Filed 2/16/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                         )
                                    )
           Petitioner,              )
                                    )                            S228642
           v.                       )
                                    )                      Ct.App. 4/2 E061754
THE SUPERIOR COURT                  )
OF SAN BERNARDINO COUNTY,           )
                                    )                     San Bernardino County
           Respondent;              )
                                    )                   Super. Ct. No. FVA015456
JOHNNY MORALES,                     )
                                    )
          Real Party in Interest.   )
____________________________________)


      Here we address whether a superior court has jurisdiction to grant a motion
to preserve evidence relating to a capital case then pending review on automatic
appeal to this court. We conclude it does, limited to evidence potentially
discoverable under Penal Code section 1054.9, which establishes a mechanism for
postconviction discovery.
      Real party in interest Johnny Morales was sentenced to death in 2005; the
State Public Defender (hereafter appellate counsel) has been appointed to
represent him in his pending automatic appeal. As a condemned prisoner, Morales
is entitled to the appointment of habeas corpus counsel (Gov. Code, § 68662);
owing to a shortage of qualified attorneys willing to accept appointment, however,
habeas corpus counsel has not yet been appointed. Appellate counsel‘s


                                         1
responsibilities, as defined by the scope of her appointment, do not include the
investigation and preparation of a petition for writ of habeas corpus, but—until
habeas corpus counsel is appointed—do include ―preserv[ing] evidence that comes
to the attention of appellate counsel if that evidence appears relevant to a potential
habeas corpus investigation.‖ (Cal. Supreme Ct., Policies Regarding Cases
Arising From Judgments of Death, policy 3, std. 1-1 (Policy 3).)
     As more fully described post, under Penal Code section 1054.9,1 enacted in
2002, a defendant sentenced to death or life imprisonment without the possibility
of parole (LWOP) who is prosecuting a postconviction habeas corpus petition may
seek discovery of ―materials in the possession of the prosecution and law
enforcement authorities to which the same defendant would have been entitled at
[the] time of trial.‖ (Pen. Code, § 1054.9, subd. (b); see In re Steele (2004) 32
Cal.4th 682 (Steele).) Here, appellate counsel filed in the superior court a ―Motion
to Preserve Files, Records, Evidence and Other Items Related to Automatic
Appeal,‖ citing in support her responsibilities under Policy 3 and Morales‘s rights
under Penal Code section 1054.9. Although the motion did not seek discovery
under that statute as such (given that appellate counsel is not preparing a habeas

1      Penal Code section 1054.9 provides in relevant part: ―(a) Upon the
prosecution of a postconviction writ of habeas corpus or a motion to vacate a
judgment in a case in which a sentence of death or of life in prison without the
possibility of parole has been imposed, and on a showing that good faith efforts to
obtain discovery materials from trial counsel were made and were unsuccessful,
the court shall, except as provided in subdivision (c), order that the defendant be
provided reasonable access to any of the materials described in subdivision (b).
[¶] (b) For purposes of this section, ‗discovery materials‘ means materials in the
possession of the prosecution and law enforcement authorities to which the same
defendant would have been entitled at time of trial.‖ Subdivision (c) of Penal
Code section 1054.9 addresses access to physical evidence for purposes of
prosecuting a postconviction writ of habeas corpus or motion to vacate a
judgment.



