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

Charles ALLEN, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF ALAMEDA, Respondent; PEOPLE of the State of California, Real Party in Interest.

Civ. 37033.

Decided: November 04, 1975

James C. Hooley, Public Defender, Gary N. Wood, Michael G. Gordon, Asst. Public Defenders, Oakland, for petitioner. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Timothy A. Reardon, Deputy Attys. Gen., San Francisco, for real party in interest and respondent.

This case is before the court on an alternative writ of prohibition issued pursuant to an order of the Supreme Court made in response to petitioner's petition for a hearing before that court, following a summary denial of his petition for a writ of prohibition by this court. The order provided: ‘Petition for hearing granted. Matter transferred to this court and retransferred to the Court of Appeal, First District, Division One, with directions to issue an alternative writ of prohibition to be heard before that court when the proceeding is ordered on calendar. (See Prudhomme v. Superior Court (1970) 2 Cal.3d 320, [85 Cal.Rptr. 129, 466 P.2d 673].)’ A return was filed by the Attorney General and the matter was regularly argued and has been submitted.

The order in question was made at the time the case was called for trial and immediately prior to the commencement of the impanelment of the jury. Because of the defendant's refusal to comply with the order the trial was continued, but the order was made to be effective at the time of the continued trial. The record indicates that the court on its own motion asked each side for the names of its prospective witnesses so that those names could be read to the prospective jurors to ascertain whether any of them knew any of the witnesses who might or would be called as witnesses. The judge assured counsel that the names of the prospective witnesses revealed by the defendant would not be designated as defense witnesses, but would be intermixed with the names of the witnesses supplied by the People so that there would be no designation of witnesses by sides in the proceedings. Presumably this meant that there could be no comment on the failure of either side to call a witness named by the court to the jury. The court further qualified its order by offering a request to enjoin the district attorney from contacting any of the defendant's witnesses until such time as their names were disclosed in the defendant's opening statement or otherwise. The court pointed out that it would be extremely disruptive of the administration of justice if the trial was stopped in the middle because at that time it was discovered that a juror or more than one juror happened to know any witness who appeared before the court.1

The order which the petitioner seeks to restrain and vacate provides that the defendant's attorney reveal the names of his prospective witnesses for the purpose of disclosing them to the prospective jurors, and is to be effective on the date the case is again set for trial in a trial department. No sanctions are provided for failure to comply with the order.

Since the order is inadequate because it provides no sanctions, the petition could be denied until such time as the trial court attempts to enforce it. (SeeRodriguez v. Superior Court (1970) 9 Cal.App.3d 493, 499, 88 Cal.Rptr. 154.) However in view of the mandate of the Supreme Court we proceed to examine it in the light of the case referred to.

In Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, the court went no further than to prohibit the discovery of information which ‘might serve as a link in a chain of evidence tending to establish [the defendant's] guilt of a criminal offense.’ (2 Cal.3d at p. 327, 85 Cal.Rptr. at p. 133, 466 P.2d at p. 677.) It stated that the trial court might ‘inquire into the incriminatory nature of the information sought’ to determine the ‘possible incriminatory effect’ of that information. (Id.) The court concluded, ‘We do not intend to suggest that the prosecution should be barred from any discovery in this, or any other case. A reasonable demand for factual information which, as in Jones [Jones v. Superior Court, 58 Cal.2d 56, 22 Cal.Rptr. 879, 372 P.2d 919], pertains to a particular defense or defenses, and seeks only that information which defendant intends to introduce at trial, may present no substantial hazards of self-incrimination and therefore justify the trial judge in determining that under the facts and circumstances in the case before him it clearly appears that disclosure cannot possibly tend to incriminate defendant. However, unless those criteria are met, discovery should be refused.’ (Id., fns. omitted. See also People v. Lopez (1963) 60 Cal.2d 223, 244, 32 Cal.Rptr. 424, 384 P.2d 16; People v. Hall (1970) 7 Cal.App.3d 562, 565–567, 86 Cal.Rptr. 504 [hg. den. July 16, 1970, disapproved Reynolds v. Superior Court (1974) 12 Cal.2d 834, 837, fn. 1, 117 Cal.Rptr. 437, 528 P.2d 45]; Griffin v. Superior Court (1972) 26 Cal.App.3d 672, 685–687, 103 Cal.Rptr. 379 [hg. den. Sept. 7, 1972]; People v. Bais (1973) 31 Cal.App.3d 663, 671, 107 Cal.Rptr. 519 [hg. den. June 13, 1973];2 and People v. Chavez (1973) 33 Cal.App.3d 454, 458–460, 109 Cal.Rptr. 157. Cf. Rodriguez v. Superior Court, supra, 9 Cal.App.3d 493, 495–499, 88 Cal.Rptr. 154 [hg. den. Sept. 4. 1970].)

