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 herein 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 sentence is added: “Accordingly, this court 

takes judicial notice of the record in the related writ proceeding (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 Court 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 Plaintiff 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 
1

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 four prior first degree felony burglary 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 currently serving his sentence. (See People v. Davis

(Apr. 2, 2003, A094645) [nonpub. opn.] (Davis I).)1

 In 2012, the San Francisco District Attorney’s office filed a motion for discovery 

of potentially relevant records from the personnel 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 the officer’s records are not material to Davis’s case, either as 

evidence bearing on his guilt or sentence or as impeachment evidence. 

 Although not a party to the 2012 post-judgment discovery motion, Davis filed a 

notice of appeal seeking independent appellate review of the officer’s records to 

determine whether they contain material that should have been 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 the record in this appeal 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 have the opportunity to be 

heard. 

 We denied Davis’s motion to consolidate his petition for writ of mandate with his 

appeal and ordered instead that the petition would be considered with the appeal. For 

reasons that follow, we find that Davis has failed 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 PROCEDURAL BACKGROUND 

A. Davis I 

In the early morning hours of March 28, 1999, residents of a ground level unit of a 

20-unit “mixed-use” building on Howard Street in San Francisco were awakened by 

sounds of glass breaking and a person coming through a window. 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 the same time that the residents heard the 

intruder climb a staircase and go into the office space above them. 

 When police entered the unit, they found Davis exiting a laundry closet at the top 

of the staircase. They handcuffed 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 currency 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 contained $520, a pager, a cell phone charger, and a set of 

car keys. Two CD players and a backpack containing a laptop computer had been moved 

to the hallway near the broken window and Davis’s fingerprints were on the stereo 

equipment. 

 At his December 2000 jury trial, Davis’s defense was that he was guilty of 

trespass but not burglary. According to this 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 arrived at the scene he found an open window 
3

frame, assumed the building was vacant and climbed inside because he was homeless and 

needed a warm place to sleep. The jury rejected 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 years to life imprisonment. 

 Davis appealed, alleging prosecutor misconduct, 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 relevant 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 around the crime scene. Walker wore his regular 

uniform clothes, including a short sleeved shirt and vest, and recalled that the weather 

was typical for the time of year and not too cold. Walker did not enter the unit where the 

crime occurred until after Davis was arrested and placed in a patrol car. Walker booked 

three items of evidence that had been collected at the crime scene: the screwdriver, the 

cufflinks, and the foreign cash. Walker did not collect these items himself; he received 

them from another officer and then booked and 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 recall when during the 

investigation another officer gave him the evidence to book or whether he received that 

evidence while still at the scene or later after he returned to the police station. Defense 

counsel also asked several questions about a strip-search that was conducted at the police 

station. Walker recalled that the search was authorized and did occur, 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 when the crime occurred. Walker testified 

that he did not know if Davis was homeless; that he had not inquired about that subject at 

the time of the burglary; that he did not prepare the police report associated with the 

crime; and that he did not recall whether the 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 Francisco 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 “to 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 personnel file.” The People served their motion 

and accompanying papers on both the San Francisco Police Department and on Erwin 

Fredrich, the defense attorney in Davis I. 

 The People’s motion was accompanied 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 declaration states: “Pursuant 

to Bureau Order No. 2010-01, dated August 13, 2010, the San Francisco Police 

Department has informed the District 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 information and belief, the assistant district attorney stated that the 

police department would not disclose Walker’s records without a court order. 
5

 With their declarations, the People advised 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 “the 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 Walker “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 hearing was not transcribed. However, a minute 

order reflects that Mr. Fredrich, defense counsel in Davis I, appeared and was appointed 

private counsel for Davis in this matter, and that Davis’s appearance was waived. A 

custodian of records for the police department appeared at the hearing and produced a file 

of documents that was lodged with the court. 

 On October 1, 2012, the Honorable Angela Bradstreet issued 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 Attorney for possible disclosure. The Court finds that none 

of the documents produced fall within the standard articulated in Brady v. Maryland 373 

U.S. 83. None of the documents are material to the innocence or guilt of the defendant, 

none are material to punishment, none constitute conduct which is moral turpitude and 

none constitute relevant impeachment evidence.” (Bolding in original.) 

