Goldsmith v. Superior Court

• Decision Date: 21 February 1984
• Citation: 152 Cal.App.3d 76,199 Cal.Rptr. 366
• Court: California Court of Appeals Court of Appeals
• Parties: Daniel Sigmund GOLDSMITH, Petitioner, v. The SUPERIOR COURT of the State of California, In and For the COUNTY OF SHASTA, Respondent. The PEOPLE, Real Party in Interest. Civ. 23349.

Page 366

199 Cal.Rptr. 366

152 Cal.App.3d 76

Daniel Sigmund GOLDSMITH, Petitioner, v. The SUPERIOR COURT of the State of California, In and For the COUNTY OF SHASTA, Respondent.

The PEOPLE, Real Party in Interest.

Civ. 23349.

Court of Appeal, Third District, California.

Feb. 21, 1984.

As Modified Feb. 27, and March 21, 1984.

Leep, Asbill & Tescher, M.K. Tescher, Jr., Redding, for petitioner.

No appearance for respondent.

John K. Van de Kamp, Atty. Gen., Willard J. Jones and William G. Prahl, Deputy Attys. Gen., for real party in interest.

SPARKS, Associate Justice.

The issue in this writ proceeding is whether the trial court can lawfully make a discovery order compelling defendant to turn over to the prosecution a weapon he allegedly used to commit the offenses charged. We hold that the trial court may not order such production because there is no legislative authorization for the compelled disclosure and, more fundamentally, because it would violate defendant's constitutional privilege against self-incrimination.

I

Petitioner Daniel Goldsmith stands charged by an information with three felony counts. Count I charges him with the attempted murder of Keith Johnson (Pen.Code, §§ 664/187) ¹, with the further allegations that he used a firearm, namely, a "9MM AUTOMATIC," in the commission of that offense within the meaning of section 12022.5 and that he intentionally inflicted great bodily injury upon Mr. Johnson within the meaning of section 12022.7. Count II charges him with shooting at an occupied motor vehicle (§ 246). Finally, count III charges him with a felonious assault upon Peggy Johnson (§ 245, subd. (a)), with the further allegation that he used the "9MM AUTOMATIC" firearm in the commission of the assault within the meaning of section 12022.5.

On September 16, 1983, the prosecution moved for pretrial discovery, requesting among other things that defendant and/or his attorney produce for inspection and testing the weapon defendant was alleged to have used, namely, the 9MM pistol. The basis of this discovery request was the unsworn statement of a deputy district attorney claiming that police reports, witness interviews and the testimony at the preliminary examination "demonstrate" that defendant "has had the weapon ... in his personal possession, and continues to be in actual or constructive possession thereof, or has first hand knowledge of its location." Following a hearing on the issue, the court ordered defendant and/or his attorney to produce the weapon by September 28, 1983, or to show cause why they had not complied with the order.

By September 28, 1983, the weapon had not been produced and after an in-camera hearing ² requested by defendant's counsel the court "found that no justifiable reasons have been given for their refusal to produce the weapon ...." The court then issued this order imposing sanctions:

"1. at the trial the defendant will not be permitted to introduce any proffered evidence to establish that the 9mm automatic pistol, further identified as a Smith and Wesson, Model 59, serial # A399883, was not the firearm used in the commission or attempted commission of the offenses charged in the information or was not an operable firearm at the time the charged offenses are alleged to have occurred; and

"2. at trial the defendant will not be permitted to introduce any proffered evidence the trial court finds plaintiff may have reasonably rebutted if given the opportunity to inspect, examine and test the pistol before trial." (Emphasis in original.)

Defendant sought relief in this court by filing a petition for a writ of mandate. We stayed trial pending further order of this court.

II

In People v. Collie (1981) 30 Cal.3d 43, 48, 177 Cal.Rptr. 458, 634 P.2d 534, the California Supreme Court expressly "disapprove[d] of any compelled production of defense evidence absent explicit legislative authorization." ³ No legislative authorization exists for the compelled discovery of the defense evidence involved here. (Cf. Pen.Code, § 1102.5.) The trial court consequently erred in granting this unauthorized motion for production of the weapon.

More fundamentally, however, the privilege against self-incrimination, mandated by both the California and United States Constitutions, ⁴ prohibits the type of compelled discovery ordered in this case.

