Gonzales v. Superior Court

• Decision Date: 05 December 1980
• Court: California Court of Appeals Court of Appeals
• Parties: Frank GONZALES, Barry Kimball Green and John Garcia, Petitioners, v. SUPERIOR COURT OF the State of California, COUNTY OF ORANGE, Respondent, Debbie G., et al., Real Parties in Interest. Civ. 21377.

Page 358

178 Cal.Rptr. 358

117 Cal.App.3d 57

Frank GONZALES, Barry Kimball Green and John Garcia, Petitioners, v. SUPERIOR COURT OF the State of California, COUNTY OF ORANGE, Respondent Debbie G., et al., Real Parties in Interest.

Civ. 21377.

Court of Appeal, Fourth District, Division 2, California.

Dec. 5, 1980.

[117 Cal.App.3d 59] Legal Aid Society of Orange County, and Robert Klotz, Santa Ana, for petitioners.

Appellate Defenders, Inc., Barbara A. Smith and Harold F. Tyvoll, San Diego, as amicus curiae on behalf of petitioners.

Cecil Hicks, Dist. Atty., Michael R. Capizzi, Asst. Dist. Atty., John D. Conley, William W. Bedworth, and James Branch, Deputy Dist. Attys., for respondent and real parties in interest.

George Deukmejian, Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and M. Howard Wayne, Deputy Attys. Gen., as amicus curiae on behalf of respondent and real parties in interest.

OPINION

McDANIEL, Associate Justice.

In the three underlying civil actions out of which the original proceeding now before us arose, the District Attorney of Orange County, on behalf of certain minor children (and one unborn child) and their mothers, sought to establish the paternity of the children and to obtain court orders for support payments by their fathers. The filing of these actions by the district attorney was mandated by section 11350 of the Welfare and Institutions Code ¹ because Orange County has paid categorical aid (AFDC) to the mothers of these children under the Burton-Miller Act, Chapter 2, Part 3, Division 9 of the Welfare and Institutions Code. (Welf. & Inst.Code, § 11200 et seq.)

After each of the three actions had been filed and each of the alleged fathers had answered, denying paternity, the district attorney caused to be served upon each an identical set of interrogatories containing 56 questions. These questions fall generally into two subject-matter areas relevant to the objectives of the litigation. One area (Nos. 6-17) inquired into the financial condition of the alleged father; the other area (Nos. 18-53) into the sexual relationship and other personal contacts between the mother and the alleged father.

Each alleged father refused to answer Nos. 6-24 and Nos. 27-55 "on the (stated) grounds that the matters inquired into were privileged, under the privilege against self-incrimination." ² Thereupon, the district attorney, in each of the three cases, brought identical motions under section 2034, subdivision (a) of the Code of Civil Procedure, to compel the alleged fathers to answer the questions each had declined to answer. All three motions were granted, and the three alleged fathers (petitioners) have joined in a single petition to this court seeking a writ of mandate and/or prohibition "compelling the Respondent Court to enter an order denying Real Parties' in Interest motions to compel answers to interrogatories ...." We issued the alternative writ, and the propriety of the trial court's orders in the three matters is now before us for decision.

ISSUES AND DISCUSSION

The order to show cause recited in the alternative writ presents two issues:

(1) Whether the information sought by the district attorney's interrogatories might tend to incriminate petitioners in terms of possible criminal prosecutions brought later for non-support under Penal Code section 270 and hence be protected by privilege; and

(2) Whether, for policy reasons, if the privilege is held to be available, the information sought by these interrogatories should nevertheless be divulged under circumstances which would insulate petitioners from later punishment for convictions based on evidence derived from such information.

I

We turn first to the self-incrimination issue.

A.

The hallowed privilege against self-incrimination as observed in this country derives from the Fifth Amendment to the United States Constitution. While the Fifth Amendment operates only to accord the privilege in federal proceedings, it has been held, perforce of the Fourteenth Amendment, that the privilege must be observed in state court proceedings as well. (Malloy v. Hogan, 378 U.S. 1, 3, 84 S.Ct. 1489, 1490, 12 L.Ed.2d 653.) In other words, the privilege against self-incrimination is now an element of due process protected by the Fourteenth Amendment, and federal standards govern state court proceedings. (Prudhomme v. Superior Court, 2 Cal.3d 320, 323, 85 Cal.Rptr. 129, 466 P.2d 673.)

