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Court of Appeal, Sixth District, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Monterey County, Respondent. Joseph D. MITCHELL, Jr., Real Party in Interest.

No. H009469.

Decided: August 27, 1992

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Morris Beatus, Supervising Deputy Atty. Gen., David D. Salmon, Deputy Atty. Gen., for petitioner. Dennis LaBarbera, Deputy Dist. Atty., for petitioner. James H. Newhouse, Carmel, James H. Dozier, Salinas, Attys for real party in interest.

This is a felony murder prosecution in which special circumstances allegations are charged against the defendant.   The trial has not begun.   The People requested discovery as authorized by Penal Code section 1054.3,1 one of the statutes implementing Proposition 115.   Defendant refused to provide any discovery pertinent to the penalty phase of the trial.   The trial court denied the People's motion to compel discovery on the ground that Proposition 115 does not apply to the penalty phase of the trial, which is instead governed by the more specific sections 190.3 and 190.4.   The People seek a writ of mandate or prohibition directing the trial court to compel discovery of materials relevant to the penalty phase pursuant to Proposition 115.   We originally denied the petition without prejudice because we did not believe that interlocutory review was warranted, interrupting and delaying a serious felony prosecution;  however the Supreme Court having directed us to issue the alternative writ, we have done so.   For reasons we shall state, we shall issue the writ.

 The trial court concluded that section 190.3 regulates penalty phase discovery because the statute, in setting out the procedures to be followed at the penalty phase, says that the defendant, but not the prosecution, may introduce evidence without prescribed notice.   The precise statutory language is “Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial.   Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.”  (§ 190.3.)

The People argue that the plain words of the statute enacted by Proposition 115, section 1054 subdivision (e), express a purpose to control all discovery in criminal cases and to provide reciprocal discovery to both parties.   Thus the cited subsection states that “no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.”  (Ibid.)  Further, although section 190.3 does provide some notice rules, which are discovery rules, for the penalty phase, it does not say anything about reciprocal discovery and certainly does not forbid it.

Therefore, it is argued, the two statutes are not mutually exclusive, but are complementary, and, consistent with favored canons of statutory interpretation, can both be made effective.

Further, there is general authority that the penalty phase of a trial is part of the criminal trial as a whole.  (People v. Robertson (1989) 48 Cal.3d 18, 45–46), 255 Cal.Rptr. 631, 767 P.2d 1109.)   That decision, construing the notice provision of section 190.3, said that “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․  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. Robertson, supra, 48 Cal.3d at pp. 45–46, 255 Cal.Rptr. 631, 767 P.2d 1109, citations omitted.)   Although Robertson did not consider the issue before us, its language embracing the penalty phase within the concept of the “trial” under section 190.3 is authority that the proceeding is unitary and should not be arbitrarily broken down into distinct and separate procedures.   From this it follows that section 1054, which refers to regulation of discovery in a criminal trial, applies to the penalty phase, which is part of the trial.

Our Supreme Court, construing the discovery provisions of Proposition 115, has stated that the phrase “trial” is used in a general sense in that legislation.  “The phrase ‘at trial’ means exactly that—at the trial, not merely during the prosecution's case-in-chief.”  (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 375, 285 Cal.Rptr. 231, 815 P.2d 304.)   Similarly, section 190.1, setting out the procedures for capital cases, defines the penalty phase as part of the “case”:  “A case in which the death penalty may be imposed ․ shall be tried in separate phases as follows․”  (See also ante, discussion re § 190.1, describing the guilt & penalty phases.)

Also, the Supreme Court has said that general discovery principles apply to the penalty phase.  (See People v. Breaux (1991) 1 Cal.4th 281, 311–312, fn. 10, 3 Cal.Rptr.2d 81, 821 P.2d 585.)

No appellate court to the present has distinguished the penalty and guilt phases of a criminal trial for discovery purposes.   The American Bar Association standards regarding discovery and pretrial procedure make no distinction between penalty and guilt phase.  (See ABA Standards Relating to Discovery and Procedure Before Trial (1970) § 1.5.)

We find nothing in section 190.3 is necessarily inconsistent with section 1054.3.   Nor have the parties shown us any history of Proposition 115 indicating any intention to use the word “trial” in section 1054.3 in anything other than a general way.   Further, since the statutes are not inconsistent, there was no reason for the drafters of the Proposition 115 legislation specifically to state that these statutes controlled penalty phase discovery rather than section 190.3.   The plain meaning of section 1054.3 and section 1054 is to vest exclusive control over discovery procedures in criminal cases in the Proposition 115 statutes, and no logical reason requires a specific reference to section 190.3 to have been made to effect this purpose, because section 190.3 is not a discovery regulating statute.

