Clark v. Superior Court In and For City and County of San Francisco

Decision Date31 March 1961
Docket NumberNo. 19769,19769
Citation12 Cal.Rptr. 191,190 Cal.App.2d 739
CourtCalifornia Court of Appeals Court of Appeals
PartiesDon W. CLARK, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent.

J. W. Ehrlich, San Francisco, for petitioner.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty. of City and County of San Francisco, Francis Mayer, Deputy Dist. Atty., San Francisco, for respondent.

BRAY, Presiding Justice.

Petition for writ of mandamus to compel the superior court to issue an order for the taking of depositions of witnesses who testified for the People in a grand jury investigation resulting in the indictment of petitioner for violation of section 26104, Corporations Code.

Question Presented.

Except in the limited situations provided in section 1349, Penal Code (witness residing outside the state), in section 1336 (witness about to leave the state or so sick or infirm as to afford reasonable grounds for apprehension that he will be unable to attend the trial), and in section 1335 (conditional examination of witnesses), may the defendant take the deposition of a prosecution witness in a criminal case?

Record.

The San Francisco Grand Jury after examining certain witnesses indicted petitioner for violation of section 26104, Corporations Code (sale of securities without permit). Petitioner moved the superior court for an order permitting the taking of the deposition of said witnesses, alleging that the witnesses were examined before the grand jury mostly under leading questions of the prosecuting attorney, that the witnesses answered questions 'yes' and 'no,' that petitioner is deprived of a fair trial by not having a record available to him for purposes of cross-examination, and that petitioner's substantial rights will be prejudiced if he is not permitted to take the deposition of said witnesses. The court denied the motion. Petitioner then filed his petition in this court to compel the superior court to order the taking of said depositions.

1. Petitioner Not Entitled to Take Deposition.

It is an interesting thing that the question of the right of a defendant to take the deposition of a prosecuting witness except in limited situations such as those set forth in the before mentioned code sections, so far as we can learn, has never before been raised in this state, nor in England, nor, except for three cases, in the United States. Ever since the beginning of the common law, it apparently has been believed by both prosecuting and defense attorneys and the courts that such depositions could not be taken, for it has been the universal practice not to take them. The only cases on the subject in any jurisdiction called to our attention or that we have been able to find are Reed v. Allen, 121 Vt. 202, 153 A.2d 74, 73 A.L.R.2d 1161; State v. Christensen, 40 Wash.2d 329, 242 P.2d 755; and Ex parte Denton, 266 Ala. 279, 96 So.2d 296. In all of those cases the right to take such depositions was denied. The right to take depositions in federal cases is restricted by rule 15(a), Federal Rules of Criminal Procedure, 18 U.S.C.A.: 'If it appears that a prospective witness may be unable to attend or prevented from attending a trial or hearing * * *'

It is significant that the Legislature, over the years, has seen fit to provide for the taking of depositions of prosecution witnesses in criminal cases only in the limited situations set forth in the before mentioned code sections. In fact, the Legislature has practically provided that other depositions may not be taken, for section 1341, dealing with conditional examination of witnesses as provided in section 1335, provides, 'If, at the time and place so designated, it is shown to the satisfaction of the magistrate that the witness is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial, the examination cannot take place.' (Emphasis added.)

Moreover, the California Constitution seems to qualify the right to depositions in criminal cases for article I, section 13, provides in 'Rights Of Accused,' 'The Legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases, other than cases of homicide when there is reason to believe that the witness, from inability or other cause, will not attend at the trial.' (Emphasis added.)

It is true that in 1957 the Legislature greatly liberalized discovery and the taking of depositions in civil cases. See Code Civ.Proc. § 2016 et seq. However, those sections apply only to civil actions and proceedings.

Prior to 1957 the right to take depositions, even in civil cases, was limited to the situations set forth in the then section 2020 et seq., Code of Civil Procedure (see Verdier v. Superior Court, 1948, 88 Cal.App.2d 527, 532, 199 P.2d 325). While the Legislature in 1957 liberalized discovery and the taking of depositions in civil cases, it made no change in the statutes concerning depositions in criminal cases. This fact is highly significant.

If the Legislature had considered that the civil discovery provisions recently enacted should be applicable in criminal cases it would have so stated. The three cases from other jurisdictions before mentioned, expressly held that the...

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14 cases
  • People v. Lindsay
    • United States
    • California Court of Appeals Court of Appeals
    • May 27, 1964
    ...of the Code of Civil Procedure are limited to civil cases and have no applicability to criminal cases. (Clark v. Superior Court, 190 Cal.App.2d 739, 742, 12 Cal.Rptr. 191.) In criminal cases, the Legislature permits the taking of depositions and interrogatories in the following situations: ......
  • People v. Pitts
    • United States
    • California Court of Appeals Court of Appeals
    • September 5, 1990
    ...Thus, a prosecutor has no right to instruct witnesses not to talk with a defendant or defense counsel. (Clark v. Superior Court (1961) 190 Cal.App.2d 739, 743, 12 Cal.Rptr. 191.) A defendant, having the right to compulsory process for obtaining witnesses to testify in his behalf, also has t......
  • People v. Bowen
    • United States
    • California Court of Appeals Court of Appeals
    • December 22, 1971
    ...and statutory provisions. (See Everett v. Gordon (1968) 266 Cal.App.2d 667, 671, 72 Cal.Rptr. 379; and Clark v. Superior Court (1961)190 Cal.App.2d 739, 742, 12 Cal.Rptr. 191.) Defendant contends that the title 'Rights of Accused,' under which the foregoing constitutional provision is found......
  • People v. Collie
    • United States
    • California Court of Appeals Court of Appeals
    • September 10, 1980
    ...in the Code of Civil Procedure, however, have been held to apply only to civil actions and proceedings. (Clark v. Superior Court (1961) 190 Cal.App.2d 739, 742, 12 Cal.Rptr. 191, cited in People v. Chavez, supra, 33 Cal.App.3d at p. 458, 109 Cal.Rptr. 157.) Even assuming arguendo that secti......
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