1 Filed 7/8/14 (unmodified opinion attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JULIO DAVIS, Defendant and Appellant. A137800
(San Francisco County Super. Ct. No. 174657)

ORDER MODIFYING OPINION AND DENYING REHEARING

BY THE COURT: It is ordered that the opinion filed here in on June 12, 2014, be modified in the following particulars: In the first full paragraph on page 2, after the sentence beginning “We denied Davis’s motion to consolidate,” the following se ntence is added: “Accordingly, this court takes judicial notice of the re cord in the related writ procee ding (A139767). (Evid. Code §§ 452 & 459.)” This modification does not effect a change in the judgment. Appellant’s petition for rehearing is denied.

Dated:______________

___________ ____ _____________________ Kline, P.J.2 Trial Court: Superior Cour t of San Francisco County
Trial Judge: Hon. Angela Bradstreet
Attorney for Defendant and Appellant Julio Davis Susan D. Shors By appointment of the Court of Appeal under the First District Appellate Project Independent Case System

Attorney for Plain tiff and Respondent The People Kamala D. Harris Attorney General Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Senior Assistant Attorney General Seth K. Schalit Supervising Deputy Attorney General Laurence K. Sullivan Supervising Deputy Attorney General1 Filed 6/12/14 (unmodified version) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. JULIO DAVIS, Defendant and Appellant. A137800
(San Francisco County Super. Ct. No. 174657)

I. INTRODUCTION In 2000, a jury convicted Julio Davis of first degree burglary (Pen. Code, § 459)
and also found that he had f our prior first degree felony bu rglary convictions. The trial court imposed a sentence of 25 years to life in prison. In April 2003 , this court affirmed the judgment against Davis who is cu rrently serving his sentence. (See People v. Davis (Apr. 2, 2003, A094645) [nonpub. opn.] ( Davis I ).) 1 In 2012, the San Francisco District Atto rney’s office filed a motion for discovery of potentially relevant records from the personne l file of a police officer who testified at
trial in Davis I . The superior court conducted an in -camera review of the file and then issued an order finding that th e officer’s records are not material to Davis’s case, either as evidence bearing on his guilt or sent ence or as impeac hment evidence. Although not a party to the 2012 post-j udgment discovery motion, Davis filed a notice of appeal seeking independent appella te review of the officer’s records to determine whether they contain material that should have be en produced to the People pursuant to Brady v. Maryland (1963) 373 U.S. 83 ( Brady ). In a related petition for writ

1 We granted Davis’s motion to augment th e record in this a ppeal to include the record in Davis I

.2 of mandate (A139767), Davis seeks an order compelling the trial court to conduct a new hearing on the People’s Brady motion at which Davis will ha ve the opportunity to be
heard.
We denied Davis’s motion to consolidat e his petition for writ of mandate with his appeal and ordered instead that the petition w ould be considered with the appeal. For reasons that follow, we find that Davis has faile d to establish that he has a right to appeal the post-judgment Brady order or that he is entitled to a writ of mandate. Therefore, we will dismiss this appeal and deny the petition by separate order.
II. FACTUAL AND PROC EDURAL BACKGROUND
A. Davis I In the early morning hours of March 28, 19 99, residents of a ground level unit of a 20-unit “mixed-use” building on Howard Street in San Fr ancisco were awakened by sounds of glass breaking and a person coming through a wi ndow. Through translucent glass in their bedroom door, they saw a single person walk past that door several times. They called 911 and police arrived at about th e same time that the residents heard the intruder climb a staircase and go in to the office space above them. When police entered the unit, they found Davis exiting a laundry closet at the top of the staircase. They hand cuffed him and removed a screwdriver from his pocket. In the laundry closet, the police found two items that did not belong to either of the residents, a “wad” of foreign cu rrency and a pair of cufflinks. They also found items that
had been removed from the kitchen counter in the unit, including a wallet, an empty money clip, which had earlier c ontained $520, a pager, a cell phone charger, and a set of car keys. Two CD players a nd a backpack containing a la ptop computer had been moved to the hallway near the brok en window and Davis’s fingerprints were on the stereo equipment. At his December 2000 jury trial, Davi s’s defense was that he was guilty of trespass but not burglary. According to th is defense theory, an unknown person broke
into the victims’ unit before Davis arrived and that person stole the $520 that was missing from the money clip. Then, when Davis arri ved at the scene he found an open window3 frame, assumed the building was vacant and c limbed inside because he was homeless and needed a warm place to sleep. The jury rej ected this unsupported theory, convicted Davis of first degree burglary and also found that he had suffered four prior first degree burglary convictions. The trial court denied a defense motion to strike those convictions, and sentenced Davis to 25 year s to life imprisonment. Davis appealed, alleging prosecutor miscond uct, instructional error, denial of his right to a jury trial on the priors, and that his sentence constituted cruel and unusual punishment. On April 2, 2003, this court filed our opinion in Davis I , in which we rejected Davis’s claims of error and affirmed the judgment against him.
B. Officer Walker’s Testimony in Davis I On December 18, 2000, San Francisco Police Officer Robert Walker testified at
the trial in Davis I . However his testimony was not rele vant to any issue on appeal and, indeed, he was not even mentioned in our decision in that case.
Walker testified that he was one of the officers who responded to the location of the March 1999 burglary . When he arrived, he took a post on the corner of Howard and 7th Street to help establish a perimeter arou nd the crime scene. Walker wore his regular uniform clothes, including a short sleeved sh irt and vest, and recalled that the weather was typical for the time of year and not too co ld. Walker did not enter the unit where the
crime occurred until after Davis was arrested a nd placed in a patrol car. Walker booked
three items of evidence that had been collected at the crim e scene: the screwdriver, the cufflinks, and the foreign cash. Walker did no t collect these items hi mself; he received
them from another officer and then booked a nd sealed them in an evidence envelope.
Defense counsel cross-examined Walker regarding the circumstances under which
he received the evidence that he booked. Walker could not re call when during the investigation another officer gave him the evid ence to book or whether he received that
evidence while still at th e scene or later after he returned to the police station. Defense counsel also asked several questions about a st rip-search that was conducted at the police
station. Walker recalled that the search wa s authorized and did o ccur, but he could not
recall whether he conducted the search or if another officer did.4 Defense counsel also probed Walker about his recollection as to whether Davis
was homeless and what the weather was like wh en the crime occurred. Walker testified
that he did not know if Davis was homeless; that he had not i nquired about that subject at the time of the burglary; that he did not pr epare the police report associated with the crime; and that he did not recall whether th e report reflected that Davis was homeless. Walker could not recall what the temperature was outside when he arrived at the crime scene and he did not specifically recall whether he put on items of clothing before he got out of his patrol car that morning.
C. The 2012 Discovery Motion On September 4, 2012, the San Francisc o District Attorney filed a motion for discovery of Officer Walker’s personnel records pursuant to Brady, supra , 373 U.S. 83
and Evidence Code sections 1043 and 1045 , subdivision (e). The trial court was specifically requested “t o conduct an in camera review of said officer’s personnel file or relevant portions thereof, to disclose to the District Attorney’s Office and the defense any Brady material located in the personnel file, and to issue a protective order to protect the officer’s statutory right of privacy in the pe rsonnel file.” The Pe ople served their motion and accompanying papers on bot h the San Francisco Police Department and on Erwin Fredrich, the defense attorney in Davis I