 On October 1, 2012, the superior court also filed a “Sealing Order,” which 

directed that an attached document, a 77-page San Francisco Police Department Internal 

 2

 All further undesignated statutory references are to the Penal Code unless 

otherwise noted. 
6

Affairs report, was to “be sealed and not opened 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 appointment of counsel for that appeal. Appellate 

counsel was appointed on March 18, 2013. With 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 Respondent’s Brief, the People raise the question whether 

the October 1 order is appealable. 

 On September 17, 2013, Davis filed a petition 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, Davis 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 opportunity to participate in that hearing. 

III. DISCUSSION 

A. Legal Principles

The issues before us implicate two sometimes related but clearly distinct legal 

principles: (1) the People’s obligation to disclose material evidence that is favorable to 

the defense under Brady, supra, 373 U.S. 83, and (2) a criminal 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 prosecution must disclose to the 

defense any evidence that is ‘favorable to the 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.] Evidence is material under the Brady standard ‘if there is a 

reasonable probability that, had the evidence been disclosed 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 duty 
7

under Brady applies even without a request by the accused; it pertains not only to 

exculpatory evidence but also to impeachment evidence. [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 impeaches a prosecution witness must be 

disclosed.”].) 

 “Although Brady disclosure issues may arise ‘in advance of,’ ‘during,’ 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 trial.’ [Citation.] [¶] “Because the 

Brady rule encompasses evidence ‘known only to police investigators and not to the 

prosecutor,’ it is incumbent upon the prosecutor to learn 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 officer 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 discovery 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 “personnel records” ( . . . § 832.8) and 

provide that such records 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 disclosure sought, setting forth the materiality 
8

thereof to the subject matter involved in the pending litigation and stating upon 

reasonable belief that such governmental agency identified has such records or 

information from such records.” ’ [Citation.]” (City of Los Angeles, supra, 29 Cal.4th at 

pp. 8-9.) 

B. The Appeal 

Davis attempts to raise two claims via his appeal: (1) that he is entitled to 

independent appellate review of Officer Walker’s file to determine whether the trial court 

erred by concluding that it does not contain any material discoverable under Brady, and 

(2) that the trial court violated his due process 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 failed 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 “notice of appeal must be liberally construed” 

and that “the notice is sufficient if it identifies the particular judgment or order being 

appealed.” Applying this rule here, we conclude that Davis’s pro per notice of appeal 

sufficiently identifies either or both of the orders filed by the superior court on October 1, 

2012. Davis’s appellate briefs, which were prepared 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 discoverable 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 whether 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 contends 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.” Unquestionably, the October 1 order is an order made 
9

after judgment in Davis I. The issue, however, is whether it affects Davis’s substantial 

rights. 

 In addressing this issue, Davis characterizes 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 information 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 that Davis fails to squarely acknowledge indicate to us that 

the October 1 order does not affect Davis’s substantial rights. 

 First, the October 1 order resolves a motion 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 relevant 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 convicted defendant’s post-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 proceeding then pending before the court. 

[Citation.] Indeed, a motion is not an independent 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 dependent on, the principal remedy.’ ” [Citation.] In most cases, 

after the judgment has become final, there 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 supreme court has held that a trial court does 

not have authority “to order ‘free-floating’ postjudgment discovery” 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 precluding a convicted defendant 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 death or life in prison without the possibility of 

parole, section 1054.9 authorizes 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 ‘to 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 discovery 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.) However, as we also discuss above, the People’s Brady obligations 

are distinct from the defendant’s right to obtain 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 rely 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 section 1054.9 and thus has no relevance to 

the issue presented here. Furthermore, 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 Davis could have attached his own discovery request. 

