Kerry Lyn Dalton was convicted and sentenced to death for the 1988 torture and murder of Irene Melanie May in San Diego County, California, because she though May had stolen her jewelry. She was sentenced to death on May 23, 1995.

Jillian's side of the story

By Laura Pulfer - Cincinnati.com

April 4, 2002

I'd heard that she had an interesting story. A sad story. One she was eager to tell because she was still angry.

Jillian Hansert answered the door of her Colerain Township apartment with an exceptionally cute newborn baby tucked in the crook of one arm. Sarah, she says, born March 22. Jillian rubs her finger absently through the infant's abundant dark hair. The baby looks like her mother, she says.

Mothers and daughters. That's what Jillian wants to talk about.

A year ago, in a business law class at Colerain High School, Jillian was watching a taped TV show about women on California's death row. As Joan Lunden interviewed Kerry Lyn Dalton, Jillian realized she was listening to the woman who murdered her mother. “It made me feel kind of sick,” she says.

A perfectly understandable reaction.

Before she died in 1988, Irene Louise May was beaten, stabbed, injected with battery acid and tortured with electric shocks. Jillian knew these things, having read news accounts. But she had never seen the woman convicted of the murder.

“Then I had to listen to her talk about how tough it was for her to be in prison,” Jillian says. “She said her children don't come to see her. At least, that's their choice. I have no choice. She took that away from me.”

It made her angry, she says, that the woman had a national audience for her complaints. “They never asked me how I felt.”

Bad memories

Jillian was only 5 when her mother was killed. Her memories are not good. Addicted to drugs, Irene May often left Jillian and her two younger brothers to fend for themselves. “We'd be in the bedroom, kind of hiding, and I'd try to take care of them,” she says.

It's hard, she says, to separate “what I really remember from what I've been told over and over.” She believes she sometimes begged for food. But she knows that she did her best to take care of her little brothers.

“My mother loved us,” she says. “She was trying to stay clean.” She has seen records from San Diego social services. The children had been removed from their home, but their mother was trying to get them back. “She never got the chance to be a better person.”

Jillian was adopted two weeks before her seventh birthday. “They wouldn't let me be adopted with my brothers,” she says. “Because all I wanted to do was to take care of them. I thought that was my job.”

At age 5.

Now, here comes the good part. Her adoptive parents are Steve and Cinda Gorman, co-pastors of Westwood First Presbyterian Church. “I came with a lot of baggage,” Jillian says, “but I'm proud of who I became. And I love the family I have now.” This includes her husband, Charlie, a mechanic.

As we talk, Sarah fusses a little, and Jillian soothes her. Competently. Kindly. A good mom, I am thinking.

Child neglect, drugs, murder. A tiny girl hiding with her brothers, thinking they were her responsibility. Then taking on real responsibility as an adult.

Proud of who she became.

Writing her own ending to the story.

Kerry Lyn Dalton

Prison Pen Pal

I must admit upfront- I'm on death row. I'm sure that's gonna scare off a few folks. Perhaps if you continue to read this, I can capture just a bit of your interest. First though. "my crime"? I've been convicted of a murder without not only a body, but also without any weapons, nor a crime scene. Now that I've said that, I will add, this is pretty foreign to me, 'running an ad', fronting myself off--that my burden is 'being lonely'. I've lived a very strong free and of course wild life (which naturally landed me here). Now! I've grown in a much different style. Still of strength but also, I've learned a great deal of respect, respect for all things, and all people. I never take what isn't mine, and live my life with honesty and truthfulness. I am still searching for myself, though I'm not looking for anybody to make my path for me. I wanna smile and laugh and have fun. I'm smart and pretty decent with serious conversations as well. Physically? I'm in very good shape. I'm kinda tall 5'8", yet small, only 126lbs. Every night I exercise and secretly dance. I love music, it's my great escape. When I was free, my greatest addiction was being a thrill seeker and although this holds no danger for me, it's atill a risk. I'll end with something Axle Rose sang, "I'm still alright to smile."

ConvictMailbag.com

3 Arrested in Slaying Though Body Not Found

By Thom Mrozek - Los Angeles Times

October 28, 1992

Three people were arrested in a torture-murder case in which no body was found after they admitted--and in several instances bragged about--their roles in the crime, it was revealed in court Tuesday.

A preliminary hearing is being held to determine if the three should stand trial on murder charges for killing Irene (Melanie) May in June, 1988. In addition to attacking her with a knife, a screwdriver and a frying pan, they allegedly injected the victim with battery acid.

Richard L. Cooksey, a district attorney investigator with the Metropolitan Homicide Task Force, testified Tuesday that Mark Lee Thompkins, 29; Kerry Lyn Dalton, 39; and Sheryl Ann Baker, 28, implicated themselves in the murder in a mobile home in the isolated East County community of Live Oak Springs.

According to one of his acquaintances, Thompkins explained how the three planned to give May a fatal injection in retribution for stealing some items belonging to Dalton, Cooksey testified.

Thompkins said the victim was given electrical shocks and then a skillet was used to smash her knees, according to the statement given by Donald McNeely.

The body was cut up and the parts were buried on two Indian reservations to make it hard for police to obtain search warrants, Cooksey quoted McNeely as saying.

Dalton and Baker also allegedly admitted to other people their role in the killing, according to the evidence.

