Burton v. Superior Court

Opinion

SIMS, Acting P. J.

—Pursuant to Penal Code section 1054.9,

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a defendant sentenced to death or life without the possibility of parole may obtain

[1521]

discovery materials from the superior court after unsuccessfully attempting to obtain such materials from trial counsel. Here, petitioner wrote to his trial counsel before filing a request pursuant to section 1054.9 in the superior court. The court denied the request because petitioner was not represented by an attorney. Petitioner filed the current petition for writ of mandate in this court, seeking to overturn the trial court’s decision. Having concluded that there is no statutory requirement that a defendant be represented by an attorney at the time he pursues a section 1054.9 motion, we shall direct the superior court to vacate its order.

BACKGROUND

Petitioner Henry Burton, Jr., was convicted in 1982 of two counts of murder, for which he received concurrent sentences of life without the possibility of parole. Section 1054.9 was enacted in 2002 and took effect at the beginning of 2003. It provides, in pertinent part: “Upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment in a case in which a sentence of death or of life in prison without the possibility of parole has been imposed, and on a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful, the court shall, except as provided in subdivision (c), order that the defendant be provided reasonable access to any of the materials described in subdivision (b).” (§ 1054.9, subd. (a).) The state Supreme Court has held that the statute applies not only when a habeas corpus petition has been filed, but also when a defendant is preparing to file such a petition.

(In re Steele

(2004) 32 Cal.4th 682, 688, 691 [10 Cal.Rptr.3d 536, 85 P.3d 444].)

Petitioner wrote to counsel in December 2008, but was unable to obtain discovery materials. He subsequently filed a propria persona motion in the superior court pursuant to section 1054.9. On June 11, 2009, the court denied petitioner’s motion. The court concluded that the legislative history of section 1054.9 indicated that it was intended to apply only to those defendants, sentenced to death or life without the possibility of parole, who were represented by counsel. The court explained that the statute was not “logistically geared” toward allowing a defendant to make such a request personally. Accordingly, the superior court dismissed petitioner’s request “without prejudice to a new [section] 1054.9 motion that may be brought in the future by counsel on behalf of defendant.”