In Reynolds v. Superior Court, supra, 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45, the court not only disapproved People v. Hall, supra, but also approved Rodriguez v. Superior Court, and stated, in agreement with that case, ‘We are of the opinion . . . that such a procedural innovation as requiring defendants in criminal cases to give advance notice of alibis should be introduced, if at all, only upon the considered judgment of the Legislature.’ (12 Cal.3d at p. 837, 117 Cal.Rptr. at p. 438, 528 P.2d at p. 46.) The court voiced its ‘sensitivity to the constitutional restraints on the power of the courts or the Legislature to require a defendant in a criminal case to reveal to the prosecution in advance of the normal course of trial tangible or intangible trial-related evidence or other material.’ (Id.) In reviewing its concept of these constitutional restraints it derogates, ‘The ‘intent to disclose at trial’ rationale by which the majority in Jones found a defendant's interest in avoiding self-incrimination to be less significant than the court interest in orderly procedures for the ascertainment of truth . . ..' (12 Cal.3d at p. 839, 117 Cal.Rptr. at p. 439, 528 P.2d at p. 47.) The court further acknowledged, ‘. . . it cannot be gainsaid that Prudhomme put this court on record as being considerably more solicitous of the privilege against self-incrimination than federal law currently requires.’ (Id., p. 843, 117 Cal.Rptr. at p. 442, 528 P.2d at p. 50. Cf. Williams v. Florida (1970) 399 U.S. 78, 82, 90 S.Ct. 1893, 26 L.Ed.2d 446; Wardius v. Oregon (1973) 412 U.S. 470, 473–474, 93 S.Ct. 2208, 37 L.Ed.2d 82; United States v. Nobles (1975) 422 U.S. 225, 233–234, 95 S.Ct. 2160, 2167–2168, 45 L.Ed.2d 141, 150–151.)

The Reynolds opinion leaves but little room for application of the principle enunciated in Jones and left with a flicker of life in Prudhomme. Nevertheless, the interest of the state in securing a trial by an unbiased jury (see Pen.Code, §§ 1044, 1073, 1078; People v. Crowe (1973) 8 Cal.3d 815, 828–829, 106 Cal.Rptr. 369, 506 P.2d 193; and note People v. Tidwell (1970) 3 Cal.3d 62 at p. 67, 89 Cal.Rptr. 44, 473 P.2d 748) is sufficient to permit the limited disclosure at time of trial of information which he intends to disclose at subsequent time during that trial. ‘It simply requires petitioner to disclose information that he will shortly reveal anyway.’ (Jones v. Superior Court, supra, 58 Cal.2d 56, 62, 22 Cal.Rptr. 879, 882, 372 P.2d 919, 922.) Moreover in this case the court, mindful that ‘the disclosure of . . . even [the] names [of defense witnesses] . . . could easily provide an essential link in a chain of evidence underlying the prosecutions case in chief’ (2 Cal.3d at p. 326, 85 Cal.Rptr. at p. 133, 466 P.2d at p. 677), postponed the effective date of the order which compelled revelation of the names, for the purpose of disclosing them to the prospective jurors, to the date the case was set for trial in a trial department, and indicated that it would make a further order prohibiting the district attorney from questioning or interrogating any such witnesses. The court also pointed out that the names of the witnesses as read to the prospective jurors would be intermixed with those for the prosecution and not designated as defense witnesses.

It would appear that the proposed restriction fulfills the trial court's obligation to insure that there will be no incriminatory effect from the disclosure. (See Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 327, 85 Cal.Rptr. 129, 466 P.2d 673.) The order is not to be effective until the trial. The purpose is not discovery but to insure a fair and impartial jury. Although the disclosure of the names and the opportunity to investigate, as distinguished from questioning or interrogating, the prospective witnesses ‘conceivably might lighten the prosecution's burden’ (see Prudhomme v. Superior Court, supra, at p. 326, 85 Cal.Rptr. at p. 133, 466 P.2d at p. 677), any lightening of the burden of proving the case ‘in chief’ from the mere disclosure of the names is remote and speculative. It should yield to the necessity of securing an impartial jury, and cannot in any sense be considered a self-incriminating disclosure.

Once the trial commences with the impanelment of the jury the court may be called upon to make many requests for ‘disclosures' from the defendant or his counsel in order to fulfill the duty to administer the work of the court. (See Pen. Code, § 1044.) For example, in order to accommodate the business of the court and the private affairs of the prospective jurors it is customary to ascertain from counsel their estimate of how many days will be necessary to try the case. Is it self-incriminatory to require the defendant to state how long it will take to present his defense?

Petitioner suggests that revealing the identity of defense witnesses may disclose the accused's defense prior to the defendant's opening his case because, for example, listing policemen could suggest entrapment, listing those who prove to be friends or associates would suggest alibi, and listing psychiatrists or doctors would suggest diminished capacity. Such disclosures might assist ultimate ascertainment of the truth, but they do not furnish links in the chain of evidence establishing the commission of the offense.

