Misener, In re

• Decision Date: 09 May 1985
• Citation: 213 Cal.Rptr. 569,698 P.2d 637,38 Cal. 3d 543
• Court: California Supreme Court
• Parties: , 698 P.2d 637, 53 USLW 2615 In re William A. MISENER on Habeas Corpus. Crim. 23850.

Page 569

213 Cal.Rptr. 569

38 Cal.3d 543, 698 P.2d 637, 53 USLW 2615

In re William A. MISENER on Habeas Corpus.

Crim. 23850.

Supreme Court of California.

May 9, 1985.

Rehearing Denied July 11, 1985.

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Stuart R. Rappaport, Albert J. Menaster, Deputy Public Defenders, and William A. Misener, Deputy Public Defender, in pro. per., for petitioner.

Robert H. Philibosian, Dist. Atty., Arnold T. Guminski and Richard W. Gerry, Deputy Dist. Attys., for respondent.

Christopher N. Heard, San Jose, as amicus curiae on behalf of respondent.

MOSK, Justice.

In this casewe must decide whether Penal Code section 1102.5(hereinafter section 1102.5) is constitutional.The section permits the prosecution in a criminal case to discover from the defendant or his counsel, following testimony on direct examination of defense witnesses other than the defendant, prior statements made by those witnesses.We conclude that the statute is unconstitutional because it violates that aspect of the defendant's privilege against self-incrimination requiring the prosecution to carry the entire burden of proving the defendant's guilt.Section 1102.5 runs afoul of this rule by compelling the defendant to supply the prosecution with evidence that can impeach his defense witnesses and thereby tend to incriminate him.

Petitioner Misener is an attorney employed by the Los Angeles Public Defender.He was acting defense counsel in a prosecution for attempted robbery.The alleged victim in that case testified that on September 17, 1983, two Hispanic men approached her in a grocery store parking lot and, displaying a handgun, demanded her car keys and her money.She had seen these men when she entered the store approximately an hour earlier, at noon.She screamed, ran into the store, and told a box boy what had happened.The box boy had also seen two Hispanic men in the parking lot an hour earlier.On hearing the alleged victim's story, he drove around the neighborhood, noticed the defendants, and brought the police to them.

There was some ambiguity about the identification of the defendants and the time of the robbery.The box boy was unable to identify the defendants as the men he had seen in the parking lot because he had not seen their faces.The victim's testimony at the preliminary hearing regarding which defendant had the gun and what each defendant was wearing was different from the information she gave the police on the day of the crime.While the box boy stated that the woman had told him of the crime at noon, she testified that she entered the store at noon, shopped for approximately an hour, and then was approached by the defendants.A police officer testified that the police arrived at the store at 12:15 p.m.

The defense called various witnesses, including Mario Alarcon, the coach of the soccer team to which the defendants belong.He testified that on the day in question he drove the defendants to the soccer field one block from the grocery store for a game that started at 9:35 a.m. and lasted approximately two hours.He detained the team for an additional 15 or 20 minutes, and left the defendants only at noon.Another witness testified he was with the defendants at the soccer game and did not leave their presence until noon.

After Alarcon's testimony, the prosecution moved under section 1102.5 to discover any prior statements made by the witness to defense counsel.Petitioner objected on the ground that the statute is unconstitutional.At an in camera hearing, petitioner stated that he had met with Alarcon on numerous occasions, that he had made written notes of one meeting and mental notes of the others, and that his client, one of the defendants in the underlying action, had been present at every interview.

Petitioner refused to reveal the content of the interviews, insisting that to do so would violate the defendant's attorney-client privilege, his constitutional right to counsel, and his privilege against self-incrimination.Petitioner explained that the interviews arose out of information that the defendant had given him as his attorney, and thus the defendant's statements were completely intertwined with those of the witness.

The court nevertheless required the disclosure, "excluding any statements made between attorney and client, excluding any statements of impressions, conclusions, opinions, legal research, or theories of any defendant.Only statements of the witness concerning matters within the scope of the direct testimony of that witness...."On petitioner's further refusal to obey the order, the court held him in contempt.The Court of Appeal stayed the imposition of sanctions pending determination of the constitutionality of section 1102.5.Two months later a mistrial was declared in the underlying action.

