Filed 3/27/14 Torres v. Superior Court CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



LARRY TORRES,                                                    D064672

         Petitioner,                                             (San Diego County Super. Ct. Nos.
                                                                  JCM203269 & JCM198208)
         v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;


THE PEOPLE,

         Real Party in Interest.


         Petition for a writ of mandate to challenge orders of the Superior Court of San

Diego County, Cynthia Bashant and Richard R. Monroy, Judges. Petition granted in part;

denied in part.

         Larry Torres, in pro. per.; and Richard Schwartzberg, under appointment by the

Court of Appeal, for Petitioner.

         No appearance for Respondent.
       Bonnie M. Dumanis, District Attorney, Jesus Rodriguez, Assistant District

Attorney, and Laura E. Tanney, Deputy District Attorney, for Real Party in Interest.

       In 2005, a jury convicted petitioner Larry Torres of the murder of Jimmy Martinez

and the attempted murder of Filiberto Lamas. In 2013, for purposes of supporting a

petition for writ of habeas corpus, Torres filed several pro. per. petitions under Welfare

and Institutions Code1 section 827 requesting disclosure of Brady2 impeachment and

exculpatory evidence in juvenile delinquency records for the two victims. Torres's first

section 827 petition was considered by juvenile court judge Cynthia Bashant, who

conducted an in camera review and disclosed some information. Torres's subsequent

section 827 pleadings (including a reconsideration motion and requests for additional

records) were considered by a different juvenile court judge (Richard Monroy). Judge

Monroy denied the reconsideration motion and declined to consider conducting an in

camera review of juvenile records, ruling that Torres was required to submit his

disclosure requests to the district attorney's office, not the court.

       Recently, in J.E. v. Superior Court (2014) 223 Cal.App.4th 1329 (J.E.), this court

concluded a section 827 petition is a proper avenue for a defendant to obtain review of

confidential juvenile records for Brady material. Accordingly, we grant Torres's petition

for writ of mandate to the extent he seeks a remand to the juvenile court to consider his

pleadings on the merits. However, because Torres's pleadings have not yet been fully


1     Subsequent unspecified statutory references are to the Welfare and Institutions
Code.

2      Brady v. Maryland (1963) 373 U.S. 83.
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ruled upon by the juvenile court on the merits, we deny the petition to the extent Torres

asks us to order the transmittal of juvenile records for purposes of our review.

                                     BACKGROUND

       Petitioner Torres's convictions arose from an incident in 2004 when petitioner and

codefendant Ramon Contreras shot at the two victims, killing Martinez and wounding

Lamas. The defendants and the victims were associated with rival gangs, and petitioner

raised a claim of self-defense. Lamas testified against petitioner. The jury found

petitioner guilty of second degree murder of Martinez and premeditated attempted

murder of Lamas, and found true several enhancement allegations. Petitioner was

sentenced to 70 years to life plus a three-year determinate term. (People v. Contreras

(Dec. 15, 2006, D047266) [nonpub. opn.].)

       In March 2013, petitioner filed a section 827 petition requesting that the juvenile

court review Lamas's juvenile delinquency records for disclosure of Brady material.

Judge Bashant conducted an in camera review, and on April 12, 2013, issued an order

disclosing several items to petitioner (including a delinquency petition and minute

orders), and declining to disclose other requested materials. Thereafter, petitioner filed

(1) a motion for reconsideration of the section 827 ruling concerning Lamas's records; (2)

another section 827 request for disclosure relevant to Lamas's juvenile records; and (3) a

section 827 request for disclosure of Martinez's juvenile delinquency records.3 On June

5, 2013, Judge Monroy denied the reconsideration motion, and on July 15, 2013, he


3      The record on appeal does not include the actual section 827 petitions or the full
reconsideration motion. We glean this information from other documents in the record.
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declined to consider conducting an in camera review of the juvenile records. Judge

Monroy stated that discovery in criminal cases was governed by the Penal Code statutory

provisions (Pen. Code, § 1054 et seq.) which provide for disclosure by the prosecution,

and ruled that section 827 was "not the appropriate method to discover information in a

criminal case."

       Petitioner filed a pro. per. petition for writ of mandate with our court challenging

the juvenile court's orders. We issued an order to show cause, and received a

supplemental mandate petition from appointed counsel and a response from the People.

As in J.E., the People agree that Judge Monroy erred in declining to consider petitioner's

requests on the merits and instead requiring that the requests be submitted to the district

attorney. We also agree, and remand the case to the juvenile court for further

proceedings under section 827.

       Petitioner also requests that we order transmittal of Lamas's juvenile records to our

court so that we can review them, and that we issue the same order for Martinez's records

after examination by the lower court. Given the current posture of the case, we decline

this request.

                                       DISCUSSION

       Recently, in J.E., supra, 223 Cal.App.4th 1329, we evaluated whether a juvenile

court can properly decline to consider a defendant's section 827 petition for in camera

review of juvenile records, and to instead require the defendant to submit the request to

the prosecutor based on the prosecution's statutory and constitutional disclosure

obligations. There, in the context of a preconviction disclosure request, we concluded

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that "when a petitioner files a section 827 petition requesting that the court review a

confidential juvenile file and provides a reasonable basis to support its claim that the file

contains Brady exculpatory or impeachment material, the juvenile court is required to

conduct an in camera review." (J.E., supra, at p. 1333.)

       This holding extends equally to this case. Although the matter before us concerns

a postconviction discovery request rather than the pretrial discovery request involved in

J.E., the same general principles apply.

       As noted in J.E., disclosure obligations in criminal proceedings are governed by

both state statutory procedures (Pen. Code, § 1054, et. seq.) and federal constitutional

principles. (J.E., supra, 223 Cal.App.4th at p. 1334.)4 The constitutional disclosure

obligations, which are delineated in Brady and its progeny, exist independently of the

statutory procedures. (Id. at p. 1334.) "To comply with Brady constitutional due process

requirements, the prosecution must disclose exculpatory and impeachment evidence that

is favorable to the accused and material on the issue of guilt or punishment. . . .

Disclosure may be required even when the evidence is subject to a state privacy privilege,

as is the case with confidential juvenile records. [Citations.]" (J.E., supra, 223

Cal.App.4th at pp. 1334-1335.)




4      The statutory procedures govern discovery during the trial proceedings (Pen.
Code, § 1054 et seq.) and after conviction if the defendant was sentenced to death or life
without the possibility of parole (Pen. Code, § 1054.9). Here, these Penal Code
discovery statutes are inapplicable given the postconviction status of the case and the fact
that petitioner was not sentenced to death or life without parole.
                                              5
          Under Brady, the prosecution has the duty to inspect for exculpatory and

impeachment evidence in materials possessed by members of the prosecution team who

are connected to the investigation or prosecution of the charges against the defendant.

(J.E., supra, 223 Cal.App.4th at p. 1335.) Further, in limited circumstances the

prosecution may be required to disclose information contained in materials that are not

directly connected to the case, including, for example, when the defense makes a

reasonably supported request for the inspection of records that might contain critical

exculpatory or impeachment evidence and that are reasonably accessible to the

prosecution but not to the defense. (Id. at pp. 1335-1336 & fn. 6.) After conviction, a

defendant may seek relief based on the nondisclosure of Brady material during the trial

proceedings (Eulloqui v. Superior Court (2010) 181 Cal.App.4th 1055, 1060, 1068), and

the prosecutor has an ongoing ethical duty of disclosure if information emerges that

undermines the validity of the conviction (In re Lawley (2008) 42 Cal.4th 1231, 1246;

People v. Garcia (1993) 17 Cal.App.4th 1169, 1179).

          As observed in J.E., "[a]lthough the government's Brady obligations are typically

placed upon the prosecutor, the courts have recognized that the Brady requirements can

also be satisfied when a trial court conducts an in camera review of documents

containing possible exculpatory or impeachment evidence." (J.E., supra, 223

Cal.App.4th at p 1336.) An in camera inspection by the trial court is particularly

appropriate when the materials to be reviewed are afforded special privacy protection.