In Jones v. Superior Court, supra, and People v. Pike (1969) 71 Cal.2d 595, 78 Cal.Rptr. 672, 455 P.2d 776 [disapproved in Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 327, fn. 11, 85 Cal.Rptr. 129, 466 P.2d 673], Mr. Justice Peters in dissents suggested that there was a fundamental constitutional right which precluded forcing the defendant to disclose even the nature of his defense before the People have presented their case. (See 58 Cal.2d at p. 66, 22 Cal.Rptr. 879, 372 P.2d 919, and 71 Cal.2d at pp. 611–612, 78 Cal.Rptr. 672, 455 P.2d 776.) In Williams v. Florida, supra, the court observed, ‘Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself.’ (399 U.S. 78, 85, 90 S.Ct. 1893, 1899, 26 L.Ed.2d 446.) That court further pointed out with respect to the notice-of-alibi rule approved in that case, ‘Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.’ (Id., p. 84, 90 S.Ct. p. 1897, fn. omitted.) Although Reynolds suggests that a more rigid standard may be applicable under state standards, it does not quarrel with the foregoing pronouncements. Justice Peters' fear 'that the compelled revelation by the defendant that he may have only a weak defense may itself be self incriminating' (58 Cal.2d 66, 22 Cal.Rptr. 885, 372 P.2d 925) is of no merit if it is not so established by facts and circumstances elicited from the defendant himself. If the prosecution fails to present evidence sufficient to sustain a conviction, and here it must produce it without assistance from the witnesses to be named by the defendant, it would be the duty of the court to direct an acquittal. (Pen.Code, § 1118.1; and see People v. Crowley (1950) 101 Cal.App.2d 71, 77, 224 P.2d 748.) In such event any weakness in the accused's defense is rendered. moot. In any event the weakness of his defense could only serve to be self-incriminating if it were evident at the conclusion of the presentation of all of the evidence to the trier of fact. Even then it is subject to protection against reference to the defendant's exercise of the right to refrain from personally testifying as later provided by Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

In Reynolds v. Superior Court, supra, the court noted that in Williams v. Florida, supra, (399 U.S. at pp. 85–86, 90 S.Ct. 1893) the United States Supreme Court had relied upon ‘the petitioner's concession that there would be no constitutional bar to the prosecution's being granted a continuance following the unanticipated presentation of alibi evidence, which continuance would allow the prosecution to seek out evidence in rebuttal to the alibi evidence presented . . ..’ (12 Cal.3d at p. 840, 117 Cal.Rptr. at p. 440, 528 P.2d at p. 48.) It is unthinkable that where discovery is denied on the theory that it is unconstitutional, that the right to a continuance to meet a surprise defense would also be dependent on a concession, because it too was unconstitutional. In short, insofar as the mere names of witnesses actually to be called are involved, nothing has been shown which would tend to incriminate the petitioner.

It is clear that the work product rule does not preclude the revelation of the names of witnesses actually to be called. (See United States v. Nobles, supra, 422 U.S. 225, 236–239, 95 S.Ct. 2160, 2169–2171, 45 L.Ed.2d 141, 152–154.) Nor is there any attorney-client privilege involved in such a situation. (Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 327, fn. 10, 85 Cal.Rptr. 129, 466 P.2d 673; Jones v. Superior Court, supra, 58 Cal.2d 56, 61–62, 22 Cal.Rptr. 879, 372 P.2d 919.)

The alternative writ of prohibition is discharged. The petition is denied.

I dissent.

Although I agree with the majority's rationale, I am of the opinion that we are bound by the contrary holdings of Prudhomme v. Superior Court, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, and Reynolds v. Superior Court, 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45. (See Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)


1.  Petitioner has compiled some statistical material which demonstrate that out of 385 jury trials in 1974 there were some 34 mistrials (less than 10%); that of the mistrials 25 resulted from a hung jury, 3 from other causes, and 6 from unknown causes. He found no case in which a mistrial resulted from a prior relationship between jury members and witnesses. Of course the latter fact may be due to the fact there was disclosure of witnesses and therefore no opportunity for seating a witness-biased juror, or that witnessbiased jurors were seated and never discovered, or that in many cases there were no witnesses or only the defendant. Experience teaches us that the possibility is not as remote as petitioner would suggest.

2.  The implication in People v. Bais, supra, 31 Cal.App.3d 663, 107 Cal.Rptr. 519 that the prosecution is not entitled to discover a statement made to the defendant's investigator by a witness actually called at the trial is inconsistent with the ruling in United States v. Nobles (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141, where the court upheld such discovery against contentions that it violated the defendant's rights under the Fifth Amendment (422 U.S. at pp. 233–234, 95 S.Ct. at pp. 2167–2168, 45 L.Ed.2d at pp. 150–151), under the work product doctrine (id., at pp. 236–239, 95 S.Ct. at pp. 2169–2171, 45 L.Ed.2d at pp. 152–154), and under the Sixth Amendment (id., at p. 241, 95 S.Ct. at pp. 2171–2172, 45 L.Ed.2d at pp. 155.) As pointed out in the opinion, ‘. . one cannot invoke the Sixth Amendment as justification for presenting what might have been a half-truth.’ (Id., at p. 241, 95 p. 2171, 45 L.Ed.2d at p. 155.)

SIMS, Associate Justice.

MOLINARI, P. J., concurs.