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Monday, March 4, 2024


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‘Facebook Factors’ Apply in Testing Prosecution Subpoena—C.A.

Opinion Says That Although California Supreme Court Decision Came in Context of Defense Subpoena, Its Application Was Not Limited


By a MetNews Staff Writer


Div. Two of the Fourth District Court of Appeal held on Friday that a judge applied the wrong legal standard in denying an inmate’s motion to quash a subpoena duces tecum when it failed to explicitly consider the seven factors set forth by the Supreme Court in its 2020 decision in Facebook, Inc. v. Superior Court of San Diego County, finding that the factors apply to prosecution subpoenas as well as those issued by the defense.

The opinion was written by Justice Frank J. Menetrez. It vacates an order of Riverside Superior Court Judge John D. Molloy.

Acting Presiding Justice Art W. McKinster and Justice Michael J. Raphael joined in the opinion.

2016 Conviction

In 2016, Kevin Lunsted was convicted of attempted rape and aggravated assault. A sentencing enhancement for the infliction of great bodily injury was applied, as was a one-year enhancement for having served a prior prison term.

As of Jan. 1, 2020, Senate Bill 136 amended the Penal Code to eliminate sentence enhancements for prior prison terms unless the prior terms were for sexually violent offenses. Two years later, Senate Bill 483 further amended the code to extend the changes of Senate Bill 136 to all persons currently incarcerated.

Penal Code §1172.75 sets forth the procedure and standards for resentencing under the bills.

In applying a new sentence, the court is instructed to consider postconviction factors such as the disciplinary record and record of rehabilitation while incarcerated, as well as factors that may have reduced a defendant’s risk for future violence and any changed circumstances.

Lunsted was identified by the California Department of Corrections and Rehabilitation (“CDCR”)as eligible for resentencing, as provided for in §1172.75, and was scheduled for a resentencing hearing.

In preparation for that hearing, the Riverside County District Attorney’s Office issued a subpoena duces tecum to CDCR that sought his case file “including but not limited to all disciplinary violations, laudatory chronological reports, as well as positive programming from…approximately 03/01/2016 to the present.”

CDCR immediately complied and delivered the entire case file to the trial court. Lunsted objected and filed a motion to quash the subpoena.

Facebook Factors

The California Supreme Court in Facebook held that “there are seven factors that a trial court should explicitly consider and balance in ruling on a motion to quash as subpoena duces tecum directed to a third party.”

Menetrez wrote:

“Those factors are: (1) whether the requesting party has articulated a ‘plausible justification’ for obtaining the requested material from the third party; (2) whether the requested material is ‘adequately described and not overly broad’; (3) whether the material is ‘reasonably available’ to the requesting party from other sources; (4) whether production of the material would ‘violate a third party’s “confidentiality or privacy rights” or intrude upon “any protected governmental interest”’; (5) whether the request is ‘timely’; (6) whether the ‘time required to produce the requested information’ would ‘unreasonabl[y] delay’ the proceedings; and (7) whether the request places an ‘unreasonable burden’ on the third party.”

The Supreme Court held that the determination as to whether good cause has been shown to enforce a subpoena challenged by a motion to quash will depend on the court’s application of these factors.

Denial of Motion

Lunsted conceded that the prosecution had good cause to seek his disciplinary and rehabilitation records, but argued that the subpoena was overbroad in that it also sought privileged and confidential medical and mental health records, before any issues relating to his health had been raised.

The prosecution acknowledged that the Facebook case set forth factors for a court to consider when adjudicating a motion to quash in a criminal case, but questioned whether the Facebook  factors apply given that in that case, the subpoena was issued by the defense.

Even if it does apply, they argued, they have good cause to seek the entire case file because Lunsted’s conduct in prison is one of the factors to be considered in resentencing.

Molloy announced at the hearing on the motion to quash that his tentative ruling was to deny the motion, finding that good cause “was pretty easy to satisfy” given the broad aims set forth in §1172.75.

Both parties referenced the Facebook factors in their briefings and oral arguments but Molloy did not explicitly weigh the factors in his ruling.

In denying Lunsted’s motion to quash, Molloy acknowledged that it may be a better practice to more narrowly tailor a subpoena duces tecum for inmate records. However, he said that “what informs a decision about whether the subpoena was appropriately issued” is whether the requested documents are “likely to have information that is germane to the resentencing procedures.”

The judge found that Lunsted’s case file was “absolutely germane” because §1172.5 anticipated that the court would consider a broad range of postconviction evidence in selecting the new sentence.

Lunsted filed a timely petition for a writ of mandate challenging the trial court’s denial of his motion and requesting a stay of the proceedings. The appellate court granted the stay.

Explicit Application

Menetrez rejected the prosecution’s argument that the Facebook factors might not apply because that case concerned a subpoena issued by the defense, noting that procedures governing criminal discovery are meant to be reciprocal and “the laws governing third party subpoenas are no exception.”

The jurist was not persuaded that the court “must have” considered the Facebook factors in its decision because both parties’ briefs and oral arguments were based on those factors because the record was not silent as to the basis of Molloy’s decision, commenting:

“Because the trial court appeared to find defense counsel’s argument that the subpoena should have been more narrowly tailored at least somewhat persuasive, we cannot conclude that the record ‘clearly indicate[s]’ that the court would have reached the same conclusion had it applied the Facebook factors.”

The matter was remanded for a fresh determination in light of the opinion.

The case is Lunsted v. Superior Court of Riverside County, 2024 S.O.S 798.


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