Tupper v. Superior Court In and For Marin County

• Decision Date: 14 April 1958
• Docket Number: Cr. 18088
• Citation: 324 P.2d 356
• Parties: James W. TUPPER, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF MARIN, Respondent. *
• Court: California Court of Appeals Court of Appeals

Page 356

324 P.2d 356

James W. TUPPER, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF MARIN, Respondent. ^*

Cr. 18088.

District Court of Appeal, First District, Division 1, California.

April 14, 1958.

Hearing Granted June 11, 1958.

Carl B. Shapiro, Fairfax, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

BRAY, Justice.

Petition for writ of prohibition to arrest further proceedings in the Marin County Superior Court upon an information charging petitioner with violation of section 702, Welfare and Institutions Code (contributing to the delinquency of a minor).

Questions Presented.

1. Sufficiency of the evidence at the preliminary examination.

2. Was petitioner entitled to written statements given the officials by prosecution witnesses?

3. Will prohibition lie?

Record.

Petitioner was charged with a violation of section 32, Penal Code (accessary to a felony) and at the preliminary hearing was held to answer. Thereafter an information was filed charging him as above stated. Thereafter petitioner moved the superior court to set aside the information on the same grounds upon which this petition is based. The motion was denied.

1. Evidence at the Preliminary.

'* * * the evidence before a committing magistrate at a preliminary examination need not be such as would require a conviction. * * * 'Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. 'Reasonable and probable cause' may exist although there may be some room for doubt.' People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344, 347.

The evidence at the preliminary examination tended to show that Michael Powers, aged 16, stole three hub caps. He sold them to Edward Roche, aged 17, after telling him they were stolen. Petitioner was a clerk in an automobile accessories store. Roche told petitioner that the hub caps were stolen ones and asked petitioner to give him a bill of sale or receipt for the hub caps. Thereupon petitioner made out a store bill of sale or receipt in duplicate which indicated that Roche had purchased hub caps from the store. Petitioner dated the documents back saying 'it would look better if the date was set back.' On the duplicate for the store defendant wrote 'For estimate only' but did not write it on the original given Roche.

Section 702, Welfare and Institutions Code, provides in part: 'Any person who commits any act or omits the performance of any duty, which act or commission causes or tends to cause or encourage any person under the age of 21 years to come within the provisions of any of the subdivisions of Section 700 * * * or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause any such person to become or to remain a person within the provisions of any of the subdivisions of Section 700, is guilty of a misdemeanor * * *'

People v. Miller, 145 Cal.App.2d 473, 477, 302 P.2d 603, 606, states:

'The main purpose of Welfare and Institutions Code, Section 702, is to remove minors from immoral and evil influences which would incline them toward a state of delinquency. The purpose is accomplished by making any act or omission which would tend to cause a minor to become delinquent, a misdemeanor. [Citations.]

'We do not deem it proper to give to the foregoing provisions of the statute the narrow and restricted construction for which appellant herein contends. The evident object and main purpose of the statute is preventive, and as said in People v. DeLeon, 35 Cal.App. 467, 470, 170 P. 173, 175: 'Its intent was to put a barrier across the threshold of those entrances to downward ways which are open before the feet of youth.' It is not required that the effect of the act complained of must have an absolutely certain and unmistakable tendency to cause the minor to lead an idle, dissolute, lewd or immoral life, and in determining whether the act in question would reasonably so affect the minor, the jury may apply the teachings of human experience.' People v. Deibert, 117 Cal.App.2d 410, 415, 256 P.2d 355.

It is clear that the evidence showed probable cause. Petitioner's action in giving the minor a purported bill of sale of hub caps he knew to be stolen had a very definite tendency to encourage Roche's delinquency. The obvious purpose of the bill of sale was to enable Roche, in case of question, to make it appear that he had obtained the hub caps legitimately. It was intended to, and did, assist the juvenile in concealing his commission of the crime of receiving stolen property. It also encouraged Roche in retaining the stolen property and perhaps even to procure more stolen property.

2. Written Statements to Police.

Cross-examination of the two juveniles developed that Powers had given a statement concerning the theft of the hub caps and their sale to Roche to the officials (apparently to a deputy sheriff or a deputy district attorney) partially written in his own handwriting and partially dictated and signed by him, and that Roche had given one entirely in his own handwriting concerning his purchase of the hub caps from Powers and his obtaining the bill of sale from petitioner. Defendant moved both orally and in writing that he be shown these statements for purposes of possible impeachment. The motions were denied.

The leading case, and one which reconciled earlier cases, on the right of a defendant at a trial to statements given peace officers by prosecution witnesses is People v. Riser, 47 Cal.2d 566, 305 P.2d 1. There the court pointed out that at common law the accused in a criminal action could not compel production of documents or other evidence in the possession of the prosecution for the reason that to compel the prosecution to reveal its evidence beforehand would enable the defendant to secure perjured testimony and fabricated evidence to meet the state's case, and that to allow the defendant to compel production when the prosecution could not in its turn compel production from the defendant because of the privilege against self-incrimination would unduly shift to the defendant's side a balance of advantages already heavily weighted in his favor. The court then said, 47 Cal.2d at page 585, 305 P.2d at page 13: 'Whatever the force of these arguments when directed to pretrial discovery, they have little or no application when production is sought by subpoena during trial of statements referred to on cross-examination. The question then is not whether the defendant will be allowed advance disclosure of evidence upon which the prosecution plans to base its case, but whether he will be allowed any disclosure of evidence that the prosecution does not intend to produce in court at all. See United States v. Krulewitch, 2 Cir., 145 F.2d 76, 78, 156 A.L.R. 337. Furthermore, the additional possibility that the defendant will obtain perjured testimony or fabricated evidence as a result of disclosure at this point in the proceedings is too slight to justify denying production. The decisions of this court have always impliedly recognized that on a proper showing a defendant in a criminal case can compel production when it becomes clear during the course of trial that the prosecution has in its possession relevant and material evidence.' The court referred to cases where production had been denied solely because the requirements justifying production had not been met in the particular case, and also to cases to the contrary. It then referred to cases supporting its position, stating that they were the better reasoned cases. It said, 47 Cal.2d at page 586, 305 P.2d at page 13: 'Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and in particular it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits. To deny flatly any right of production on the ground that an imbalance would be created between the advantages of prosecution and defense would be to lose sight of the true purpose of a criminal trial, the ascertainment of the facts.' To the contention that the statements if produced might not impeach the testimony of the particular witness who made it, the court said that that question could only be determined by an examination of the statement itself. 'Obviously a defendant cannot show conclusively that a document is admissible without seeing it, and yet in order to see it he is told that he must show that it is admissible. The proper test for determining whether production must be granted is not whether the evidence has been conclusively proved admissible but whether, as stated in People v. Glaze, supra, 139 Cal. 154 at page 158, 72 P. 965, 'there is good reason to believe that the document when produced would be admissible in evidence for some purpose in the case * * *.' There must be more than a mere possibility that the statements when produced will contain contradictory matter and be in such a form that they can be used to impeach, but the chance that it may turn out eventually that they cannot be used for this purpose should not block production at the threshold.' 47 Cal.2d at page 587, 305 P.2d at page 14. The court then held that as it was not claimed by the prosecution that the necessities of law enforcement required that the statements be kept confidential, the defendant was entitled to see the statements even though it might develop that there was nothing of an impeachment nature in them. See also Gordon v. United States, 344 U.S. 414, at page 418, 73 S.Ct. 369, at page 372, 97 L.Ed. 447,...