Ballard v. Superior Court of San Diego County

• Decision Date: 15 February 1966
• Citation: 410 P.2d 838,64 Cal.2d 159,49 Cal.Rptr. 302,18 A.L.R.3d 1416
• Court: California Supreme Court
• Parties: , 410 P.2d 838, 18 A.L.R.3d 1416 Walter M. BALLARD, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; The PEOPLE, Real Party in Interest. L. A. 28520.

Page 302

49 Cal.Rptr. 302

64 Cal.2d 159, 410 P.2d 838, 18 A.L.R.3d 1416

Walter M. BALLARD, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent The PEOPLE, Real Party in Interest.

L. A. 28520.

Supreme Court of California, In Bank.

Feb. 15, 1966.

Gostin & Katz and Louis S. Katz, San Diego, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., James Don Keller, Dist. Atty., and Richard H. Bein, Deputy Dist. Atty., for respondent and real party in interest.

Evelle J. Younger, Dist. Atty. (Los Angeles), and Harry B. Sondheim, Deputy Dist. Atty., as amici curiae on behalf of respondent and real party in interest.

TOBRINER, Justice.

Petitioner is a physician charged with the rape of a petient to whom he allegedly administered an intoxicating narcotic or anesthetic substance in order to prevent resistance, a violation of Penal Code section 261, subdivision 4. He petitions for writs of mandate and prohibition (1) to obtain certain evidence allegedly seized illegally by the prosecution; (2) to prohibit the introduction of designated evidence at the trial; (3) to compel certain pretrial discovery; and (4) to restrain the proceedings in the trial court pending the realization of the relief sought.

We hold that this court, upon an extraordinary writ, does not review the trial court's ruling upon the admissibility of tape recordings of conversations of petitioner and the complaining witness; that since the tape recordings and the transcriptions of them are not properties which have been seized from petitioner, he cannot gain exclusive possession of them; that in the absence of some showing of good cause, the trial court did not err in refusing to order the prosecution to supply petitioner with the names and addresses of witnesses whom the police or prosecution have interviewed and with the results of a polygraph examination of the complaining witness; that petitioner cannot justify such discovery on the ground that it would aid him in the determination of whether he had been denied his constitutional right to counsel at the time he made incriminating statements since, in the absence of custody, the accusatory stage could not have matured; that although the trial court may in its discretion order a complaining witness in a sex violation case to submit to a psychiatric examination, the prosecutrix in the instant case should not presently be required to undergo such an examination.

On October 6, 1964, the prosecutrix lodged a complaint with the San Diego Police Department, accusing petitioner of having performed an act of sexual intercourse upon her on October 4 without her consent and while she could not resist because of the drugs which he had administered to her. The police then gave the prosecutrix a lie detector test; a police physician examined her.

The day after the victim filed the charges the police furnished her with an electronic microphone to conceal in her purse and instructed her to go to petitioner's office in order to obtain incriminating statements from him. The officers placed a device in a police car outside the physician's office for the purpose of recording the statements. Thereby the officers did obtain from petitioner several incriminating statements.

On October 8, a police expert determined that the victim's clothing contained semen stains. On October 13, October 16, and November 4, after a specially equipped electronic recording device had been attached to her telephone, the victim, in the presence of the police, called petitioner, asking questions concerning the incident. During these telephone conversations petitioner made several incriminating statements, which the police recorded.

On November 4, 1964, the San Diego County Grand Jury indicted petitioner for the crime of rape in violation of Penal Code section 261, subdivision 4.

I. Illegally obtained evidence

The trial court denied petitioner's motion to suppress by which he sought the delivery or the destruction of the recordings and transcripts on the ground that they were the product of an illegal search and seizure ¹ and had been obtained in violation of his privilege against self-incrimination and his rights to counsel and to remain silent. ² Petitioner now seeks a writ of mandate or a writ of prohibition restraining the superior court from the introduction into evidence of the recordings or transcripts or from the admission of testimony concerning any of the recorded conversations. Petitioner urges us to order the superior court to deliver the recordings and transcripts to him or to destroy them.

