People v. Lopez CA4/2

Opinion

Filed 10/16/24 P. v. Lopez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent, E081716

v. (Super.Ct.No. FSB702103)

JAIME LOPEZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steve Malone,

Judge. Affirmed.

Britton Donaldson and Heather Beugen, under appointment by the Court of

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and

Kristen K. Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

In 2009, a jury found defendant and appellant Jaime Lopez guilty of two counts of

misdemeanor battery (Pen. Code1, § 242, counts 1 & 2) and three counts of committing a

lewd act upon a child under the age of 14 (§ 288, subd. (a), counts 3-5). The jury also

found true the allegation that he committed counts 3 through 5 against multiple victims in

the same case. (§ 667.61, subds. (b), (c) & (e).) A trial court sentenced defendant to

serve a total term of 45 years to life. In 2023, defendant filed a post-conviction motion

for discovery, pursuant to section 1054.9, subdivision (a). The court denied the motion,

finding no good cause.

Defendant filed a notice of appeal, challenging the court’s order denying his

motion for discovery. We affirm.

FACTUAL BACKGROUND2

In 2001, a Wal-Mart employee notified the police that defendant had dropped off

film to be developed. The film contained inappropriate photographs of naked girls in the

shower, and photos of girls blindfolded, wearing lingerie. The police determined that

defendant’s stepdaughters, C.H. and N.E., were the girls in the photographs. An officer

went to defendant’s apartment, and both C.H. and N.E. (the victims) told him defendant

had taken the pictures. The officer spoke with defendant a few days later. The officer

1 All statutory references will be to the Penal Code unless otherwise indicated.

2 This brief summary of the facts is based on the factual background stated in People v. Lopez (2010) 185 Cal.App.4th 1220 (Lopez), defendant’s prior appeal.

2 asked defendant about the photos of the victims naked in the shower, and defendant said

it was “horseplay.” (Lopez, supra, 185 Cal.App.4th at p. 1225.) A Child Protective

Services worker and the police officer subsequently interviewed the victims, and they

denied ever being touched inappropriately. Defendant was not charged with any crime at

that time. (Id. at p. 1226.) However, in 2007, N.E. told her school counselor that

defendant had been molesting her. (Ibid.) Defendant was then arrested and charged.

(Id. at p. 1227.)

At trial, both victims testified that defendant touched them inappropriately

multiple times. They also testified that he took pictures of them in the shower and made

them dress in their mother’s lingerie. (Lopez, supra, 185 Cal.App.4th at pp. 1226-1227.)

PROCEDURAL BACKGROUND

On January 13, 2022, defendant filed a “Post-conviction Motion For Discovery

Materials Pursuant to Penal Code section 1054.9(a),” in propria persona. As relevant

here, the motion requested a court order requiring the prosecution to provide the

following documents and items to be used in support of a forthcoming writ of habeas

corpus petition:

(1) Audio/video recording taken by Detectives Anita Deutcher and Kelly Tolber of

N.E. on June 6, 2007, at the Redlands Police Department. Defendant alleged he had

reason to believe the interview was recorded because he noticed video recording

equipment in the interview room when he was interviewed there. He believed the

recording of N.E.’s interview “will contain impeaching statements.”

3 (2) “Immunity/contingency agreements with [N.E.] and/or her adult boyfriend

Matthew Capstick.” Defendant alleged the prosecutor elected not to file charges against

Capstick for the statutory rape of N.E., and defendant found it “suspect” that Capstick

would testify against him, when Capstick himself had committed statutory rape against

N.E. Defendant further stated he believed the agreements existed because N.E. admitted

that he “did no wrong,” and defendant “infer[red] that [N.E.] reverted back to the original

untrue version of events due to prosecutorial threat, or implication, that the freedom of

[her] boyfriend” was contingent upon her adhering “to her original spiel.” Defendant

stated that “[s]uch agreements were not disclosed to the defense.”

(3) A “complete unredacted copy of pretext phonecall recording” and the related

police report describing the event. Defendant alleged the pretext phone call recording

was not allowed at trial, but he became aware of the call from his trial counsel.

Defendant alleged he was aware of the specifics regarding the call and “knows that the

police report has been redacted of impeaching statements contrary to trial testimony.” He

alleged he lost his copy of the redacted police report and claimed the phone call recording

was exculpatory.

(4) Any and all search warrants obtained by the police to permit the entry and

search of his home and garage. Defendant alleged he “wished to argue” that the items

collected (photographs, negatives, and a video recorder) were the result of an illegal

search and seizure. He claimed that “[p]roof of the nonexistence of search warrants will

4 support a forthcoming habeas demonstrating ineffective assistance of counsel and police

misconduct.”

The motion alleged that, pursuant to the requirements of section 1054.9, defendant

“made numerous wasted attempts at acquiring [the] requested discovery items from trial

counsel.” He referred to several exhibits in support of this claim.

