Zonver v. Superior Court of Los Angeles County

Citation270 Cal.App.2d 613,76 Cal.Rptr. 10
CourtCalifornia Court of Appeals
Decision Date12 March 1969
PartiesVictor G. ZONVER and Ann Jacobs, Petitioners, v. The SUPERIOR COURT OF the COUNTY OF LOS ANGELES, Respondent; Vivian ZONVER, Real Party in Interest. Civ. 33884.

McGurrin & Denny and George V. Denny, III, Beverly Hills, for petitioners.

No appearance for respondent.

Joseph W. Fairfield, Ethelyn F. Black and Alfred W. Omansky, Beverly Hills, for real party in interest.

KAUS, Presiding Justice.

In this divorce matter we granted an alternative writ of prohibition in order to permit us to explore the question of the extent to which a claim of self-incrimination, asserted by the husband and his female bookkeeper, prevents inquiry into their social and sexual relationship.

The wife's complaint was filed August 27, 1968. It alleged cruelty in the usual form. No correspondent was named. On September 19 the wife served close to one hundred interrogatories on the husband. Three of them read as follows: '75. State the residence, address and telephone number of Ann Jacobs. 76. State in detail the times you have visited with Ann Jacobs at her home within the past two years. 77. If Ann Jacobs' residence was not the same at all times within the past two years, state each and every address where you visited her.'

On October 11 the husband served and filed answers to the interrogatories. With respect to numbers 75, 76 and 77 he objected as follows: 'Refuse to answer on grounds that any answer might tend to incriminate me.'

On October 7 the wife took the deposition of Ann Jacobs. With reference to the husband, Mrs. Jacobs was asked the following: 'Have you gone out with him socially?' and 'Is any of Mr. Zonver's clothing at your home on Fair Avenue?' On the advice of counsel she refused to answer on the ground of self-incrimination. On October 25 the superior court ruled that interrogatories 75, 76 and 77 had to be answered by the husband 'except that he need not set forth any information as to any visits with Ann Jacobs that occurred outside the State of California.' On October 31 the court ruled that Mrs. Jacobs had to answer 'all questions concerning her social relationship with the defendant, Victor Zonver, insofar as they relate to activities within the State of California.'

On October 28 the wife served a request for admission on the husband. He was asked to admit that he had had sexual intercourse with Ann Jacobs on forty specified dates between January 20 and September 22, 1968. He was also asked to admit that he had had intercourse with Mrs. Jacobs on dates other than those specifically mentioned and that there had been intercourse in various hotels and motels in Las Vegas, Reno and Lake Tahoe, Nevada. The record before us shows no superior court ruling as far as the request for admissions is concerned.

Although California has always had a prohibition against self-incrimination in its Constitution (Cal.Const., art. 1, § 13) it was not until Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, was decided on June 15, 1964, that our state became compelled to enforce the prohibition against self-incrimination contained in the Fifth Amendment to the United States Constitution. One effect of Malloy was to make prior California cases refusing to apply the privilege against self-incrimination suspect since they had not necessarily applied federal standards. (Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.) It will therefore be helpful to the present inquiry to set forth the precise facts of Malloy.

In 1959 Malloy had been arrested, in Connecticut, in a gambling raid. He pleaded guilty to pool selling. He served ninety days in jail and was placed on probation for two years. Sixteen months after his plea he refused to answer, on the ground of self-incrimination, certain questions in an official inquiry into alleged gambling and other criminal activities. The Supreme Court summarized the questions which he refused to answer as follows: '* * * (1) for whom did he work on September 11, 1959; (2) who selected and paid his counsel in connection with his arrest on that date and subsequent conviction; (3) who selected and paid his bondsman; (4) who paid his fine; (5) what was the name of the tenant of the apartment in which he was arrested; and (6) did he know John Bergoti. * * *' (378 U.S. at 12, 84 S.Ct. at 1496.) After holding that the Fifth Amendment applied to the states, the Supreme Court had little trouble finding that Malloy had properly sought to exercise his privilege: '* * * The interrogation was part of a wide-ranging inquiry into crime, including gambling, in Hartford. It was admitted on behalf of the State at oral argument--and indeed it is obvious from the questions themselves--that the State desired to elicit from the petitioner the identity of the person who ran the poolselling operation in connection with which he had been arrested in 1959. It was apparent that petitioner might apprehend that if this person were still engaged in unlawful activity, disclosure of his name might furnish a link in a chain of evidence sufficient to connect the petitioner with a more recent crime for which he might still be prosecuted.