Municipal Judge Lawrence Stirling is expected to decide if the three should stand trial in Superior Court at the conclusion of the preliminary hearing.

Court of Appeals of California, Fourth District, Division One.

DALTON v. SUPERIOR COURT OF SAN DIEGO COUNTY

KERRY LYN DALTON, Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

No. D057048.

HUFFMAN, Acting P. J.

In this mandate proceeding, Kerry Lyn Dalton, who is under a judgment of death, seeks to compel the San Diego County Superior Court to grant various postconviction discovery requests in connection with her petition for writ of habeas corpus, which is pending before the Supreme Court. Penal Code¹ section 1054.9 allows persons sentenced to death or life in prison without the possibility of parole to file a motion for postconviction discovery to assist in seeking a writ of habeas corpus. (§ 1054.9, subd. (a).) After a trial court has ruled on a section 1054.9 discovery motion, "either party may challenge that ruling by a petition for writ of mandate in the Court of Appeal." (In re Steele (2004) 32 Cal.4th 682, 692 (Steele).)

Dalton challenges the denial of 50 postconviction discovery requests, including 26 requests that she claims were denied in part or "effectively limited" because the prosecution was required to disclose only material in the possession of the prosecution team. Dalton primarily contends that the court below erred by (1) defining the "prosecution team" too narrowly, and (2) refusing to order disclosure of all materials in the pretrial discovery order made by the judge who presided at trial.²

BACKGROUND

On June 26, 1988, Dalton's ex-roommate, Irene Melanie May, was murdered at the Live Oaks Springs Trailer Park. At the time, May was tied to a chair in JoAnn Fedor's trailer. Fedor was not present. Dalton injected battery acid into May with a syringe. Co-defendant Sheryl Baker hit May with a cast iron frying pan. Baker and another co-defendant, Mark Tompkins, then stabbed May to death. Later, Tompkins and a fourth individual, who was only identified as "George," disposed of May's body, which was never found.

On November 13, 1992, the San Diego District Attorney filed an information charging Dalton, Tompkins and Baker with conspiracy to commit murder (§ 182, subd. (a)(1)) and murder (§ 187, subd. (a)). The information also alleged two special circumstances: (1) intentional killing while lying-in-wait (§ 190.2, subd. (a)(15)); and (2) intentional killing involving the infliction of torture (§ 190.2, subd. (a)(18)).

In July 1993, the trials of the three codefendants were severed. In July 1994, Baker pled guilty to second degree murder, and Tompkins pled guilty to first degree murder. At Dalton's trial, which began in early 1995, Baker was a prosecution witness. Tompkins did not testify, but the prosecution presented statements by him through the testimony of one of his cell mates.

On February 24, 1995, the jury found Dalton guilty of conspiracy to commit murder and murder. The jury also found the two special circumstance allegations to be true. Following the penalty phase, the jury returned a verdict of death. On May 23, 1995, the trial court sentenced Dalton to death.

On June 25, 2009, Dalton filed her postconviction discovery motion under section 1054.9 in San Diego Superior Court.³

On March 8, 2010, the motion court granted the postconviction discovery motion in part and denied the motion in part.

On March 29, 2010, Dalton filed her petition for writ of mandate to order the motion court to fully grant 50 postconviction discovery requests that were denied in whole or part.

On May 21, 2010, we issued an order to show cause why the requested relief should not be granted.

DISCUSSION

The Legislature enacted section 1054.9 in 2002⁴ as an augment to the statutory discovery provisions (§ 1054 et seq.) for pretrial and trial discovery under Proposition 115, an initiative measure passed by the voters in 1990. (People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568-573.) The pertinent portions of section 1054.9 read:

"(a) 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).

"(b) For purposes of this section, 'discovery materials' means materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at time of trial."

In Steele, supra, 32 Cal.4th 682, our Supreme Court interpreted and explained section 1054.9 in both procedural and substantive terms. The keystone of section 1054.9 is that a defendant who is sentenced to death or life in prison without the possibility of parole and is seeking habeas corpus relief is entitled to those materials to which he or she would have been entitled at the time of trial, including materials that the defendant did not receive. (Steele, supra, at pp. 693-696.) Thus, a convicted capital defendant is not only entitled to materials that were provided at trial, which the defendant can show have since been lost, but also to materials to which the defendant was actually entitled at the time of trial and did not receive, and to materials that the prosecution would have been obligated to provide had there been a specific request at trial. (Id. at pp. 695-696.) Section 1054.9 requires:

"[t]he trial court, on a proper showing of a good faith effort to obtain the materials from trial counsel, to order discovery of specific materials currently in the possession of the prosecution or law enforcement authorities involved in the investigation or prosecution of the case that the defendant can show either (1) the prosecution did provide at time of trial but have since become lost to the defendant; (2) the prosecution should have provided at time of trial because they came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence; (3) the prosecution should have provided at time of trial because the defense specifically requested them at that time and was entitled to receive them; or (4) the prosecution had no obligation to provide at time of trial absent a specific defense request, but to which the defendant would have been entitled at time of trial had the defendant specifically requested them." (Steele, supra, 32 Cal.4th at p. 697.)

Although it is clearly more than just a "file reconstruction statute," section 1054.9 "does not allow 'free-floating' discovery asking for virtually anything the prosecution possesses." (Steele, supra, at pp. 693, 695.) Furthermore, to obtain postconviction discovery under section 1054.9, the defendant must identify the materials he or she seeks with specificity and show they fall into one of the categories of materials to which the defendant would have been entitled to at trial. (Steele, supra, at p. 688.)

