Craig v. Superior Court

54 Cal. App. 3d 416, 126 Cal. Rptr. 565, 1976 Cal. App. LEXIS 1144

• Court: California Court of Appeal
• Decided: January 16, 1976
• Docket: Docket Nos. 37300, 37380
• Status: Published

Opinions

Opinion

MOLINARI, P. J.

These proceedings have been consolidated. They involve the same discovery order made in a criminal action. We issued an alternative writ of mandate in each proceeding for the purpose of determining, the specific attacks by the respective petitioners upon certain portions of the trial court’s order for discovery.

Petitioner Mario J. Craig, who is charged with a violation of Penal Code section 187 (murder), filed a motion for pretrial discovery requesting discovery of oral and written statements made by any witness to any inspector or attorney of the Alameda County District Attorney’s office.

The trial court granted the request for the statements of witnesses “conditioned upon the simultaneous disclosure to the People of any similar oral or written statements made by said witnesses to representatives of the Defendant.”¹

Petitioner Mario J. Craig contends that the conditional order of discovery with respect tó witnesses’ statements made to his representatives was improper as violative of his privilege against self-incrimination and of the attorney-client privilege. The People, as petitioners, contend that the grant of Craig’s request for witnesses’ statements to inspectors and attorneys of the district attorney’s office was improper since full discovery had already been offered to Craig and because the information sought was work product.

It should be pointed out, initially, that it is not proper for a court to make discovery by a defendant in a criminal case conditioned upon the defendant’s affording similar discovery to the prosecution. A defendant’s right to discovery is governed by principles different from those applicable to discovery by the prosecution and each must be tested by the applicable principles. The one is not dependent on the other.

“Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, .. .” (People v. Riser, 47 Cal.2d 566, 586 [305 P.2d 1] [overruled on other grounds, People v. Morse, 60 Cal.2d 631, 637, 648-649 (36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810)]; Jones v. Superior Court, 58 Cal.2d 56, 59 [22 Cal.Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213].) The right of an accused to discover evidence “is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. [Citations.]” (Pitchess v. Superior Court, 11 Cal.3d 531, [113 Cal.Rptr. 897, 522 P.2d 305].) These principles are predicated upon the true purpose of a criminal action which is the ascertainment of the truth. (Evans v. Superior Court, 11 Cal.3d 617, 622 [114 Cal.Rptr. 121, 522 P.2d 681]; In re Ferguson, 5 Cal.3d 525, 531-532 [96 Cal.Rptr. 594, 487 P.2d 1234]; People v. Riser, supra.) Accordingly, in implementation of this policy the prosecution must disclose items of substantial and material evidence known to it, which evidence is favorable to the defense, even in the absence of a request for disclosure. (Evans v. Superior Court, supra; In re Ferguson, supra.)

A defendant’s motion to discover is not dependent on civil discovery procedure but “is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand. [Citations.]” (Pitchess v. Superior Court, supra, 11 Cal.3d 531, 535.) Therefore, discovery may be compelled by an accused by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial. (Pitchess v. Superior Court, supra, at p. 536; Cash v. Superior Court, 53 Cal.2d 72, 75 [346 P.2d 407].) “The requisite showing may be satisfied by general allegations which establish some cause for discovery other than ‘a mere desire for the ' benefit of all information which has been obtained by the People in their investigation of the crime.’ [Citations.]” (Pitchess v. Superior Court, supra, at p. 537.)

The prosecution is also entitled to discover but its right is more restrictive than that of the accused. “A prosecution discovery order is subject to two restrictions: (1) the court cannot issue an order, which violates the privilege against self-incrimination nor (2) require a disclosure which would violate the attorney-client privilege. [Citation.]” (McMullen v. Superior Court, 6 Cal.App.3d 224, 226 [85 Cal.Rptr. 729]; see Prudhomme v. Superior Court, 2 Cal.3d 320, 322-323, 327 [85 Cal.Rptr. 129, 466 P.2d 673]; People v. Pike, 71 Cal.2d 595, 605 [78 Cal.Rptr. 672, 455 P.2d 776]; Jones v. Superior Court, supra, 58 Cal.2d 56, 59, 61-62.)

In Prudhomme, it was held that demand for discovery on the part of the prosecution which can result in a disclosure that conceivably might lighten the burden of proving its case in chief violates the accused’s Fifth Amendment right against self-incrimination. (2 Cal.3d at pp. 324-327.) In that case the Supreme Court granted prohibition against the enforcement of a pretrial discovery order which would have compelled a criminal defendant’s attorney to disclose to the prosecution the names, addresses and expected testimony of the witnesses the defendant intended to call at the trial. This order was held to be too broad because it could require the defendant to disclose information which might serve as a link in a chain of evidence tending to establish her guilt of a criminal offense. (At p. 327.)

Since the privilege against self-incrimination forbids compelled disclosures which could serve as a link in a chain of evidence tending to establish guilt of a criminal offense, it is incumbent upon a trial court, in ruling on a claim of privilege, to find that it clearly appears from a consideration of all the circumstances that the matters to be disclosed cannot possibly have a tendency to incriminate the defendant. (Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 326; People v. Bais, 31 Cal.App.3d 663, 670-671 [107 Cal.Rptr. 519].) Accordingly, the trial court must inquire into the incriminatory nature of the information sought and to this end must examine the demanded materials before acting upon the prosecution’s motion for discovery. (Prudhomme v. Superior Court, supra, at pp. 326-327; People v. Bais, supra, at p. 671.)

In the instant case, Craig’s contention, if sustainable, must rest upon the ground of self-incrimination under the principles articulated in Prudhomme. We do not perceive statements of witnesses to be encompassed by the attorney-client privilege.

Applying the Prudhomme test to the discovery order in the instant case I observe that it does not clearly appear from the order for discovery or the records below that the disclosure to the prosecution of the statements made by witnesses to representatives of the defendant cannot possibly tend to incriminate him. The order does not indicate that respondent court decided or considered whether the circumstances of the case indicate that the information sought from Craig in return for the order granting his motion for discovery would not be incriminatory. Accordingly, that portion of the order which conditioned Craig’s discovery upon his granting discovery to the prosecution similar to that requested by him was beyond the court’s jurisdiction and, therefore, void and unenforceable because it was violative of Craig’s constitutional rights. (See Reynolds v. Superior Court, 12 Cal.3d 834, 839 [117 Cal.Rptr. 437, 528 P.2d 45]; People v. Bais, supra, 31 Cal.App.3d 663, 669-673; People v. Griffin, 18 Cal.App.3d 864, 870-871 [96 Cal.Rptr. 218]; Rodriguez v. Superior Court, 9 Cal.App.3d 493, 495-496 [88 Cal.Rptr. 154].)

Advertence is next made to the propriety of the order granting Craig discovery of the statements of witnesses in the possession of the prosecution absent the condition upon which it is granted. No contention is made by the People that Craig has not made the requisite showing that the requested information will facilitate the ascertainment of facts and a fair trial. Rather it is the People’s position that they have already afforded full discovery to Craig and that such discovery should suffice.² This contention ignores the holdings of the decisions that articulate the rule that a defendant’s right to discoverable matter is viable both prior to and during trial. (Funk v. Superior Court, 52 Cal.2d 423, 424 [340 P.2d 593]; Powell v. Superior Court, 48 Cal.2d 704, 707-708 [312 P.2d 698]; People v. McManis, 26 Cal.App.3d 608, 617-618 [102 Cal.Rptr. 889].)

It is not contended by the People that they have already furnished to Craig the oral and written statements made by any witness to any inspector or attorney of the district attorney’s office, nor is it contended that Craig is not entitled to discover such statements. An accused has the right to discover statements by prospective witnesses to agents of the state. (Funk v. Superior Court, supra, 52 Cal.2d 423, 424; People v. Riser, supra, 47 Cal.2d 566, 587 [overruled on other grounds in People v. Morse, 60 Cal.2d 631, 637, 648-649 (36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810)]; People v. McManis, supra, 26 Cal.App.3d 608, 617; see Evans v. Superior Court, supra, 11 Cal.3d 617, 622, fn. 4.)

The People also urge that the information sought from the prosecution should be protected because it is the result of its work product. The People concede that there is presently no standard protecting the prosecutor’s work product from criminal discovery and that the applicability of civil standards is questionable.

In considering this contention it must be noted that it is well established that civil discovery procedure has no relevance to criminal prosecutions. (Pitchess v. Superior Court, supra, 11 Cal.3d 531, 536; Powell v. Superior Court, supra, 48 Cal.2d 704, 707-708.) Moreover, there is nothing in the record to indicate that the statements constituted work product of the People’s attorneys within the statutory meaning of that term in civil discovery procedure.³ In any event, assuming the statements sought to be discovered by Craig to be work product, there is no statutory or case authority that shields it from discovery.

The alternative writ is discharged and the peremptory writ of mandate is denied in proceeding 1 Civil 37380. The alternative writ is discharged and a peremptory writ of mandate shall issue in proceeding 1 Civil 37300 requiring the trial court to vacate and strike from its order that part granting discovery to petitioner Craig which provides as follows: “The obligation to disclose the material described in Paragraph l(b)(ii) and (iii) is conditioned upon simultaneous disclosure to the People of any similar oral or written statements made by said witnesses to representatives of the Defendant.”

1 Petitioner also sought discovery of specific juvenile court proceedings. The request for such discovery was denied. In the instant petition petitioner also sought an order for such discovery. However, following the submission of the cause before us petitioner has withdrawn that portion of the petition which requests that mandate issue for the discovery of the specified juvenile, court proceedings.

2 The essence of the People’s contention appears simply to be that the statements already furnished to Craig should suffice the purposes of discovery and that, at this point in the proceedings, revelation of further statements of witnesses would discourage further conscientious criminal prosecution.

3 Code of Civil Procedure section 2016, subdivision (b), in pertinent part, provides: “The work product of an attorney shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice, and any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.”