. The People’s motion was acco mpanied by two declarations by an assistant district attorney. According to one of them, the People were notified about potential Brady material in Walker’s file in August 2010. In this regard, the declara tion states: “Pursuant
to Bureau Order No . 2010-01, dated August 13, 2010, the San Francisco Police Department has informed the Dist rict Attorney’s office that [Walker] has material in his or her personnel file that may be subject to disclosure under Brady v. Maryland (1963)
373 U.S. 83. . . .” On inform ation and belief, the assistant dist rict attorney stated that the police department would not disclose Walk er’s records without a court order.5 With their declarations, the People a dvised the court that Davis had been convicted of violating Penal Code section 459, 2 that Officer Walker was a prosecution
witness at Davis’s trial who testified on “t he issue of the defendant’s possession of burglary tools,” and that Walker’s credibility as a witness “may have been placed at
issue.” One declaration also states that Walk er “testified that he received the burglary
tools that were attributed to the defendant from another officer, and that he booked those
tools into evidence.” On September 27, 2012, the superior court held a hearing on the People’s discovery motion. Apparently, that heari ng was not transcribed. However, a minute
order reflects that Mr. Fred rich, defense counsel in Davis I , appeared and was appointed private counsel for Davis in this matter, a nd that Davis’s appearance was waived. A custodian of records for the po lice department appeared at th e hearing and produced a file of documents that was lodg ed with the court. On October 1, 2012, the Honorable Ange la Bradstreet issu ed an order which states: “The Court having conducted an in camera review of documents produced by the
Custodian of Records of the San Francisco Police Department on 10/1, 2012 pursuant to the People’s motion for discovery under Brady and Evidence Code Section 1043 et seq., and good cause appearing, HEREBY ORDERS that none of the documents reviewed be produced to the District Atto rney for possible disclosure. The Court finds that none of the documents produced fall with in the standard articulated in Brady v. Maryland 373
U.S. 83. None of th e documents are material to the in nocence or guilt of the defendant, none are material to punishment, none cons titute conduct which is moral turpitude and none constitute relevant impeachment ev idence.” (Bolding in original.) On October 1, 2012, the superior c ourt also filed a “Sealing Order,” which directed that an attached document, a 77-pa ge San Francisco Police Department Internal

