After the People filed their opposition brief questioning Davis’s right to appeal
from the October 1 order, Davis filed a petition for writ of mandate seeking to remedy an
alleged violation of his constitutional right to due process.
       1.     Background
       In his petition, Davis alleges that he is challenging “the superior court’s denial of
due process” to him during the Brady proceedings. His theory is that the prosecutor
failed to provide the court with sufficient information about Officer Walker to make a fair
ruling and that the superior court “abused its discretion” by conducting a review of
Walker’s personnel files for Brady material “when petitioner did not have an opportunity
to be heard on the issue and the court made its decision based solely on the prosecution’s
presentation of the pertinent circumstances.”
       To support this claim, Davis purports to provide a more accurate or complete
summary of Officer Walker’s testimony which states:
       “15. On direct examination, Officer Walker testified that he and a partner had
responded to the area of Howard and 7th Street in response to a dispatch call and
established a crime scene perimeter. Officer Walker collected and booked into evidence
the screwdriver, the cufflinks, and the foreign money. Walker testified that he had not
entered the residential unit before the suspect was removed by other officers.
       “16. Defense counsel’s cross-examination of Officer Walker was centered upon
the issue of where the coins, cufflinks and screwdriver had come from and what had


                                             14
happened to the missing cash. Officer Walker said he was handed the three items by
another officer, but was vague and/or evasive about the circumstances. For example,
while Walker had no problems answering the questions asked on direct, on cross
examination he claimed no recollection approximately 20 times.
       “17. Officer Walker could not recall if he was the one who had strip searched Mr.
Davis to look for the cash, though the fact that he had done so was stated in another
officer’s report. While admitting he had glanced at parts of the police report, Officer
Walker claimed no memory of the conditions at the crime scene or who was with him at
any particular time.”
       Davis contends that he was precluded from sharing these pertinent facts about
Officer Walker with the superior court and was thereby deprived of his constitutional
right to due process. 5 To remedy the alleged constitutional violation, Davis seeks a
peremptory writ of mandate compelling that court to hold a new Brady hearing for which
Davis will have notice, appointed counsel, and “a full opportunity to submit evidence and
be heard on the issue of the potential materiality of the sealed documents.”
       2.     Analysis
       Unlike a post-judgment motion, a petition for writ of mandate “is an independent
proceeding” that vests the court “with jurisdiction to act.” (Picklesimer, supra, 48
Cal.4th at p. 339; see Code Civ. Proc., § 1085.) “To obtain relief, a petitioner must
demonstrate (1) no ‘plain, speedy, and adequate’ alternative remedy exists (Code Civ.
Proc., § 1086); (2) ‘a clear, present . . . ministerial duty on the part of the respondent’;
and (3) a correlative ‘clear, present, and beneficial right in the petitioner to the
performance of that duty.’ [Citations.]” (Picklesimer, supra, 48 Cal.4th at p. 340.)
       With respect to the first of these requirements, Davis contends that an appeal is not
an adequate alternative remedy because his claim depends on evidence outside that



       5
         For the record, we do not agree with Davis’s self-serving interpretation of the
cross-examination of Officer Walker or with his account of the testimony that Walker
gave in Davis I.


