Cash v. Superior Court In and For Santa Clara County

• Decision Date: 17 November 1959
• Citation: 53 Cal.2d 72,346 P.2d 407
• Court: California Supreme Court
• Parties: Lawrence Bryant CASH, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF SANTA CLARA, Respondent; People of the State of California et al., Real Parties in Interest. S. F. 20177.

Page 407

346 P.2d 407

53 Cal.2d 72

Lawrence Bryant CASH, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR COUNTY OF SANTA CLARA, Respondent People of the State of California et al., Real Parties in Interest.

S. F. 20177.

Supreme Court of California, In Bank.

Nov. 17, 1959.

I. B. Padway, San Jose, for petitioner.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Arlo E. Smith and Preble Stolz, Dep. Attys. Gen., Louis P. Bergna, Dist. Atty., and William P. Hoffman, Deputy Dist. Atty., San Jose, for respondent and real parties in interest.

GIBSON, Chief Justice.

Petitioner, who is charged by information with attempted burglary and solicitation to commit burglary, seeks a writ of mandate to compel respondent court to issue an order permitting him, prior to trial, to inspect and copy any recordings or transcriptions of conversations between him and Ned Barker, a police officer posing as a prospective accomplice.

At the preliminary hearing Barker testified that other officers told him petitioner had requested a woman named Barbara Hlubek to assist in securing an accomplice to participate in the burglary of a market. On January 7, 1959, Barker went to Mrs. Hlubek's home where he met petitioner, who, in a conversation lasting more than an hour, asked him to take part in the crime and set forth a plan for its commission. Petitioner reviewed the plan at a meeting with Barker at Mrs. Hlubek's home on the evening of January 8. During the conversations petitioner drew diagrams which showed the site of the market, the point at which the building was to be entered, and the location of the safe. These diagrams were taken by Barker. Immediately following the second meeting the two men went to the market, and petitioner was arrested by police officers near the planned point of entry.

After being bound over to the superior court, petitioner moved for an order requiring production of any recordings or transcriptions of his conversations with Barker at Mrs. Hlubek's home. ¹ In a supporting affidavit dated February 27, 1959, it was alleged that petitioner did not remember the conversations, that he had reason to believe they were recorded, and that inspection and copies of the recordings are necessary to refresh his memory and to enable him to prepare his defense. The motion was denied without prejudice to its renewal during the trial. The People have taken the position at all times that they neither affirm nor deny the existence of the recordings sought by petitioner.

Several recent decisions have involved production, prior to trial, of written statements or recordings in the possession of the People. Powell v. Superior Court, 48 Cal.2d 704, 709, 312 P.2d 698, held that the accused had a right to obtain written statements made in the office of the chief of police after the commission of the crime. Vance v. Superior Court, 51 Cal.2d 92, 93, 330 P.2d 773, compelled production of type recordings of the defendant's statements to the police during interrogation and also of recordings which officers made of their conversation with the alleged victim and played to the defendant while they were questioning him. In Funk v. Superior Court, 52 Cal.2d 417, 340 P.2d 622, the People were required to produce written statements of prosecution witnesses relating to the matters covered in their testimony at the preliminary hearing.

The basis for requiring pre-trial production of material in the hands of the prosecution is the fundamental principle that an accused is entitled to a fair trial. In Powell v. Superior Court, 48 Cal.2d 704, 706, 312 P.2d 698 et seq., it was noted that an accused was denied production at early common law because he might fabricate evidence to meet the state's case and because the prosecution...