2 All further undesignated statutory re ferences are to the Penal Code unless otherwise noted.6 Affairs report, was to “be sealed and not ope ned absent further order of the court.” (Capitalization omitted.)
D. The Appeal and Writ Petition On October 18, 2012, Davis filed an in pro per notice of appeal from the October 1, 2012, order and also requested the appointm ent of counsel for that appeal. Appellate counsel was appointed on March 18, 2013. W ith the assistance of counsel, Davis argues that (1) he is entitled to appellate review of the superior court’s finding that Walker’s file
does not contain Brady material; and (2) he was denied due process at the Brady hearing in the superior court. In their Responden t’s Brief, the People raise the question whether the October 1 order is appealable. On September 17, 2013, Davis filed a petiti on for writ of mandate in this court in
which he reasserts his claim that he was denied due process at the Brady hearing. Pursuant to that petition, Davi s seeks an order compelling the superior court to conduct a new hearing on the People’s discovery motion, to appoint counsel to represent Davis at the hearing, and to afford him an opport unity to participate in that hearing.
III. DISCUSSION
A. Legal Principles The issues before us implicate two some times related but clearly distinct legal principles: (1) the People’s ob ligation to disclose material evidence that is favorable to
the defense under Brady, supra , 373 U.S. 83, and (2) a crim inal defendant’s right to discover confidential records in a peace officer’s personnel files under Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ).
“Under Brady, supra , 373 U.S. 83, 87, the prosec ution must disclose to the defense any evidence that is ‘favorable to th e accused’ and is ‘material’ on the issue of either guilt or punishment. Failure to do so violates the accused’s constitutional right to due process. [Citation.] Evid ence is material under the Brady standard ‘if there is a reasonable probability that, had th e evidence been di sclosed to the defense, the result of the proceeding would have been different.’ [Citation.]” ( City of Los Angeles v. Superior
Court (2002) 29 Cal.4th 1, 7 ( City of Los Angeles ).) “The prosecution’s disclosure duty7 under Brady applies even without a request by the accused; it pertai ns not only to exculpatory evidence but also to impeachment ev idence. [Citations.]” ( Id. at p. 8; see
also People v. Cook (2006) 39 Cal.4th 566, 587 [“Evidence that is material to defendant’s guilt, innocence or punishment and that im peaches a prosecution witness must be disclosed.”].) “Although Brady disclosure issues may arise ‘in advance of,’ ‘duri ng,’ or ‘after trial’ [citation], the test is always the same. [Citation.] Brady materiality is a ‘constitutional standard’ required to ensure that nondisclosure will not ‘result in the denial of defendant’s [ due process] right to a fair tria l.’ [Citation.] [¶] “Because the Brady rule encompasses ev idence ‘known only to police investigators and not to the prosecutor,’ it is incumb ent upon the prosecutor to l earn of any favorable evidence ‘known to the others acting on the government’s behalf in [a] case, including the police.’ [Citations.]” ( City of Los Angeles, supra, 29 Cal.4th at p. 8.) Independent of Brady and its requirements, the California Supreme court has recognized that in criminal cases involving police o fficer testimony, evidence in the officer’s personnel files may be relevant to and discoverable by the defense. ( Pitchess,

supra, 11 Cal.3d 531.) To provide for the disc overy of such material while also protecting the privacy rights of the affected officer, the California Legislature codified the privileges and procedures that govern what is now commonly referred to as “ Pitchess motions” through the enactment of sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045. ( City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 84.) “ ‘The Penal Code provisions define “p ersonnel records” ( . . . § 832.8) and provide that such reco rds are “confidential” and subject to discovery only pursuant to the procedures set forth in the Evidence Code. ( . . . § 832.7.) Evidence Code sections 1043 and 1045 set out the procedures for discovery in detail. . . . [S]ection 1043, subdivision (a) requires a written motion and notice to the governmental agency which has custody of the records sought, and subdivision (b) provides that such motion shall include, inter alia, “(2) A description of the type of records or information sought; and [¶] (3) Affidavits showing good cause for the discovery or disc losure sought, setting forth the materiality8 thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified ha s such records or
information from such reco rds.” ’ [Citation.]” ( City of Los Angeles, supra, 29 Cal.4th at pp. 8-9.)
B. The Appeal Davis attempts to raise two claims via hi s appeal: (1) that he is entitled to independent appellate review of Officer Walke r’s file to determine whether the trial court erred by concluding that it does not c ontain any material discoverable under Brady , and (2) that the trial court violated his due pr ocess rights by denying him the opportunity to be heard at the discovery hearing. The People contend that this appeal must be dismissed
because Davis has fail ed to identify an appealable order. Preliminarily, the People object that the notice of appeal lacks sufficient specificity because it does not identify either a judgment or order but refers only to a filing date of October 1, 2012. We disagree with this contention. Rule 8.304(a)(4) of the
California Rules of Court establishes that a “no tice of appeal must be liberally construed”
and that “the notice is sufficient if it iden tifies the particular judgment or order being appealed.” Applying this rule here, we conclude that Davi s’s pro per notice of appeal sufficiently identifies eith er or both of the orders filed by the superior court on October 1, 2012. Davis’s appellate briefs, which were pr epared after counsel was appointed for him, clarify that Davis is challenging the superior court’s finding that Officer Walker’s file does not contain any discoverabl e material. Thus, when we refer to the October 1 order in this opinion, we are referencing the order containing that finding. However, the more difficult question is whet her the October 1 order is appealable. “ ‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ [Citations.]” ( People v. Mazurette (2001) 24 Cal.4th 789, 792.) Here, Davis cont ends that the October 1 order is appealable
under Penal Code section 1237 , subdivision (b) (section 1237(b)), which states that the defendant may take an appeal “From any order made after judgment, affecting the substantial rights of the party.” Unquestiona bly, the October 1 orde r is an order made9 after judgment in Davis I . The issue, however, is whethe r it affects Davis’s substantial rights. In addressing this issue, Davis characte rizes the October 1 order as a “denial of Brady disclosure.” This characterization of the October 1 order is potentially very misleading. The superior court did not deny a request to conduct a review of a
confidential file for Brady material. Nor did it deny a request to order production of
evidence that satisfies the Brady materiality standard. Rather, the superior court granted the People’s request to conduct an in camera review of an officer’s confidential file and concluded, based on that review, that info rmation in the file was not material under Brady

