Rodriguez v. Superior Court

• Decision Date: 09 July 1970
• Citation: 9 Cal.App.3d 493,88 Cal.Rptr. 154
• Court: California Court of Appeals Court of Appeals
• Parties: Nelson RODRIGUEZ, Petitioner, v. SUPERIOR COURT IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 28359.

Page 154

88 Cal.Rptr. 154

9 Cal.App.3d 493

Nelson RODRIGUEZ, Petitioner, v. SUPERIOR COURT IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 28359.

Court of Appeal, First District, Division 4, California.

July 9, 1970.

Rehearing Denied July 29, 1970.

Hearing Denied Sept. 3, 1970.

R. Jay Engel, San Francisco, for petitioner.

Thomas C. Lynch, Atty. Gen., Derald E. Granberg, Gloria F. DeHart, Deputy Attys. Gen., San Francisco, for real party in interest.

DEVINE, Presiding Justice.

Petitioner for a writ of prohibition has been charged with violating Penal Code, sections 187 (murder) and 459 (burglary) and the trial before a jury has commenced. Shortly before the drawing of the jury, the judge to whom the case had been assigned for trial, made an 'order for prosecution discovery.' Each of the six defendants including petitioner and their lawyers were charged by said order as follows: 'Said defendants, and each of them, and their respective attorneys, Charles R. Garry, Michael Kennedy, Richard A. Hodge, and R. Jay Engel, are hereby ordered to furnish the prosecution with a list of defense alibi witnesses, if any, who are expected to testify at the trial of the above matter.

'Compliance with the Order must be made on or before the commencement of the jury selection of the trial of this case or as soon thereafter as the names of any defense alibi witnesses become known to the defendants or to their said attorneys, or any of them.'

In his petition for the writ, Nelson Rodriguez states that he 'has maintained since prior to his arrest that he was not present at either of the incidences giving rise to the alleged violations of Penal Code Sections 187 and 459.' We issued an alternative writ of prohibition on June 17, 1970, making it returnable on June 26, 1970. Between those dates and on June 22, 1970, the United States Supreme Court in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, that a Florida Statute which requires the defense, under certain conditions, to disclose the names of alibi witnesses does not violate the privilege against self-incrimination as established by the Fifth Amendment and does not deprive the accused of a fair trial. But the Williams case does not solve the question which has been put before us. California does not have a statute requiring disclosure of the names of alibi witnesses. We conclude that in the absence of such statute in this state, the trial court's order is invalid and that the writ should be granted preventing further proceeding under the order. Our reasons are these:

1. No case has been cited to us in which enforced disclosure of alibi witnesses has been upheld in the absence of statute. (In People v. Lopez, 60 Cal.2d 223, 244, 32 Cal.Rptr. 424, 384 P.2d 16, an order requiring disclosure had been made but neither the record nor the briefs indicated that any information was furnished to the People as a result of the order; there was a similar situation in People v. Dugas, 242 Cal.App.2d 244, 249, 51 Cal.Rptr. 478, where no prejudice appeared because the witness whose name was disclosed under compulsion did not testify for the appellant but for his co-defendant.) Indeed the most recent declarations about compulsory disclosure of defense witnesses found in Prudhomme v. Superior Court, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, show the concern of our Supreme Court in the matter. The court in Prudhomme suggests a limited perimeter of the holding of Jones v. Superior Court, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919, to which further reference is made below. The court in Prudhomme disapproves whatever views are inconsistent with the Prudhomme holding in People v. Pike, 71 A.C. 617, 78 Cal.Rptr. 672, 455 P.2d 776; Ruiz v. Superior Court, 275 A.C.A. 1041, 80 Cal.Rptr. 523; McGuire v. Superior Court, 274 A.C.A. 638, 79 Cal.Rptr. 155, and People v. Dugas, Supra. The order which had been made in the Prudhomme case was an extremely broad one requiring the names of all defense witnesses. But the case is relevant as showing the caution with which judges must approach compulsory discovery for the benefit of the prosecution.

2. The court in Williams v. Florida approved a particular statute (Fla. Rule Crim.Proc. 1.200, 30 F.S.A.) which defines precisely the rights and duties of both parties and specifies the procedure to be followed. The court noted that it did not decide that the alibi-notice provisions of the statutes of other states were necessarily valid in all respects saying, 'that conclusion must await a specific context and an inquiry, for example, into whether the defendant enjoys reciprocal discovery against the State.' (Williams v. Florida, Supra, 398 U.S. 78, 82, 90 S.Ct. 1893 (fn. 11).) Such reciprocal discovery is provided in the Florida statute. The state is required to notify the defendant of any witness it proposes to offer in rebuttal to that defense. (A preliminary examination of our own indicates that of the 16 states which have statutes of this nature, ¹ only the Florida and New Jersey statutes contain explicit reciprocity provisions. Although the Attorney General in the case before us agreed at oral argument to give notice of rebuttal witnesses, this offer is not equivalent to the compulsion of reciprocal disclosure which might be made by statute.)

As further examples of the protection which is effected by the statutory enactment in Florida, we observe that the statute requires that a demand for disclosure be made by the district attorney (in many states the statutory provision applies whenever alibi is asserted as a defense); it requires that the demand be made 10 days before trial (the states have many variations of the required time); the statute requires the defendant to state the place where he claims to have been at the crucial time (most of the statutes do this); the statute allows the exclusion of alibi evidence in case of noncompliance (most of the statutes do this). There is a large difference in procedures between the rules as created by statute and orders which might be made by courts on a case-to-case basis.

Besides the enlightenment which a carefully drawn statute gives to the parties, there is the matter of intelligent appellate review. Thus, in the Williams case, the United States Supreme Court and, in other cases, the state appellate courts, reviewing the notice-of-alibi statutes were in position to assure themselves that the constitutional rights of all persons charged with crime were protected.

3. But there is not only merely the absence of a relevant statute in California. There has been a definite rejection of notice-of-alibi legislation. A rather elaborate statutory plan was recommended by the California Law Revision Commission and considered by the Legislature in 1961, but was rejected. (3 Cal. Law Revision Comm'n Rep., Rec. & Studies (1961) J--5 at J--21; Assembly Bill 464, 1961 Reg.Sess.) Earlier bills had been introduced in 1959 (Senate Bills 530 and 531, 1959 Reg.Sess.), and as far back as 1926 the subject had been broached to the Legislature. (Cal. Bar Assoc.Proc. 248 (1925--1926); 1931 Cal. Crime Comm'n Rep. at 10.) Opposition of the State Bar to the 1961 Law Revision Commission proposal was based not on doubts as to the constitutionality of the proffered statute (doubts which might be dissolved presently under the Williams case), but on the ground that 'it would cause the harassment and intimidation of alibi witnesses by public officers.' (Report of the Committee on Criminal Law and Procedure (1961) 36 State Bar J. 487.) Whatever the reason for rejection, the Legislature declined to pass the bill.

4. The doctrine of judicial abstention should persuade courts not only to refrain from declaring statutes invalid except upon the most cogent reasons but also to forbear from adopting new and important procedural devices which the Legislature has considered and has rejected.

5. We have made reference above to Jones v. Superior Court, Supra, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919, which is cited by the People in response to the petition. In that case, the defendant, having been charged with rape, announced his intention to assert a defense of impotence. The California Supreme Court, while striking part of a discovery order, did support the order insofar as it required the accused to give the...