Wisely v. Superior Court of Orange County

Opinion

TROTTER, P. J.

Petitioner is the defendant and represents himself in a death penalty case. In a first trial, he was found guilty, given a penalty advisory verdict of death, and the trial judge granted a new trial on the penalty phase. The People have appealed the new trial order, and their appeal is presently before this court in case No. G000749.

[269]

Petitioner has attempted to proceed with discovery in preparation for the new trial on the penalty phase. In two separate rulings (one on Aug. 2, 1985 by Judge William Thomson, and one on Aug. 23, 1985 by Judge Ronald E. Owen) the People’s motions to quash petitioner’s subpoenas duces tecum were granted and petitioner’s motion to compel production of probation reports pursuant to Penal Code section 1203.05 was denied. The stated ground for each of the orders is that the matter is stayed pending the People’s appeal from the order granting new trial, and the superior court lacks jurisdiction to enforce the subpoenas and to grant an order to compel production.

We conclude the trial court had jurisdiction with respect to petitioner’s discovery requests and that the trial court erred in refusing to exercise its discretion on the merits.

Code of Civil Procedure section 916 provides in pertinent part: “(a) Except as provided in Section 917.1 through 917.9 and in Section 117.7 [none of which are applicable here], the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order,

but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order."

(Italics added.)

In

People

v.

Castro

(1982) 138 Cal.App.3d 30, at page 32 [187 Cal.Rptr. 658], the court stated: “Even after an appellate court has obtained jurisdiction over a dispute, ‘[t]he trial judge retains certain powers over the parties and the incidental aspects of the cause which are not within the scope of the reviewing court’s exclusive jurisdiction. [Citation.] . . .’” In