Filed 7/19/17 P. v. Superior Court CA4/2
On remand

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Petitioner,

v.

THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,

Respondent;

JOHNNY MORALES,

Real Party in Interest.


E061754

(Super.Ct.No. FVA015456)

OPINION

ORIGINAL PROCEEDINGS; petition for writ of mandate. Ingrid Adamson Uhler, Judge. Petition is granted in part with directions.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Holly D. Wilkens and Michael T. Murphy, Deputy Attorneys General, for Petitioner.
No appearance for Respondent.
Michael J. Hersek, State Public Defender, and Cheryl Delaine Renard, Senior Deputy State Public Defender, for Real Party in Interest.
Pursuant to the order of the Supreme Court filed February 16, 2017, reversing this court’s order dated July 15, 2015, which granted the petition for writ of mandate directing the Superior Court of San Bernardino County to vacate its order for preservation of evidence and to enter a new order denying real party in interest’s motion, this matter is hereby remanded to the superior court for proceedings consistent with the Supreme Court’s opinion in People v. Superior Court (Morales) (2017) 2 Cal.5th 523, 535 (Morales).
In its opinion, the Supreme Court held that a superior court has the inherent power under Code of Civil Procedure section 187 to order preservation of evidence that would potentially be subject to postconviction discovery, subject to whether the movant is actually entitled to discovery of the material to be preserved, including compliance with the procedural requirements of Penal Code section 1054.9. (Morales, supra, 2 Cal.5th at p. 534.)
Specific to this case, the Supreme Court found that the motion and related preservation order originally granted by the superior court appear to encompass materials beyond the scope of Penal Code section 1054.9. The statute provides for discovery of certain materials currently in the possession of the prosecution or law enforcement authorities involved in the investigation or prosecution of the case. It “ ‘does not extend to all law enforcement authorities everywhere in the world, but, we believe, only to law enforcement authorities who were involved in the investigation or prosecution of the case.’ ([In re] Steele [(2004) 32 Cal.4th 682,] 696.) It also does not extend to judicial or other non-law-enforcement agencies, such as jury commissioners or indigent defense programs. Nor does it specifically mandate that any agency within its scope provide an accounting as to whether the requested materials are in the possession of some other governmental unit, entity, official, or current or former employee, or whether any of the requested material has been destroyed.” (Morales, supra, 2 Cal.5th at pp. 534-535.) A new order on remand purporting to require the preservation of materials beyond the scope of Penal Code section 1054.9 would thus exceed the trial court’s jurisdiction on a motion to preserve evidence. (Id. at p. 535.)
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order filed July 9, 2014, for preservation of evidence, and to conduct proceedings consistent with the Supreme Court’s opinion in Morales, supra, 2 Cal.5th 523.
In preparing a new order on remand, the superior court may rely on real party in interest’s original motion and tailor the order consistent with the guidance herein and in the Supreme Court’s opinion; or, may require real party in interest to file a new motion within the scope of Penal Code section 1054.9, with or without an evidentiary hearing, at its discretion.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.
We concur:



RAMIREZ
P. J.



CODRINGTON
J.