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District Court of Appeal, Second District, Division 2, California.

John Dyson POWELL, Petitioner, v. The SUPERIOR COURT of The State of California, in and for the COUNTY OF LOS ANGELES, Respondent.*

Civ. 22237.

Decided: January 31, 1957

Gladys Towles Root and Joseph A. Armstrong, Los Angeles, for petitioner. William B. McKesson, Dist. Atty., and Jere J. Sullivan, Fred N. Whichello and Lewis Watnick, Deputy Dist. Attys., Los Angeles, for respondent.

Petitioner seeks a writ of prohibition to restrain the respondent court from proceeding with his trial under an indictment charging him with the embezzlement of public funds.

As grounds for the relief sought the petitioner alleges the denial by the trial court of his motion for an order authorizing the petitioner and his attorney to inspect and make copies of a signed statement of the petitioner made in the office of a chief of police and also denying his motion to inspect and make copies of the typewritten transcript of a tape recording made in the police office. It is further alleged that no copies of the statements were given to the petitioner and that he is not able to recall or relate to his attorney the contents thereof and that an inspection of the documents may be necessary to refresh his recollection.

It is conceded by the prosecution that the evidence contained in the signed statement is material to the issues and would be admissible on behalf of the prosecution as constituting a confession or admission.

There is no common law right of pretrial discovery in a criminal prosecution whereby the accused can compel the production of documents or other evidence in the possession of the prosecution. People v. Riser, 47 Cal.2d 566, 305 P.2d 1; Shores v. United States, 8 Cir., 174 F.2d 838, 843, 11 A.L.R.2d 635. Nor is the pretrial right of inspection provided for in Code Civ.Proc., sec. 1000, applicable to criminal proceedings. People v. Ratten, 39 Cal.App.2d 267, 271, 102 P.2d 1097; People v. Wilkins, 135 Cal.App.2d 371, 377, 287 P.2d 555. The right of a defendant in a criminal case to compel production when it becomes clear during the course of a trial that the prosecution has in its possession relevant and material evidence, People v. Riser, 47 Cal.2d 566, 305 P.2d 1, is to be distinguished from the right to a pretrial discovery of the same evidence, United States v. Krulewitch, 2 Cir., 145 F.2d 76, 78, 156 A.L.R. 337.

The precise question of the right of an accused to a pretrial inspection of a signed statement constituting evidence of a confession or admission has not been decided in this state. While there is some conflict in authority, the state courts generally, which have considered the question, have held that the accused cannot require the prosecution to furnish him before the trial with a copy of his confession. See Annotation, 52 A.L.R. 211; State v. Yeoman, 112 Ohio St. 214, 147 N.E. 3; State v. Tune, 13 N.J. 203, 98 A.2d 881; State v. Cicenia, 6 N.J. 296, 78 A.2d 568; Rosier v. People, 126 Colo. 82, 247 P.2d 448. It has been similarly held by the Federal Court, Shores v. United States, 8 Cir., 174 F.2d 838, 11 A.L.R.2d 635.

It is our conclusion that an accused in a criminal prosecution has no absolute right before trial to an inspection and copy of his confession or the transcript of statements made by him which are in the possession of the prosecution. On the contrary, an application for a pretrial inspection of a signed confession or admission or transcript of statements made by an accused is addressed to the sound judicial discretion of the trial court, which has inherent power to order such an inspection, which power may be affirmatively exercised in case it appears necessary to enable the defendant to have a fair trial. State v. Cicenia, 6 N.J. 296, 78 A.2d 568; Shores v. United States, 8 Cir., 174 F.2d 838, 11 A.L.R.2d 635.

From the record before us it appears that the trial court heard and ruled upon petitioner's motion for a pretrial inspection, and no abuse of discretion in denying his motion has been shown.

The order to show cause is discharged, a peremptory writ of prohibition is denied, and the stay of proceedings is termined.

RICHARDS, Justice pro tem.

FOX, Acting P. J., and ASHBURN, J., concur.

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