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

PEOPLE of the State of California, Plaintiff and Respondent, v. The MUNICIPAL COURT FOR the PASADENA JUDICIAL DISTRICT OF LOS ANGELES CONUTY, Defendant and Respondent; Donald Gene RUNYAN, Real Party in Interest.

Civ. 48691.

Decided: November 16, 1976

Byron B. Gentry, Pasadena City Prosecutor, for petitioner and appellant. Horn & Hoppe by Michael J. Hoppe, Jr., Pasadena, for real party in interest and respondent.

Petitioner, the People, through the City Prosecutor of Pasadena, sought a writ of prohibition in the superior court in an effort to prevent pre-trial discovery ordered by the municipal court in the case at bench. The writ was denied; the denial is appealable. (See Code Civ.Proc., § 904.1, subd. (a); Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 235, 111 Cal.Rptr. 539.)

Since the record presented to us for review contained only a portion of the superior court record, but did not include certain pertinent material lodged therein, i. e., a declaration filed in the municipal court, and the transcript of oral proceedings there, we augmented our record to include this material. (See Cal. Rules of Court, Rule 12, subd. (a).)

On March 3, 1975, the City Prosecutor filed a complaint that charged Donald Gene Runyan with the commission of three misdemeanors: a violation of Vehicle Code section 23102, subdivision (a) (drunk driving); a violation of Penal Code section 148 (obstructing a peace officer in the performance of his duty); and a violation of Penal Code section 594, subdivision (a) (vandalism). It was alleged that the offenses occurred in Pasadena on March 2, 1975.

Defense counsel moved for pre-trial discovery, asserting that defendant Runyan did not have sufficient information concerning the charges to prepare his defense. Defense counsel filed, in support of the motion, a declaration in which it was asserted that defendant had been driving his van in Pasadena on March 2, 1975, when he had an automobile accident; that as a result of the accident, he had fallen from his vehicle and had hit his head on the pavement, rendering him unconscious. He was revived at the scene by paramedics, and was attempting to start his vehicle when the Pasadena police arrived.

According to the declaration, defendant was ordered from the vehicle by the police and, when he protested, was physically removed from the vehicle by the police, at which time he again struck his head on the pavement. It is asserted that defendant was placed in handcuffs, but the police did not tell him the basis for his arrest; that defendant kicked at the police car; that one officer became extremely verbally abusive. Defendant complained that the handcuffs were too tight; according to the defendant, the complaint resulted in a police officer tightening them even further. Defendant was booked and given a breathalyzer test for intoxication, which showed .023. The declaration charged that the test had been deliberately falsified by the police after the arrest in order to justify the arrest.

Defendant sought to discover the following matters: (1) all information in the possession of the City Prosecutor relating to the charges made against him; (2) information possessed by the arresting police officers, by way of deposing those officers; (3) information under the control of the Pasadena Chief of Police, i. e., copies of any and all complaints made against the arresting officers for brutality or untruthfulness, and any and all fitness reports relating to their propensities for the same character traits.

The City Prosecutor did not oppose discovery of item (1) but did oppose discovery of items (2) and (3). After a hearing, which included taking the testimony of defendant to the effect that he had sustained a head injury due to the accident, and either could not remember or was confused about subsequent events, the trial court granted defendant's motion in its entirety, but restricted the right to take depositions of police officers to the four Pasadena police officers identified as those who had taken part in defendant's arrest. The writ of prohibition was denied by the appellate department of the superior court without written opinion.

On this appeal, the City Prosecutor, representing the People as petitioner, argues that the trial court had no discretion to grant defendant's discovery motion with respect to depositions. As no argument was made concerning the matters set forth in item (3), supra, we assume the appeal has been abandoned to that extent. Runyan, the real party in interest, relies upon a doctrine which has evolved by judicial decisions of the California Supreme Court—a doctrine favoring pre-trial discovery by defendants when the trial court deems such discovery appropriate—as support for the discovery order made in the instant case, which directed the taking of depositions.

Pre-trial discovery by a defendant was unknown at common law. ‘Originally at common law the accused in a criminal action could not compel production of documents or other evidence in the possession of the prosecution. [Citation.] Production was denied before trial on the ground 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. It was felt, furthermore, 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.’ (People v. Riser (1956) 47 Cal.2d 566, 585, 305 P.2d 1, 13, overruled on other grounds by People v. Morse (1964) 60 Cal.2d 631, 637, 36 Cal.Rptr. 201.)

