Cunningham v. Superior Court CA1/5 filed 6/30/26

Filed 6/30/26 Cunningham v. Superior Court CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DAVID TERRELL CUNNINGHAM,
Petitioner,
v.
THE SUPERIOR COURT OF ALAMEDA COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.

A171196

(Alameda County
Super. Ct. No.19-CR-008440)

This appeal is brought by petitioner David Terrell Cunningham to challenge the trial court’s denial of his motion for discovery under Penal Code section745, subdivision (d) of the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, §§1–7; RJA).
The trial court denied petitioner’s standalone discovery motion for lack of jurisdiction. Normally, a trial court’s ruling on a defendant’s discovery motion is an interlocutory, nonappealable order. However, we are exercising our discretion to treatthispurported appeal as a petition for writ of mandate. Having done so, we direct the issuance of a peremptory writ of mandate compelling the trial court to vacate its order and to conduct a new hearing to reconsider petitioner’s discovery motion in a manner consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
We provide a brief recitation of those facts relevant to our disposition of this writ proceeding.
In 2018, petitioner, a Blackmale, attempted to rob an acquaintance during a marijuana deal. In doing so, petitionerpulled out a handgun and fired three to five shots, two of which hit his acquaintance’s leg.
On August 11, 2021, petitionerentered a no contest plea to one count of attempted robbery (§§ 211, 664) and admitted the special allegation that he used a firearm duringhis commission of the crime (§ 12022.5, subd. (a)). Pursuant to his negotiated plea, petitioner was sentenced to a total prison term of 13 years, consisting of the upper three-year term for attempted robbery and 10 years for the firearm enhancement.
On July 9, 2024, petitioner, acting in propria persona, fileda motion pursuant to the RJA, alleging violations of section 745, subdivisions (a)(3) and (a)(4)(A) (RJA motion). Specifically, petitioner alleged California’s firearm enhancement law disproportionately impacts Black defendants because Black defendants,in Alameda County and elsewhere,are charged with and imprisoned on firearm enhancements at far higher rates than their White counterparts. Petitioner’s RJA motion includedinformation and statistics to support his claims. Petitioner also identified his race as Black and asked the court to appoint counsel to represent him.
Petitionerthen filed a separate motion for discovery pursuant to section 745, subdivision (d) (discovery motion),seeking “specific discovery to investigate a potential violation of … section 745[, subdivisions ](a)(3) and (a)(4).” Petitioner supported his motion with data and statistics from California and Alameda County showing that, among other things, a firearm enhancement was imposed on 50 percent of Black defendants as compared to five percent of White defendants. Based on this information, petitioner soughtdisclosure from the Alameda County District Attorney’s Office of eight years of information (from two years before the attempted robbery to the year the discovery motion was filed) relating to the charging and sentencing of firearm enhancements and the corresponding race of the defendants.
On July 22, 2024, the trial court dismissed petitioner’s discovery motion for lack of jurisdiction, reasoning that “[s]ection 745 does not appear to authorize standalone postconviction motions, such as the instant motion. The statute instead authorizes a defendant to seek habeas corpus relief. (Pen. Code §§ 745, subds. (b), (j), 1473, subd. (e).)”The court further ruled that, “[t]o the extent that [petitioner] seeks copies of court transcripts and public records, he must pay for such copies. Copy costs for documents, except reporter’s transcripts, are $0.50 per page. (See Gov. Code, § 70627, subd.(a).) … [¶]…[¶] Alternatively, [petitioner] may request copies of case documents from the attorneywho represented him at trial.” Petitioner filed a timely notice of appeal.
DISCUSSION
Petitioner contends the trial court erred in(1) denying his discovery motion for lack of jurisdiction, (2) failing to exercise its mandatory duty to assess whether he was entitled to appointment of counselto assist him in bringing claims under the RJA, and (3) advisingthat he will be responsible for paying the cost of copies ofany court records and transcripts sought in connection with his RJA claims. We address each issue in turn, post.
I.This appeal is deemed apetition for writ of mandate to vacate the challenged order.
The RJA was enacted the year beforepetitioner was convicted and sentenced. (Stats. 2020, ch. 317; Assem. Bill No.2542 (2019–2020 Reg. Sess.).)In asserting several postconviction RJA claims, petitioner relies on section 745, subdivision (a), which prohibits the state from “seek[ing] or obtain[ing] a criminal conviction or seek[ing], obtain[ing], or impos[ing] a sentence on the basis of race, ethnicity, or national origin.” To that end, section 745, subdivision (d) authorizes a defendant to“file a motion requesting disclosure to the defense of all evidence relevant to a potential violation of subdivision (a) in the possession or control of the state. … Upon a showing of good cause, the court shall order the records to be released.”