Exhibit 1 was a copy of a letter from the State Bar of California (the State Bar),

dated February 24, 2011, indicating it had received his complaint filed against his trial

counsel, James Gass. The State Bar stated it was closing his complaint, since there was

insufficient evidence of any ethical violations on the part of his attorney.

Exhibit 2 was a letter from the State Bar from 2014 in response to defendant’s

request for Mr. Gass’s most recent address.

Exhibit 3 was a letter from the State Bar from 2014, acknowledging that defendant

filed another complaint against Mr. Gass which stated he requested the client file, but Mr.

Gass had not released it to him. The State Bar informed defendant that it advised Mr.

Gass to contact him to make arrangements to provide his client file.

Exhibit 4 was a letter from the State Bar from 2017, acknowledging that defendant

filed a complaint against Mr. Gass and another attorney, Simi Bobbi Mann. The letter

requested more specific information from defendant regarding the nature of his

complaint.

Exhibit 5 was a letter from Mr. Gass to defendant from 2020 stating that he had

provided his entire trial file to defendant. Mr. Gass noted that defendant had requested

5 the trial transcript, but he (Gass) did not have them and never did. Mr. Gass advised

defendant that sometimes appellate counsel is willing to provide them; otherwise,

defendant could pay the court reporter for a copy of the transcript.

Defendant also alleged he made “further attempts” with the superior court and

pointed to Exhibit 6, which contained two letters. One was a letter from defendant

requesting a copy of the reporter’s transcript from a 2008 Marsden hearing, the 2021

“[r]ecant statement” with investigators and N.E., a copy of specific pages of the trial

transcripts “concerning a pretext phone call,” and a copy of the transcript of the pretext

phone call. The superior court received defendant’s letter on June 1, 2022. The other

was a letter from the San Bernardino superior court, dated February 17, 2021, in

reference to defendant’s case, noting that reporting notes may be destroyed after 10 years,

and the reporting notes from his case had been destroyed.

On June 6, 2023, the court issued a minute order stating it read and considered

defendant’s motion requesting the discovery. The court denied the request because it did

not find good cause. It added that Mr. Gass wrote defendant a letter stating his entire file

was turned over to defendant and that the transcripts were available for appellate counsel.

DISCUSSION

The Trial Court Properly Denied Defendant’s Motion

Defendant argues the court erred in denying his section 1054.9 motion for

discovery because the court assumed the four items requested were contained in the file

given to him by his trial counsel. He points out that the court did not indicate the

6 requested items were actually in the file. Defendant then speculates that the items “could

still be in the possession of either the prosecution or the law enforcement authorities” and

contends the court should have granted him reasonable access to those items. We

conclude the court properly denied defendant’s motion.

At the outset, the People argue that defendant’s claim is procedurally barred

because it was not raised in a petition for writ of mandate. The People properly assert

that a trial court’s ruling on a section 1054.9 motion should be challenged by filing a

petition for writ of mandate. (In re Steele (2004) 32 Cal.4th 682, 692 (Steele) [“after the

trial court has ruled, either party may challenge that ruling by a petition for writ of

mandate in the Court of Appeal”].) In his reply brief, defendant notes that he filed his

motion in propria persona and would not have known the proper procedure or time to file

a challenge to the denial of such motion. The People state that they do not oppose this

court treating defendant’s appeal as a “mislabeled petition for writ of mandate” and

addressing the merits of defendant’s claim. In the interest of judicial economy, we will

treat defendant’s purported appeal as a petition for writ of mandate and address

defendant’s claim.

A. Section 1054.9

Section 1054.9, subdivision (a) provides: “In a case in which a defendant is or has

ever been convicted of a serious felony or a violent felony resulting in a sentence of 15

years or more, upon the prosecution of a postconviction writ of habeas corpus or a motion

to vacate a judgment, or in preparation to file that writ or motion, and on a showing that

7 good faith efforts to obtain discovery materials from trial counsel were made and were

unsuccessful, the court shall, except as provided in subdivision (b) or (d), order that the

defendant be provided reasonable access to any of the materials described in subdivision

(c).”

Subdivision (c) provides: “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.” Thus, section

1054.9 permits defendants preparing to file a habeas corpus petition to obtain “discovery

to assist in stating a prima facie case for relief.” (Steele, supra, 32 Cal.4th at p. 691.)

The Legislature’s main purpose in enacting section 1054.9 “was to enable

defendants efficiently to reconstruct defense attorneys’ trial files that might have become

lost or destroyed after trial.” (Barnett v. Superior Court (2010) 50 Cal.4th 890, 897

(Barnett).) The Supreme Court has held that “[d]efendants should first seek to obtain

their trial files from trial counsel. But if a defendant can show a legitimate reason for

believing trial counsel’s current files are incomplete (for example, if, as here, not all

numbered discovery is available), the defendant should be able to work with the

prosecution to obtain copies of any missing discovery materials it had provided to the

defense before trial (assuming it still possesses them).” (Id. at p. 898; see Steele, supra,

32 Cal.4th at p. 692 [suggesting informal efforts to resolve discovery matters].) “If

necessary, the trial court can order the prosecution to provide any materials it still

possesses that it had provided at time of trial.” (Barnett, at p. 898.)

