M. B. v. Superior Court

Citation127 Cal.Rptr.2d 454,103 Cal.App.4th 1384
Decision Date02 December 2002
Docket NumberNo. B160315.,B160315.
CourtCalifornia Court of Appeals Court of Appeals
PartiesM. B. et al. Petitioners, v. SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest.

Guzin & Steier and Donald H. Steier, Los Angeles, for Petitioners.

No appearance for Respondent.

Steve Cooley, District Attorney, George M. Palmer and Fred Klink, Deputy District Attorneys, for Real Party in Interest.

KLEIN, P.J.

The petition for writ of mandate raises two issues of first impression: whether a California criminal grand jury has the power to issue a subpoena duces tecum; and if it does, whether such a subpoena is defective if it is served without the good cause affidavit required by Code of Civil Procedure sections 1985 and 1987.5.

We conclude California criminal grand juries have the power to issue subpoenas duces tecum, and that such subpoenas do not require good cause affidavits.

BACKGROUND

This proceeding arises out of a grand jury investigation into allegations that petitioners M.B, D.G. and M.W.,1 three Roman Catholic priests employed by the Los Angeles Archdiocese, committed acts of child molestation.

On June 12, 2002, the Los Angeles County District Attorney served grand jury subpoenas on the Archdiocese's custodian of records, seeking all documents in the Archdiocese's possession or control— including "confidential personnel files"— that "relate in any way to allegations of child molestation or sexual abuse" by any of the petitioners.2 The Archdiocese produced the requested documents, which the trial court sealed because the petitioners immediately moved to quash the subpoenas.

[103 Cal.App.4th 387]

On July 15, 2002, following extensive briefing, an in camera inspection of certain grand jury proceedings,3 and oral argument, the trial court concluded petitioners had standing to attack the subpoenas for facial defects, but that the subpoenas were not defective for failing to meet the affidavit requirements set forth in Code of Civil Procedure section 1985, subdivision (b) (affidavit shall be served with subpoena duces tecum showing good cause and materiality) and 1987.5 (service of subpoena duces tecum is invalid without affidavit).4

On July 29, 2002, petitioners sought a writ of mandate from this court vacating the superior court's order denying their motion to quash and declaring that the subpoenas must be quashed as facially defective. Upon receipt of the petition for writ of mandate, we issued an order to show cause and stayed the trial court's order denying petitioners' motion to quash.

DISCUSSION
1. Grand jury had power to issue subpoenas duces tecum.
a. Common law supports the power.

"The institution of the grand jury is deeply rooted in Anglo American history. In England, the grand jury served for centuries both as a body of accusers sworn to discover and present for trial persons suspected of criminal wrongdoing and as a protector of citizens against arbitrary and oppressive governmental action." (United States v. Calandra (1974) 414 U.S. 338, 342-343, 94 S.Ct. 613, 38 L.Ed.2d 561.) "Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials." (Id. at p. 343, 94 S.Ct. 613.)

One of the grand jury's traditional powers is the ability to compel production of documentary evidence by issuing subpoenas duces tecum. In Wilson v. United States (1911) 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, a company president claimed that a grand jury subpoena for corporate books in his possession "was unauthorized, and hence void, because it was not directed to an individual, but to a corporation." (Id. at p. 372, 31 S.Ct. 538.) Wilson held the grand jury subpoena was valid, reasoning: "The power to compel the production of documents is, of course, not limited to those cases where it is sought merely to supplement or aid the testimony of the person required to produce them. The production may be enforced independently of his testimony, and it was held long since that the writ of subpoena duces tecum was adequate for this purpose. As was said by Lord Ellenborough in Amey v. Long, 9 East, 484, `The right to resort to means competent to compel the production of written, as well as oral, testimony, seems essential to the very existence and constitution of a Court of common law, which receives and acts upon both descriptions of evidence, and could not possibly proceed with due effect without them:" (Ibid.)

Despite this compelling common law history, petitioners contend the grand jury in this case had no power to issue a subpoena duces tecum because Penal Code5 section 939.26—the grand jury statute discussing subpoenas—refers only to requiring the attendance of witnesses, and says nothing about calling for the production of documents. Petitioners argue: "The Grand Jury in California is entirely a creation of the Legislature. Its only powers are those specifically granted to it in statute by the Legislature. It has no inherent powers," and "Without a specific grant of power from the Legislature, the Grand Jury cannot compel production of documents. Penal Code section 939.2 excludes that power."

Petitioners are wrong. Not only is there statutory warrant for grand jury subpoenas duces tecum, but our Supreme Court has emphatically "rejected the contention that the California grand jury [is] a `purely' statutory body wholly distinct from its common law predecessor." (People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 440, fn. 11, 119 Cal. Rptr. 193, 531 P.2d 761.)