. Thus, the question raised by this appeal is whether a post-judgment order that a police officer’s confidential file does not contain Brady material affects Davis’s substantial rights. Two facts th at Davis fails to squarely ackn owledge indicate to us that
the October 1 order does not aff ect Davis’s substantial rights. First, the October 1 order resolves a mo tion that Davis did not and could not have made himself. Prior to judgment, Davis could have filed a Pitchess motion had he believed that Officer Walker’s credibility was re levant to his defense. Apparently, that
was not the case since no such motion was filed. In any event, there are jurisdictional limits on a court’s authority to entertain a c onvicted defendant’s po st-judgment motion. As a general rule, there “ ‘is no statutory authority for a trial court to entertain a postjudgment motion that is unrelated to any pr oceeding then pending before the court. [Citation.] Indeed, a motion is not an independ ent remedy. It is ancillary to an on-going action and “ ‘implies the pendency of a suit between the parties and is confined to incidental matters in the progress of the cause . As the rule is sometimes expressed, a motion relates to some question collateral to the main object of the action and is connected with, and de pendent on, the princi pal remedy.’ ” [Citation.] In most cases, after the judgment has become final, ther e is nothing pending to which a motion may attach.’ [Citation.]” ( People v. Picklesimer (2010) 48 Cal.4th 330, 337 ( Picklesimer ).)10 Consistent with this general rule, our su preme court has held that a trial court does not have authority “to order ‘free-floating’ postjudgment discove ry” which is unrelated to any proceeding pending before the court. ( People v. Gonzales (1990) 51 Cal.3d 1179, 1256, 1261; see also In re Steele (2004) 32 Cal.4th 682, 691.) Section 1054.9 modifies the rule prec luding a convicted de fendant from seeking post-judgment discovery, but only in cases in which the defendant has been sentenced to death or life in prison without the possibility of parole. ( In re Steele, supra , 32 Cal.4th at p. 691.) “[F]or defendants sentenced to de ath or life in prison w ithout the possibility of parole, section 1054.9 authoriz es a first-time, pre-habeas corpus motion for discovery of peace officer personnel records. According to the literal language of section 1054.9, the scope of such discovery is the materials ‘t o which the same defendant would have been entitled at time of trial.’ (§ 1054.9, subd. (b).)” ( Hurd v. Superior Court (2006) 144 Cal.App.4th 1100, 1110.) Here, Davis does not and indeed cannot rely on section
1054.9. 3 In this case, the post-judgment disc overy proceeding was initiated by the People not the defendant. That proceeding took the form of a Pitchess motion, but it was authorized by Brady itself because, as noted earlier in our discussion, the People’s obligations under Brady are ongoing, even post-judgment. ( City of Los Angeles, supra
, 29 Cal.4th at p. 8.) Ho wever, as we also discu ss above, the People’s Brady obligations are distinct from the defendant’s right to ob tain discovery from an officer’s confidential
files. A convicted defendant does not have a right to a post-judgment discovery order
“based on Brady alone, independent of section 1054.9.” ( Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 369.)