8 Further, “section 1054.9 requires defendants who seek discovery beyond file

reconstruction to show a reasonable basis to believe that other specific materials actually

exist.” (Barnett, supra, 50 Cal.4th at p. 899.) In other words, “[b]ecause section 1054.9

provides only for specific discovery and not the proverbial ‘fishing expedition’ for

anything that might exist, defendants seeking discovery beyond recovering what the

prosecution had provided to the defense before trial must show a reasonable basis to

believe that specific requested materials actually exist.” (Id. at p. 894.)

The Supreme Court has interpreted 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 time of trial but have since

become lost to the defendant; (2) the prosecution should have provided at 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, 32 Cal.4th at p. 697.)

9 B. Defendant Failed to Show the Requested Items Actually Existed or That He

Was Entitled to Them

The court denied defendant’s motion because it “[did] not find good cause.” We

agree there was no good cause. The evidence shows that defendant properly sought to

obtain his trial counsel’s files and that his counsel provided him with the entire case file.

Nonetheless, defendant filed the current motion, requesting the four specified items. We

observe that, although defendant asserted in his motion that he made “numerous wasted

attempts at acquiring [the] requested discovery items from trial counsel,” the exhibits he

points to do not support this assertion. The exhibits mostly consisted of letters from the

State Bar demonstrating that he filed an ethical complaint against his trial counsel, Mr.

Gass, in 2011, which was closed due to insufficient evidence; that he requested Mr.

Gass’s current address; that, in 2014, he filed a complaint against Mr. Gass for not

releasing his client file; and that he filed a complaint against Mr. Gass and another

attorney in 2017. Another exhibit showed that Mr. Gass did provide his entire trial case

file to defendant. Other exhibits showed that defendant requested pages from the

reporter’s transcript from the superior court, but the reporting notes from his case had

been destroyed since they were more than 10 years old. None of these exhibits aided

defendant’s section 1054.9 motion, since they failed to show he made good faith efforts

to obtain the specific discovery materials he was requesting from trial counsel. (§

1054.9, subd. (a).)

10 Moreover, while defendant undisputedly obtained his trial counsel’s entire case

file, he failed to “show a legitimate reason for believing trial counsel’s current files

[were] incomplete.” (Barnett, supra, 50 Cal.4th at p. 898.) In other words, he did not

show the file was missing discovery materials the prosecution had provided to the

defense before trial. (See Ibid.) Therefore, in filing his discovery motion, it appears that

defendant was “seeking discovery beyond recovering what the prosecution had provided

to the defense.” (Id. at p. 894.)

“[S]ection 1054.9 requires defendants who seek discovery beyond file

reconstruction to show a reasonable basis to believe that other specific materials actually

exist.” (Id. at p. 899.) Defendant failed to do so. For example, in requesting

“immunity/contingency agreements with [N.E.] and/or her adult boyfriend,” defendant

merely speculated that any such agreements exist. He alleged the prosecutor elected not

to file charges against the boyfriend for the statutory rape of N.E., and he (defendant)

found it “suspect” that the boyfriend testified against him. Defendant then alleged “[i]t

[was] not farfetched . . . to infer that [N.E., after having allegedly said defendant did no

wrong] reverted back to the original untrue version of events due to prosecutorial threat,

or implication, that the freedom of [her] boyfriend” was based on her “adhering to her

original spiel.” Defendant’s suspicions and inferences do not provide a reasonable basis

to believe the requested immunity agreements exist.

Ultimately, defendant’s motion failed to satisfy the statutory requirements of

section 1054.9. (People v. Superior Court (Morales) (2017) 2 Cal.5th 523, 531

11 [“discovery is available as a matter of right under Penal Code section 1054.9, provided

the motion satisfies the statutory requirements”].) Defendant failed to show that the

requested items were “materials in the possession of the prosecution and law enforcement

authorities to which the same defendant would have been entitled at time of trial.”

(§ 1054.9, subd. (c).) Defendant did not show the requested items were: (1) provided by

the prosecution at trial but have since been lost; (2) items the prosecution should have

provided at the time of trial; (3) items the prosecution should have provided at the time of

trial because the defense specifically requested them; or (4) items the prosecution had no

obligation to provide at time of trial absent a specific defense request, but to which he

would have been entitled to had he requested them. (Steele, supra, 32 Cal.4th at p. 697.)

In sum, trial counsel provided defendant with the entire case file, defendant did

not show a reasonable basis to believe the requested materials were missing or actually

existed, and defendant failed to meet the statutory requirements of section 1054.9. On

this record, we conclude the court properly denied his motion.

12 DISPOSITION

The trial court’s order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

RAMIREZ P. J.

McKINSTER J.