Contending the challenged order violates section 745, subdivision (d), petitionerinsists (1) the trial court had jurisdiction to rule on his standalone discovery motion, and (2) he made the requisite showing of good causeto obtain discovery of the information he seeks from the Alameda County District Attorney’s Office. The People dispute both claims and assertthe court’s order is not appealable.
As an initial matter, we note that petitioner is only authorized to bring an RJA claim by way of a petition for writ of habeas corpus because he is incarceratedand his judgment is already final. (§ 745, subds. (b)–(c), (e),(j); §§ 1473, subd. (e), 1473.7, subd. (a)(3); see People v. Hodge (2024) 107 Cal.App.5th 985, 999–1000; People v. Serrano (2024) 106 Cal.App.5th 276, 292–293 (Serrano); In re Montgomery (2024) 104 Cal.App.5th 1062, 1070–1072 (Montgomery), review granted Dec. 11, 2024, S287339.)Petitioner has not filed such a petition.
Moreover, until recently, appellate courts disagreed as to whether courts have jurisdiction to rule on a postjudgment RJA discovery motion unattached to a petition for writ of habeas corpus. (Montgomery, supra, 104 Cal.App.5th at p.1069 [“a discovery motion under section 745, subdivision (d) is authorized only in a pending proceeding”], rev.gr.; Serrano, supra, 106 Cal.App.5th at p. 291 [defendants may bring standalone discovery motion under § 745, subd. (d)].) This dispute, however, was resolved when the Legislature enacted Assembly Bill No. 1071 (2025–2026 Reg. Sess.) section 3, effective January 1, 2026, which added Penal Code section 1473, subdivision(e)(2). This new provision expressly authorizes a petitioner, or their counsel, to file a discovery motion under section 745, subdivision (d), “upon the prosecution of a petition under this subdivision, or in preparation to file a petition.” (Italics added.)Thus,under Serrano and newly enacted section 1473, subdivision (e)(2), petitioner was indeed entitled to bring astandalone discovery motion.
Even so, thetrial court’s erroneous denial of petitioner’s discovery motion, as an interlocutory order, is not appealableand is challengeable only by petition for writ of mandate. (Serrano, supra, 106 Cal.App.5th at pp. 292–293; Gonzales v. Superior Court(2024) 108 Cal.App.5th Supp. 36, 53–54 (Gonzales) [“ ‘Writ review is appropriate in discovery matters where, as here, it is necessary to address “questions of first impression that are of general importance to the trial courts and to the [legal] profession, and where generalguidelines can be laid down for future cases.” ’ ”].)Petitioner asks that weexercise our discretion to treat his purported appeal as such a petition.We will do so, given that both parties have fully briefed the merits of petitioner’s claim of a right to discovery under section 745, subdivision (d). (Olson v. Cory (1983) 35 Cal.3d 390, 401 [treating an appeal as a writ petition is appropriate whenan issue under review “has been thoroughly briefed and argued,” such that dismissing the appeal would be “‘ “unnecessarily dilatory and circuitous” ’ ”].) We thus turn to the relevant law.
II. The good cause showing for RJA discovery (§ 745, subd. (d))is more lenientthan the prima facie showing for RJA relief (§ 745, subd. (a)).
A petitionerseeking to pursue an RJA claim must show “good cause” to obtain discovery in anticipation of filing a petition for writ of habeas corpus. (§ 745, subd. (d).) This good cause standard under section 745, subdivision (d) is more lenient than the prima facie showing required for obtaining relief under section 745, subdivision (a).Nonetheless, the statute’s good causelanguage “serve[s] a gatekeeping function.(See Young [v. Superior Court (2022)] 79 Cal.App.5th [138,] 166 [‘whether the allegations underscoring [the petitioner’s] racial profiling theory are enough to support a plausible justification that a violation of section 745, subdivision (a) could or might have occurred in his [or her] case is an issue for the trial court to assess, exercising its discretion upon an application of the correct legal standard governing good cause’]; see also Montgomery, supra, 104 Cal.App.5th at p.1075 (conc. opn. of Kelety, J.) [‘Nor would an interpretation of section 745, subdivision (d) that allows habeas corpus petitioners to obtain such discovery trigger a right to unlimited discovery’].)” (Serrano, supra, 106 Cal.App.5th at p. 293.)
“InYoung v. Superior Court[, supra,] 79 Cal.App.5th 138 … , the appellate court concluded that the ‘good cause’ standard for discovery under the RJA is akin to the ‘good cause’ standard for Pitchess[]motions. (Young, at pp. 158–159.) The Young court observed that the Pitchess good cause standard includes the ‘requirement for a defendant to establish a “plausible factual foundation” for officer misconduct.’(Young,at p.158.)The Youngcourt concluded that the same standard applies in RJA cases— ‘[I]n order to establish good cause for discovery under the Racial Justice Act, a defendant is required only to advance a plausible factual foundation, based on specific facts, that a violation of the Racial Justice Act “could or might have occurred” in his case.’” (People v. Superior Court (Lalo)(2025) 114 Cal.App.5th 707, 712;see McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244 (McDaniel).)