In Riser, however, the California Supreme Court stated that ‘[t]he decisions of this court have always impliedly recognized that on a proper showing a defendant in a criminal case can compel production [of evidence] when it becomes clear . . . that the prosecution has in its possession relevant and material evidence. . . . [¶] . . . [t]he state has no interest in denying the accused access to all evidence that can throw light on issues in the case, . . . the true purpose of a criminal trial [is] the ascertainment of the facts. [Citations.]’ (Riser, supra, 47 Cal.2d 566, at pp. 585–586, 305 P.2d 1, at p. 13.)

Riser was followed by Jones v. Superior Court (1962) 58 Cal.2d 56, 59–60, 22 Cal.Rptr. 879, 372 P.2d 919, in which the Supreme Court observed that neither the common law nor the concept of due process mandated pre-trial discovery in favor of defendants, but that it was appropriate ‘for the courts to develop the rules governing discovery in the absence of express legislation authorizing such discovery.’ (Jones, supra, 58 Cal.2d 56, at p. 59, 22 Cal.Rptr. 879, at p. 880, 372 P.2d 919, at p. 920.) (Emphasis added.)

In Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535–536, 113 Cal.Rptr. 897, 900, 522 P.2d 305, 308, the court further elaborated on the underlying policy for discovery in criminal cases as follows: ‘Unlike the statutory development of civil discovery in California, the right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation. [Citations.] A defendant's motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand. [Citations.] Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonable accessible information. [Citations.]’ (Emphasis added.)

In setting forth the requirements which a defendant must meed to obtain discovery, the Pitchess court said that ‘[t]he requisite showing may be satisfied by general allegations which establish some cause for discovery other than ‘a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.’ [Citations.]' (Pitchess, supra, 11 Cal.3d 531, at p. 537, 113 Cal.Rptr. 897, at p. 901, 522 P.2d 305, at p. 309.)

The Pitchess characterization of pre-trial discovery as a potential element of fair trial in the interests of justice, a due process concept, has been approved in McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 520, 116 Cal.Rptr. 260, 266, 526 P.2d 268, 274, wherein it was referred to as ‘the slightly more liberal criminal law requirement [compared to the civil practice rule] that the information sought be demonstrated necessary for a fair trial,’ and in Murgia v. Municipal Court (1975) 15 Cal.3d 286, 293, 124 Cal.Rptr. 204, 208, 540 P.2d 44, 48, where it was set forth as ‘the established principle that in a criminal prosecution an accused is generally entitled to discover all relevant and material information in the possession of the prosecution that will assist him in the preparation and presentation of his defense.’

The People's argument is that all of these expressions of principle have no application to the case at bench because they apply generally to discovery rather than specifically to depositions, and because they are only operable in the absence of legislative enactment. The People assert that, since the California Legislature has offered its guidance in the matter of depositions in criminal cases, the statutory law must be followed by the courts without consideration of any inherent judicial power as a protection of a criminal defendant's fair trial rights. We disagree.

In analyzing the People's position, we turn first to the California Constitution. Prior to 1974, article I, section 13, provided, in pertinent part that ‘[t]he Legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases, other than cases of homicide when there is reason to believe that the witness, from inability or other cause, will not attend at the trial.’ The People rely upon Clark v. Superior Court (1961) 190 Cal.App.2d 739, 741–742, 12 Cal.Rptr. 191, which interpreted this provision as conferring a ‘qualified right’ upon the Legislature to enact legislation dealing with the expressed area of constitutional concern—depositions of a witness unlikely to be available at trial.

However, this provision contained in article I, section 13, of the California Constitution, was interpreted somewhat differently in an early California Supreme Court case. (See People v. Hurtado (1883) 63 Cal. 288; affirmed on other grounds, Hurtado v. California (1884) 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232. Hurtado, noting that this provision was included with other fundamental protections such as the right not to incriminate oneself, the right not to be placed in jeopardy twice, and the right to confront witnesses, viewed the deposition clause as additional protection to criminal defendants. Hurtado was a prosecution for murder and, in discussing the application of the clause in that case, the court said: ‘It may be that by reason of the exception depositions cannot now be used against the defendant in cases of homicide, even although they are taken in the presence of the party charged with that crime, and with full opportunity for cross-examination. But in other cases the legislature may authorize depositions to be taken on the part of the prosecution. Inasmuch, however, as the tenor of the provision of the Constitution clearly shows, with the exception noted, that it was intended for the protection of defendants, there is no prohibition upon the power of the legislature to authorize the taking of depositions by the defendant in every class of criminal cases.’ (Hurtado, supra, 63 Cal. 288, at p. 294.) (Emphasis in original.)

