Olson v. Superior Court (People)

• Decision Date: 26 June 1984
• Docket Number: Cr. 43994
• Citation: 157 Cal.App.3d 780,204 Cal.Rptr. 217
• Court: California Court of Appeals Court of Appeals
• Parties: Susan OLSON, Petitioner, v. SUPERIOR COURT of the State of California for the County of Ventura, Respondent. PEOPLE of the State of California, Real Party in Interest.

Page 217

204 Cal.Rptr. 217

157 Cal.App.3d 780

Susan OLSON, Petitioner, v. SUPERIOR COURT of the State of California for the County of Ventura, Respondent PEOPLE of the State of California, Real Party in Interest.

Cr. 43994.

Court of Appeal, Second District, Division 6, California.

June 26, 1984.

As Modified on Denial of Rehearing July 23, 1984.

Hearing Granted Sept. 13, 1984.

Cause Retransferred, see 218 Cal. Rptr. 572, 705 P.2d 1260.

Richard E. Erwin, Public Defender, County of Ventura, for petitioner.

John G. Cotsirilos, Defense Lawyers Club of San Diego, San Diego, Quin Denvir, State Public Defender, Paul Bell and Tom Stanley, Deputy State Public Defenders, amicus curiae for petitioner.

Susan J. Troy, David A. Juhnke, Fred Okrand, ACLU Foundation for Southern California, Los Angeles, amicus curiae for petitioner.

Gerald F. Uelmen, Los Angeles, Loyola Law School, amicus curiae for petitioner.

No appearance for respondent.

John Van de Kamp, Atty. Gen., Gary R. Hahn and Robert F. Katz, Deputy Attys. Gen., for respondent.

Christopher N. Heard, Crim. Justice Legal Foundation, San Jose, amicus curiae for real party in interest.

STONE, Presiding Justice.

Petitioner, Susan Olson (hereafter Olson), a deputy public defender in Ventura County, seeks review of an order finding her in contempt for failure to answer questions concerning statements made to her by a defense witness. This court has issued a writ of certiorari. (In re Coleman (1974) 12 Cal.3d 568, 572, fn. 2, 116 Cal.Rptr. 381, 526 P.2d 533.)

FACTS

Olson represented Edward Allen Swanson (hereafter Swanson) in a jury trial on a charge of robbery. (Pen.Code, § 211.) ¹ William T. Gumfory (hereafter Gumfory), a co-participant in the robbery, was called as a witness for the defendant. Prior to commencing the cross-examination of Gumfory, the deputy district attorney moved, pursuant to section 1102.5, to obtain from Olson all statements made to her by Gumfory. ²

Olson stated that she had obtained certain information from defendant which she used when she interviewed Gumfory. Upon the two grounds of attorney-client privilege, and her client's privilege against self-incrimination, Olson objected to the Deputy District Attorney's motion.

The court ordered an in camera hearing, out of the presence of the deputy district attorney, so that it might determine if Olson would answer questions concerning her conversations with Gumfory. Olson was ordered by the court to disclose the content of any conversation that she had had with Gumfory. Petitioner refused to answer, and was found to be guilty of contempt. The matter was continued for sentencing and the trial of Swanson was resumed. On January 25, 1983, Swanson was found guilty of the robbery charge.

Olson's sentencing hearing was held on January 27, 1983. The court stated that Olson's contempt, "was based upon her good faith view of the statute (§ 1102.5) and its applicability to the fact situation before the court previously in the matter of Swanson. I don't think her contempt was willful or in any way egregious. It was her way of asserting her client's rights and arguing the applicability and constitutionality of the statute, so the Court's sentence here I intended to be, in effect, pro forma only and not punitive." Olson was fined $100.00.

1--SELF-INCRIMINATION

Of constitutional dimension is the right of society to seek the redress of wrongs committed against its citizens. (Sun Co. of San Bernardino v. Superior Court (1973) 29 Cal.App.3d 815, 822, 105 Cal.Rptr. 873.) It is, moreover, recognized that, "[t]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all facts within the framework of the rules of evidence." (United States v. Nixon (1974) 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039.) Indeed, the foundation of our cherished rights under the constitution may be severely damaged should the public lose confidence in the ability of the system of criminal justice to function in an evenhanded manner. (Snyder v. Massachusetts (1934) 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674.) ³

In the wake of the foregoing we must not lose sight of the fact that the privilege against self-incrimination has long been recognized as "one of the great landmarks in man's struggle to make himself civilized." (Ullmann v. United States (1956) 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511.) Under our accusatorial system of criminal prosecution the state is forbidden the use of testimony which is obtained from the accused by means of coercion. (Malloy v. Hogan (1964) 378 U.S. 1, 7-8, 84 S.Ct. 1489, 1493-1494, 12 L.Ed.2d 653.) The prosecution is required to "shoulder the entire load" of proving its case against the accused with "evidence independently secured through skillful investigation." (Watts v. Indiana (1949) 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801; Murphy v. Waterfront Commission (1964) 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678; Tehan v. United States (1966) 382 U.S. 406, 415, 86 S.Ct. 459, 464, 15 L.Ed.2d 453.)