Young v. Superior Court, supra, 79 Cal.App.5th 138 (Young) further held that, under the RJA, “a showing of plausible justification is merely a threshold consideration [of the good cause standard]. ‘The trial court, in deciding whether the defendant shall be permitted to obtain discovery of the requested material, must consider and balance a number of [other] factors’ (City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134 …), ‘[s]pecifically … (1) whether the material requested is adequately described, (2) whether the requested material is reasonably available to the governmental entity from which it is sought (and not readily available to the defendant from other sources), (3) whether production of the records containing the requested information would violate (i) third party confidentiality or privacy rights or (ii) any protected governmental interest, (4) whether the defendant has acted in a timely manner, (5) whether the time required to produce the requested information will necessitate an unreasonable delay of defendant’s trial, [and] (6) whether the production of the records containing the requested information would place an unreasonable burden on the governmental entity involved’” (Young, at pp.144–145.)
In this case, petitionersought discovery ofinformation regarding: (1) all Alameda County cases for an eight-year period, January 1, 2016, to January 1, 2024, wherethe district attorney’s office could have charged, and did charge, a firearm use allegation under section 12022.5and, in each such case, the defendant’s race, the charges brought and the outcome;(2)for purposes of all cases identified under (1), whether the district attorney opposed a section 1385 motion brought by the defense; (3) all Alameda County cases from January 1, 2016,to January 1, 2024, where thedistrict attorney’s office was referred a case that had a firearm use allegation and thereafter declined to file a case or resolved the case outside of court; and (4)copies of all e-mails, records, studies, or investigative reports filedor created by the district attorney’s office regarding racial disparities in charging in Alameda County.
To support his requests for this information, petitioner offeredstatistical datadrawn from the Department of Corrections and Rehabilitation demonstrating that, in 410 cases in Alameda County from 2016 to 2024 wherein a firearm use enhancement was alleged, 21 percent involved White defendants whereas 43 percent involved Black defendants. He also offered datademonstrating that, in California,Black defendants comprised approximately 64 percent of those convicted of a robbery crime with a firearm enhancement, while White defendants comprised approximatelyfour percent of those convicted of the same. Finally, he offered data demonstrating that, in Alameda County, non-Whitedefendants were 20 times more likely to be convicted of a firearm enhancement than White defendants.
Based on this evidence, we conclude petitionermet thefoundational requirement of presenting a plausible justification for discoveryunder section 745, subdivision (d).(Young, supra, 79 Cal.App.5th at pp. 144–145.) Petitionerofferedspecific facts from California and Alameda County data to support his request for discovery to investigate potential RJA violations. This offer included data relating tothe specific crime for which he was charged and convicted: robbery with a firearm use enhancement. No further offer of proofis required at this stage. (McDaniel, supra, 111 Cal.App.5th at pp. 245–246 [“specific facts of actual racial disparities in gang and gang enhancement charges brought by prosecutors in San Mateo County”were“sufficient to support a plausible claim that gang charges could or might be impacted by racial bias”]; Gonzales, supra, 108 Cal.App.5th Supp. at p.66 [defendant’s statistical evidence “that Latinx people may have been disproportionately charged with resisting arrest and that non-Latinx people who were similarly situated by engaging in similar conduct may have been treated more leniently by not being so charged, [was] sufficient to show that an RJA violation could or might have occurred”].)
The People are correct, of course, that to establish an actual RJA violation, petitioner must prove he was charged with or convicted of a more serious offense than non-Black defendants who are “similarly situated” and engaged “in similar conduct.” (Italics omitted.) However, we are only at the discovery stage. As our First District colleagues in Division Three recently held, in seeking discovery under the RJA, “parties only need to show plausibility based on ‘specific facts.’(Young, supra, 79 Cal.App.5th at p.159.) That showing could be met by case-specific facts, as offered in Young. Or it could be met by specific statistical facts relevant to the charges and individuals involved, as in Gonzales. Or both. Neither the RJA nor Young requires any particular type of ‘specific facts.’… Rather, courts should focus on the relevance of the proffered facts to the claims of racial bias to determine whether a minimally plausible basis exists to grant discovery—a low threshold.” (McDaniel, supra, 111 Cal.App.5th at p. 244.) And, as the Gonzalescourt aptly noted: “[a defendant] cannot make a more specific demonstration of any kind of RJA violation without the discovery he [or she] seeks from the People.” (Gonzales, supra, 108 Cal.App.5th Supp. at p. 66.) The RJA cannot serve its intended purpose if courts impede defendants from requesting and obtaining the very information that would, if discovered, establish a violation.