                                          2
corpus petition), it did seek an order directing numerous law enforcement and
social service agencies in San Bernardino County to preserve various categories of
materials assertedly relevant to the investigation and prosecution of the case
against Morales and comparable materials pertaining to other named individuals
whose connection with Morales‘s case is not apparent on the face of the motion.
The motion also sought preservation of materials apparently not within the scope
of Penal Code section 1054.9, including an order directing (1) the San Bernardino
County Jury Commissioner to preserve materials involving procedures and
practices regarding the selection of jury venires in the years 2002 through 2004,
(2) the San Bernardino County Indigent Defense Program to preserve materials
pertaining to the procuring and awarding of contracts for the operation of the
county‘s conflict panel between 2001 and 2004, and (3) the preservation of San
Bernardino County Superior Court materials pertaining to the appointment of
counsel for indigent defendants from 2001 to 2004. The motion requested that the
order remain in effect until either 30 days after execution of the death sentence or
until destruction of the materials is approved by a court of competent jurisdiction
after at least 90 days‘ written notice of any intention to allow such destruction has
been provided to Morales, his counsel, the San Bernardino County District
Attorney, and the Attorney General. Finally, the motion sought an accounting,
also not within the explicit scope of Penal Code section 1054.9, by the agencies
named in the motion as to whether any of the materials sought ―are in the
possession of any other governmental unit, entity, official, employee, or former
employee and/or whether any of such material has been destroyed.‖
     The District Attorney opposed the motion, contending it sought unauthorized
postconviction discovery outside the court‘s jurisdiction to grant; the requested
orders were unnecessary, overbroad, and onerous; the proposed expiration date of
the preservation orders was unreasonable; and the request for an accounting of the

                                          3
status of requested items was an improper discovery request, unauthorized by
statute or case law.
     The superior court granted the motion in its entirety, observing that none of
the entities served with the motion had filed opposition and reasoning that, as a
matter of ―common sense,‖ unless the evidence is preserved, there will be nothing
to discover under Penal Code section 1054.9.
     The Attorney General, on behalf of the People, filed a petition for writ of
mandate asking the Court of Appeal to vacate the superior court‘s preservation
order. She argued that the superior court lacked authority to issue the order
because judgment had been pronounced and there was no matter pending in the
superior court to which jurisdiction for such an order could attach or, in the
alternative, that even if the court had jurisdiction to enter a preservation order, the
particular order exceeded its jurisdiction because it was not limited to materials for
which Morales had a right to seek discovery under Penal Code section 1054.9.
The Court of Appeal issued a peremptory writ, directing the superior court to
vacate its preservation order and enter a new order denying the motion. Morales‘s
petition for review followed.
     Although the general rule is that a person seeking habeas corpus relief from a
judgment of death is not entitled to postconviction discovery unless and until a
court issues an order to show cause (Steele, supra, 32 Cal.4th at p. 690; People v.
Gonzalez (1990) 51 Cal.3d 1179, 1255–1261 (Gonzalez)), the Legislature has
partially abrogated this rule by enacting Penal Code section 1054.9. The statute
creates a mechanism by which, as noted, a capital or LWOP prisoner prosecuting a
habeas corpus petition can seek discovery of ―materials in the possession of the
prosecution and law enforcement authorities to which the same defendant would
have been entitled at [the] time of trial.‖ (Id., subd. (b).)



                                            4
     We enumerated the prerequisites to postconviction discovery under the
statute in Steele, supra, 32 Cal.4th 682. The defendant must first make good faith
efforts to obtain the materials from trial counsel, but the statute encompasses not
only materials trial counsel actually possessed (but that have been lost for
whatever reason) but also those ― ‗in the possession of the prosecution and law
enforcement authorities to which the same defendant would have been entitled at
[the] time of trial,‘ ‖ regardless of whether he or she specifically requested them.
(Id. at p. 696, quoting Pen. Code, § 1054.9, subd. (b).) That is, ―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 [the] time of trial but have since
become lost to the defendant; (2) the prosecution should have provided at [the]
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 and was entitled to receive them; 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.‖ (Steele, supra, at p. 697.)
     ―The discovery obligation . . . does not extend to all law enforcement
authorities everywhere in the world but . . . only to law enforcement authorities
who were involved in the investigation or prosecution of the case.‖ (Steele, supra,
32 Cal.4th at p. 696.) In other words, Penal Code ―[s]ection 1054.9, subdivision
(b), should not be read as creating a broader postconviction discovery right‖ than