'Analysis of the sixth question, concerning whether petitioner knew John Bergoti, yields a similar conclusion. In the context of the inquiry, it should have been apparent to the referee that Bergoti was suspected by the State to be involved in some way in the subject matter of the investigation. An affirmative answer to the question might well have either connected petitioner with a more recent crime, or at least have operated as a waiver of his privilege with reference to his relationship with a possible criminal. See Rogers v. United States, 340 U.S. 367, 95 L.Ed. 344, 71 S.Ct. 438, 19 A.L.R.2d 378. We conclude, therefore, that as to each of the questions, it was 'evident from the implications of the question, in the setting in which it (was) asked, that a responsive answer to the question or an explanation of why it (could not) be answered might be dangerous because injurious disclosure would result,' Hoffman v. United States, 341 U.S., at 486--487, 71 S.Ct. 814, 95 L.Ed., at 1124; see Singleton v. United States, 343 U.S. 944, 96 L.Ed. 1349, 72 S.Ct. 1041.' (378 U.S. at 13--14, 84 S.Ct. at 1497. Italics added.)

The significance of the holding is best understood by a reading of Justice White's dissent. Justice White is not in disagreement with the proposition that the Fifth Amendment applies to the states. He does disagree, however, with its application in Malloy. He points out that at the time the questions were asked the statute of limitations had barred any further prosecution for violations of the state pool selling statute in 1959. Besides, the Connecticut court had been unable to find any other state statute which Malloy's gambling activities in 1959 could have violated: '* * * Beyond this Malloy declined to offer any explanation or hint at how the answers sought could have incriminated him. In these circumstances it is wholly speculative to find that the questions about others, not Malloy, posed a substantial hazard of criminal prosecution to Malloy. Theoretically, under some unknown but perhaps possible conditions any fact is potentially incriminating. But if this be the rule, there obviously is no reason for the judge, rather than the witness, to pass on the claim of privilege. The privilege becomes a general one against answering distasteful questions.' (378 U.S. at 37, 84 S.Ct. at 1508.) Nor does Justice White agree with the reasoning of the court to the effect that by answering the questions Malloy might furnish a link in a clain of evidence against himself, if his former associates were still engaged in illegal activity. He points to the fact that this is a wholly speculative assumption, not supported by the record.

Whether or not Malloy went too far is, of course, beside the point. We must apply it, as best we can, to our specific problem.

The Penal Code of our state covers many aspects of sexual activity. (In re Lane, 58 Cal.2d 99, 103, 22 Cal.Rptr. 857, 372 P.2d 897.) The mere fact that adultery not carried to the point of cohabitation (Pen.Code, §§ 269a, 269b), is not in itself a crime, does not mean that evidence thereof cannot be a strong link in a chain of evidence proving a defendant guilty of a variety of misdemeanors and felonies. (Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; In re Leavitt, 174 Cal.App.2d 535, 345 P.2d 75; Cohen v. Superior Court, 173 Cal.App.2d 61, 68, 343 P.2d 286.)

Apparently the trial court felt that by upholding the claim of privilege with respect to activities outside of the State of California Mr. Zonver's privilege in connection with any possible prosecution under the Mann Act (18 U.S.C. § 2421) was adequately protected. This is emphatically wrong. 1 In a number of cases, one of the more recent of which is Head v. United States, 9 Cir., 346 F.2d 194, evidence of immoral conduct not directly related to any interstate transportation has been held admissible to illuminate the purpose of the transportation. In the Head case the transportation involved was from Oregon to Washington. Evidence was admitted that three days before the act of transportation the defendant had propositioned the woman in question in a motel in Salt Lake City, Utah. Affirming, the court said: 'The testimony in question concerning the Salt Lake City incident, is relevant to the charge, and to the consistent theory of the Government's case, that Head transported the three women for the purpose of debauchery and other immoral purposes, as well as for the purpose of prostitution. It is relevant because it tends to show that, having had this one experience with the woman in question, one of his purposes in later transporting her from Portland to Seattle was to have additional...

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