People v. Superior Court (Sturm)

• Decision Date: 31 August 1992
• Docket Number: Nos. G012303,G012309,s. G012303
• Citation: 11 Cal.Rptr.2d 652,9 Cal.App.4th 172
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Gregory Allen STURM, Real Party in Interest. Daniel Michael DUFFY, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The PEOPLE of the State of California, Real Party in Interest.

Page 652

11 Cal.Rptr.2d 652

9 Cal.App.4th 172

The PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent;

Gregory Allen STURM, Real Party in Interest.

Daniel Michael DUFFY, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent;

The PEOPLE of the State of California, Real Party in Interest.

Nos. G012303, G012309.

Court of Appeal, Fourth District, Division 3, California.

Aug. 31, 1992.

As Modified Sept. 16, 1992.

[9 Cal.App.4th 176] Michael R. Capizzi, Dist. Atty., Maurice L. Evans, Chief Asst. Dist. Atty., John D. Conley, Asst. Dist. Atty., Kathleen M. Harper and Gregg L. Prickett, Deputy Dist. Attys., for petitioner in G012303 and real party in interest in G012309.

No appearance for respondent.

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Allyn Jaffrey, Deputy Public Defenders, for real party in interest in G012303 and petitioner in G012309.

OPINION

CROSBY, Acting Presiding Justice.

We have consolidated these writ petitions arising from similar pretrial motions in unrelated capital cases to resolve these questions: Do the reciprocal discovery provisions of Penal Code section 1054 et seq. require defense disclosure of penalty phase evidence? Yes. Are they constitutional? Yes.

I

In both cases the prosecution served informal requests for discovery pursuant to Penal Code section 1054.5, subdivision (b), part of Proposition 115's "Crime Victims Justice Reform Act." Defense counsel refused to cooperate, and the district attorney brought motions to compel the identification of witnesses to be called in the penalty phases. Defendants answered that such discovery was not authorized under the statutory scheme and would violate various constitutional rights if it were. The prosecution motion was granted in Daniel Michael Duffy's case ¹, but denied in that of Gregory Allen Sturm.

Proposition 115, an initiative measure on the June 5, 1990 ballot, was designed to eliminate all or many of the rights of criminal defendants under the state Constitution. (See Prop. 115, § 3.) ² Among many other things, it added a constitutional provision calling for reciprocal discovery in criminal cases. ³ (Cal. Const., art. I, § 30.) In addition, implementing statutes were enacted by the initiative: Penal Code section 1054 provides, "This chapter shall be interpreted to give effect to all of the following purposes: [p] (a) To promote the ascertainment of truth in trials by requiring timely pretrial discovery. [p] (b) To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested. [p] (c) To save court time in trial and avoid the necessity for frequent interruptions and postponements. [p] (d) To protect victims and witnesses from danger, harassment, and undue delay of the proceedings. [p] (e) To provide that no discovery shall occur in criminal cases as except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States."

The Penal Code statutory scheme requires disclosure by both the prosecution (§§ 1054.1-1054.7) and the defense (§ 1054.3), imposes a continuing duty to disclose on each (§ 1054.7), specifies certain materials not subject to disclosure (§ 1054.6), provides for protective orders (§ 1054.7), and authorizes sanctions to enforce compliance (§ 1054.5, subd. (c)). The prosecution is not entitled to any form of discovery not available to the defense.

These are the provisions most important to our analysis: ⁴ Article 1, section 30, subdivision (c) of the State Constitution states, "In order to provide for fair and speedy trials, discovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the [P]eople through the initiative process." The measure was implemented in Penal Code, section 1054.3, subdivision (a), which requires the defense to "disclose to the prosecuting attorney ... [t]he names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial...." (Italics added.)

II

Defendants argue the word "trial" is ambiguous and should not be construed to apply to the penalty phase of a capital case. ⁵ "Trial," we are told, does not include proceedings such as restitution hearings, speedy trial and suppression motions, motions to disclose confidential informants, Penal Code section 1368 sanity hearings, or sentencing hearings. The syllogism is complete with the assertion that the penalty phase is merely a sentencing seance where "the jury decides between one of two punishments."

The district attorney more convincingly responds the penalty hearing is but one of three possible phases, i.e., guilt, sanity, and penalty, of a single trial. Penal Code section 190.1 supports that assertion. It states in part, "A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases...." (Italics added.) "Tried," of course, implies "trial." And "phase" is a word of common understanding and obviously means, in the present context, "an aspect or part (as of a situation or activity) being subjected to consideration." (Webster's New Internat. Dict. 3d ed. 1981) p. 1694.) Thus, under the plain language of the statutory scheme in place when Proposition 115 was enacted, the jury's penalty determination was a part of the trial. ⁶

Moreover, the stated purpose of Proposition 115 is "to restore balance to our criminal justice system." (Prop. 115, § 1, subd. (c).) To accomplish that goal to the greatest extent possible in a capital case, the penalty phase would have to be included in the reciprocal discovery provision.