                                          5
was operative at the time of trial. (Steele, supra, at p. 696.) Although we have
said ―[t]he statute imposes no preservation duties that do not otherwise exist‖ and
―does not impose a duty to search for or obtain materials not currently possessed‖
(id. at p. 695), the statute is silent regarding whether a court may order an entity
possessing materials to which a defendant may be entitled under Penal Code
section 1054.9 to preserve them pending the filing of an actual discovery motion
under the statute.
     In granting the People‘s petition for relief from the preservation order, the
Court of Appeal distinguished a motion seeking preservation of evidence, which it
considered a species of discovery motion (see People v. Johnson (1992) 3 Cal.4th
1183, 1257–1258 (Johnson) [―In requesting an order for preservation of the fruits
of law enforcement and forensic investigations in the capital case . . . , defendant‘s
motion essentially sought anticipatory postjudgment discovery‖]), from a motion
under Penal Code section 1054.9. Although it acknowledged there is no
requirement a habeas corpus petition must have been filed at the time discovery
under section 1054.9 is sought, it reasoned the superior court lacks jurisdiction to
grant a motion for preservation when, in virtue of the appeal pending in this court,
no criminal proceeding is then before it. In support, the Court of Appeal cited
Gonzalez, supra, 51 Cal.3d at page 1257, which stated that ― ‗a discovery motion
is not an independent right or remedy. It is ancillary to an ongoing action or
proceeding. After the judgment has become final, there is nothing pending in the
trial court to which a discovery motion may attach.‘ ‖ (See People v. Picklesimer
(2010) 48 Cal.4th 330, 337 [relief from mandatory sex offender registration based
on long-final conviction must be sought by petition for writ of mandate].) The
court recognized that ―if Morales had chosen to proceed by filing a bare-bones
habeas corpus petition, there would at least have been a proceeding to which his
request could have attached, and the trial court could have reached the merits.‖ In

                                           6
other words, the Court of Appeal concluded the preservation motion was actually
a type of discovery motion falling outside the scope of Penal Code section 1054.9,
and therefore the default rule of Gonzalez—there is no postconviction habeas
corpus discovery before an order to show cause has issued—controlled.
     Although the Court of Appeal was correct as a general matter that a
discovery motion is not an independent right or remedy but rather is ancillary to an
ongoing action or proceeding, its analysis, as we shall explain, failed to give
sufficient consideration to the provisions of Penal Code section 1054.9 and Code
of Civil Procedure section 187.
     The Attorney General contends the superior court lacks jurisdiction under
Code of Civil Procedure section 916, subdivision (a), to entertain preservation
motions because such motions do not relate to any proceeding over which the
court has jurisdiction, given the pendency of the death judgment on appeal. When
Gonzalez and Johnson were decided, no mechanism such as Penal Code section
1054.9 existed for obtaining discovery as of right after a criminal judgment
became final and before an order to show cause issued in a related habeas corpus
proceeding. Any motion seeking discovery, or preservation of evidence for future
discovery, was ―free floating‖ in the sense it was untethered to any ongoing action
or proceeding in the trial court or other matter ―embraced in the action and not
affected by the judgment or order‖ (Code Civ. Proc., § 916, subd. (a) [stating
exception to the automatic stay of proceedings in trial court upon perfecting an
appeal]), and thus fell outside the limited scope of the trial court‘s jurisdiction
while the appeal was pending. This observation remains true, for, as we
recognized in People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, ―A
habeas corpus matter has long been considered a separate matter from the criminal
case itself,‖ and Penal Code section 1054.9 discovery is ―part of the prosecution of
the habeas corpus matter, not part of the underlying criminal case.‖ (Pearson,

