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Discovery is available prior to filing a petition under the Racial Justice Act

People v. Serrano (Cal. Ct. App., Oct. 29, 2024, No. C100856) 2024 WL 4611666, at *1

Summary: Serrano appealed from an order denying a stand-alone postjudgment motion for discovery related to potential violations of the California Racial Justice Act (Act). (Pen. Code,§ 745, subd. (d).) The issue is whether the trial court’s order is appealable. The trial court denied Serrano’s motion on the merits. The Court of Appeal addressed the threshold question of whether the trial court had jurisdiction to consider the motion in the first instance and concluded that it did and that the Act permits a defendant to file a stand-alone postjudgment discovery motion before filing a habeas corpus petition. This Court agreed with the holding of Division One of the Fourth Appellate District in In re Montgomery (2024) 104 Cal.App.5th 1062, 1071, petition for review pending, petition filed October 11, 2024, S287339 (Montgomery), that an order denying a postjudgment discovery motion under the Act is not appealable, while disagreeing with their conclusion that the trial court lacks authority to entertain the motion. The Act’s plain language permits discovery, and in doing so, it does not differentiate between preconviction and postconviction proceedings. The Act’s language contemplates that discovery has occurred before a defendant files a petition for writ of habeas corpus. The Supreme Court’s interpretation of section 1054.9 as allowing discovery prior to filing a habeas corpus petition and for review of a discovery order in mandate rather than by appeal supports this conclusion. (See In re Steele (2004) 32 Cal.4th 682, 688, (Steele).) Accordingly, the Court of Appeal dismissed the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, a jury found Serrano guilty of assault with a deadly weapon and found he had two prior serious felony convictions. Defendant admitted having served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court initially sentenced defendant to 25 years to life in prison, plus 11 years for the enhancements.

In January 2024,Serrano filed a “Motion for Discovery Pursuant to the Racial Justice Act” in the trial court, seeking information and statistics to support a claim that the Sacramento County District Attorney’s Office “ ‘engages in racially disparate charging’ ” in violation of section 745, subdivision (a)(3). Defendant did not file the motion as part of, or in connection with, a petition for writ of habeas corpus or any other pending proceeding. The trial court explained that “[u]nder section 745, subdivision (d), a defendant may file a motion requesting disclosure to the defense of all evidence relevant to a potential violation of section 745, subdivision (a), in the possession or control of the state.” The court denied the motion, finding that defendant “failed to advance a plausible factual foundation, based on specific facts, that a violation of section 745 could or might have occurred.” Serrano  appealed.

While this appeal was pending, the Fourth Appellate District, Division One, issued its decision in Montgomery, holding that an order denying a motion for discovery under the Act is not appealable.

The Racial Justice Act Authorizes Individuals To File Stand-alone Postconviction Discovery Motions

The Legislature’s intent was “to ensure that individuals have access to all relevant evidence, including statistical evidence, regarding potential discrimination in seeking or obtaining convictions or imposing sentences.”  To only allow for discovery after a trial court issues an order to show cause, as the majority in Montgomery concluded, would place defendants in the Catch-22 circumstance of having to establish a violation before being allowed to seek discovery of a “potential violation.”

Absent a statutory right to seek discovery before seeking habeas corpus relief, a defendant would be forced to file a “shell” petition that seeks discovery while conceding that the defendant cannot make a prima facie showing. Standard habeas corpus procedure  makes discovery available only after the trial court issues an order to show cause, i.e., after the court has determined the defendant has stated a prima facie case. Section 1473, subdivision (c), which states, “This section does not change the existing procedures for habeas [corpus] relief,” further supports the conclusion that defendants must be able to obtain discovery to support an Act claim before they attempt to file a petition that states a prima facie case that would warrant issuance of an order to show cause. Were a court to allow for discovery in a pending habeas corpus petition prior to the issuance of an order to show cause, it would fundamentally change the procedures that apply in such a proceeding.

The Act itself codifies different standards for what constitutes a prima facie case and an adequate showing for discovery. The Act specifically defines “ ‘[p]rima facie showing’ ” to mean “the defendant produces facts that, if true, establish that there is a substantial likelihood that a violation of [section 745,] subdivision (a) occurred. For purposes of this section, a ‘substantial likelihood’ requires more than a mere possibility, but less than a standard of more likely than not.” (§ 745, subd. (h)(2).) On the other hand, discovery is compelled upon a showing of “good cause.” (§ 745, subd. (d); see Young, supra, 79 Cal.App.5th at pp. 148, 156, 160, 294 Cal.Rptr.3d 513.) An interpretation of the Act that does not allow for discovery to enable the defendant making the requisite prima facie showing would subvert both habeas corpus procedure and the Act.

This conclusion is consistent with our Supreme Court’s decision in Steele, which addressed section 1054.9 and its allowance for postconviction discovery before a defendant files a habeas corpus petition. (Steele, supra, 32 Cal.4th at pp. 690-691, 10 Cal.Rptr.3d 536, 85 P.3d 444.)

Given the goal of “eliminat[ing] racial bias from California’s criminal justice system” (Stats. 2020, ch. 317, § 2(i)), defendants whose convictions are final and wish to seek relief in habeas corpus should not have to make a prima facie showing for relief under section 745, subdivision (a) before they may seek discovery. Moreover, the Legislature has stated its “intent … to apply the California Racial Justice Act of 2020 retroactively, to ensure equal access to justice for all.” (Stats. 2022, ch. 739, § 1.) To only permit defendants convicted of serious or violent felonies serving lengthy sentences to seek postconviction discovery before filing a habeas corpus petition (§ 1054.9, subd. (a)), runs counter to the Legislature’s stated intent of “ensur[ing] equal access to justice for all” (Stats. 2022, ch. 739, § 1).

An Order Denying A Postjudgment Act Discovery Motion Is Not An Appealable Order

Like a motion for postconviction discovery under section 1054.9, a postjudgment discovery motion under the Act is only a precursor to a criminal defendant asserting a claim under the Act, not an end in itself. Whether or not discovery is disclosed will not directly affect defendant’s custody status, conviction, or sentence. Postjudgment discovery sought under the Act in connection with or in preparation for filing a petition for writ of habeas corpus is an interlocutory order in connection with the anticipated filing of that habeas corpus petition. Accordingly, this appeal must be dismissed.

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