People v. Washington

1

THE PEOPLE, Plaintiff and Respondent, v. JONATHON EDWARD WASHINGTON, Defendant and Appellant.

E079818

California Court of Appeals, Fourth District, Second Division

June 29, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County No. RIF1303885. Gail A. O'Rane, Judge. Dismissed.

Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, and A. Natasha Cortina and Melissa Mandel Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ P. J.

Jonathon Edward Washington, in pro. per., sent a motion for postconviction discovery under Penal Code section 1054.9^[1] to the trial court, with no proof of service on the prosecution. The trial court treated it as an ex parte communication and took no action on it.

We will hold that the trial court's minute order is not appealable. Accordingly, we will dismiss the appeal.

I STATEMENT OF THE CASE

In 2015, Washington was found guilty on five counts of robbery (§ 211), each with a personal firearm use enhancement (§ 12022.53, subd. (b)). He was sentenced to a total of 17 years, 4 months.

In 2022, Washington, in propria persona, sent a motion for post-conviction discovery to the trial court. It did not include a proof of service on the prosecution. The trial court entered a minute order saying it had read and considered the motion, which it described as "[e]x-[p]arte correspondence," and that it was taking no action on it. It sent a copy of the motion to the prosecution and filed the motion.

Washington has challenged the trial court's ruling by filing both this appeal and a petition for a writ of mandate. We have denied the mandate petition by separate order.

II LEGAL BACKGROUND

Section 1054.9, as relevant here, provides that, after certain felony convictions, and subject to certain exceptions: "[U]pon the prosecution of a postconviction writ of habeas corpus ., or in preparation to file that writ . . ., and on a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful, the court shall . . . order that the defendant be provided reasonable access to" discovery materials. (§ 1054.9, subd (a).)

III APPEALABILITY

The People contend that there is no appealable order. We agree although not for the reasons argued by the People.

In a criminal action, "[a]n appeal may be taken by the defendant ....[¶] . . . [¶] . . . [f]rom any order made after judgment, affecting the substantial rights of the party." (§ 1237, subd. (b).)

First, the People note that, in his notice of appeal, Washington specified that he was appealing from an order entered on August 16, 2022, although the trial court's minute order taking no action was dated August 9, 2022.

A notice of appeal must "identif[y] the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.304(a)(4).) Nevertheless, a "notice of appeal must be liberally construed." (Ibid.) Thus, if a notice specifies an order issued on one date, but the only order then appealable was issued on a different date, the notice may be construed as an appeal from the latter (at least in the absence of prejudice to the respondent). (E.g., Swasey v. Adair (1890) 83 Cal. 136, 137; Yolo County Dept. of Child Support Services v. Lowery (2009) 176 Cal.App.4th 1243, 1246; Call v. Los Angeles County Gen. Hosp. (1978) 77 Cal.App.3d 911, 914-915.) Obviously then the date specified is a mistake, and the appellant intended to appeal from the only appealable order.

Washington's notice of appeal, filed on September 15, 2022, said he was appealing from the denial of a motion for postconviction discovery. At that point, as far as the record shows, the only order denying a motion for postconviction discovery within the previous 60 days (see Cal. Rules of Court, rule 8.308(a)) was the August 9, 2022 minute order. Thus, the notice must be construed as being from that order.

Second, the People argue that the order did not affect Washington's substantial rights. It did affect his substantial rights, by preventing him from obtaining postconviction discovery. This is true even assuming he was not actually entitled to any postconviction discovery at all. "'[A] postjudgment order "affecting the substantial rights of the party" [citation] does not turn on whether that party's claim is meritorious, but instead on the nature of the claim and the court's ruling thereto.' [Citations.]" (People v. Caldwell (2018) 29 Cal.App.5th 180, 189.)

Finally, the People note, correctly, that the denial of a motion for postconviction discovery has historically been reviewed by way of a writ petition rather than an appeal.

(See In re Steele (2004) 32 Cal.4th 682, 692 ["after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate,"]; Appeals and Writs in Criminal Cases (Cont.Ed.Bar 2023) § 7.28.) However, they offer no satisfactory explanation for this.

We believe it is because "section 1054.9 discovery is 'part of the prosecution of the habeas corpus matter, not part of the underlying criminal case.' [Citation.]" (People v. Superior Court (Morales) (2017) 2 Cal.5th 523, 531.) Thus, an appeal from the denial of such discovery is not from a final order "after judgment" (§ 1237, subd. (b)) in the criminal action. Rather, it...