                                           7
supra, at p. 572.)2 Similarly, Johnson, supra, 3 Cal.4th at page 1258,
characterized a motion to preserve evidence as one essentially seeking
postconviction discovery and concluded it did not relate to the record correction
proceedings pending in the trial court at the time of the motion. (See ibid. [―The
record correction proceedings pending before the trial court at the time of
defendant‘s motion are not the type of proceeding that can support a request for
discovery.‖].)
     Under current law, however, discovery is available as a matter of right under
Penal Code section 1054.9, provided the motion satisfies the statutory
requirements as explicated in Steele, supra, 32 Cal.4th at page 697. The statute
imposes no constraint on the timing of the motion, other than that it occur after
sentencing and in the prosecution of a postconviction writ of habeas corpus; in
Steele we declared, for practical reasons, that unless a movant‘s execution is
imminent, the motion should be filed in the trial court. (Id. at p. 692.)
Consequently, the trial court in this case had jurisdiction to entertain a motion
under section 1054.9, and Morales sought to invoke that jurisdiction with the filing
of his preservation motion. As noted, however, Morales has no habeas corpus
counsel at present, and the filing of a motion seeking discovery under Penal Code
section 1054.9 is outside the scope of appellate counsel‘s appointment; thus, when
Morales may be in a position to file such a motion is unknown. In the meantime,
some of the evidence to which he would be entitled may be at risk of being lost,

2      Morales correctly points out that the issue before us in Pearson was the
narrower question whether Penal Code section 1054.9 constituted an amendment
to Proposition 115 (and thus subject to the latter‘s supermajority legislative vote
requirement for amending the initiative‘s other criminal trial discovery
provisions). Pearson‘s observation that a habeas corpus matter is a separate
proceeding from the criminal case to which it relates, however, remains valid.
(See In re Carpenter (1995) 9 Cal.4th 634, 645–646.)



                                          8
which would render moot the trial court‘s power to grant discovery under Penal
Code section 1054.9.
     Given the present statutory landscape, Morales contends the granting of a
preservation motion falls within the trial court‘s inherent authority to carry out its
Penal Code section 1054.9 postconviction discovery jurisdiction. He reasons an
evidence preservation order is a necessary means by which to carry out the court‘s
jurisdiction to issue postconviction discovery orders under Penal Code section
1054.9 and thus falls within the court‘s inherent power under Code of Civil
Procedure section 187, which provides in relevant part that ―[w]hen jurisdiction is
. . . by any . . . statute, conferred on a Court or judicial officer, all the means
necessary to carry it into effect are also given; and in the exercise of this
jurisdiction, if the course of proceeding be not specifically pointed out by this
Code or the statute, any suitable process or mode of proceeding may be adopted
which may appear most conformable to the spirit of this Code.‖ Courts have
exercised inherent powers in ―situations in which the rights and powers of the
parties have been established by substantive law or court order but workable
means by which those rights may be enforced or powers implemented have not
been granted by statute.‖ (Topa Ins. Co. v. Fireman’s Fund Ins. Companies
(1995) 39 Cal.App.4th 1331, 1344.)
     The Attorney General disputes this contention, arguing that the superior court
lacks jurisdiction because Penal Code section 1054.9 does not explicitly authorize
preservation orders and does not confer a right to a ―fishing expedition.‖
According to the Attorney General, a court‘s inherent power under Code of Civil
Procedure section 187 is limited to fashioning procedural rules in the absence of
an established procedure, and Penal Code section 1054.9 already establishes the
procedure governing postconviction discovery.