Petitioner raises numerous challenges to the validity of section 1102.5.He contends that the statute violates the defendant's state and federal privileges against self-incrimination, his state and federal right to counsel, his federal due process rights, and his state attorney-client privilege and right to present a defense.Because we hold the statute unconstitutional under the state privilege against self-incrimination, we need not address petitioner's alternative claims.

I.History of Prosecutorial Discovery in California

Section 1102.5 was enacted after a long line of decisions on the subject by this court, the first being Jones v. Superior Court(1962)58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919.In an opinion by Justice Traynor, an advocate of prosecutorial discovery, we experimented with opening the door to such a procedure.The defendant, charged with rape in that case, moved for a continuance to obtain medical evidence of his alleged impotence.The prosecutor in turn moved to discover the names and addresses of defendant's physicians and their reports and X-rays relating to the injury allegedly causing the condition.The trial court ordered the discovery, and the defendant sought a writ of prohibition.

We first noted that discovery in favor of defendants had been substantially liberalized by People v. Riser(1956)47 Cal.2d 566, 305 P.2d 1, overruled on other grounds inPeople v. Morse(1964)60 Cal.2d 631, 637, fn. 2, 648-649, 36 Cal.Rptr. 201, 388 P.2d 33.We then reasoned that "similarly, absent the privilege against self-incrimination or other privileges provided by law, the defendant in a criminal case has no valid interest in denying the prosecution access to evidence that can throw light on the issues in the case."(Id.58 Cal.2d at p. 59, 22 Cal.Rptr. 879, 372 P.2d 919.)"[W]hen this court permitted discovery in advance of as well as at the trial [citations], it was ... acting ... to promote the orderly ascertainment of the truth.That procedure should not be a one-way street."(Id. at pp. 59-60, 22 Cal.Rptr. 879, 372 P.2d 919.)Unfortunately the last sentence has been misused, on occasion, to justify improper discovery orders.

Jones acknowledged certain roadblocks that prevent criminal discovery from being a full two-lane highway.First, the defendant cannot be made to turn over private documents in his possession.(Id. at p. 60, 22 Cal.Rptr. 879, 372 P.2d 919.)And, "a defendant need make no showing that the answer or document sought may be incriminating [citations], for the very fact that the prosecution seeks it, establishes that in the prosecution's view it may be incriminating."(Ibid.)Second, to the extent the documents sought by the prosecution were prepared by physicians to whom the defendant was sent by his attorney in anticipation of trial, these documents were protected by the attorney-client privilege.(Id. at pp. 60-61, 22 Cal.Rptr. 879, 372 P.2d 919.)The prosecution was limited to discovery of "the names of the witnesses petitioner intends to call and any reports and X-rays he intends to introduce in evidence in support of his particular affirmative defense of impotence....[Such an order sets] up a wholly reasonable rule of pleading which in no manner compels a defendant to give any evidence other than that which he will voluntarily and without compulsion give at trial."(Id. at p. 61, 22 Cal.Rptr. 879, 372 P.2d 919.)"It simply requires petitioner to disclose information that he will shortly reveal anyway."(Id. at p. 62, 22 Cal.Rptr. 879, 372 P.2d 919.)¹

But even this limited form of discovery proved to be unwise.In Prudhomme v. Superior Court(1970)2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, we examined more thoroughly the policies involved, and limited Jones to its facts.We discussed the developments since Jones in federal and state law on the privilege against self-incrimination, quoting from People v. Schader(1969)71 Cal.2d 761, 770, 80 Cal.Rptr. 1, 457 P.2d 841: " ' "the American system of criminal prosecution is accusatorial, not inquisitorial, and ... 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."(Malloy v. Hogan(1964)378 U.S. 1, 7-8[84 S.Ct. 1489, 1493, 12 L.Ed.2d 653]....)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.' "(2 Cal.3d at p. 325, 85 Cal.Rptr. 129, 466 P.2d 673.)

In light of these fundamental policies, we set forth in Prudhomme the basic considerations governing any motion for discovery by the prosecution: "it is apparent that the principal element in determining whether a particular demand for discovery should be allowed is not simply whether the information sought pertains to an 'affirmative defense,' or whether defendant intends to introduce or rely upon the evidence at trial, but whether disclosure...