                                              15
record. Aside from that, as we have already found, the October 1 order is not appealable
by Davis.
       Davis also contends that he cannot file his petition in the superior court because
that court is “the party that failed to properly exercise its discretion.” The superior court
does not have the authority or jurisdiction to issue mandamus or prohibition against itself.
“Mandamus or prohibition may be issued only by a court to another court of inferior
jurisdiction.” (Haldane v. Superior Court of Los Angeles County (1963) 221 Cal.App.2d
483, 485-486; See Code Civ. Proc., §§ 1085, 1103.) (Ibid.) However, “[b]efore seeking
mandate in an appellate court to compel action by a trial court, a party should first request
the lower court to act. If such request has not been made the writ ordinarily will not issue
unless it appears that the demand would have been futile. [Citations.]” (Phelan v.
Superior Court of San Francisco (1950) 35 Cal.2d 363, 372.)
       In the present case, the allegations and evidence in support of the petition support
the following facts: (1) Before the People filed their Brady motion, Assistant District
Attorney Jerry Coleman notified Erwin Fredrich, Davis’s trial counsel in Davis I, about
the potential Brady material in Officer Walker’s file; (2) Coleman advised Fredrich that
the People had not made a determination whether the information should have been
disclosed in Davis I but, pursuant to their obligations under Brady, the People were
notifying the defense about the file so it could make its own determination as to whether
to “seek some sort of post-judgment relief”; (3) The People subsequently served Fredrich
with notice of their Brady motion, and with copies of their motion and supporting
documentation; (4) Fredrich attended the hearing on behalf of Davis and Davis’s
appearance at that hearing was waived.
       The record also contains disputed evidence that Fredrich was formally reappointed
to represent Davis at the October 1 hearing. The minute order for the hearing reflects that
reappointment. However, Fredrich filed a declaration in support of this mandate petition
in which he claims he was never reappointed. According to that declaration, Fredrich
“checked in” at the hearing but he “was not reappointed to represent Mr. Davis at that
time and did not state an appearance as no proceedings took place on the record.”


                                              16
        But Fredrich does not dispute that he was present at the hearing and that he was
recognized by the court as Davis’s attorney. Nor does Fredrich substantiate the allegation
in the petition that Davis was denied the opportunity to participate in the Brady hearing.
Rather, according to his declaration, Fredrich did not file a motion or request that Davis
be allowed to participate in the Brady proceeding because he believed that the San
Francisco Superior Court had a policy of refusing to allow such participation. However,
there is no evidence before us that such a policy exists.
        Thus, Davis has failed to establish or even allege that he made a request of the
superior court to participate in the Brady proceeding or that such a request would have
been futile. This fact alone is a ground for denying this petition. Beyond that, Davis has
not met the other requirements for obtaining mandate relief by identifying a clear and
present ministerial duty on the part of the superior court and his correlative clear and
present beneficial right to performance of that duty. (Picklesimer, supra, 48 Cal.4th at p.
340.)
        Here, Davis never squarely articulates the ministerial duty he attributes to the
superior court. Instead, he makes the broad claim that the court abused its discretion by
deciding the post-judgment Brady motion without first affording him “an opportunity to
be heard on the issue,” and that he “has a clear, present and substantial right to the
performance of respondent’s duty to exercise its discretion properly in ruling on the
motion to disclose exculpatory evidence [in] police personnel files.”
        “A ministerial duty is an obligation to perform a specific act in a manner
prescribed by law whenever a given state of facts exists, without regard to any personal
judgment as to the propriety of the act. [Citation.]” (Picklesimer, supra, 48 Cal.4th at p.
340.) “Although it is well established that mandamus cannot be issued to control a
court’s discretion, in unusual circumstances the writ will lie where, under the facts, that
discretion can be exercised in only one way. [Citation.]” (Babb v. Superior Court (1971)
3 Cal.3d 841, 851.)
        In this case, Davis takes the position that the superior court cannot properly
exercise its discretion to resolve a post-judgment motion for Brady discovery unless it