                                            9
     We find the Attorney General‘s interpretation of Code of Civil Procedure
section 187 unduly narrow in this context. Penal Code section 1054.9 authorizes
the postconviction discovery motion procedure and describes the scope of
available discovery, but does not speak to the situation in which a condemned
prisoner who is otherwise entitled to seek discovery under the statute is
temporarily prevented from doing so for lack of the appointment of habeas corpus
counsel as guaranteed in Government Code section 68662. We have previously
described how a critical shortage of qualified attorneys willing to accept habeas
corpus appointments resulted in delays in our meeting our responsibility to appoint
counsel for condemned inmates like Morales and, in this compelling circumstance,
we have adapted existing procedures to that regrettable reality. (See In re Morgan
(2010) 50 Cal.4th 932, 937–938 (Morgan).)3
     Thus, in Morgan, supra, 50 Cal.4th 932 and In re Zamudio Jimenez (2010)
50 Cal.4th 951 (Zamudio Jimenez), we explained that, in order to preserve
condemned inmates‘ ability to seek federal habeas corpus relief within the
applicable one-year statute of limitations (see 28 U.S.C. § 2244(d)(1)(A)), we
were recognizing an exception to the general rule that a habeas petitioner must
raise all claims in a single, unamended petition. This exception permits an
unrepresented petitioner, or one whose habeas corpus counsel we appointed too
late to enable him or her to prepare and timely file a reasonably thorough petition

3      Proposition 66, adopted by the electorate in the November 8, 2016 general
election, amended Government Code section 68662 to shift responsibility for the
appointment of capital habeas corpus counsel from this court to the superior court
that imposed the death sentence. (Voter Information Guide, Gen. Elec. (Nov. 8,
2016) text of Prop. 66, § 16, p. 217.) We express no view regarding the effect of
that enactment, regarding which a constitutional challenge is currently pending in
this court (Briggs v. Brown, S238309, order to show cause issued Feb. 1, 2017), on
the question before us.



                                         10
raising all arguably meritorious claims, to file a cursory petition intended to be
amended after an adequate opportunity for investigation and development of
claims. We then defer consideration of such a petition pending our appointment of
habeas corpus counsel and the filing of an amended petition within the period of
presumptive timeliness under our policies. (Morgan, supra, at p. 942; Zamudio
Jimenez, supra, at p. 959; see Policy 3.) We were careful to note that the
exception thus recognized did not alter the general requirement that a habeas
corpus petitioner raise all claims in a single unamended petition. (Zamudio
Jimenez, supra, at p. 958, citing In re Clark (1993) 5 Cal.4th 750, 781, 797.)
     Morgan and Zamudio Jimenez did not involve jurisdictional questions, and
we therefore had no occasion to characterize our recognition of this exception as
an exercise of our inherent authority under Code of Civil Procedure section 187.
But these decisions reflect our recognition of the principle that our inability to
timely appoint habeas corpus counsel in capital cases should not operate to deprive
condemned inmates of a right otherwise available to them. The same principle
supports our view that trial courts, which have jurisdiction under Penal Code
section 1054.9 to grant condemned inmates‘ motions for postconviction discovery,
have the inherent power to protect that jurisdiction by entertaining motions for the
preservation of evidence that will ultimately be subject to discovery under that
statute when the movant is appointed habeas corpus counsel.
     Morales may be understood to argue that the enactment of Penal Code
section 1054.9 operated more broadly to supersede the traditional rule, as stated in
Gonzalez and Johnson, that discovery is unavailable in habeas corpus matters
before the court has issued an order to show cause. We are unpersuaded. The
statute carves out particular categories of material as subject to postconviction
discovery, and nothing in its language or the legislative history suggests the



