Wednesday, April 8, 2020
By a MetNews Staff Writer
The Sixth District Court of Appeal has rebuffed the writ challenge by a convicted slayer to an order that bars “anyone” from supplying him with a copy of his trial transcript.
The petitioner, Juan Manuel Hernandez-Delgado, whose convictions on two counts of first degree murder were affirmed last year, has failed to show that denying him a copy of the transcript constitutes a denial of his right of access to the courts or that he has a property interest in the document, Justice Nathan D. Mihara said in an unpublished opinion filed Monday.
Hernandez-Delgado was convicted by a jury in 2017 of the murders, on separate occasions in 2013, of two former members of a rival gang. He was sentenced by former Monterey Superior Court Judge Russell Scott, sitting on assignment, to a term of 100 years to life in prison.
While his appellate counsel was working on his brief, Hernandez-Delgado indicated that he wanted to participate in the drafting, and asked his lawyer, Paul Couenhoven, for a copy of the trial transcript. The lawyer needed the only copy he had and made inquiry as to securing another copy, but met with opposition from Deputy District Attorney Christine Harter, who sought a protective order.
Assigned Judge’s Ruling
Scott ruled that the defendant could not have a copy because supplying one could lead to the detection of the identities of three former rival gang members who had testified, using pseudonyms. The assigned judge declared:
“[U]ntil further order of this court, any pretrial or trial discovery materials (police reports, transcripts, photos or any material which would identify witnesses or convey statements of witnesses) and the trial transcripts or copies of any of these items may not be provided to the defendant by anyone.”
“Any interested person may file a request for reconsideration of this order at any time, and the matter shall be scheduled expeditiously upon the filing of such request.”
“The court is particularly mindful of the risk taken by witnesses who drop out of a criminal street gang and testify against members of their former gang. The court is aware of the requirement that ‘paper’ exist as justification for gang leadership to sanction a hit. The record is replete with the danger faced by the drop-out witnesses and their families. The former gang-member witnesses who testified in this case were credible and, with little doubt, their testimony contributed greatly to the outcome.”
Couenhoven sought reconsideration, pointing out that the actual names of the former gang members who testified against Hernandez-Delgado did not appear in the transcript.
Judge Timothy P. Roberts on Oct. 26, 2018, conducted a hearing. Harter argued that “there is more than one way to find out who the witnesses are,” insisting:
“They do that all the time, and that’s the whole purpose of getting transcripts.”
Roberts agreed, denying reconsideration. He said that “in the real world,” if Hernandez-Delgado’s “associates, friends, partners in the gang were to get the transcript, it would be a matter of mere moments before they figured out who these people were and put names to them.”
No Access Denial
In his opinion denying a writ of mandate, Mihara said Hernandez-Delgado, “aided by his appellate counsel”—again, Couenhoven—“has not shown actual injury” stemming from the denial of a transcript. He set forth:
“In his petition, he makes the broad claim that he ‘has a right to his trial transcripts to pursue collateral remedies once his appeal is over.’ He does not, however, describe how the protective order hindered his pursuit of a nonfrivolous claim, what claims he might raise on collateral review, or why his pursuit of collateral review depends on his ability to personally review the trial transcripts. Petitioner only suggests, generally, that a transcript is necessary to pursue ineffective assistance claims. In sum, petitioner fails to identify how the protective order hindered his efforts to pursue a nonfrivolous claim on collateral review.”
Mihara added that “as an access-to-courts claim, mandamus cannot issue in this case because petitioner has not shown that the vacation of the superior court’s protective order is ‘an act which the law specially enjoins,’ ” as required by Code of Civil Procedure §1085(a).
Citing California Rules of Professional Conduct, rule 1.16—which mandates that an attorney return papers in the file to the client, upon demand, unless a protective order precludes doing so—and a case which the Court of Appeal decided in 2004 interpreting the predecessor rule, Hernandez-Delgado insisted he has a property interest in the transcript.
“The instant case involves the conveyance of certain court records to a prisoner, convicted of two first degree murders with gang enhancements, where the record establishes that these very court records could endanger members of the public. Indeed, it is not evident that California Rules of Professional Conduct, rule 1.16 even applies to trial transcripts, which are not specifically identified in the rule’s list of ‘client materials and property.’ And, even if it did apply to trial transcripts, it is not evident that the rule, which applies to an attorney’s professional responsibility, also creates a property right that is enforceable in a mandamus proceeding.”
“However, even assuming the rule does create such a right, the plain text of the rule itself provides that the right to client files is ‘subject to any protective order or non-disclosure agreement....’….Assuming the existence of a property right to trial transcripts, an abridgment of that right is explicitly sanctioned in circumstances where, like here, a protective order has been issued.”
2117 Parole Eligibility
The appellant is presently confined in Mule Creek State Prison in the City of Ione in Amador County. A press release from the Monterey County District Attorney’s Office at the time of Hernandez-Delgado’s sentencing related:
“Mr. Hernandez Delgado will not be eligible for a parole hearing until he serves his 100 year sentence.”
The case is Hernandez-Delgado v. Superior Court, H044577.
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