Filed 3/15/13 Lindsey v. Superior Court CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MACIO L. LINDSEY,

         Petitioner,                                                     E057941

v.                                                                       (Super.Ct.No. SCR55919)

THE SUPERIOR COURT OF                                                    OPINION
SAN BERNARDINO COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for extraordinary writ. R. Glenn Yabuno,

Judge. Petition granted.

         Macio L. Lindsey, in pro. per., for Petitioner.

         No appearance for Respondent.

         Michael A. Ramos, District Attorney, and Cameron Page, Deputy District

Attorney, for Real Party in Interest.



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                                     INTRODUCTION

       In this matter we have reviewed the petition and offered real party the opportunity

to file opposition; real party agrees that petitioner is entitled to relief. Accordingly,

issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S.

Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)

                                        DISCUSSION

       Petitioner is serving a life term and is therefore qualified to receive post-

conviction discovery pursuant to Penal Code section 1054.9. It is immaterial that he has

not yet filed a petition for habeas corpus; he may seek discovery in order to pursue the

possibility of such a petition. (In re Steele (2004) 32 Cal.4th 682.) We express no

opinion on whether petitioner’s delay in seeking relief will bear upon the proper

disposition of any habeas corpus petition. (See Catlin v. Superior Court (2011) 51

Cal.4th 300.)

       Accordingly, the trial court’s stated basis for denying the request for discovery

was in error, and the request should have been considered on the merits.

                                       DISPOSITION

       Let a peremptory writ of mandate issue directing the Superior Court of San

Bernardino County to vacate its order denying the request for post-conviction discovery

and to set the matter for duly noticed hearing.

       Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties. In the interests of justice and in accordance with the People’s


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acquiescence, this order shall be final forthwith.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                     HOLLENHORST
                                                               Acting P. J.
We concur:



MILLER
                           J.



CODRINGTON
                           J.




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