In Re Chol Soo Lee

Opinion

PARAS, J.

The People appeal a habeas corpus order discharging Chol Soo Lee (hereinafter defendant) from custody imposed pursuant to a murder conviction. (Pen. Code, § 1506.) We affirm.

[617]

I

Defendant was convicted on July 10, 1974, of first degree murder with the use of a firearm. The case was tried in Sacramento after a change of venue from San Francisco. The prosecution relied on two eyewitnesses who observed the shooting on a Chinatown street corner on June 3, 1973, and identified defendant as the assailant; also on a third witness who saw defendant fleeing the scene just after the shooting. The conviction was affirmed in an unpublished opinion by this court in April 1975 (3 Crim. 7711); there was no petition for hearing in the Supreme Court. Defendant was sentenced to life imprisonment, and prison terms were also imposed for parole violation on an earlier grand theft from the person conviction and a subsequent conviction of possession of a concealable firearm by a felon. Deuel Vocational Institute at Tracy, California, was the place of confinement.

On October 8, 1977, defendant was charged in San Joaquin County Superior Court with first degree murder in connection with a homicide at the institute, and the 1974 murder conviction was alleged as a special circumstance. (Pen. Code, § 190.2.) In the course of examining discovery files regarding the 1974 conviction, the 1977 defense attorneys learned of an all points bulletin and a San Francisco Police Department interdepartmental memorandum, neither of which had been given to defense counsel in 1974.

A petition for writ of habeas corpus was filed in San Joaquin County on July 17, 1978, alleging inter alia that defendant was denied a fair trial by the prosecution’s suppression of material evidence. The San Joaquin court transferred the matter to Sacramento Superior Court. An order to show cause issued from the latter on October 20, 1978, and a series of hearings was held, beginning on October 27. During the course of the hearings, defense investigators used the information contained in the memorandum, the bulletin, and other documents to locate one Steven Morris, who reported to them that he had witnessed the shooting and defendant was not the attacker. He so testified at the habeas corpus hearing and added emphatically that he had advised the San Francisco police by a phone call the day after the killing that he was an eyewitness. The phone call to the police was confirmed by a note made by Officer Gus Coreris summarizing the call’s contents (Coreris answered the phone), which he relayed to Officer Falzon, an investigator on the case. The note indicates Morris was not an eyewitness. Coreris testi