Bryant v. Sup. Ct.

Filed 3/28/07 Bryant v. Sup. Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Proceedings in mandate as to a court order denying the defendant's motions for discovery and his requests to be present at the hearings on those motions. Jeffrey B. Jones, Judge. Petition granted.

Stanford P. Bryant, a prisoner at Calipatria State Prison, stands charged with two counts of battery on a correctional officer at the prison. The questions presented in this writ proceeding are whether the superior court erred in (1) denying Bryant's request for discovery of the identity of the officer who authored the rules violation report regarding the incident on which the charge is based and of any other reports authored by that person regarding the incident, and (2) denying him the right to attend the hearings on those requests despite the fact that he was representing himself in the proceedings below. We answer both questions in the affirmative and grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

The facts regarding the underlying incident are recited in full in this court's unpublished opinion in a prior writ proceeding in this case, so we do not restate them in detail here. For the purposes of this proceeding, the relevant facts are that Bryant was involved in an altercation between several inmates and three correctional officers at the Calipatria State Prison on August 20, 2003. Although Bryant maintained that he was merely trying to assist and protect the first officer, he was subsequently charged with two counts of battery on a nonconfined person by a prisoner. (Bryant v. Superior Court (Jun. 10, 2005, D045612) [nonpub. opn.] (Bryant), pp. 3-5.)

Initially, Bryant was represented by counsel, who attempted to discover information about witnesses to the incident and the officers involved through the issuance of a series of subpoenas and a motion for the production the officers' personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). (Bryant, supra, D045612 at pp. 9-10.) After the court granted motions by the California Department of Corrections (the Department) to quash two of the subpoenas seeking percipient witness information and denied the Pitchess motion, Bryant filed a petition for writ of mandate in this court, challenging the superior court's rulings. Rejecting the People's arguments, which included a contention that the motions were identical to prior requests and failed to comply with the requirements for reconsideration motions under Code of Civil Procedure section 1008, we granted a petition requiring the superior court to vacate its orders granting the motion to quash the third subpoena and denying the Pitchess motion and to conduct further proceedings regarding the People's concerns about the scope of the requests.

After the issuance of the remittitur, defense counsel made an informal request to discover certain information, including any reports about the altercation written by correctional officers, any crime incident reports submitted on Department form 837-B and materials from any "115" hearing relating to the altercation. The prosecutor responded to the request in part by providing a declaration by Correctional Officer Anthony Silva, who was injured in the altercation; the declaration stated in part that Officer Silva did not prepare a crime incident report on Department form 837 C-1 about the incident because he was too injured to do so. Thereafter, defense counsel brought a "motion to compel compilation of a written report," essentially seeking to compel the prosecution to disclose the substance of any oral statements made by Officer Silva regarding the altercation. The prosecutor opposed the motion on the ground that he was not required to reduce oral statements to writing and that defense counsel should contact Officer Silva directly to get a statement. The superior court apparently agreed and denied the motion.

In December 2005, the court granted Bryant's request to represent himself in the proceedings. Believing that Officer Silva had not written any report about the incident (despite the fact that there was a rules violation report on Department form 115 that identified Officer Silva as the reporting officer, ostensibly bore his signature and was dated eight days after the altercation), Bryant filed a "motion to compel compilation of a written report" in May 2006, seeking the identity of the person who wrote the rules violation report, as well as any other reports that person may have authored about the incident. The prosecutor's opposition to the motion argued that the motion was virtually identical to defense counsel's prior motion to compel and contended, erroneously, that the trial court's ruling on that motion was law of the case. The superior court denied Bryant's motion.

In June 2006, Bryant refiled a virtually identical "motion to compel compilation of a written report", which the People again opposed on the same grounds and the court again denied. The following month, Bryant filed a motion for an order imposing sanctions, contending that the prosecutor was required to disclose the name of the person who authored the rules violation report and that the court should dismiss the charges against him for the prosecutor's failure to make that disclosure. The prosecutor did not file formal opposition to the motion, which the superior court denied in August 2006.