This court cannot at this time review the trial court's decision refusing to suppress the evidence. (See People v. Justice Court (1960) 185 Cal.App.2d 256, 8 Cal.Rptr. 176; Cal. Criminal Law Practice (Cont.Ed.Bar) (1964) § 5.11; Witkin, Cal. Criminal Procedure (1963) 654; Witkin, Cal. Evidence Supp. (1963) § 21; Fricke, Cal. Criminal Procedure (1963) 532, 561; cf. People v. Williams (1963) 218 Cal.App.2d 86, 95, 32 Cal.Rptr. 277.) Neither a writ of prohibition nor a writ of mandate may be used to resolve an issue as to the admissiblity of evidence. (Bird v. Justice Court (1960) 182 Cal.App.2d 674, 677, 6 Cal.Rptr. 502 (prohibition); People v. Superior Court (1955) 137 Cal.App.2d 194, 289 P.2d 813 (mandamus); People v. Justice Court, supra, 185 Cal.App.2d 256, 8 Cal.Rptr. 1176.) As Justice Peters has said, 'It is elementary that a trial judge has the jurisdiction to decide matters before him erroneously as well as correctly. That is one reason why we have appellate courts. A ruling on the admission of evidence, even if wrong, is not an abuse of discretion but simply an erroneous ruling.' (People v. Superior Court, supra, at p. 195, 289 P.2d at p. 814.)

Although this court may issue a writ of mandamus to enforce the right to counsel or the right to consult with counsel (see Cornell v. Superior Court (1959) 52 Cal.2d 99, 338 P.2d 447, 72 A.L.R.2d 1116; Vasquez v. District Court of Appeal (1963) 59 Cal.2d 585, 30 Cal.Rptr. 467, 381 P.2d 203), petitioner does not now suffer deprivation of counsel. At this juncture we are no more called upon to review the trial court's refusal to suppress petitioner's statements upon the ground that its ruling violated his constitutional right to counsel than we are required to resolve any other issue as to the admissibility of evidence.

Although one whose property has been illegally seized may obtain a writ of mandamus to compel the return of the property, if it is not contraband, that principle cannot serve petitioner here. (See Pen.Code, § 1540; People v. Berger (1955) 44 Cal.2d 459, 282 P.2d 509; Aday v. Superior Court (1961) 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47; Gershenhorn v. Superior Court (1964) 227 Cal.App.2d 361, 364-365, 38 Cal.Rptr. 576; Cal. Criminal Law Practice (Cont.Ed.Bar), supra, §§ 5.11, 5.49; Witkin, Cal. Criminal Procedure, supra, 759.) To protect a person from the deprivation of illegally seized property, which prevents him from using that property, the courts will afford a speedy determination of the legality of the seizure. (See Aday v. Superior Court, supra, 55 Cal.2d 789, 800, 13 Cal.Rptr. 415, 362 P.2d 47.) Yet here, despite petitioner's possible interest in the recordings of his statements, the police did not seize possession of the tapes and the transcripts from petitioner. The police department owns the tapes and transcripts. Petitioner is not entitled to exclusive possession of such evidence. Our instant review of the trial court's ruling as to the suppression of the statements would clearly be both premature and impermissible.

II. Discovery

The trial court afforded to petitioner many of the items which he sought in his motion for pretrial discovery. The prosecution supplied the transcript of the grand jury proceedings and agreed to produce the polygraph examination questions and answers to the defense. At the hearing on the discovery motion in the trial court, the district attorney stipulated that he would provide defense counsel with the names and addresses and the statements of witnesses whom he intended to call at the trial.

Petitioner contends that he is entitled to the names and addresses of all persons interviewed by the police regarding the charge lodged against him and to inspect all the reports, notes and records showing the results of the polygraph examination given the complaining witness. Petitioner also contends that the court should order the prosecutrix to submit to a psychiatric examination.

A. Statements of Witnesses

In his motion for pretrial discovery, petitioner had requested statements of petitioner and all witnesses who had testified at the grand jury proceedings. He then requested 'all reports, statements, records and interviews in writing and all notes and memoranda or oral reports, statements, records and interviews made by the police officers who investigated said case from October 5, 1964 until the present time.' After the court pointed out that the district attorney had already agreed to provide petitioner with the statements of all witnesses he intended to call at trial, counsel for the petitioner stated that in making the above quoted request, 'I wanted to make sure, Judge, I was asking for all possible things so it would be clear on the record.'

Petitioner also requested 'Any and all transcriptions of conversations or statements by the defendant, any written or typed, signed, or unsigned statements of persons who may or may not be called as prosecution witnesses, and any recordings or transcriptions of statements used by the prosecution to impeach defendant witnesses as well as names and addresses of eye witnesses to the crime known to the prosecution but unknown to defendant and any notes and summaries used by police and prosecution witnesses to refresh memories before testifying at the Grand Jury proceedings.' Petitioner's counsel commented on this request by stating, 'We...