 Defendant argues that the more specific statute (§ 190.3) must control over the general, and that the general statutes are clearly sections 1054, subdivision (e) and 1054.5, which both expressly apply except as otherwise specifically provided by statute.   The specific statute, they say, is section 190.3.

However, although we agree with defendant that section 190.3 is specific, we do not agree that it is comprehensive.   Defendant argues that section 190.3 preempts the field of criminal discovery, because it provides a form of nonreciprocal discovery;  it says that the People cannot present evidence unless they have given the defendant notice of such evidence in a reasonable period of time, but defendant has no reciprocal duty to provide pretrial notice of the presentation and nature of mitigating evidence.   Thus, unlike the provisions of sections 1054 et seq., section 190.3 does not require the prosecution to provide discovery concerning rebuttal to evidence introduced by the defendant in mitigation.   Reciprocity of discovery is required by the Proposition 115 statutes, and that reciprocity is a basis for the holding that they are constitutional.  (See Izazaga v. Superior Court, supra, 54 Cal.3d at p. 377, 285 Cal.Rptr. 231, 815 P.2d 304;  see also Wardius v. Oregon (1973) 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82.)

However, defendant's argument proves too much.   If the Proposition 115 statutes are inconsistent with section 190.3, they are equally inconsistent with all the discovery statutes which predate the initiative measure, because none of them provide reciprocal discovery to the prosecution.   For instance, Evidence Code sections 1043–1045, regulating Pitchess discovery, remain applicable after the enactment of Proposition 115.  (Albritton v. Superior Court (1990) 225 Cal.App.3d 961, 963, 275 Cal.Rptr. 314.)   Yet these statutes do not refer to any right of prosecutorial discovery any more than does section 190.3.

 Proposition 115 was meant to authorize prosecutorial discovery except where it was specifically forbidden or specifically regulated in an inconsistent way.  (§§ 1054, 1054.3)  Section 190.3 does neither of those things;  its provisions are solely concerned with providing notice rights to the defendant.   Indeed, we may infer that the drafters of section 190.3 were not concerned with the People's discovery rights at all, because at the time the statute was enacted the People, as a matter of state constitutional law, had virtually none.  (See In re Misener (1985) 38 Cal.3d 543, 213 Cal.Rptr. 569, 698 P.2d 637;  People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534;  Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673.)   The drafters of section 190.3 were not concerned with providing the prosecution with discovery rights, because that would not have been possible then.   Their sole concern was that the defendant receive notice of aggravating evidence, and that aim is what the statute regulates.   The inability of the drafters of section 190.3 to do anything about discovery for the prosecution makes it impossible to say that in fact they specifically intended to regulate the prosecution's rights in criminal discovery.2

However, Proposition 115 was intended to and specifically did provide prosecutorial discovery rights, not provided by section 190.3.   The Proposition 115 statutes are thus not inconsistent with section 190.3;  rather they go beyond its scope, making new procedural and substantive law.   Section 190.3 is not repealed or restricted in any way by the Proposition 115 legislation, but it is supplemented by section 1054, just as all the other statutes and cases which formerly provided discovery rights to the defense remain in effect, but are extended, reciprocally, to the People as well, by Proposition 115, to the extent that its provisions are valid.

Defendant argues that since any application for funds in a criminal case is confidential pursuant to section 987, subdivisions (c) and (d) and since the new discovery statutes do not require the defense to disclose privileged material (see § 1054.6), therefore penalty phase evidence is likewise confidential.   We do not see the relevance of that argument.   Applications for funds are not the only materials which the defense team may have gathered in preparation for the penalty phase of the trial.   In any event we do not purport to consider whether any materials sought by the People here are privileged, because that issue is not before us;  the defendant's sole argument is that section 190.3 and not Proposition 115 governs discovery at the penalty phase of the trial, and therefore prosecutorial discovery is not authorized.   No privilege claim is made here.

 Defendant argues that even under the new discovery rules, defendants do not have to disclose witnesses or evidence to be presented at time of sentencing;  therefore broader rights in this regard should not be available to the People at the penalty phase of a capital case.   However defendant cites no support for this premise.  Section 1054.3 appears broad enough to encompass witnesses at sentencing hearings;  at least this information is not statutorily excluded from reciprocal discovery.  Section 1054 applies the Proposition 115 legislation to “criminal cases,” and section 1054.3 requires defendant to provide discovery of witnesses to be called “at the trial.”   We are cited no case holding that the sentencing hearing is not part of the case or the trial.   Defendant's argument that unavailability of discovery at “sentencing” mandates unavailability at “penalty phase” rests on the undemonstrated premise that discovery is not available at the sentencing phase of the trial.   Nothing in the Proposition 115 statutes—which comprehensively regulate discovery in criminal cases—supports that premise.

