Shorts v. Superior Court of L. A. Cnty.

234 Cal. Rptr. 3d 392, 24 Cal. App. 5th 709
CourtCalifornia Court of Appeal, 5th District
DecidedJune 18, 2018
DocketB285710
StatusPublished
Cited by8 cases

This text of 234 Cal. Rptr. 3d 392 (Shorts v. Superior Court of L. A. Cnty.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shorts v. Superior Court of L. A. Cnty., 234 Cal. Rptr. 3d 392, 24 Cal. App. 5th 709 (Cal. Ct. App. 2018).

Opinion

PERLUSS, P.J.

*714Penal Code section 1054.91 establishes a mechanism for postconviction discovery of materials "in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at time of trial" in cases in which a sentence of death or life in prison without the possibility of parole has been imposed. In People v. Superior Court (Morales ) (2017) 2 Cal.5th 523, 213 Cal.Rptr.3d 581, 388 P.3d 811 ( Morales ) the Supreme Court held the superior court has jurisdiction pursuant to Code of Civil Procedure section 187 to grant a motion to preserve evidence potentially discoverable under section 1054.9 during the pendency of an automatic appeal of a capital case to the Supreme Court. However, the Court warned, "An order purporting to require the preservation of materials beyond the scope of Penal Code section 1054.9 *715would ... exceed the trial court's jurisdiction on a motion to preserve evidence." ( Morales , at p. 535, 213 Cal.Rptr.3d 581, 388 P.3d 811.)

Here, narrowly construing its authority under section 1054.9 and Morales , the superior court denied in part the motion to preserve evidence filed by Donald R. Shorts, whose automatic appeal following his conviction for murder and sentence to death is pending in the Supreme Court. Shorts's petition for a writ of mandate asks us to define more precisely the permissible scope of record preservation in capital cases. In particular, Shorts contends a defendant sentenced to death is entitled to an order preserving materials pertaining to prior crimes and alleged prior criminal conduct that were the subject of evidence introduced by the prosecutor at the guilt and penalty phases of his *395capital trial, including offenses identified in the People's notice of evidence in aggravation, not only materials related to the specific crimes charged in the case. Shorts also asserts, notwithstanding the Supreme Court's caution in Morales as to the limits of the superior court's jurisdiction, the underlying rationale of that case authorizes an order to preserve judicial records, including superior court files and probation department records, from his prior cases, his codefendant's cases and the prosecution witnesses' cases, as well as from his own capital trial.

In response to the first issue, we agree with Shorts that he is entitled to an order preserving potentially discoverable materials in the possession of the prosecution and law enforcement authorities relating to all crimes discussed during his trial, whether at the guilt or penalty phase. The trial court's failure to order preservation of those materials was an abuse of its discretion. As to the second issue, we agree with the Attorney General and the superior court that only material potentially discoverable under section 1054.9 is properly subject to a preservation order. Accordingly, we grant Shorts's petition for a writ of mandate in part and direct the superior court to enter a new order granting, in addition to those materials previously ordered to be preserved, those portions of Shorts's motion that sought to preserve potentially discoverable materials in the possession of the prosecution and law enforcement authorities relating to all prior crimes and alleged prior criminal conduct that were the subject of evidence introduced by the prosecutor at the guilt and penalty phases of his capital trial, including offenses identified in the People's notice of evidence in aggravation.

*716FACTUAL AND PROCEDURAL BACKGROUND

1. The Capital Trial

Shorts was charged with three counts of capital murder for the shooting deaths of Charlie Wynne, Kevin Watts and Michael Livingston.2 The People alleged as special circumstances that Shorts had previously been convicted of murder, Shorts was guilty of multiple murders as charged in the pending case, the murders were perpetrated by the intentional discharge of a firearm from a motor vehicle and the murders were carried out to further the activities of a criminal street gang. (§ 190.2, subd. (a)(2), (3), (21) & (22).)

At trial, in addition to evidence of Shorts's role in the murders of Wynne, Watts and Livingston, the prosecutor presented evidence underlying Shorts's conviction for the 2005 murder of Gerald Brooks in San Bernardino County.3 Shorts, who testified at trial, was cross-examined at the guilt phase about the Brooks murder, and victim impact testimony relating to that crime was presented at the penalty phase.

Shorts was also questioned at trial regarding his alleged participation in the unadjudicated homicide of Isiah Parker. (Although Shorts had initially been charged in connection with Parker's death, those charges were later dismissed.) Victim impact testimony about the Parker murder was presented at the penalty phase.

*396In addition to evidence about the Brooks and Parker murders, the penalty phase also included evidence of other criminal activity by Shorts in Los Angeles and San Bernardino Counties. Each of these crimes was identified in the notice of evidence in aggravation filed by the Los Angeles County District Attorney's Office. (§ 190.3, 4th par.)

The jury convicted Shorts on all three counts of murder; the four special circumstances allegations were found true. On November 29, 2010 Shorts was sentenced to death for the murders of Wynne and Watts and to life without the possibility of parole for Livingston's murder. His automatic appeal is pending before the California Supreme Court.

2. The Record Preservation Motion

The Supreme Court appointed the State Public Defender to serve as appellate counsel for Shorts in February 2015. In July 2016 appellate counsel *717filed a motion in the superior court on Shorts's behalf to preserve evidence, exhibits and other potentially discoverable material pending appointment of counsel for habeas corpus proceedings4 and disposition of all postconviction proceedings. The court denied the motion, ruling it lacked jurisdiction to issue a record preservation order, but without prejudice in light of the then-pending Morales case.

After the Supreme Court decided Morales , supra

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Cite This Page — Counsel Stack

Bluebook (online)
234 Cal. Rptr. 3d 392, 24 Cal. App. 5th 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shorts-v-superior-court-of-l-a-cnty-calctapp5d-2018.