Additionally, a capital defendant seeking postconviction discovery must show a reasonable basis that the requested materials exist. (Barnett v. Superior Court (2010) 50 Cal.4th 890, 894, 899-900 (Barnett).) However, "a reasonable basis to believe that the prosecution had possessed the materials in the past would also provide a reasonable basis to believe the prosecution still possesses the materials." (Id. at p. 901.)

As to a capital defendant's constitutional right to postconviction discovery of material exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83 (Brady), he or she does not need to establish materiality with the meaning of Brady at this state of the proceedings. (Barnett, supra, 50 Cal.4th at pp. 894, 900-901.)

II

COMPOSITION OF THE PROSECUTION TEAM

For purposes of Dalton's postconviction discovery motion under section 1054.9, the motion court ruled the prosecution team consisted of the San Diego County District Attorney's Office, the San Diego County Sheriff's Department's investigative unit,⁵ the San Diego Police Department, and three forensic laboratories. The motion court excluded the Detention Services Division (jail and custodial facilities) of the sheriff's department and the California Department of Corrections and Rehabilitation (CDCR) except "to the extent that [they were] directly involved in interviewing witnesses or developing evidence in this case." Also excluded from the prosecution team were agencies (1) providing only copies of pre-existing reports and not otherwise assisting in the investigation or prosecution of the instant case and (2) passing on uninvestigated tips.

Dalton contends the motion court erred by not including the La Mesa Police Department and El Cajon Police Department as members of the prosecution team, and by excluding the custodial functions of the Sheriff's Department and CDCR from the prosecution team. We agree the two police departments were part of the prosecution team, but find the motion court properly excluded the custodial functions of the Sheriff's Department and CDCR that were not directly involved in the investigation of this case.

Section 1054.9 provides for discovery of "materials in the possession of the prosecution and law enforcement authorities." (§ 1054.9, subd. (b).) The reference to law enforcement authorities is "only to law enforcement authorities who were involved in the investigation or prosecution of the case." (Steele, supra, 32 Cal.4th at p. 696.) Because it is presumed to know about all information gathered in the government's investigation, the prosecution is responsible for the materials possessed by other agencies acting on the government's behalf that were gathered in connection with the investigation as well as the information in its own files. (Ibid.)⁶

As noted by the Steele court, the scope of the disclosure duty under section 1054.9 is consistent with the prosecution's constitutional duty under Brady, supra, 373 U.S. 83 to disclose exculpatory information. (Steele, supra, 32 Cal.4th at pp. 695-696.)

"`The scope of this disclosure obligation extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge "any favorable evidence known to the others acting on the government's behalf . . . ."' [Citations.] `As a concomitant of this duty, any favorable evidence known to the others acting on the government's behalf is imputed to the prosecution." The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation."' [Citations.] Thus, the prosecution is responsible not only for evidence in its own files but also for information possessed by others acting on the government's behalf that [was] gathered in connection with the investigation. But the prosecution cannot reasonably be held responsible for evidence in the possession of all governmental agencies, including those not involved in the investigation or prosecution of the case. `Conversely, a prosecutor does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. Thus, information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material.' [Citation.]" (Id. at pp. 696-697.)

"The important determinant is whether the person or agency has been `acting on the government's behalf' [citation] or `assisting the government's case.'" (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315 (Barrett).)

Dalton claims the La Mesa Police Department was a member of the prosecution team because it assisted investigators in this case by directing them to Jeanette Bench, who testified for the prosecution at trial about statements made by suspects and others connected to the case. Bench spoke to a La Mesa police officer about May's murder, and the officer contacted district attorney investigator Richard Cooksey, who interviewed Bench. During the Cooksey-Bench interview, Bench related that she had been interviewed by detectives of the La Mesa police force. Bench also said that she and Lacy Grote had heard Fedor "flippin[g] out" and saying that Dalton and Tompkins "killed that girl at [Fedor's] house." Bench told Cooksey: "[S]ome of the [La Mesa] detectives did go and talk to Lacy after I talked to the people in La Mesa."

Contrary to the motion court's ruling, we find the record shows the La Mesa Police Department assisted the prosecution in this case and should be deemed part of the prosecution team. The prosecution learned of Bench's existence because of the La Mesa Police Department. Dalton also alleged the La Mesa Police Department provided reports to the prosecution. On remand, the motion court shall allow Dalton to make the requisite showing under Barnett, supra, 50 Cal.4th at page 894, that a La Mesa Police Department report about an interview with Bench exists. If Dalton can adequately show the report exists, the prosecution shall be ordered to turn it over to her.

Similarly, Dalton's claim that the El Cajon Police Department was part of the prosecution team has merit. El Cajon police officer Richard Naisith contacted sheriff investigator Terry Wisniewski after discussing May's murder with Chris Dalton, the former brother-in-law of Dalton. Wisniewski then interviewed Chris Dalton, who also provided information about Dalton; the prosecution at one point intended to present this information during the penalty phase.⁷ An El Cajon police sergeant also informed Wisniewski that Cathy Eckstein's son knew where a body was located. Wisniewski followed up by interviewing Eckstein, who testified at Dalton's trial on behalf of the prosecution.⁸ We conclude that by providing information on the government's case, the El Cajon Police Department was part of the prosecution team. On remand, the motion court shall allow Dalton to make the requisite showing under Barnett, supra, 50 Cal.4th at page 894, that an El Cajon Police Department report concerning Chris Dalton's interview exists. If Dalton makes an adequate showing, the motion court shall order the prosecution to turn over the report to Dalton.