Defendant points to the liberal use of the phrase “at trial” throughout the Proposition 115 statutes, which all state the duty of revealing information pertaining to trial.  (§§ 1054, 1054.1, 1054.3, 1054.5.)   However, People v. Robertson, supra, holds that “trial” includes the penalty phase.

There are cases holding that sentencing hearings differ from trials in some respects.   For instance, strict evidentiary rules do not always apply at sentencing hearings and rules of procedure may differ.  (E.g. Green v. Georgia (1979) 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 [hearsay rules don't apply to sentencing];  People v. Green (1956) 47 Cal.2d 209, 218, 302 P.2d 307 [matters inadmissible on issue of guilt or innocence may be considered at sentencing].)   Also, in capital cases, evidence at the penalty phase is specially regulated by statute.  (See § 190.3.)   However, the fact that sentencing procedures may differ from procedures at the guilt phase does not necessarily imply anything about discovery rights, except perhaps that they may be even broader at the sentencing phase, given the relaxation of traditional strict rules of evidence at that point.

 Defendant also argues that reciprocal discovery makes no sense at the penalty phase of a trial.   At the guilt phase, the prosecution and defendant are countering one another's evidence.   Thus, each party wishes to identify the other's witnesses, in order to find ways to discredit their testimony.   But at the penalty phase, the evidence introduced by each side, for mitigation and aggravation, respectively, does not normally consist of directly conflicting factual testimony, but rather will be character evidence which is not directly rebutted, but rather offset in an indirect manner.   Thus, defendant argues, the prosecution will present all unfavorable character evidence that it finds, and the defendant will offer everything justifying or mitigating the offense or making the offender appear less culpable.   The People, in their search for aggravating circumstances, will not find it useful to know the defendant's mitigating facts.   Accordingly defendant says there is much less need, if any, for reciprocal discovery, or any discovery, at this phase of the trial.

Even if we were to agree with this pragmatic analysis, it would not further defendant's arguments, because it is not our function to repeal statutes which may be impractical.   The practical inutility of a statute is not a ground to eviscerate it.   The issue is not whether section 1054 ought to grant reciprocal discovery at the penalty phase, but whether it does;  whether the statute, which expressly provides reciprocal discovery at trials, provides that same right at the penalty phases of trials.

Defendant says that the application of reciprocal discovery at the penalty phase violates the cruel and unusual punishment proscription of the eighth amendment.   Limitations on mitigating evidence have been found to violate due process (e.g. Skipper v. South Carolina (1986) 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1), but a notice requirement is not a limit on substantive evidence.   Nor is there any authority whatsoever treating the procedural rules governing criminal trials as “punishment.”

 Finally defendant says the prosecution discovery request is premature because defendant has not yet been convicted and special circumstances have not yet been found, therefore defendant may not have amassed evidence to offer at the penalty phase, which may never occur.   We tend to agree that penalty phase discovery so early in the trial does not appear to be a very efficient use of time, and this consideration influenced us to deny writ review in the first instance.   However, it is not our function to oversee the modus operandi of attorneys trying criminal cases.   Procedural regulation is vested in the first instance in the trial court, and had it denied discovery here as premature, or otherwise disruptive, we would be inclined to defer to its superior knowledge of the parties and the case.   However, the denial of discovery here was based solely on the supposed supremacy of section 190.3.   With that legal basis, we must disagree.

Because we do not find the statutes (§ 1054 et seq.) necessarily inconsistent with section 190.3, we conclude that reciprocal discovery relating to the penalty phase of the trial is available to both parties.   Accordingly the writ must issue, compelling the trial court to grant the People's motion for discovery.

Let a writ of mandate issue as prayed, commanding the trial court to vacate its order denying penalty phase discovery to petitioner, and to exercise its jurisdiction to compel reciprocal penalty phase discovery between the parties as authorized by Penal Code section 1054 et seq.


1.   Further statutory references are to the Penal Code unless otherwise specified.

2.   There is no indication that the drafters of the Briggs Death Penalty Initiative, which contained section 190.3, were at all concerned with regulating discovery;  their paramount consideration was to provide California with an effective death penalty law.   See e.g., Poulos, Capital Punishment the Legal Process, and the Emergence of the Lucas Court in California, (1990) 23 U.C. Davis L.Rev. 157, 184.

CAPACCIOLI, Acting Presiding Justice.

PREMO and ELIA, JJ., concur.

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