Bryant filed this writ proceeding, seeking to have us order the superior court to allow his requested discovery or to dismiss the charges against him. He also seeks a writ requiring the superior court to allow him to attend the hearings on his motions while he is acting as his own counsel. We requested an informal response to the petition and the prosecutor filed a response contending that the denial of Bryant's request for sanctions was appropriate because the request essentially sought reconsideration and was barred because it failed to comply with the requirements of Code of Civil Procedure section 1008. The response did not, however, provide any discussion of the court's denial of Bryant's discovery motions. We issued the order to show cause why we should not grant the requested relief and appointed counsel for Bryant. Appellate defense counsel filed a supplemental petition, but the prosecutor did not file a return.

DISCUSSION

1. Denial of Discovery

The grant or denial of a discovery motion in a criminal case is reviewed for an abuse of discretion. (Pitchess, supra, 11 Cal.3d at p. 534; Hill v. Superior Court (1974) 10 Cal.3d 812, 816.) Although this standard requires a reversal of the superior court's ruling only upon "a clear case of abuse" that results in "a miscarriage of justice" (Blank v. Kirwan (1985) 39 Cal.3d 311, 331), we conclude that reversal is required here. The only basis for the prosecution's objection to providing the requested discovery, and apparently the basis for the court's denial of Bryant's motions to compel that discovery, was that the motion was duplicative of defense counsel's earlier motion to compel the discovery, which the superior court denied, and thus Bryant's subsequent motions had to comply with Code of Civil Procedure section 1008. However, as established by this court's prior unpublished opinion in this case, Code of Civil Procedure section 1008 is inapplicable to Bryant's motions (Bryant, supra, D045612 at pp. 10-11, citing People v. Castello (1998) 65 Cal.App.4th 1242, 1246-1248), a conclusion that is now law of the case and binding in all subsequent proceedings herein. (People v. Barragan (2004) 32 Cal.4th 236, 246 [holding that when an appellate court opinion "states . . . a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress"].) For this reason, the superior court's subsequent determination that Bryant's motion was barred for noncompliance with Code of Civil Procedure section 1008 is not sustainable and must be reversed.

2. Attendance at the Hearings

A criminal defendant has a right under federal and state constitutions to be present at all critical stages of the criminal proceedings against him. (U.S. Const., Amends. VI, XIV; Cal. Const., art. I,  15.) California statute also provides that a defendant charged with a felony "shall" be present at his arraignment, the time of entry of a plea, the preliminary hearing, the presentation of evidence to the trier of fact at trial and sentencing and "shall be personally present at all other proceedings" unless he waives his right to be present, in writing in open court. (Pen. Code,  977, subd. (b)(1).) The defendant's waiver must be "substantially" in the form specified in Penal Code section 977, subdivision (b)(2), which includes an express waiver of the right to be present at hearings on motions. (Ibid.)

Bryant contends that, despite his repeated requests to attend the hearings on his motions, the superior court ruled on the motions without him present. Because there is no Penal Code section 977 waiver in the record before us, the superior court erred in denying Bryant's requests to be present at the hearings on his motions.

DISPOSITION

Let a writ issue directing the superior court to (1) vacate its order denying Bryant's motion to require the prosecution to produce (a) the name of the person who authored the rules violation report on Department form 115 regarding the incident on which the present charges are based and (b) all other reports authored by that person arising out of that incident, (2) enter a new order granting Bryant's motion for this discovery, and (3) ensure that Bryant is present at all proceedings in this case unless he executes a waiver in accordance with Penal Code section 977, subdivision (b)(1). This decision will become final as to this court 10 days after it is filed and, at that time, the stay issued by the court on September 5, 2006 will be vacated.

McINTYRE, J.

WE CONCUR:

McDONALD, Acting P. J.

IRION, J.

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