Accordingly, following the guidance of Young, McDaniel, and Gonzales, we conclude the proper course of action is to direct the issuance of a peremptory writ of mandate compelling the trial court to vacate its denial of petitioner’s discovery motion.On remand, the trial court shallengage in a discretionary weighing of the remaining Alhambra factors to determine whether there is good cause for discovery under section 745, subdivision (d), “including the potential probative value of the information [petitioner] seeks, and the burdens of gathering the requested ‘records or information’ for disclosure.” (McDaniel, supra, 111 Cal.App.5th at p.249; see id. at pp.248–249; Young, supra, 79 Cal.App.5th at pp.160, 168–169.)
III.The remaining issues are not ripe.
Lastly, we decline to address petitioner’s claims that the trial court erred in failing to consider his request for appointment of counsel and requiring him to pay for copies of court records and transcripts. These issues are not properly before us.
First, petitioner’s discovery motion did not include a request for appointment of counsel and, as such, the trial court did not consider the issue when denying the motion. While petitioner did request appointment of counsel in his separately filed RJA motion, that motion is not the subject of our review. In any event, “[r]egarding appointment of counsel for a habeas corpus petition raising a Racial Justice Act claim, section 1473, subdivision (e)(5) [effective January 1, 2026] provides: ‘The petition shall state if the petitioner requests appointment of counsel and the court shall appoint counsel if the petitioner cannot afford counsel and either the petition pleads a plausible allegation of a violation of subdivision (a) of Section 745 or the State Public Defender requests counsel be appointed. Newly appointed counsel may amend a petition filed before their appointment.’” (In re Lynex(2026) 118 Cal.App.5th 756, 769; see McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 46 [threshold showing for appointment of counsel does not require a prima facie showing under the RJA].) We leave it to the trial court to apply this standard to petitioner’s request for appointment of counsel when and if appropriate.
Second, as the People note, petitioner has never filed a motion or request in the trial court for an order requiring the state or its agents to provide him free copies of any court records or transcripts. Nonetheless, the trial court, after concluding it lacked jurisdiction to consider petitioner’s discovery motion, inexplicably stated: “To the extent that [petitioner] seeks copies of court transcripts and public records [in the future], he must pay for such copies.” It is not the role of an appellate court to “ ‘resol[ve] … hypothetical situations’ ” that have not yet manifested. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 540.) Nonetheless, we provide the following guidance to assist the parties on remand.
The RJA does not expressly afford a defendant the right to receive free copies of discoverablematerials from the state. Indeed, the RJA does not articulate any rules governing the cost of producing discovery. In comparison, section 1054.9, a statute governing postconviction discovery where a defendant has been convicted of a serious or violent felony and sentenced to prison, provides that, when a defendant is unable to obtain discovery materials from trial counsel despite a good faith effort, the superior court “shall … order that the defendant be provided reasonable access to” the relevant discovery materials. (§ 1054.9, subds. (a),(c).) However, “[t]he actual costs of examination or copying pursuant to this section shall be borne or reimbursed by the defendant.” (§ 1054.9, subd. (e).)
Notwithstanding these provisions, it has long been the law that a“criminal defendant who has established his indigent status is constitutionally entitled to those defense services for which he demonstrates a need,” which services may include “discovery costs, investigative costs, transcript costs, expert fees, etc.” (Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235, 1245.) In this matter, petitioner did not assert in the superior court a right to free copies of discovery materials with a demonstration of his indigent status. Unless or until petitioner does so, he is not entitled to free copies of any material discoverable under the RJA. (Cf.Schaffer, at p. 1245 [“it does not offend the Constitution to require a nonindigent defendant to pay reasonable fees for duplicating discovery materials disclosed by the district attorney pursuant to section 1054.1”].)
DISPOSITION
We deem the appeal a petition for writ of mandate. Let issue a peremptory writ of mandate directing the trial court to vacate its order of July 22, 2024, denying petitioner’s discovery motion under section 745, subdivision (d), and to conduct a new hearing to reconsider his motion in a manner consistent with this opinion, including engaging in the discretionary weighing of the Alhambra factors.

JACKSON, P.J.
WE CONCUR:

SIMONS, J.
CHOU, J.

Cunningham v. The Superior Court of Alameda County (A171196)