                                              17
conducts a noticed hearing at which the defendant is represented by counsel and offered
the opportunity to present evidence and argument. Putting aside the fact that Davis’s
own evidence shows that he did have notice of the hearing, that counsel appeared at the
hearing on his behalf and that he did not request the opportunity to participate, Davis fails
to provide any legal authority which supports his claim that the superior court violated a
clear and present duty.
       As explained in our analysis above, a convicted defendant does not have a right to
seek post-judgment discovery unless section 1054.9 applies. More to the point, Davis
does not cite any authority which requires that the superior court elicit participation from
a convicted defendant before ruling on post-judgment Brady motion filed by the People.
Instead, Davis relies solely on general references to constitutional principles of due
process and equal protection which are simply too vague to establish that the superior
court violated a clear and present duty.
       Though not directly on point, our conclusion finds support in Alford v. Superior
Court (2003) 29 Cal.4th 1033 (Alford). The Alford defendants were charged with drug
offenses and their account of the events leading to their arrest was different from the
account offered by the arresting officers. (Id. at p. 1036.) Intending to challenge the
credibility of those officers, the defendants sought Pitchess discovery of relevant material
from the officers’ personnel files. After the motion was denied, the Court of Appeal
issued a writ of mandate directing the superior court to (1) grant disclosure of material
information but limit dissemination of that evidence to the specific case, and (2) permit
the prosecutor to “be heard” on the motion and receive the information that was
disclosed. (Id. at p. 1037.) However, the Supreme Court reversed, finding that the
People did not have the right to be heard at the defendant’s Pitchess proceeding or to
obtain copies of the defendant’s Pitchess evidence. (Id. at p. 1044.)
       The Alford court based its conclusions on several factors. First, the court observed
that the statutory provisions governing Pitchess motions expressly require service of
notice of the motion only on the governmental agency that has custody of the records
sought. (Alford, supra, 29 Cal.4th at p. 1044; see Evid. Code, § 1043, subd. (a).)


                                             18
Second, the court found that “general due process principles” entitle the People to notice
of the date and place of the hearing on a defense Pitchess motion. (Ibid.) “In this
manner,” the court found, “if the court requires clarification or explanation of any matters
set forth in the supporting affidavits, it will be able to ask questions of both the defense
and the prosecution and thus obtain any information the court deems ’essential’ to a fair
and proper decision. [Citation.]” (Id. at p. 1044.) Third, however, the court found that
neither the due process clause nor any other law entitles the People to “argue the
prosecutorial point of view” or “to receive any information the court orders disclosed” in
what is “essentially a third party discovery proceeding.” (Id. at p. 1045.) In making this
last point, the Alford court acknowledged that “[o]f course, the prosecution itself remains
free to seek Pitchess disclosure by complying with the procedure set forth in Evidence
Code sections 1043 and 1045. Absent such compliance, . . . peace officer personnel
records retain their confidentiality vis-à-vis the prosecution. [Citations.]” (Id. at p.
1046.)
         Alford establishes that prosecutors are not entitled to participate in a defendant’s
Pitchess motion, but they are entitled to notice, to be present and to participate if the trial
court so desires. (Alford, supra, 29 Cal.4th at pp. 1044-1046; ) People v. Superior Court
(Humberto S.) (2008) 43 Cal.4th 737, 750.) Although the court’s analysis pertained to
the People’s due process right to participate in a defense Pitchess motion, many of the
same principles apply when the roles are reversed.6 The statutory procedure for
conducting a Pitchess motion does not require service of notice on the defendant when
the People bring that motion. (Evid. Code, § 1043, subd (a).) Furthermore, assuming
that general due process principles entitle the defendant to notice of what could be
considered a third party discovery proceeding, we have found no law entitling the
defendant to participate in the People’s Pitchess motion.




         6
         One obvious distinction is that the People’s agency relationship with
investigative personnel implicates Brady obligations that the defendant does not have.


                                               19
       Davis advances two new theories in his Reply Brief filed in support of the petition.
First, he argues that the relief he seeks derives solely from Brady and has nothing
whatsoever to do with Pitchess. He contends that, although there is some overlap, the
two procedures protect different rights for different trial participants and that the only
procedure at issue in this case is the one afforded to him by Brady which guarantees him
access to potentially exculpatory evidence.
       We agree that Brady and Pitchess establish two distinct legal principles which
sometimes overlap. This case involves such an overlap because the People used the
Pitchess procedure to perform its obligations under Brady. Brady holds that the
prosecutor’s failure to disclose to the defense any evidence that is “favorable to an
accused” and is “material” on either guilt or punishment violates the accused’s
constitutional right to due process. (Brady, supra, 373 U.S. at pp. 86-87.) But that case
does not confer on the criminal defendant a due process right to participate in the
People’s Pitchess motion to discover material evidence from a police officer’s
confidential personnel files, particularly when that motion is made post-judgment. Nor
does Davis identify any other authority which construes Brady as conferring on a
defendant a constitutional right to participate in a third party proceeding initiated by the
People in order to comply with its obligations under Brady.
       “To the extent a prosecution-initiated Pitchess motion yields disclosure” of
information that satisfies the Brady materiality standard, “the prosecutor’s obligations, as
in any case, are governed by constitutional requirements in the first instance. (Alford,
supra, 29 Cal.4th at p. 1046, fn. 6.) “The prosecutor’s duties of disclosure under the due
process clause are wholly independent of any statutory scheme of reciprocal discovery.
The due process requirements are self-executing and need no statutory support to be
effective. . . . [I]f a statutory discovery scheme exists, these due process requirements
operate outside such a scheme. The prosecutor is obligated to disclose such evidence
voluntarily, whether or not the defendant makes a request for discovery.” (Izazaga v.
Superior Court (1991) 54 Cal.3d 356, 378.)