In any event, section 940 of the Evidence Code provides, "(t)o the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him." As a result, the interpretations placed upon the language of the Fifth Amendment by the United States Supreme Court are necessarily persuasive in cases in the California courts where the privilege against self-incrimination is invoked. (Cohen v. Superior Court, 173 Cal.App.2d 61, 67, 343 P.2d 286.)

Turning then to the Fifth Amendment, it provides that "(n)o person ... shall be compelled in any criminal case to be a witness against himself." Notwithstanding the clear and unambiguous language of this constitutional provision which limits the privilege to situations where a criminal proceeding is pending against the person in whom the privilege is vested, the cases have long since expanded the privilege into situations which the drafters of the Bill of Rights surely never dreamed of. Not only does the privilege exist for the benefit of the criminal defendant, as plainly limited by the clear language of the constitutional provision, but by judicial decision it has been broadly extended to a point where now it is available even to a person appearing only as a witness in any kind of proceeding where testimony can be compelled. In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212, the United States Supreme Court proclaimed that the privilege against self-incrimination "can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory ..." (Id. at p. 444, 92 S.Ct. at p. 1656.) Thus, however much we may deplore the judicial activism here rampant, petitioners correctly point out that in California the privilege can be claimed by both parties and witnesses in all manner of civil cases. (See, e. g., Daly v. Superior Court, 19 Cal.3d 132, 137 Cal.Rptr. 14, 560 P.2d 1193 (depositions in a wrongful death action); (Zonver v. Superior Court, 270 Cal.App.2d 613, 76 Cal.Rptr. 10 (interrogatories in a divorce action); and In re Leavitt, 174 Cal.App.2d 535, 345 P.2d 75 (judgment debtor examination).)

Section 940 of the Evidence Code, already noted, is applied in practice by resort to criteria set out in section 404 of that Code. The latter states: "Whenever the proffered evidence is claimed to be privileged under Section 940, the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; (however) the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege." Thus, the witness claiming the privilege need not actually prove in the adjudicatory sense the existence of an incriminatory hazard, because to do so would operate to surrender the very protection which the privilege was designed to guarantee. As stated in Malloy v. Hogan, supra, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, " 'in determining whether the witness really apprehends danger in answering a question, the judge cannot permit himself to be skeptical(.)' " (Id. at p. 13, fn. 9, 84 S.Ct. at p. 1496, fn. 9.)

With this array of authority as a bulwark behind them, petitioners proclaim, "(t)hus, the privilege against self-incrimination applies to the discovery proceedings in the civil paternity suits against petitioners herein. The only relevant inquiry is whether the evidence sought from petitioners in the interrogatories (might) tend to incriminate them." We agree.

B.

Accepting then that the procedural occasion for claiming the privilege is proper, what is it that must be involved in the nature of the subject matter of the inquiry to make the claim of privilege available, i. e., what might tend to incriminate?

The privilege here claimed by petitioners as described in the cases not only extends to answers that would in themselves support a criminal prosecution, but it likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the person invoking the privilege. (Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 326, 85 Cal.Rptr. 129, 466 P.2d 673.) In Prudhomme, the court said, "(a)n ordinary witness need not actually prove the existence of an incriminatory hazard as that would surrender the very protection which the privilege against self-incrimination was designed to guarantee. Instead, the privilege 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 question cannot possibly have a tendency to incriminate the witness. (Citations.)" (Id. at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673.)

As stated in footnote 2, the supposed incrimination over which petitioners are concerned points to a possible prosecution under section 270 of the Penal Code. More particularly, they argue that answers to the interrogatories they have refused to answer could lead to information or evidence which could be used against them in such a prosecution.

As a consequence, if petitioners, in reply to certain of the questions, were to give answers leading to evidence upon which their paternity could be established (e. g., No....