However that question is not presented by this appeal. Even in cases in which a 

defendant can obtain post-judgment discovery, for example pursuant to section 1054.9, 

he must comply with the Pitchess procedure and requirements which include showing 

that the discovery sought is material to pending litigation. In the present case, the 

appellate record does not contain any evidence that Davis attempted to file his own 

Pitchess motion or otherwise intervene in the post-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. Prior to trial, Davis had 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-judgment stage of his criminal case, Davis does 

not have a free-floating right to discovery. As explained above, Brady imposes 

disclosure obligations on the prosecution but it does not confer discovery rights on a 

convicted defendant. Thus, Davis himself had no right to seek post-judgment discovery 

from Officer Walker’s files. Nor did he make any effort to join in the proceeding 

initiated by the People. Under these circumstances, the order entered after an in camera 

review of the confidential file that was conducted 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 limited expungement of his 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 advised of the immigration consequences of his 
12

guilty pleas.4

 The trial court denied the motion to vacate, and the defendant’s appeal was 

dismissed on the ground that the trial court’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 expressly authorize an appeal from the denial of 

such a motion. (Totari, supra, 28 Cal.4th at p. 882.) However, the court found that the 

denial of this statutory motion was appealable pursuant to section 1237(b) as an order 

made after judgment affecting the substantial 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 knowing 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 defendant 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 contention 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 substantial rights were not violated. (Totari, supra, 28 Cal.4th 

at p. 884.) That factual claim went to the merits 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 that a noncitizen defendant has a substantial 

right to be given complete advisements 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 give the required advisement, “the court, on 

defendant’s motion, shall vacate the judgment and permit the defendant to withdraw the 

plea of guilty or nolo contendere, and enter a plea of not guilty. Absent a record that the 

court provided the advisement required by this section, the 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 involved a post-judgment motion (1) filed 

by the defendant, (2) that was expressly authorized 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 identified 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 authorize a convicted defendant to seek postjudgment discovery. 

 In his Reply Brief, Davis argues that this 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 case was a direct appeal from a 

judgment of death and the issue the court addressed was whether the trial court erred by 

denying a pre-conviction defense motion for disclosure of confidential records of law 

enforcement officers involved in the 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 denied 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 challenge. This theory highlights two flaws that 

run throughout Davis’s arguments in this case. 

 First, the defense right to discover evidence from the confidential file of a police 

officer involved in his case derives solely from Pitchess. Brady imposes disclosure 

obligations on the prosecution, and, 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 potential harm that is not the subject of this 

proceeding. If Davis believes that the People violated Brady in Davis I, that is an 
14

independent claim that was not alleged, supported, or in any way addressed in the 

superior court proceeding that resulted 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 analysis could be very different. As it is though, Davis has 

failed to establish that the October 1 order affected 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 brief 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 constitutional 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 information 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 did 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 pertinent circumstances.” 

 To support this claim, Davis purports to provide a more accurate or complete 

summary of Officer Walker’s testimony which states: 

 “15. On direct examination, Officer Walker testified that he and a partner had 

responded to the area of Howard and 7th Street in response to a dispatch call and 

established a crime scene perimeter. Officer Walker collected and booked into evidence 

the screwdriver, the cufflinks, and 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-examination of Officer Walker was centered upon 

the issue of where the coins, cufflinks and screwdriver had come from and what had 
15

happened to the missing cash. Officer Walker said he was handed the three items by 

another officer, but was vague and/or evasive 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 that he had done so was stated in another 

officer’s report. While admitting he had glanced 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 and was thereby deprived of his constitutional 

right to due process. 5 To remedy the alleged constitutional violation, Davis seeks a 

peremptory writ of mandate compelling that court to hold a new Brady hearing for which 

Davis will have notice, appointed counsel, and “a full opportunity to submit evidence and 

be heard on the issue of the potential materiality of the sealed documents.” 

2. Analysis

 Unlike a post-judgment motion, a petition for 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 obtain relief, a petitioner must 

demonstrate (1) no ‘plain, speedy, and adequate’ alternative remedy exists (Code Civ. 

Proc., § 1086); (2) ‘a clear, present . . . ministerial 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 requirements, Davis contends that an appeal is not 

an adequate alternative remedy because his claim depends on evidence outside that 

 5

 For the record, we do not agree with Davis’s self-serving interpretation of the 

cross-examination of Officer Walker or with his account of the testimony that Walker 

gave in Davis I. 
16

record. Aside from that, as we have already found, the October 1 order 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 properly 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 would 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) Before 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 determination whether the information 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 could make its own determination as to whether 

to “seek some sort of post-judgment relief”; (3) The People subsequently served Fredrich 

with notice of their Brady motion, and with copies of their motion and supporting 

documentation; (4) Fredrich attended the hearing on behalf 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 declaration 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 was present at the hearing and that he was 

recognized by the court as Davis’s attorney. Nor does Fredrich substantiate the allegation 

in the petition that Davis was denied the opportunity to participate in the Brady hearing. 