In Fitts v. Superior Court (1936) 6 Cal.2d 230, 57 P.2d 510, the Supreme Court was faced with deciding the validity of a grand jury accusation, seeking under former section 758 to remove a district attorney for misconduct in office, that had been approved by only 11 grand jurors. Fitts noted section 758 was "silent as to the number of jurors who must concur in order to return a valid accusation. No other section of the code, nor does any statute of this state, fix the number of grand jurors who must concur in order to return an accusation. It is contended by respondent [superior] court that under such circumstances the general provisions of section 7, subdivision 17 of the Penal Code are applicable which provide that `Words giving a joint authority to three or more public officers, or other persons, are construed as giving authority to a majority of them, unless it be otherwise expressed in the act giving authority.'" (Fitts v. Superior Court, supra, at p. 235, 57 P.2d 510.) The district attorney urged the court to look to the common-law rule requiring the concurrence of at least 12 grand jurors. In reply, the superior court "argue[d] that our grand jury is not the one known to the common law, but is a statutory body...." (Id. at p. 233, 57 P.2d 510.)

To resolve this issue, Fitts first examined the common law tradition, citing Blackstone, Edward Coke and other authorities, from which it concluded "that under the common law the grand jury could only act upon the concurrence or agreement of twelve of their number." (Fitts v. Superior Court, supra, 6 Cal.2d at p. 240, 57 P.2d 510.) Fitts then applied this rule to section 758, reasoning that the California grand jury is not a purely statutory creation. "The members of the first constitutional convention in providing for a grand jury must have had in mind the grand jury as known to the common law. This the respondents admit, but further contend that the constitutional convention of 1879 adopted an entirely different system than the common law system provided for in the Constitution of 1849. We find nothing to justify this conclusion.... The Constitution of 1879 did not attempt to change the historic character of the grand jury, and the system its members had in mind was evidently the same system that had come down to them from the common law. It is in no sense a statutory grand jury as distinguished from the common law grand jury as claimed by the respondents. ... We must conclude, therefore, that the Constitution of 1879 when it refers to the grand jury refers to it as it had always been known and understood prior thereto." (Fitts v. Superior Court, supra, at pp. 240-241, 57 P.2d 510.)

As the Supreme Court pointed out almost 40 years later, "Fitts... establishes the propriety of considering common law principles as supplementary to the applicable California statutes relating to grand juries." (People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d at p. 440, fn. 11, 119 Cal.Rptr. 193, 531 P.2d 761.)7

b. California statutory law also supportive.

In addition to this authority rooted in the common law, California statutory law also authorizes the use of subpoenas duces tecum in grand jury investigations. As originally enacted in 1872, subdivision (2) of section 1326 allowed a district attorney to issue a subpoena "for such ... witnesses as the Grand Jury, upon an investigation pending before them, may direct." In 1937, subdivision (2) was amended to read, "for those witnesses whose testimony, in [the district attorney's] opinion, is material in an investigation before the grand jury, and for such other witnesses as the grand jury, upon an investigation pending before them, may direct." (See Historical Note, 50A West's Ann. Pen. Code (1982 ed.) foll. § 1326, pp. 791-792.)

During all this time, section 1327, which set out the appropriate form of the subpoena authorized by section 1326, provided that "[i]f books, papers, or documents are required, a direction to the following effect must be contained in the subpoena: `And...

To continue reading

Request your trial
11 cases
  • Roman Cath. Archbishop of La v. Super. Ct.
    • United States
    • California Court of Appeals Court of Appeals
    • 25 de julho de 2005
    ...the power to issue a subpoena duces tecum and that such a subpoena does not require a good cause affidavit. (M.B. v. Superior Court (2002) 103 Cal.App.4th 1384, 127 Cal.Rptr.2d 454.)1 On June 25, 2004, the referee quashed all the grand jury subpoenas in response to the United States Supreme......
  • People v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • 26 de março de 2003
  • KLING v. The SUPERIOR COURT of Ventura County
    • United States
    • California Supreme Court
    • 17 de novembro de 2010
  • Los Angeles Times v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • 12 de dezembro de 2003
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Appendices
    • 30 de março de 2022
    ...v. Superior Court (1995) 36 Cal.App.4th 592, §8:12.8 Mayo v. DMV (1987) 193 Cal.App.3d 406, §10:101.3 M.B. v. Superior Court (2002) 103 Cal.App.4th 1384, §§5:88, 5:89 McAlpine v. Superior Court , 209 Cal. App. 3d 1, 3 (Cal. App. 1989), §7:93.2 McCartney v. Superior Court (1990) 223 Cal.App.......
  • Discovery
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 1
    • 30 de março de 2022
    ...evidence is relevant and material,” there is no requirement to show relevancy in a criminal case. M.B. v. Superior Court (2002) 103 Cal.App.4th 1384. If the police or other agency or individual refuses to accept or honor a subpoena duces tecum, counsel should seek, and the court should issu......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT