Cantillon v. SUPERIOR COURT, ST. OF CAL., CTY. OF LOS ANGELES

• Decision Date: 11 September 1969
• Docket Number: No. 69-1186.,69-1186.
• Citation: 305 F. Supp. 304
• Court: U.S. District Court — Central District of California
• Parties: James P. CANTILLON, Petitioner, v. SUPERIOR COURT OF the STATE OF CALIFORNIA, FOR the COUNTY OF LOS ANGELES; and Peter Pitchess, Co-Respondents; People of the State of California, Real Party in Interest.

305 F. Supp. 304

James P. CANTILLON, Petitioner, v. SUPERIOR COURT OF the STATE OF CALIFORNIA, FOR the COUNTY OF LOS ANGELES; and Peter Pitchess, Co-Respondents People of the State of California, Real Party in Interest.

No. 69-1186.

United States District Court C. D. California.

September 11, 1969.

Cantillon & Cantillon, James P. Cantillon, Beverly Hills, Cal., for petitioner.

John D. Maharg, County Counsel, Michael H. Dougherty, Deputy County Counsel, Los Angeles, Cal., for co-respondents.

Evelle J. Younger, Dist. Atty. of Los Angeles County, Los Angeles, Cal., for real party in interest.

ORDER GRANTING WRIT OF HABEAS CORPUS; AND WRIT OF HABEAS CORPUS

WHELAN, District Judge.

Petitioner, who seeks a writ of habeas corpus, is a member of the State Bar of California. On March 27, 1969, he appeared before the Superior Court of the State of California at the trial of the case of People of the State of California. Plaintiff, v. Herbert Breuer, Defendant, hereafter Breuer, which said action is No. A-105,907 in the records and files of the Los Angeles Superior Court; he was attorney of record for such defendant Breuer. Counsel were in the process of selecting a jury for the trial of the action; taking of evidence had not commenced.

Thereupon, the prosecution moved the Superior Court for an order requiring petitioner herein to forthwith disclose to the prosecution the identity of the "alibi" witnesses "if any" that petitioner intended to produce as witnesses on behalf of defendant Breuer in such criminal trial. Petitioner objected to the granting of such order but the Superior Court judge presiding at such criminal trial ordered petitioner to forthwith disclose the identity of such witnesses, if any. The record discloses that the defendant at that point had not stated that he would rely on an alibi. Petitioner declined to comply with said order and was thereupon adjudged by the judge of the Superior Court presiding at such criminal trial to be in contempt of court and was ordered to be imprisoned by the Sheriff of Los Angeles County until petitioner complied with the order requiring such divulgence. Execution of the sentence for contempt was suspended so that petitioner might petition for a writ of habeas corpus to the courts of appeal of the State of California. Because of the delay attendant upon such course of action, and with the consent of the defendant, a mistrial of the criminal action was ordered.

Petitioner filed petitions for writ of habeas corpus successively with the California District Court of Appeal and the Supreme Court of the State of California. Each of the latter courts denied the petition for the writ. Thereupon petitioner filed his petition with this Court. Execution of his sentence has been stayed from time to time and his stay of execution expires on September 15, 1969. The writ must issue if the discovery order violates the constitutional rights of Breuer.

The reporter's transcript of the proceedings wherein petitioner was held in contempt have been filed with the Court. It appears from such transcript that when the prosecution made the motion for discovery before-mentioned, petitioner objected to the granting of the motion on several grounds: (1) that to require discovery would be in violation of the attorney-client privilege between himself and his client; (2) that to require such discovery would be in violation of the Fifth Amendment rights of his client; and (3) in substance, that the requirement of discovery would constitute ineffective assistance of counsel to his client. He substantially sets forth the same grounds before this Court for his release on habeas corpus; in addition, he sets forth as grounds for his release that the order of the Superior Court sentencing him is depriving petitioner of his own liberty without due process of law.

It is clear that a lawyer can assert the Fifth Amendment privilege for his client in a judicial proceeding. United States v. Judson, 322 F.2d 460 (9th Cir. 1963). Thus, in this matter the real party in interest insofar as discovery procedures are concerned is Breuer, the defendant in the criminal proceeding.

It appears from the record that Breuer, who is charged in said action with forcible rape and burglary, at the time of his arrest refused to make any statement to the arresting or investigating officers; the offenses were charged according to the records in such case to have been committed on August 29, 1968.

The petition for habeas corpus has been submitted for decision after legal argument, both oral and written, by counsel for the parties, petitioner appearing in his own behalf.

Initially, the Court will treat of the contention of respondents that because petitioner is only in constructive custody of the Sheriff of Los Angeles County, he having been released on his own recognizance pending the execution of the sentence imposed upon him, habeas corpus is not available to him as a matter of law. Such is not the law as the use of habeas corpus is not restricted to situations in which the applicant is in actual physical custody. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285. The fact that petitioner is released on his own recognizance is of no significance; he will be physically incarcerated after September 15, 1969, unless relief is granted to him by this Court. The type of custody imposed upon him is analogous to that of any person who is released on bail pending a hearing upon a petition for habeas corpus or to that of a person released on bond after being charged with being a deportable alien.

As their principal contention respondents claim petitioner cannot assert the Fifth Amendment privilege for his client for the reason that under the California judicially announced rule discovery in a criminal case is a "two-way street"; and that because California has accorded by judicial decision, and not by statute, wide latitude to a defendant in a criminal case to have pretrial discovery, the prosecution in a criminal trial "on balance" should have the same right by virtue of judicial decision to pretrial discovery from a defendant.

This Court is familiar with the decisions of the California courts as well as the decisions from other jurisdictions cited by respondents in support of their claim that the names of alibi witnesses can be obtained by pretrial discovery from a defendant in a criminal case.¹ This Court, however, respectfully is of the opinion that to require such discovery from this defendant is a violation of such defendant's Fifth Amendment right to remain silent when such attempted discovery is sought.

It may well be that those courts upholding the requirement that names of alibi witnesses must be given to the prosecution by a defendant do so because of the thought that an alibi is "an affirmative defense"; the majority opinion in the case of Jones v. Superior Court, supra, so seems to regard it. Regardless of whether it is entitled "an affirmative defense" or otherwise, this Court is of the opinion that the burden is still upon the prosecution to prove beyond a reasonable doubt that the defendant was present at the time and place of the crime of rape charged in the criminal proceeding against Breuer and thus that he was not at some other place at the time of the crime. Compare Notaro v. United States, 363 F.2d 169 (9th Cir. 1966), where the court dealt with the question of burden of proof in a situation where the issue of the "affirmative defense" of entrapment has fairly arisen. The latter court held properly that the government must prove under such circumstances beyond a reasonable doubt that the defendant was not trapped; likewise where the defense which we call "alibi" is raised, it is the burden of the prosecution to prove beyond a reasonable doubt that the defendant was present at the time and place of the crime charged, i. e., that he was not at some other place at that time. So regarded it would be error to require the defendant to state, prior to the time that his defense takes place during the trial, in effect that he intended to prove that he was not at the place of the crime at the time thereof, and to give any witnesses who might support such defense to the prosecution; such requirement would be a clear violation of the defendant's Fifth Amendment right to stand silent. To hold otherwise would be to permit the prosecution to receive the name of any witness that defendant intended to call to establish that defendant was not guilty of the crime charged.

While the case of Fowle v. United States, 410 F.2d 48 (9th Cir. 1969), is not concerned with any attempt at discovery by way of motion before the Court by the prosecution, it nevertheless considers the nature and scope of the Fifth Amendment privilege, and the logic of that decision would seem applicable to the case at bar. Certainly if, as is the law, a person after arrest may stand mute and refuse to answer any questions, it would seem most incongruous if he could not thereafter, either through himself personally or through his attorney, refuse to answer inquiries touching upon the nature of his defense until he has in fact...