Rather, according to his declaration, 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 refusing 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 for 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 performance of that duty. (Picklesimer, supra, 48 Cal.4th at p. 

340.) 

 Here, Davis never squarely articulates the 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 that he “has a clear, present and substantial right to the 

performance of respondent’s duty to exercise its discretion properly in ruling on the 

motion to disclose exculpatory evidence [in] police personnel files.” 

 “A ministerial duty is an obligation to perform a specific act in a manner 

prescribed by law whenever a given state of facts exists, without 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 the 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 that the superior court cannot properly 

exercise its discretion to resolve a post-judgment motion for Brady discovery unless it 
18

conducts a noticed hearing at which the defendant is represented 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 request the opportunity to participate, Davis fails 

to provide any legal authority which supports his claim that the superior court violated a 

clear and present duty. 

 As explained in our analysis above, a convicted defendant does not have a right to 

seek post-judgment discovery unless section 1054.9 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 references 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 leading to their arrest was different from the 

account offered by the arresting officers. (Id. at p. 1036.) Intending to challenge the 

credibility of those officers, 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 disclosure of material 

information but limit dissemination of that evidence to the specific case, and (2) permit 

the prosecutor to “be heard” on the motion and receive the information that was 

disclosed. (Id. at p. 1037.) However, the Supreme 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 custody of the records 

sought. (Alford, supra, 29 Cal.4th at p. 1044; see Evid. Code, § 1043, subd. (a).) 
19

Second, the court found that “general due process 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 explanation of any matters 

set forth in the supporting affidavits, it will be able to ask questions of both the defense 

and the prosecution and thus obtain any information 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 other law entitles the People to “argue the 

prosecutorial point of view” or “to receive any information the court orders disclosed” in 

what is “essentially a third party discovery proceeding.” (Id. at p. 1045.) In making this 

last point, the Alford court acknowledged that “[o]f course, the prosecution itself remains 

free to seek Pitchess disclosure by complying with the procedure set forth in Evidence 

Code sections 1043 and 1045. Absent such compliance, . . . peace officer personnel 

records retain their confidentiality 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 notice of what could be 

considered a third party discovery proceeding, 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 Reply 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 participants and that the only 

procedure at issue in this case is the one afforded to him by Brady which guarantees him 

access to potentially exculpatory 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 when 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 prosecutor’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-executing and need no statutory support to be 

effective. . . . [I]f a statutory discovery scheme exists, these due process requirements 

operate outside such a scheme. The prosecutor is obligated to disclose such evidence 

voluntarily, whether or not the defendant makes 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 mandate claim alleged in Davis’s petition is that 

the superior court had a duty to search Walker’s files for evidence that would have 

supported what are essentially hindsight theories about how the defense could have used 

Walker’s testimony in a different way in Davis I if given another opportunity. 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 the superior court is whether 

Walker’s files contain Brady evidence that the People would have an ongoing obligation 

to produce. 

 Once again, Davis appears to be suggesting 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 which resulted in the October 1 

order. The People’s post-judgment Pitchess motion for Brady discovery cannot be used 

to circumvent the very different procedures for pursuing a collateral attack on the 

judgment in Davis I. 

 A second related theory advanced in Davis’s Reply Brief is that he should be 

excused from having to satisfy the normal requirements 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, when the San Francisco 

Police Department first prepared a list of officers who had potential impeachment 

material in their personnel files.” According to this theory, for almost 50 years the 

District Attorney’s office has been “in violation of due process of law” by its failure to 

disclose potentially exculpatory materials in police officer files, and this case should be 

viewed as part of that office’s recent effort 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 circumstances, Davis contends that he should be relieved of the 

normal requirements for securing a writ of mandate. 
22

 This broad claim of long-standing misconduct is not alleged in the petition itself or 

supported by the evidence 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 defense theories at that hearing. For all the 

reasons discussed above, Davis has failed to establish that he is entitled to that relief. 

IV. DISPOSITION 

 The appeal in case No. 137800 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 Court 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 Plaintiff 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