We also find the motion court correctly excluded the Detention Services Division of the sheriff's department and the CDCR except "to the extent that [they were] directly involved in interviewing witnesses or developing evidence in this case." This court's opinion in Barrett, supra, 80 Cal.App.4th 1305 is instructive. In Barrett, the defendant was charged with murdering his cellmate in a state prison and sought discovery of various records maintained by the California Department of Corrections, which was the forerunner of CDCR. (Id. at pp. 1309-1310.) We held the prosecution had no duty to produce most of the records sought because the department had maintained them in its administrative function of running the prison. (Id. at pp. 1317-1320.) Further, the defendant was entitled to materials prepared in the department's investigation of the murder so long as they fell with the scope of section 1054.1, subdivisions (a) through (f), but not to materials maintained by the department in its administration of the prison. (Id. at pp. 1317-1318.) "[I]nformation possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material." (Id. at p. 1315.) The same reasoning applies to the Detention Services Division of the sheriff's department and the CDCR.⁹

In a related argument, Dalton contends the motion court erroneously limited 26 of her postconviction discovery requests by requiring the prosecution to turn over material only if it was in the possession of the prosecution team. This contention is without merit; there was no error. Materials are subject to disclosure only if they are currently in the possession of the prosecution and law enforcement authorities that were involved in the case. (Steele, supra, 32 Cal.4th 682, 695-696.) Section 1054.9 "does not impose a duty to preserve materials or to search for or obtain materials not currently possessed" by the prosecution team. (Steele, supra, at p. 695.)

III

REFUSAL TO FOLLOW ORIGINAL TRIAL COURT'S DISCOVERY ORDER

In its statement of decision, the motion court wrote "the trial judge made discovery orders that were far broader than required by the [discovery] statutes and the Constitution" and "exceeded his authority." Accordingly, the motion court rejected several of Dalton's requests for postconviction discovery of materials that she claims were ordered by the trial court and therefore required to be produced under Steele.¹⁰

In Steele the Supreme Court pointed out that section 1054.9 is broader than a file reconstruction statute and allows discovery of material "`to which trial counsel was legally entitled.'" (Steele, supra, 32 Cal.4th at p. 694.) Section 1054.9 "does not limit [postconviction] discovery to materials the defendant actually possessed to the exclusion of materials the defense should have possessed. If the Legislature had intended to limit the discovery to file reconstruction it could easily have said so." (Id. at p. 693, original italics.) In setting forth what postconviction discovery a capital defendant is entitled to under section 1054.9 beyond file reconstruction, the Steele court listed materials "the prosecution should have provided at time of trial because they came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence. (Steele, supra, at p. 697, italics added.)

In our view, by using the disjunctive "or," the Supreme Court intended to designate three distinct, alternative categories of available postconviction discovery materials. (See People v. Moore (1983) 140 Cal.App.3d 508, 514; People v. Banos (2009) 178 Cal.App.4th 483, 502.)¹¹ "We believe the courts' selection of the disjunctive `or' . . . was an informed and thoughtful choice and [the court] intended it to be accorded its ordinary meaning" (Moore, supra, 140 Cal.App.3d at p. 514), namely, three discrete bases for obtaining postconviction discovery under section 1054.9.

Nonetheless, the motion court chose to disregard this language because (1) it inferred the Steele court was considering only trial court discovery orders that were lawful,¹² and, (2) in any event, the language was dictum since the case before the high court did not involve a trial court's discovery order.¹³ We find neither of these explanations justifies the court's decision to discount the Steele language.

Significantly, the Steele court could have, but did not modify "a trial court's discovery order" by using "proper," "consistent with the law," or any other synonymous adjective. Had the Supreme Court intended to indicate it was discussing only proper, legal discovery orders, it would have done so. Just as we would not add language to a statute, we cannot condone adding language to the Steele court's construction of a statute. Our state's highest court is quite capable of including limiting language when it sees fit to do so.

Furthermore, we disagree that the Steele language at issue, which is part of the Supreme Court's construction of section 1054.9, is strictly dictum. At the beginning of its opinion, the Steele court made it clear that it issued an order to show cause "to resolve important procedural and substantive issues regarding [section 1054.9]." (Steele, supra, 32 Cal.4th at p. 688.) When the Supreme Court takes the task of interpreting a newly enacted statute, it "must make do with those vehicles which fortuitously present themselves in order to accomplish the task." (Jaramillo v. State of California (1978) 81 Cal.App.3d 968, 971 (Jaramillo ).) Under these circumstances, to discount statutory construction language as dictum because the language was not essential to the underlying decision is, in our view, shortsighted — akin to failing to see the forest for the trees.