(Ibid.)



                                               6
       Relevant here, and as explained in J.E., there is a strong public policy of

confidentiality of juvenile records, and the section 827 provisions are specifically

designed to protect this confidentiality. (J.E., supra, 223 Cal.App.4th at pp. 1337-1338.)

The statute defines who is authorized to have access to juvenile records, and precludes

unauthorized persons from reviewing the records without a court order. (§ 827, subd.

(a)(1)(A)-(P).) Defense counsel is not authorized to access a nonclient's juvenile records

absent a court order. (§ 827, subd. (a)(1)(E), (P).) Although the prosecutor is authorized

to access juvenile records (§ 827, subd. (a)(1)(B)), the prosecutor may not disclose

information to an unauthorized person without a court order. (§ 827, subd. (a)(4), (5);

J.E., supra, 223 Cal.App.4th at p. 1337.) When an unauthorized person requests access

to the juvenile files, the juvenile court is recognized as the " 'exclusive authority to

determine whether and to what extent to grant access . . . .' " (J.E., supra, at p. 1337.)

The applicable California Rules of Court set forth detailed guidelines governing the

court's in camera inspection process, including a requirement that the petitioner make a

good cause showing warranting in camera review, and a directive that the court carefully

balance the competing interests of the juvenile, other parties to the juvenile proceedings,

the petitioner, and the public when making its disclosure decisions. (Cal. Rules of Court,

rule 5.552(c), (e)(1)-(5); J.E., supra, 223 Cal.App.4th at pp. 1337-1338.)

       The courts have underscored that section 827 reflects a legislative determination

that the juvenile court has both the sensitivity and expertise to make decisions about

access to confidential juvenile records, and the courts have long recognized that in

camera inspection under section 827 is an appropriate vehicle to protect both the

                                               7
defendant's fair trial rights and the state's confidentiality interests. (J.E., supra, 223

Cal.App.4th at pp. 1337-1338.) After considering the Brady constitutional principles in

conjunction with the statutory confidentiality scheme, we concluded in J.E. that a section

827 petition is a proper mechanism to resolve a Brady request by the defense for

information in a juvenile file. (J.E., supra, at pp. 1338-1339.) We reach the same

conclusion here. Upon a showing of a reasonable basis to believe exculpatory or

impeachment evidence exists in the juvenile records, petitioner is entitled to have the

juvenile court conduct an in camera review of the records. (Id. at p. 1339; Cal. Rules of

Court, rule 5.552(c), (e)(1)-(2).) Accordingly, we remand the matter to the juvenile court

to evaluate petitioner's pleadings on the merits.

       However, at this juncture we deny petitioner's request that we order transmittal of

the juvenile records that were previously reviewed by Judge Bashant and that may be

reviewed by the juvenile court on remand. The record before us is sparse; it does not

include the actual section 827 disclosure petitions nor the full reconsideration motion.

Also, because Judge Monroy denied petitioner's requests on procedural grounds, it is

unclear if his ruling on the reconsideration motion was made on the merits. Further, the

juvenile court has not considered on the merits the second section 827 petition filed with

respect to Lamas's records, nor the section 827 petition filed with respect to Martinez's

records; thus, for these records any request for review by our court is premature. Under




                                               8
these circumstances, we remand the matter for further proceedings before the juvenile

court to consider petitioner's pleadings on the merits.5

                                      DISPOSITION

       The petition is granted in part and denied in part. Let a writ of mandate issue

directing the juvenile court to vacate Judge Monroy's June 5 and July 15, 2013 orders

denying petitioner's requests without ruling on the merits. The court is directed to

consider petitioner's pleadings in a manner consistent with this opinion. The petition is

denied as to the request to transmit documents to this court for our review.




                                                                               HALLER, J.

WE CONCUR:



             NARES, Acting P. J.



                  MCDONALD, J.




5     If petitioner makes the required good cause showing to trigger the juvenile court's
in camera review, the court should identify the records it inspects. (See People v. Mooc
(2001) 26 Cal.4th 1216, 1229.)
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