3 However, Davis does mistakenly re ly on out-of-context passages from Curl v. Superior Court (2006) 140 Cal.App.4th 310, 323-324, a writ proceeding which involved a post-conviction motion for discovery under se ction 1054.9 and thus has no relevance to the issue presented here. Furthermor e, Davis fails to acknowledge that Curl was disapproved in Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.11 A second important factor affecting our conclusion is that Davis did not use the People’s Brady motion as a basis for pursuing his own request for post-judgment discovery. Arguably, once the People filed a post-judgment Brady motion, there was a pending proceeding to which Da vis could have attached hi s own discovery request. However that question is not presented by this appeal. Even in cases in which a defendant can obtain post-judgment discover y, for example pursuant to section 1054.9, he must comply with the Pitchess procedure and requiremen ts which include showing that the discovery sought is material to pending litigation. In the present case, the appellate record does not contain any eviden ce that Davis attempted to file his own
Pitchess motion or otherwise intervene in the pos t-judgment proceeding that the People initiated by filing their Brady motion. The circumstances outlined above support the conclusion that the October 1 order did not affect Davis’s substantial rights. Pr ior to trial, Davis ha d the right to seek discovery from Officer Walker’s files if he believed Walker’s credibility was relevant to his defense. However, during the post-judgme nt stage of his criminal case, Davis does not have a free-floating right to discovery. As explained above, Brady imposes disclosure obligations on th e prosecution but it does not c onfer discovery rights on a convicted defendant. Thus, Da vis himself had no right to seek post-judgment discovery
from Officer Walker’s files. Nor did he ma ke any effort to join in the proceeding initiated by the People. Under these circumstan ces, the order entered after an in camera
review of the confidential file that was cond ucted solely on behalf of the People did not affect Davis’s substantial rights. Claiming that the October 1 order does affect his substantial rights, Davis mistakenly relies on People v. Totari (2002) 28 Cal.4th 876 ( Totari ). In 1985, the Totari defendant entered guilty pleas in two cases charging him with drug possession and check fraud. Two years later, he was granted lim ited expungement of hi s record. Then, in 1998, the defendant filed a motion to vacate his 1985 convictions pursuant to section 1016.5 on the ground that he was not advise d of the immigration consequences of his12 guilty pleas. 4 The trial court denied the motion to vacate, and the defendant’s appeal was dismissed on the ground that the trial cour t’s order was nonappealable. The Supreme
Court reversed that decision.
The Totari court recognized that, although section 1016.5 creates the remedy of a motion to vacate, that statute does not expre ssly authorize an appeal from the denial of such a motion. ( Totari, supra , 28 Cal.4th at p. 882.) Ho wever, the court found that the denial of this statutory moti on was appealable pursuant to section 1237(b) as an order made after judgment affecting the substantia l rights of the defendant. The court reasoned that the Legislature enacted section 1016.5 for the express purpose of protecting “alien defendants who pleaded guilty without knowi ng that their guilty plea could lead to immigration consequences.” ( Id . at p. 883.) The court also relied on its own prior authority establishing that a noncitizen defenda nt has a “ ‘substantial right’ ” to be given complete advisements under section 1016.5. ( Id . at p. 883, quoting People v. Superior
Court ( Zamudio ) (2000) 23 Cal.4th 183, 199-200.)
The Totari court rejected the People’s conten tion that, assuming the denial of a
section 1016.5 motion can affect a defendant’s substantial rights, the record showed that this particular defendant’s substa ntial rights were not violated. ( Totari, supra, 28 Cal.4th at p. 884.) That factual claim went to the me rits of the dispute as opposed to the question whether the order itself was appealable. ( Id . at pp. 884-887.) Ultimately, the Totari court held: “Once the Legislature has determined th at a noncitizen defendant has a substantial right to be given complete a dvisements and affords defendant a means to obtain relief by way of a statutory postjudgment motion to vacate, the ‘ no second appeal’ rule loses its

4 Section 1016.5 imposes an obligation on trial courts to advise criminal defendants of the immigration consequences of pleading guilty or nolo contendere and also provides that if the court fails to gi ve the required advisement, “the court, on defendant’s motion, shall vaca te the judgment and permit th e defendant to withdraw the plea of guilty or nolo contende re, and enter a plea of not guilty . Absent a record that the court provided the advisement required by this section, th e defendant shall be presumed not to have received the required advisement.” (§ 1016.5, subd. (b).)13 urgency and a denial order qualifies as an ‘order made after judgment, affecting the substantial rights of the party.’ ” ( Id. at p. 886-887.)
Totari is factually inapposite. That case i nvolved a post-judgment motion (1) filed by the defendant, (2) that was expressly authoriz ed by statute, and (3) that had nothing to do with post-judgment discovery. Furthermore, none of the factors which supported the
Totari court’s legal conclusion are found here . The Legislature has not found that a convicted defendant has a substantial right to seek post-judgment discovery, except when section 1054.9 applies. Nor has Davis iden tified any authority entitling him to participate in a post-judgment Brady proceeding. As explained above, Brady imposes disclosure obligations on a prosecutor, but it does not aut horize a convicted defendant to seek postjudgment discovery. In his Reply Brief, Davis argues that th is appeal “is the established appellate procedure for . . . reviewing [ Brady ] material,” citing People v. Myles (2012) 53 Cal.4th 1181, 1209. However, Myles is inapposite as that cas e was a direct appeal from a judgment of death and the issue the court a ddressed was whether the trial court erred by denying a pre-conviction defens e motion for disclosure of confidential records of law
enforcement officers involved in th e investigation of the case. ( Id . at pp. 1208-1209.) Davis insists that he is seeking redress for a right that was denied to him at trial in
Davis I . He reasons that “if appellant was de nied his federal constitutional right to relevant and material impeachment evidence at trial, then he was not convicted after a fair trial” and his conviction is open to cha llenge. This theory highlights two flaws that run throughout Davis’s ar guments in this case. First, the defense right to discover eviden ce from the confidential file of a police
officer involved in his case derives solely from Pitchess

. Brady imposes disclosure obligations on the prosecution, an d, as far as we are aware, a criminal defendant does not have the constitutional right to participate in the procedure that the prosecution uses to ensure compliance with its obligations under Brady . Second, Davis is attempting to use the appellate process to seek a remedy for a pote ntial harm that is not the subject of this proceeding. If Davis believes that the People violated Brady in Davis I , that is an14 independent claim that was not alleged, su pported, or in any way addressed in the superior court proceeding that re sulted in the October 1 order. We reiterate that the superior court did not refuse to conduct a Brady inquiry. Nor did it refuse to order the production of documents that were discoverable under Brady . If those facts were present, our an alysis could be very different. As it is though, Davis has
failed to establish that the October 1 order a ffected his substantial rights. Nor has he identified any other rule or statute authorizing this appeal. Therefore, Davis’s appeal is
dismissed.
C. The Writ Petition After the People filed their opposition br ief questioning Davis’s right to appeal from the October 1 order, Davis filed a petition for writ of mandate seeking to remedy an alleged violation of his constitu tional right to due process.
1. Background In his petition, Davis alleges that he is challenging “the superior court’s denial of due process” to him during the Brady proceedings. His theory is that the prosecutor failed to provide the court with sufficient info rmation about Officer Walker to make a fair ruling and that the superior court “abused its discretion” by conducting a review of Walker’s personnel files for Brady material “when petitioner di d not have an opportunity
to be heard on the issue and the court made its decision based solely on the prosecution’s presentation of the pertin ent circumstances.” To support this claim, Davis purports to provide a more accurate or complete summary of Officer Walke r’s testimony which states: “15. On direct examination, Officer Wa lker testified that he and a partner had responded to the area of Howa rd and 7th Street in respon se to a dispatch call and established a crime scene perimeter. Officer Walker collected and bo oked into evidence the screwdriver, the cufflinks, an d the foreign money. Walker testified that he had not
entered the residential unit before the suspect was removed by other officers.
“16. Defense counsel’s cross-examinati on of Officer Walker was centered upon
the issue of where th e coins, cufflinks and screwdri ver had come from and what had15 happened to the missi ng cash. Officer Walker said he was handed the three items by another officer, but was vague and/or evasiv e about the circumstances. For example, while Walker had no problems answering the questions asked on direct, on cross examination he claimed no recollection approximately 20 times.
“17. Officer Walker could not recall if he was the one who had strip searched Mr. Davis to look for the cash, though the fact th at he had done so was stated in another officer’s report. While admitting he had glan ced at parts of the police report, Officer Walker claimed no memory of the conditions at the crime scene or who was with him at any particular time.” Davis contends that he was precluded from sharing these pertinent facts about Officer Walker with the superior court an d was thereby deprived of his constitutional right to due process. 5 To remedy the alleged constitutional violation, Davis seeks a peremptory writ of mandate comp elling that court to hold a new Brady hearing for which Davis will have notice, appoin ted counsel, and “a full oppor tunity to submit evidence and be heard on the issue of the potential ma teriality of the seal ed documents.”
2. Analysis Unlike a post-judgment motion, a petition fo r writ of mandate “is an independent proceeding” that vests the court “with jurisdiction to act.” ( Picklesimer, supra, 48 Cal.4th at p. 339; see Code Civ. Proc., § 1085.) “To ob tain relief, a petitioner must demonstrate (1) no ‘plain, speedy, and adequa te’ alternative remedy exists (Code Civ. Proc., § 1086); (2) ‘a clear, present . . . mini sterial duty on the part of the respondent’; and (3) a correlative ‘clear, present, and beneficial right in the petitioner to the performance of that duty.’ [Citations.]” ( Picklesimer, supra, 48 Cal.4th at p. 340.) With respect to the first of these requireme nts, Davis contends that an appeal is not an adequate alternative remedy because hi s claim depends on evidence outside that

5 For the record, we do not agree with Davis’s self-s erving interpretation of the cross-examination of Officer Walker or w ith his account of the testimony that Walker gave in Davis I

.16 record. Aside from that, as we have already found, the October 1 or der is not appealable by Davis.
Davis also contends that he cannot file his petition in the superior court because that court is “the party that failed to properl y exercise its discretion.” The superior court does not have the authority or jurisdiction to issue mandamus or prohibition against itself. “Mandamus or prohibition may be issued only by a court to another court of inferior jurisdiction.” ( Haldane v. Superior Court of Los Angeles County (1963) 221 Cal.App.2d 483, 485-486; See Code Civ. Proc., §§ 1085, 1103.) ( Ibid .) However, “[b]efore seeking mandate in an appellate court to compel action by a trial court, a party should first request the lower court to act. If such request has not been made the writ ordinarily will not issue unless it appears that the demand woul d have been futile. [Citations.]” ( Phelan v. Superior Court of San Francisco (1950) 35 Cal.2d 363, 372.) In the present case, the allegations and evidence in support of the petition support the following facts: (1) Befo re the People filed their Brady motion, Assistant District Attorney Jerry Coleman notified Erwin Fredrich, Davis’s trial counsel in Davis I, about the potential Brady material in Officer Walker’s file ; (2) Coleman advised Fredrich that the People had not made a de termination whether the info rmation should have been
disclosed in Davis I but, pursuant to their obligations under Brady , the People were notifying the defense about the file so it coul d make its own determination as to whether to “seek some sort of post-judgment relief”; (3) The People subseque ntly served Fredrich
with notice of their Brady motion, and with copies of their motion and supporting documentation; (4) Fredrich attended the hearing on beha lf of Davis and Davis’s appearance at that hearing was waived.
The record also contains disputed evidence that Fredrich was formally reappointed to represent Davis at the October 1 hearing. The minute order for the hearing reflects that reappointment. However, Fredrich filed a de claration in support of this mandate petition in which he claims he was never reappointed. According to that declaration, Fredrich “checked in” at the hearing but he “was not reappointed to represent Mr. Davis at that time and did not state an appearance as no proceedings took place on the record.”17 But Fredrich does not dispute that he wa s present at the hearing and that he was recognized by the court as Davi s’s attorney. Nor does Fredrich substantiate the allegation in the petition that Davis was denied th e opportunity to pa rticipate in the Brady hearing. Rather, according to his declara tion, Fredrich did not file a motion or request that Davis be allowed to participate in the Brady proceeding because he believed that the San Francisco Superior Court had a policy of refusi ng to allow such participation. However,
there is no evidence before us that such a policy exists. Thus, Davis has failed to establish or even allege that he made a request of the superior court to participate in the Brady proceeding or that such a request would have been futile. This fact alone is a ground fo r denying this petition. Beyond that, Davis has not met the other requirements for obtaining mandate relief by identifying a clear and present ministerial duty on the part of the superior court and his correlative clear and present beneficial right to pe rformance of that duty. ( Picklesimer, supra , 48 Cal.4th at p. 340.) Here, Davis never squarely articulates th e ministerial duty he attributes to the superior court. Instead, he makes the broad claim that the court abused its discretion by deciding the post-judgment Brady motion without first affording him “an opportunity to be heard on the issue,” and th at he “has a clear, present and substantial right to the performance of respondent’s duty to exercise its discre tion properly in ruling on the motion to disclose exculp atory evidence [in] police personnel files.” “A ministerial duty is an obligation to perform a specific act in a manner prescribed by law whenever a gi ven state of facts exists, w ithout regard to any personal judgment as to the propriety of the act. [Citation.]” ( Picklesimer, supra , 48 Cal.4th at p. 340.) “Although it is well established that mandamus cannot be issued to control a court’s discretion, in unusual circumstances th e writ will lie where, under the facts, that
discretion can be exercised in only one way. [Citation.]” ( Babb v. Superior Court (1971) 3 Cal.3d 841, 851.) In this case, Davis takes the position th at the superior court cannot properly
exercise its discretion to reso lve a post-judgment motion for Brady discovery unless it18 conducts a noticed hearing at which the defendant is repres ented by counsel and offered the opportunity to present evidence and argument. Putting aside the fact that Davis’s
own evidence shows that he did have notice of the hearing, that counsel appeared at the hearing on his behalf and that he did not requ est the opportunity to participate, Davis fails to provide any legal authority which supports hi s claim that the superi or court violated a clear and present duty. As explained in our analysis above, a co nvicted defendant does not have a right to seek post-judgment discovery unless section 1 054.9 applies. More to the point, Davis does not cite any authority which requires that the superior court elicit participation from
a convicted defendant before ruling on post-judgment Brady motion filed by the People. Instead, Davis relies solely on general refere nces to constitutional principles of due process and equal protection which are simply too vague to establish that the superior court violated a clear and present duty. Though not directly on point, our conclusion finds support in Alford v. Superior
Court (2003) 29 Cal.4th 1033 ( Alford ). The Alford defendants were charged with drug
offenses and their account of the events lead ing to their arrest was different from the account offered by the arresting officers. ( Id . at p. 1036.) Inte nding to challenge the credibility of those officer s, the defendants sought Pitchess discovery of relevant material from the officers’ personnel files. After the motion was denied, the Court of Appeal issued a writ of mandate directing the superior court to (1) grant di sclosure of material
information but limit dissemination of that evid ence to the specific case, and (2) permit the prosecutor to “be heard” on the moti on and receive the information that was disclosed. ( Id . at p. 1037.) However, the Suprem e Court reversed, finding that the People did not have the right to be heard at the defendant’s Pitchess proceeding or to obtain copies of the defendant’s Pitchess evidence. ( Id . at p. 1044.)
The Alford court based its conclusions on several factors. First, the court observed that the statutory provisions governing Pitchess motions expressly require service of notice of the motion only on the governmental agency that has cu stody of the records sought. ( Alford, supra , 29 Cal.4th at p. 1044; see Ev id. Code, § 1043, subd. (a).)19 Second, the court found that “general due pr ocess principles” entitle the People to notice of the date and place of the hearing on a defense Pitchess motion. ( Ibid .) “In this manner,” the court found, “if the court requires clarification or expl anation of any matters set forth in the supporting affida vits, it will be able to ask questions of both the defense and the prosecution and thus obtain any inform ation the court deems ’essential’ to a fair and proper decision. [Citation.]” ( Id . at p. 1044.) Third, however, the court found that neither the due process clause nor any ot her law entitles the People to “argue the prosecutorial point of view” or “to receive a ny information the court orders disclosed” in what is “essentially a third pa rty discovery proceeding.” ( Id . at p. 1045.) In making this last point, the Alford court acknowledged that “[o]f cour se, the prosecution itself remains
free to seek Pitchess disclosure by complying with th e procedure set forth in Evidence
Code sections 1043 and 1045. Absent su ch compliance, . . . peace officer personnel
records retain their confid entiality vis-à-vis the prosecution. [Citations.]” ( Id . at p. 1046.) Alford establishes that prosecutors are not entitled to participate in a defendant’s
Pitchess motion, but they are entitled to notice, to be present and to participate if the trial court so desires. ( Alford, supra , 29 Cal.4th at pp. 1044-1046; ) People v. Superior Court (Humberto S .) (2008) 43 Cal.4th 737, 750 .) Although the court’s analysis pertained to the People’s due process right to participate in a defense Pitchess motion, many of the same principles apply when the roles are reversed. 6 The statutory procedure for conducting a Pitchess motion does not require service of notice on the defendant when the People bring that motion. (Evid. Code , § 1043, subd (a).) Furthermore, assuming that general due process principles entitle the defendant to noti ce of what could be considered a third party discovery procee ding, we have found no law entitling the defendant to participate in the People’s Pitchess motion.