                                              20
       Davis repeatedly insists that he is not attempting to invoke pre-judgment Pitchess
rights to secure post-judgment discovery. However, the petition allegations strongly
suggest otherwise. The essence of the mandate claim alleged in Davis’s petition is that
the superior court had a duty to search Walker’s files for evidence that would have
supported what are essentially hindsight theories about how the defense could have used
Walker’s testimony in a different way in Davis I if given another opportunity. But, Davis
did not pursue those theories by filing a Pitchess motion prior to judgment. Now, at this
stage in Davis’s case, the only post-judgment issue before the superior court is whether
Walker’s files contain Brady evidence that the People would have an ongoing obligation
to produce.
       Once again, Davis appears to be suggesting that the People violated Brady by
failing to seek discovery from Walker’s files before judgment was entered in Davis I.
But that issue has nothing to do with the proceeding which resulted in the October 1
order. The People’s post-judgment Pitchess motion for Brady discovery cannot be used
to circumvent the very different procedures for pursuing a collateral attack on the
judgment in Davis I.
       A second related theory advanced in Davis’s Reply Brief is that he should be
excused from having to satisfy the normal requirements for securing a writ of mandate
because this case is about “systemic misconduct by the San Francisco District Attorney’s
Office from 1963, when Brady v. Maryland issued, until 2010, when the San Francisco
Police Department first prepared a list of officers who had potential impeachment
material in their personnel files.” According to this theory, for almost 50 years the
District Attorney’s office has been “in violation of due process of law” by its failure to
disclose potentially exculpatory materials in police officer files, and this case should be
viewed as part of that office’s recent effort to “remediate that misconduct” by notifying
the superior court of past cases in which Brady material was withheld from the defense.
In light of these serious circumstances, Davis contends that he should be relieved of the
normal requirements for securing a writ of mandate.



                                             21
       This broad claim of long-standing misconduct is not alleged in the petition itself or
supported by the evidence produced to us. Rather, this petition is clearly limited to the
October 1, 2012, order filed in this specific case. Davis seeks to compel the superior
court to conduct a new hearing in a post-judgment Brady discovery proceeding in order
to give him the opportunity to share his new defense theories at that hearing. For all the
reasons discussed above, Davis has failed to establish that he is entitled to that relief.
                                    IV. DISPOSITION
       The appeal in case No. 137800 is hereby dismissed. The petition for a writ of
mandate in case No. 139767 will be denied by separate order.




                                                   _________________________
                                                   Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Brick, J.*




* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.




                                              22
Trial Court: Superior Court of San Francisco County

Trial Judge: Hon. Angela Bradstreet

Attorney for Defendant and Appellant
Julio Davis                                   Susan D. Shors
                                              By appointment of the Court of Appeal
                                              under the First District Appellate Project
                                              Independent Case System




Attorney for Plaintiff and Respondent
The People                                    Kamala D. Harris
                                              Attorney General
                                              Dane R. Gillette
                                              Chief Assistant Attorney General
                                              Gerald A. Engler
                                              Senior Assistant Attorney General
                                              Seth K. Schalit
                                              Supervising Deputy Attorney General
                                              Laurence K. Sullivan
                                              Supervising Deputy Attorney General




A137800, People v. Davis




                                         23