                                          11
Legislature intended the statute to serve as a predicate for more wide-ranging
postconviction discovery.
     Morales may further be understood to contend that this court‘s decisions in
Townsel v. Superior Court (1999) 20 Cal.4th 1084 and Varian Medical Systems,
Inc. v. Delfino (2005) 35 Cal.4th 180, undermined the holdings of Gonzalez and
Johnson insofar as the latter decisions generally precluded postconviction
discovery proceedings in the superior court pending appeal of the judgment. Both
Townsel and Varian, arising in non-discovery contexts, are founded on the
premise that trial courts have jurisdiction to enter orders on matters ancillary or
collateral to the judgment that do not interfere with the appellate court‘s
jurisdiction by affecting the appeal or altering the judgment on appeal. In Townsel
we held that, while an automatic appeal of a death judgment is pending in this
court, the trial court retains jurisdiction to enter orders governing appellate
counsel‘s contact with trial jurors, reasoning that such orders, while embraced in
the action, neither affect the judgment under appeal nor otherwise interfere with
this court‘s appellate jurisdiction. (Townsel, supra, at pp. 1089–1091.) In Varian,
we held that an appeal from the denial of a special motion to strike under the anti-
SLAPP statute, Code of Civil Procedure section 425.16, effects an automatic stay,
under Code of Civil Procedure section 916, subdivision (a), of proceedings on the
merits of the complaint, inasmuch as a successful appeal of the motion would be
irreconcilable with a judgment for the plaintiff on the merits of the claim if trial
were allowed to proceed during the pendency of the appeal. (Varian, supra, at
p. 193.)
     Neither Townsel nor Varian affects our understanding of the scope of Penal
Code section 1054.9 or Code of Civil Procedure section 187, or purports to change
the general rule that for a trial court to retain jurisdiction to act in a matter that is
then pending appellate review, the matter must be both embraced in the action and

                                            12
unaffected by the judgment on appeal. (Code Civ. Proc., § 916, subd. (a).) As we
have seen, postconviction discovery relating to the prosecution of a habeas corpus
petition, as provided in Penal Code section 1054.9, is not embraced in the action
that is pending appellate review because habeas corpus is a matter separate from
the criminal case itself. (See People v. Superior Court (Pearson), supra, 48
Cal.4th at p. 572.)
     In sum, because the superior court has jurisdiction under Penal Code section
1054.9 to grant postconviction discovery to the extent consistent with the statute,
the court has the inherent power under Code of Civil Procedure section 187 to
order preservation of evidence that would potentially be subject to such discovery.
Questions as to whether a movant is actually entitled to discovery of the material
to be preserved, including compliance with the procedural requirements of Penal
Code section 1054.9, will await the eventual filing and determination of the
postconviction discovery motion.
     Finally, to guide the lower courts on remand, we observe that the motion and
related preservation order in this case appear to encompass materials beyond the
scope of Penal Code section 1054.9. The statute, as noted, provides for discovery
of certain materials currently in the possession of the prosecution or law
enforcement authorities involved in the investigation or prosecution of the case.
(Pen. Code, § 1054.9, subd. (b); Steele, supra, 32 Cal.4th at p. 697.) It ―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.‖ (Steele, supra, at p. 696.) It also does not extend to
judicial or other non-law-enforcement agencies, such as jury commissioners or
indigent defense programs. Nor does it specifically mandate that any agency
within its scope provide an accounting as to whether the requested materials are in
the possession of some other governmental unit, entity, official, or current or

                                         13
former employee, or whether any of the requested material has been destroyed.
An order purporting to require the preservation of materials beyond the scope of
Penal Code section 1054.9 would thus exceed the trial court‘s jurisdiction on a
motion to preserve evidence.




                                        14
       We therefore reverse the judgment of the Court of Appeal and remand to
that court with directions to remand this matter to the superior court for
proceedings consistent with this opinion.
                                                  WERDEGAR, J.


WE CONCUR:


CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                         15
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Superior Court (Morales)
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 239 Cal.App.4th 93
Rehearing Granted

__________________________________________________________________________________

Opinion No. S228642
Date Filed: February 16, 2017
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Ingrid Adamson Uhler

__________________________________________________________________________________

Counsel:

Kamala D. Harris, Attorney General, Edward C. DuMont, State Solicitor General, Gerald A. Engler, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Donald E. deNicola, Deputy
State Solicitor General, Holy D. Wilkens and Michael T. Murphy, Deputy Attorney General, for Petitioner.

No appearance for Respondent.

Michael J. Hersek and Mary K. McComb, State Public Defenders, Barry P. Helft, Chief Deputy State
Public Defender, and C. Delaine Renard, Deputy State Public Defender, for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael T. Murphy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-3081

C. Delaine Renard
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300