6 One obvious distinction is that the People’s agency relationship with investigative personnel implicates Brady obligations that the defendant does not have.20 Davis advances two new theories in his Re ply Brief filed in support of the petition. First, he argues that the relief he seeks derives solely from Brady and has nothing
whatsoever to do with Pitchess . He contends that, although there is some overlap, the two procedures protect different rights for different trial pa rticipants and that the only procedure at issue in this case is the one afforded to him by Brady which guarantees him access to potentially excu lpatory evidence. We agree that Brady and Pitchess establish two distinct legal principles which sometimes overlap. This case involves such an overlap because the People used the
Pitchess procedure to perform its obligations under Brady

. Brady holds that the prosecutor’s failure to disclose to the defense any evidence that is “favorable to an accused” and is “material” on either guilt or punishment violates the accused’s constitutional right to due process. ( Brady, supra , 373 U.S. at pp. 86-87.) But that case
does not confer on the criminal defendant a due process right to participate in the People’s Pitchess motion to discover material evidence from a police officer’s confidential personnel files, particularly wh en that motion is made post-judgment. Nor does Davis identify any other authority which construes Brady as conferring on a defendant a constitutional right to participate in a third party proceeding initiated by the People in order to comply with its obligations under Brady

. “To the extent a prosecution-initiated Pitchess motion yields disclosure” of
information that satisfies the Brady materiality standard, “the prosecutor’s obligations, as in any case, are governed by constitutional requirements in the first instance. ( Alford,

supra , 29 Cal.4th at p. 1046, fn. 6.) “The pros ecutor’s duties of disclosure under the due process clause are wholly independent of any statutory scheme of reciprocal discovery. The due process requirements are self-executi ng and need no statutory support to be effective. . . . [I]f a statut ory discovery scheme exists, these due process requirements operate outside such a scheme. The prosecutor is obligated to disc lose such evidence voluntarily , whether or not the defendant ma kes a request for discovery.” ( Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378.)21 Davis repeatedly insists that he is not attempting to invoke pre-judgment Pitchess rights to secure post-judgment discovery. However, the petition allegations strongly suggest otherwise. The essence of the manda te claim alleged in Davis’s petition is that the superior court had a duty to search Wa lker’s files for evid ence that would have supported what are essentially hindsight theo ries about how the defe nse could have used Walker’s testimony in a different way in Davis I if given another oppor tunity. But, Davis did not pursue those theories by filing a Pitchess motion prior to judgment. Now, at this stage in Davis’s case, the only post-judgment issue before th e superior court is whether
Walker’s files contain Brady evidence that the People woul d have an ongoing obligation to produce. Once again, Davis appears to be su ggesting that the People violated Brady by failing to seek discovery from Walker’s files before judgment was entered in Davis I

. But that issue has nothing to do with the proceeding whic h resulted in the October 1 order. The People’s post-judgment Pitchess motion for Brady discovery cannot be used to circumvent the very different procedur es for pursuing a collateral attack on the judgment in Davis I

. A second related theory advanced in Da vis’s Reply Brief is that he should be excused from having to satisfy the normal re quirements for securing a writ of mandate because this case is about “systemic misconduct by the San Francisco District Attorney’s Office from 1963, when Brady v. Maryland issued, until 2010, wh en the San Francisco Police Department first prepared a list of officers who had po tential impeachment material in their personnel f iles.” According to this th eory, for almost 50 years the District Attorney’s office has been “in violati on of due process of la w” by its failure to disclose potentially exculpatory materials in police officer file s, and this case should be viewed as part of that office’s recent effo rt to “remediate that misconduct” by notifying the superior court of past cases in which Brady material was withheld from the defense. In light of these serious circum stances, Davis contends that he should be relieved of the normal requirements for securing a writ of mandate.22 This broad claim of long-standing misconduc t is not alleged in the petition itself or supported by the eviden ce produced to us. Rather, this petition is clearly limited to the October 1, 2012, order filed in this specific case. Davis seeks to compel the superior court to conduct a new hearing in a post-judgment Brady discovery proceeding in order to give him the opportunity to share his new de fense theories at that hearing. For all the reasons discussed above, Davis has failed to es tablish that he is enti tled to that relief.
IV. DISPOSITION The appeal in case No. 1 37800 is hereby dismissed. The petition for a writ of mandate in case No. 139767 will be denied by separate order.

_ ____________ ____________ Kline, P.J.

We concur:

_____________ ____________ Richman, J.

_____________ ____________ Brick, J.*

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.23 Trial Court: Superior Cour t of San Francisco County
Trial Judge: Hon. Angela Bradstreet
Attorney for Defendant and Appellant Julio Davis Susan D. Shors By appointment of the Court of Appeal under the First District Appellate Project Independent Case System

Attorney for Plain tiff and Respondent The People Kamala D. Harris Attorney General Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Senior Assistant Attorney General Seth K. Schalit Supervising Deputy Attorney General Laurence K. Sullivan Supervising Deputy Attorney General