[1970]In Prudhomme v. 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673 the California Supreme Court considered the constitutionality of a pre-trial order requiring a criminal defense attorney to disclose to the prosecution the names, addresses, and expected testimony of defense witnesses. The court found that the information sought by the prosecution "... could easily provide an essential link in the chain of evidence ..." and thereby "conceivably might lighten the prosecution's burden of proving its case in chief." ( Id., 2 Cal.3d p. 326, 85 Cal.Rptr. 129, 466 P.2d 673. Emphasis added.) As such, the court held that the discovery order violated the defendant's privilege against self-incrimination based upon the Fifth and Fourteenth Amendments as well as upon state constitutional grounds. (Cal. Const., art. I, § 15.) ⁴

Subsequent to Prudhomme the United States Supreme Court announced decisions that were not entirely consistent with the California high court's interpretation of the privilege against self-incrimination. (E.g., United States v. Nobles (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141; Williams v. Florida (1970) 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446.) We will not dwell upon the nature of the inconsistencies between the federal and California cases. Let it suffice to say that Prudhomme placed the California Supreme Court, relying in part upon article I, section 15 of the state constitution, on record as being considerably more solicitous toward the privilege against self-incrimination than the federal high court. (Allen v. Superior Court (1976) 18 Cal.3d 520, 525, 134 Cal.Rptr. 774, 557 P.2d 65.)

The court in Allen analyzed the constitutionality of a pretrial order requiring the prosecution and accused to disclose the names of prospective witnesses in order to determine whether any of the prospective jurors were acquainted with the witnesses. It held that the trial court's seemingly innocuous order could provide "... evidence useful to the prosecution including impeachment witnesses, inconsistent statements and admissible evidence of specific instances of misconduct by prospective witnesses." (Id., at p. 526, fn. 4, 134 Cal.Rptr. 774, 557 P.2d 65.) As such, the court concluded that the order for disclosure violated the defendant's privilege against self-incrimination as contained in article I, section 15 of the California Constitution. (Id., at p. 527, 134 Cal.Rptr. 774, 557 P.2d 65.)

In People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534, the California Supreme Court had before it the question of whether the prosecutor is entitled to discover pretrial statements of defense witnesses. The trial court in Collie, following the conclusion of the prosecutor's case-in-chief and after the direct examination of a defense witness, ordered the defense to disclose notes prepared by a defense investigator of an interview with the witness.

The Supreme Court reviewed its past decisions on the subject as well as the "tangle" of confusing and inconsistent court of appeal decisions relating to the question of prosecutorial discovery. (Id., at pp. 52-54, 177 Cal.Rptr. 458, 634 P.2d 534.) ⁵ The court concluded that, in the absence of legislative authorization, it was error for the trial court to have formulated the discovery order. (Id., at pp. 48-56, 177 Cal.Rptr. 458, 634 P.2d 534.)

Citing the doctrine of judicial restraint (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 845-846, 117 Cal.Rptr. 437, 528 P.2d 45), the court refused to provide specific guidelines relating to the formulation of discovery orders in criminal cases. (Id., 30 Cal.3d, at p. 55, 177 Cal.Rptr. 458, 634 P.2d 534.) Instead, it was suggested that any attempts to formulate such rules would be best accomplished by the Legislature. The court warned, however, that 'almost insurmountable hurdles [were] likely to thwart any attempts [by the Legislature] to devise constitutionally permissible discovery rules applicable to defendant or defense material." (Id., at p. 54, 177 Cal.Rptr. 458, 634 P.2d 534.) "[p] We can do neither justice to the legitimate needs of the prosecution nor to the rights of the defendant in this context if we undertake judicial rule-making in an attempt to accommodate both ends simultaneously. Any effort to further the truth-seeking function bears considerable risk of encroaching on constitutional and other protections: as we have noted, the problem is complicated by an interrelated composite of state and federal constitutional concerns, statutory rules and common law privileges. We realize the same problems would confront the Legislature if it were to consider the issue, and we have grave doubts that a valid discovery rule affecting criminal defendants can be devised. But if the Legislature undertakes to formulate a comprehensive solution that purports to be practical in application and...