Assuming arguendo that the "discovery order actually issued by the trial court" language of Steele is dictum, it is our Supreme Court's dictum, and "commands serious respect" by the inferior courts of this state. (Santa Monica Hospital Medical Center. v. Superior Court (1988) 203 Cal.App.3d 1026, 1033.) "When the Supreme Court has conducted a thorough analysis of the issues and such analysis reflects compelling logic, its dictum should be followed." (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.) "Even if properly characterized as dictum, statements of the Supreme Court should be considered persuasive." (United Steelworkers of America v. Board of Education (1984) 162 Cal.App.3d 823, 835.) Put another way, all courts of this state should generally "follow dicta from the California Supreme Court." (Hubbard, supra, at p. 1169; People v. Trice (1977) 75 Cal.App.3d 984, 987; see also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ["Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California."].) The language "discovery order actually issued by the trial court" used by the Steele court was not "inadvertent, ill-considered or a matter lightly to be disregarded." (Jaramillo, supra, 81 Cal.App.3d at p. 971.) The motion court erred when it effectively ignored the Steele language.

The motion court also overstepped its bounds by finding the trial court's discovery order was improper. Generally, the law permits a trial court to correct its own prejudgment errors. (In re Alberto (2002) 102 Cal.App.4th 421, 426.) This general rule, however, is not applicable when a different judge is reconsidering a ruling. (Id. at p. 427.)

"For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court. `The Superior Court of Los Angeles County, though comprised of a number of judges, is a single court and one member of that court cannot sit in review on the actions of another member of that same court.' [Citation.] Stated slightly differently, because a superior court is but one tribunal, an order `"`"`made in one department during the progress of a cause can neither be ignored nor overlooked in another department. . . .'"'"' [Citation.]" (In re Alberto, supra, 102 Cal.App.4th at pp. 427-428.)

In essence, that was what happened here, and it constituted error.

Furthermore, whether the trial court's discovery order was proper is essentially a peripheral issue in the context of postconviction discovery and under the circumstances of this case. It is clear that in enacting section 1054.9, the Legislature wanted to allow capital defendants to efficiently reconstruct their defense attorney's trial files that were lost or destroyed after trial. (Steele, supra, 32 Cal.4th at p. 694; Barnett, supra, 50 Cal.4th at p. 897.) Here, the record shows that by the time of the hearing on the original discovery motion none of the parties disputed the prosecution had complied with 11 of 18 categories of evidence requests.¹⁴ The trial court ordered continuing discovery of these 11 categories without objection or other challenge by the prosecutor. Among the categories of evidence requests to which the prosecution had complied was the request to produce "[a]ll statements regarding this case, whether written or oral, made by potential witnesses in this case, regardless of whether the prosecution intends to call them at the time of trial," which is at issue in this proceeding. Thus, this category of requests was part of the discovery order. Significantly, the prosecution's compliance took place before the cases of Dalton, Baker and Tompkins had been severed, and, therefore, we can assume trial counsel had received the pertinent witness statements relating to a joint trial of Dalton, Baker and Tompkins.¹⁵ If that is the case, then the motion court's ruling rejecting parts of the trial court's discovery order would have defeated the main purpose of section 1054.9, namely, reconstruction of counsel's trial file. (Steele, supra, 32 Cal.4th at p. 694; Barnett, supra, 50 Cal.4th at p. 897.)

Dalton contends the motion court erroneously denied 11 postconviction discovery requests on the basis the original discovery order was improper. We consider them seriatim.

The motion court denied the request for statements Judy Moran, who was on the prosecution's witness list for codefendant's Baker's trial, made to Baker's defense team to the extent the statements were shared with the prosecution. Dalton claimed that Baker told Moran that Tompkins killed May and made Baker watch, which contradicted Baker's testimony against Dalton and Tompkins's version of the events as testified to by a hearsay declarant. If Baker's defense team shared Moran's statements with the prosecution team, the statements would be discoverable because they were within the scope of the trial court's discovery order. (Steele, supra, 32 Cal.4th at p. 697.) The motion court is to order the prosecution to produce the statements if they are in the possession of the prosecution team.

The motion court denied the request for statements of Roger Tavolazzi, who was not on any of the prosecution's witness lists. Dalton claimed Tavolazzi was a close associate of Dalton, and a district attorney investigator had expressed an interest in interviewing Tavolazzi. Additionally, Dalton claimed that Moran told the investigator that Tompkins had discussed the murder with Tavolazzi. This was an insufficient basis for ordering production of statements by a nonwitness who did not appear on any prosecution witness lists. (See § 1054.1, subd. (f).) The motion court properly denied Dalton's request.

With respect to Dalton's request for a statement by an unknown (confidential informant) white female jail inmate made to a sheriff's deputy, the motion court granted the request to the extent that the prosecution team has any documentation beyond a report prepared by the deputy years after the fact. Dalton has the deputy's belated report. This ruling was correct.

Dalton sought postconviction discovery of all rough or handwritten notes of interviews of "potential or actual witnesses, defendants or suspects by any law enforcement representative involved" in the case. The motion court ruled: "To the extent the witnesses were on the DA's witness list [for Dalton's trial], or actually testified at trial, the DA must provide all reports, including handwritten notes of the witnesses' statements that are in the possession of the prosecution team." We agree with Dalton that the motion court should have also included potential witnesses who were on the prosecution's witness list for Baker's and Tompkins's trials under Steele, supra, 32 Cal.4th at page 697. As to notes of law enforcement interviews of suspects, Dalton would be entitled to any that are in the possession of the prosecution team under Brady, supra, 373 U.S. 83. On remand, the motion court shall order the prosecution to turn over handwritten notes of those statements possessed by the prosecution team.

With respect to Dalton's request for witness statements provided by other defense counsel, the motion court ruled: "For any witnesses who were on the DA's witness list or who actually testified, any reports of statements still in the possession of the prosecution team must be provided. This is so whether the statements were taken directly by the prosecution team or taken by other investigators and then provided to the prosecution team." This ruling was correct.

The motion court denied Dalton's request for an audio recording of an interview of James Wood, who was on the prosecution's witness list for Tompkins's trial. Wood, who at times was in custody with Tompkins, reported Tompkins made statements that were inconsistent with Tompkins's version of the crime that was presented at trial. We find this request similar to Dalton's request for Moran's statements and conclude the prosecution must turn over the audio recording of Wood's interview. (Steele, supra, 32 Cal.4th at p. 697.) On remand, the motion court shall order the prosecution to produce the recording if it is in the possession of the prosecution team.

The motion court denied Dalton's request for statements of Frank Elliott, who had been interviewed more than once, but was not on the prosecution's witness list for any of the codefendants' trials. We find this request, even as modified, similar to Dalton's request for statements of Roger Tavolazzi. The request was properly denied.

The motion court denied Dalton's request for statements of Sheryl Stebbins, who was on the prosecution's witness list for Baker's trial. Dalton has Stebbins's statements from one interview, but was requesting her statements from another interview conducted by law enforcement. We find this request similar to Dalton's request for statements by Moran and Wood, and the court erred by denying it. (Steele, supra, 32 Cal.4th at p. 697.) On remand, the motion court shall grant the second interview request if it is in the possession of the prosecution team.

Dalton requested copies of 911 calls from locations associated with the crime. The motion court ruled that 911 calls made by witnesses or individuals on the prosecution's witness list for Dalton's trial are discoverable and must be provided if they are in the possession of the prosecution team. We modify this ruling to include individuals on the prosecution's witness list for Baker's or Tompkins's trials.

Dalton requested records from the Campo Fire Department involving service calls from the Live Oak Springs Trailer Park near the time of the crime. After correctly finding the Campo Fire Department was not part of the prosecution team, the motion court ruled that if the material is in the possession of the prosecution team and includes statements of witnesses or individuals on the prosecution's witness list, the statements must be provided. However, the motion court's ruling did not take into account the portion of the trial court's discovery order that called for the production of "all reports by government agents generated as a result of this case." Because the fire department reports were covered by the original discovery order at trial, they are covered by section 1054.9. (Steele, supra, 32 Cal.4th at p. 697.) The question therefore becomes whether the prosecution team currently possesses fire department service call reports from the trailer park at the pertinent time regardless of whether the reports include statements of witnesses or individuals on the prosecution's witness lists. On remand, Dalton would be required to make a reasonable showing that such records exist and are in the possession of the prosecution. (Barnett, supra, 50 Cal.4th at pp. 894, 899-900.)

Dalton requested discovery of mental health records of 18 prosecution witnesses and Tompkins.¹⁶ The motion court ruled that, to the extent they still exist, "mental health records or any other evidence which called into question the witnesses' ability to perceive, remember and communicate or their ability and willingness to tell the truth" in the possession of the prosecution team must be turned over. The motion court further ruled that if the prosecution believed any such records are confidential, it would examine them in camera and determine whether the records should be produced. (See People v. Hammon (1997) 15 Cal.4th 1117.) The motion court also noted that county jail mental health records in the possession of the Detention Services Division of the sheriff's department, which is not a member of the prosecution team, are not covered by its order unless the records are in the possession of the prosecution team. We agree the Detention Services Division of the sheriff's department is not a member of the prosecution team. The motion court's ruling was correct.

III

Dalton takes issue with additional postconviction discovery requests denied by the motion court. We consider them seriatim.

Dalton sought postconviction discovery of all communications between Baker's counsel and any representatives of the prosecution team regarding Baker's sodium amytal (truth serum) examination and/or the results. The record is clear that the prosecution team was not aware that Baker underwent this examination, which was kept confidential by Baker's defense team. The court cannot order the prosecution to turn over what it or the prosecution team does not have. Further, the jail personnel who transported Baker to the examination were not members of the prosecution team. The motion court's denial of this request was correct.¹⁷

Dalton sought postconviction discovery of statements relating to this case made by prosecution witness Patricia Collins while she was incarcerated at Las Colinas and in state prison. At oral argument after Dalton modified the requests, the motion court indicated it would grant these two requests. However, in its statement of decision, the court disregarded Dalton's oral modification and denied the requests as too broad. On remand, the motion court shall grant Dalton's requests as modified.

Dalton sought postconviction discovery of CDCR and parole records of nine individuals, including codefendants Baker and Tompkins. The motion court denied Dalton's request except for the first two pages of a four-page parole adjustment report from 1988 for witness Patricia Collins regarding her positive test results for methamphetamine. The court ruled that if the prosecution was in possession of the two pages, it must provide them to Dalton. The court found the remaining requests were overbroad.¹⁸ We agree with the motion court's characterization with one exception, which was a more narrow request for CDCR records of interviews with codefendant Tompkins by the CDCR gang unit. Dalton claims that in approximately 1989 Tompkins was interviewed by the gang unit at Soledad State Prison regarding the "Rainbow Occult." Dalton also asserts that CDCR staff performed at least one psychological evaluation of Tompkins and found him to be extremely violent. To the extent that the prosecution team, which does not include CDCR unless it is participating in the investigation of the charged crime, is in possession of these materials, Dalton is entitled to postconviction discovery of them because (1) they include statements by a codefendant (§ 1054.1, subd. (b)) and Dalton would have been entitled to them had she requested them as part of pretrial discovery (Steele, supra, 32 Cal.4th at p. 697); and (2) the psychological evaluation(s) of Tompkins would be potentially mitigating evidence at the penalty phase of Dalton's capital trial. (See Brady, supra, 373 U.S. 83.) On remand, the motion court shall order the prosecution to produce these specific CDCR materials if they are in the possession of a member of the prosecution team.

Dalton unsuccessfully sought postconviction discovery of rental receipts for the apartment building in which victim May lived before she was murdered. Dalton claims sheriff investigators obtained the receipts as part of the investigation of this case. Dalton argues that if her attorneys know the identity of the people living in the building, they can better track down "George," an unidentified fourth murder suspect. Dalton also claims the receipts would be relevant to impeach codefendant Baker's statements that she and May met "George" on the day of the murder at an apartment in May's complex. Dalton argues she is entitled to the receipts under Steele, supra, 32 Cal.4th 682, because if she had requested them at trial, the prosecution would have been required to disclose them pursuant to section 1054.1, subdivision (c).¹⁹ We agree. On remand, the motion court shall give Dalton the opportunity to make a reasonable showing the rental receipts still exist (Barnett, supra, 50 Cal.4th at p. 894), and the receipts are in the possession of the prosecution team. If Dalton makes an adequate showing, the motion court shall order the prosecution to turn over the receipts to her.

Dalton unsuccessfully sought postconviction discovery of identifying information (names, addresses and phone numbers) of the tenants of the Live Oaks Springs Trailer Park, where May was killed. The motion court correctly denied the request. Section 1054.9 requires specific discovery requests "and not the proverbial `fishing expedition' for anything that might exist." (Barnett, supra, 50 Cal.4th at p. 894.)

Dalton sought postconviction discovery of records of telephone calls made from three telephones near or at the Live Oaks Springs Trailer Park. For one of the telephones, Dalton requested calls made for a five-day period surrounding the murder of May. For the other two telephones, Dalton sought records of calls made for a three-month period. The motion court denied the request on relevancy grounds. (See § 1054.1, subd. (c); see fn. 19, ante.) Dalton argues the telephone records are relevant because prosecution witness Fedor testified she telephoned from her trailer, the site of the murder, at least once before and after the crime, and this was a disputed issue at trial. We agree the phone records arguably would be relevant for impeachment of Fedor, who was a major prosecution witness. We also find that Dalton would be entitled to the records on this ground under Brady, supra, 373 U.S. 83. The duty to disclose exculpatory evidence under Brady includes impeachment evidence. (People v. Gaines (2009) 46 Cal.4th 172, 184.) At the postconviction discovery stage, Dalton is not required to show the materiality under the meaning of Brady. (Barnett, supra, 50 Cal.4th at p. 894.) On remand, the motion court shall give Dalton the opportunity to make a reasonable showing the requested phone records exist. If the showing is adequate, the motion court shall order the prosecution to turn the records over to Dalton if they are in possession of the prosecution team.

Dalton sought postconviction discovery of San Diego County jail records for 16 individuals. The motion court denied the request except for a record concerning visits on a specific date for an inmate whom Fedor claimed she visited. At oral argument, Dalton narrowed her request to the jail records of four women who testified at trial about aggravating events that they claimed took place in jail. Dalton claimed the jail records were relevant to prove or disprove the details of the women's testimony and to challenge their credibility. The requested jail records of the four women are arguably exculpatory evidence under Brady, supra, 373 U.S. 83. The duty to disclose exculpatory evidence under Brady includes impeachment evidence. (People v. Gaines, supra, 46 Cal.4th at p. 184.) At the postconviction discovery stage, Dalton is not required to show the materiality under the meaning of Brady. (Barnett, supra, 50 Cal.4th at p. 894.) We find that to the extent the prosecution is in possession of the requested jail records for the four women, the prosecution should turn over the records to Dalton.

Dalton unsuccessfully sought postconviction discovery of "any and all materials regarding any and all other individuals whom law enforcement at any time considered a suspect in the crimes charged other than Kerry Dalton, Mark Tompkins and Sheryl Baker." This request is overbroad, and was properly denied by the motion court with two exceptions. Section 1054.9 requires specific discovery requests "and not the proverbial `fishing expedition' for anything that might exist." (Barnett, supra, 50 Cal.4th at p. 894.) The two exception are Dalton's subrequests for information regarding credit card information for gas stations in three communities near the trailer park on the days surrounding the murder and information regarding guests registered at two nearby motels on the day of the murder and the following day. Codefendant Baker said a fourth suspect named "George" used a credit card to pay for gas at a station in the area and that she, Dalton, Tompkins and "George" rented a motel room after leaving Fedor's trailer. Information falling within these two exceptions, if it exists and is in the possession of the prosecution team, would be discoverable under Brady, supra, 373 U.S. 83. On remand, the motion court shall give Dalton the opportunity to make a reasonable showing of the existence of this specific information. (Barnett, supra, 50 Cal.4th at p. 894.) Upon an adequate showing, the motion court shall order the prosecution to disclose the information if it is in the possession of the prosecution team.

Dalton sought postconviction discovery of the arrest records of Tompkins and Baker. The motion court properly denied these requests. The motion court had already ruled that Dalton was entitled to all prior felony convictions and any prior misdemeanor convictions involving moral turpitude for Tompkins and Baker, among others. Dalton argues she needs the arrest records of her codefendants for the penalty phase to present a "mitigation theme of diminished [relative] culpability" and to contest the prosecution's portrayal of her as the "moving force behind the crime." We disagree. The jury had the trial evidence to consider in evaluating the perpetrators' respective roles in the murder. Further, as to Dalton's potential diminished culpability relative to her codefendants, their criminal histories of felony convictions and misdemeanor convictions involving moral turpitude were adequate to serve this purpose as well as for impeachment purposes during trial. Dalton's arguments that Steele, supra, 32 Cal.4th 682, calls for the release of the codefendants' arrest records for penalty phase purposes are unpersuasive.

Let a writ issue directing the superior court to (1) vacate its order of March 8, 2010 and (2) enter an order directing the District Attorney of San Diego County to provide Dalton, within a reasonable time, the materials specified in this opinion that are currently within the possession of the prosecution team at a cost no greater than the direct cost of duplication. In all other respects, the petition is denied.

McDONALD, J.

O'ROURKE, J.

*****

Footnotes

1. Statutory references are to the Penal Code.

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2. We shall refer to the judge who presided at Dalton's trial as the trial court and the judge who ruled on her postconviction discovery motion as the motion judge.

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3. Dalton's appeal is pending in the California Supreme Court. (People v. Dalton (S046848).) Also pending in the high court is her petition for writ of habeas corpus, which was filed on December 7, 2009. (In re Dalton on Habeas Corpus (S178504).)

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4. Statutes 2002, chapter 1105, section 1, page 5477.

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5. The motion court's order misstates the title of the division. The correct title is the "Law Enforcement Division" of the sheriff's department Since the motion court's intent was clear, we direct the court, on remand, to amend its order accordingly.

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6. In addressing the issue of "who must possess the materials for them to come within [the] scope" of section 1054.9, the Steele court noted section 1054.5, which deals with trial discovery, refers to a defendant receiving discovery "`from prosecuting attorneys, law enforcement agencies, which investigated or prepared the case against the defendant, or any other persons or agencies which the prosecuting attorney or investigating agency may have employed to assist them in performing their duties.'" (Steele, supra, 32 Cal.4th at p. 696; § 1054.5, subd. (a).)

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7. Chris Dalton was on the prosecution's witness list, but did not testify at trial.

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8. Dalton also claims her trial counsel received 150 reports from the El Cajon Police Department as part of trial discovery.

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9. To the extent Dalton seeks materials maintained by the Detention Services Division of the sheriff's department or the CDCR in the regular course of operating custodial facilities, she is relegated to use of a subpoena duces tecum. (Barrett, supra, 80 Cal.App.4th at p. 1318.)

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10. These included statements of individuals who were on the prosecution's witness list for Dalton's codefendants' trials as well as statements by other individuals who had been interviewed by the prosecution team. As to witness statements, the motion court limited Dalton's postconviction discovery to those witnesses who testified at Dalton's trial or whom the prosecution intended to call at her trial.

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11. Webster's Third New International Dictionary (1993) at page 1585, column 2, defines "or": "Used as a function word to indicate (1) an alternative between different or unlike things, states, or actions, . . . (2) choice between alternative things, states or courses . . . ."

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12. The statement of decision read: "In this context, the language petitioner relies on has to be read as based on an assumption that the trial court's order was proper and consistent with law."

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13. The statement of decision read: "Since there was no consideration of what the rule would be under section 1054.9 in the face of a trial court order that was in excess of its authority, Steele cannot be seen as making any `holding' on that issue."

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14. Counsel for codefendant Baker took exception with the prosecution's compliance in providing copies of the photographs used in photographic lines. This is not an issue in this proceeding.

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15. The trial court severed the trials at the same July 13, 1993 hearing at which it issued the discovery order. Given that the parties agreed the prosecution had complied with the 11 requests prior to the hearing, it is reasonable to infer that the disputed category of requests had been turned over to trial counsel while the cases were still joined.

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16. The request in the postconviction discovery order was for "[a]ny and all records accessible to the prosecution or any law enforcement organization involved in the investigation or prosecution of this case that reflect any psychiatric, psychological, neurological, neuropsychological or other mental health disorder, or symptoms of a mental health disorder, on the part of any material witness who testified for the prosecution in the instant case, including, but not limited, to the individuals listed below. This order shall include, but not be limited to, mental health records generated or maintained by the San Diego County Sheriff's Department or by any contract provider of jail mental health services, including records of medications received and/or refused."

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17. On remand, the motion court shall amend its statement of decision to delete the sentence that Dalton withdrew this request at oral argument. Dalton's counsel did not withdraw the request, but rather modified the request to add a clause that was dropped from the motion papers.

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18. We also note that Dalton's request sought discovery of comparable prison and parole records from out-of-state law enforcement agencies — something that is not covered by section 1054.9 (Barnett, supra, 50 Cal.4th at pp. 894, 901-906.)

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19. Section 1054.1, subdivision (c), requires the prosecution to disclose to the defense "all relevant real evidence seized or obtained as a part of the investigation of the offenses charged.