The California Supreme Court had occasion in People v. Schader (1969) 71 Cal.2d 761, 80 Cal.Rptr. 1, 457 P.2d 841, to analyze the policy which underlies the privilege against self-incrimination and recognized, "... with the United States Supreme Court, 'that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.... Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against the accused out of his own mouth.' [Citation.] The People must 'shoulder the entire load' of their burden of proof in their case in chief, without assistance either from the defendant's silence or from his compelled testimony. [Citations]." (Id., at p. 770, 80 Cal.Rptr. 1, 457 P.2d 841.)

The question here is whether the compelled production of the gun constitutes the type of incriminating testimonial communication barred by the privilege against self-incrimination. The Supreme Judicial Court of Massachusetts addressed this precise issue in Commonwealth v. Hughes (1980) 380 Mass. 583, 404 N.E.2d 1239, cert. den. 449 U.S. 900, 101 S.Ct. 1269, 66 L.Ed.2d 129. That court relied primarily upon federal authority in holding that an order compelling defendant to produce a pistol allegedly used in two charged assaults violated the Fifth Amendment privilege against self-incrimination. ⁵ (Id., 404 N.E.2d at p. 1246.) The opinion, a fine piece of judicial craftsmanship, dealing with a not so simple question, will be quoted extensively in the discussion to follow.

Much of the constitutional discussion forming the foundation for the Hughes holding was reiterated by our Supreme Court in People v. Rucker (1980) 26 Cal.3d 368, 378-386, 162 Cal.Rptr. 13, 605 P.2d 843. ⁶ In deference to our high court, we quote Rucker where the opinions overlap.

Rucker begins: "The privilege [against self-incrimination] is an express mandate of both the California and United States Constitutions. It protects an individual from being compelled to provide 'testimonial' evidence which may tend to incriminate him. As a corollary, the privilege precludes the government from using such evidence or its fruits in a criminal proceeding. [Citation.]" (Id., at p. 378, fn omitted, 162 Cal.Rptr. 13, 605 P.2d 843.)

The Rucker court then noted that the privilege may be invoked in any setting, including when prosecution seeks discovery against a criminal defendant, and that judicial review of an asserted invasion of the privilege has traditionally focused on whether the claimant was (1) actually compelled to disclose (2) testimonial communications (3) which tended to incriminate him. (Id., at pp. 378, 379, fn. 8, 162 Cal.Rptr. 13, 605 P.2d 843.) As the court had earlier noted in Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326, 85 Cal.Rptr. 129, 466 P.2d 673, in the special circumstance of prosecutorial discovery, "the privilege [against self-incrimination] forbids compelled disclosures which could serve as a 'link in a chain' of evidence tending to establish guilt of a criminal offense; in ruling upon a claim of privilege, the trial court must find that it clearly appears from a consideration of all the circumstances in the case that an answer to the challenged [request] cannot possibly have a tendency to incriminate the witness." (See also Reynolds v. Superior Court (1974) 12 Cal.3d 834, 839, 117 Cal.Rptr. 437, 528 P.2d 45; People v. Rucker, supra, 26 Cal.3d at p. 379, fn. 8, 162 Cal.Rptr. 13, 605 P.2d 843; Maness v. Meyers (1975) 419 U.S. 449, 461, 95 S.Ct. 584, 592, 42 L.Ed.2d 574 and Hoffman v. United States (1951) 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118.)

This case shares with Hughes what the Massachusetts court described as a departure from the prototypical case of compelled oral testimony. Both petitioner and Hughes could have complied with the ordered production of the weapon without uttering a word. (Commonwealth v. Hughes, supra, 404 N.E.2d at p. 1242.) The nonverbal character of the compelled disclosure poses a threshold issue because "the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating. [Citation.]" (Id., at p. 1242.)

We are therefore required, as was the court in Hughes, to decide whether the compelled act of producing the weapon has sufficient testimonial aspects to permit Fifth Amendment consideration. If we determine there are testimonial aspects to the ordered production then we must consider whether those aspects have an incriminating tendency. (Commonwealth v. Hughes, supra, 404 N.E.2d at p. 1242; see Prudhomme v. Superior Court, supra, 2 Cal.3d at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673.)

The discussions in Rucker and Hughes concerning what constitutes testimonial evidence roughly parallel each other. Rucker summarizes the law: "In the benchmark decision of Schmerber v. California [1966] 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908], no violation of the federal privilege was found in a compelled blood-alcohol test, the results of which were to be used in a prosecution for driving under the influence of alcohol. The court noted that the testimonial component of the privilege 'reaches an accused's communications, whatever form they might take, and the compulsion of responses that are also communications....' [Citation.] However, the procedure to extract the blood did not involve 'even a shadow of...