Our conclusion finds persuasive support in People v. Thompson (1990) 50 Cal.3d 134, 266 Cal.Rptr. 309, 785 P.2d 857, a decision that appeared a few months before Proposition 115 was adopted. (See also, People v. Breaux (1991) 1 Cal.4th 281, 311, fn. 10, 3 Cal.Rptr.2d 81, 821 P.2d 585.) In order to resolve the meaning of "trial" in the context of the notice requirement of Penal Code section 190.3 (see fn. 8, infra ), the justices were faced with a task similar to our own: "As this court explained in People v. Robertson [1989] 48 Cal.3d 18, 45-46 [255 Cal.Rptr. 631, 767 P.2d 1109]; 'The meaning of "trial" varies depending on the context of its use.' (See generally PEOPLE V. OVERSTREET (1986) 42 CAL.3D 891, 896 [LEAD OPN. OF BROUSSARD, J.], 902-903[DIS. OPN. OF GRODIN, J., LUCAS AND PANELLI, JJ., CONC. ].) [231 CAL.RPTR. 213, 726 P.2D 1288]⁷ ... Where the question of notice arises in the context of the initial trial in which the guilt and penalty phases occur in immediate sequence and thus are part of a unitary proceeding, we have construed 'trial' as the whole proceeding; hence notice must be given in advance of the guilt phase. (People v. Miranda (1987) 44 Cal.3d 57, 96-97 [241 Cal.Rptr. 594, 744 P.2d 1127].) Where, however, as here, the notice issue arises in the context of a second trial--i.e., a 'retrial'--[ ] 'trial' must reasonably be construed to mean the judicial proceeding in which the matter in issue is again examined and resolved. Only this construction serves both the evident purpose of the notice provision--viz., 'to advise an accused of the evidence against him so that he may have a reasonable opportunity to prepare a defense at the penalty trial' (Miranda, supra, at p. 96 [241 Cal.Rptr. 594, 744 P.2d 1127] [1978 law] )--and the overriding purpose of section 190.3 that the jury 'be made aware of all of the factors bearing on the penalty decision' (People v. Jennings [ (1988) ] 46 Cal.3d [963,] 987 [251 Cal.Rptr. 278, 760 P.2d 475] ). We conclude, therefore, that the 'trial' to which former section 190.3 refers embraces the original trial, as defined above, or the retrial, be it of the entire proceeding or the penalty phase only." (People v. Thompson, supra, 50 Cal.3d at pp. 177-178, 266 Cal.Rptr. 309, 785 P.2d 857, italics added.)

We note Supreme Court opinions frequently interchange the terms "penalty phase" and "penalty trial." But Thompson compels a conclusion that the guilt and penalty phases are part of a "unitary proceeding" and the words "at trial" should be construed to mean the entire proceeding, including any retrial of an individual phase. This interpretation follows the broad and express purpose of the discovery statute, i.e., "[t]o promote the ascertainment of truth." (Pen.Code, § 1054, subd. (a).)

The defense claim that the "penalty phase does not address itself to any ultimate truth" is disingenuous. True, guilt has been determined, but the life or death decision in a capital case hinges on a series of additional intermediate truths. The jury must sift through the facts in the penalty phase, just as it does when it decides guilt. The panel must also evaluate the substance and circumstances of the defendant's criminal record, "character, background, history, mental condition and physical condition." (Pen.Code, § 190.3.) A defendant is no more entitled to the opportunity to present false, misleading, or otherwise questionable evidence in the penalty phase without fear of detection than any other part of the trial.

We are next told that because some of the rights normally associated with the guilt phase (e.g., trial by jury and proof beyond a reasonable doubt) are not constitutionally required in the penalty phase, the latter cannot be considered part of the trial. Not so. Even if it lacks feathers, a waddle, or a quack, it still might be a duck. (County of Fresno v. State of California (1991) 53 Cal.3d 482, 490, 280 Cal.Rptr. 92, 808 P.2d 235 (con. opn. of Arabian, J.).) The penalty phase is the "judicial proceeding in which the matter at issue [i.e., life or death] is [ ] examined and resolved." (People v. Thompson, supra, 50 Cal.3d at pp. 177-178, 266 Cal.Rptr. 309, 785 P.2d 857, internal quotation marks omitted.) It is an integral part...