In 1872, the Legislature had enacted Penal Code sections 1335–1345, dealing with the ‘examination of witnesses conditionally.’ Section 1335 now provides: ‘When a defendant has been charged with a public offense triable in any court, he in all cases, and the people in cases other than those for which the punishment may be death, may, if the defendant has been fully informed of his right to counsel as provided by law, have witnesses examined conditionally in his or their behalf, as prescribed in this chapter.

Penal Code section 1335 was last amended in 1967, when conditional examinations were authorized in connection with offenses ‘triable in any court’ instead of in ‘the superior court.’

Penal Code section 1336 provides that application, upon affidavit, may be made by the defendant or the People for an order of examination ‘[w]hen a material witness for the defendant, or for the people, is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he will be unable to attend the trial . . ..’ Under Penal Code section 1339, the court to whom the examination motion is addressed must specify the time and place of such examination and before a designated magistrate. Section 1341 gives the magistrate the power to preclude the examination if he finds that ‘the witness is not about to leave the state, or is not sick or infirm, or that the application was made to avoid the examination of the witness on the trial . . ..’

In Clark, these sections of the Penal Code were interpreted as a legislative limitation on the right of defendants to take depositions in criminal cases. ‘While the Legislature in 1957 liberalized discovery and the taking of depositions in civil cases, it made no change in the statutes concerning depositions in criminal cases. This fact is highly significant.’ (Clark, supra, 190 Cal.App.2d 739, at p. 742, 12 Cal.Rptr. 191, at p. 193; see also Everett v. Gordon (1968) 266 Cal.App.2d 667, 72 Cal.Rptr. 379, applying the Clark holding to administrative hearings.)

In People v. Bowen (1971) 22 Cal.App.3d 267, 99 Cal.Rptr. 498, a murder prosecution, defendant had moved to depose the murder victim's four-year-old son prior to trial; the trial court denied the motion, and the denial was upheld on appeal. The appellate court squarely rejected defendant's contention that he had an unqualified right to discovery, including the taking of depositions, as one aspect of his constitutional right to confront witnesses. Bowen also pointed out that the defendant therein had not complied with what it conceived as the limited right to depose set forth in Penal Code sections 1335 et seq., i. e., had not made a sufficient showing in terms of the expected unavailability of the witness to invoke the specified conditional examination procedure.

The result in Bowen might well have been reached by an exercise of judicial discretion, considering the age of the witness involved. It is significant that both Clark and Bowen pre-date the Supreme Court cases which have regarded discovery in terms of fair trial.

It seems abundantly clear that Penal Code sections 1335–1341 were in direct response to the constitutional authorization for deposition legislation found in article I, section 13 of the California Constitution, which authorized such legislation solely in the case of a witness likely to be unavailable to testify at the trial for any cause. As long as the constitutional authorization remained unchanged, there was no cause for the Legislature to change the legislation.

The situation is now different, however. In 1974, section 13 of article I of the California Constitution was repealed and the substance of its provisions placed in a new section—section 15 of article I. In section 15, a radical change was made in the constitutional authorization of legislation to govern the taking of depositions in criminal cases. The pertinent language in section 15 of article I reads as follows: ‘The Legislature may provide for the deposition of a witness in the presence of the defendant and the defendant's counsel.’ Under section 15 of article I, the Legislature is not limited to providing for depositions, in criminal cases, of witnesses who are likely to be unavailable to attend and testify at the trial.

The Legislature has not seen fit to respond to the new constitutional authorization for legislation set forth in article I, section 15 of the California Constitution. It is not reasonable to conclude that legislative failure to amend Penal Code sections 1335–1342 after the repeal of section 13 of article I of the California Constitution and enactment of section 15 of article I removing the limiting provisions of former section 13, constitutes any showing of legislative intent to limit depositions of witnesses in criminal cases. On the contrary, we interpret the failure of legislative action as leaving the development of general discovery guidelines, including depositions, to the judiciary. Runyan, the real party in interest, relies upon the inherent judicial power to ensure to a defendant a fair trial, as support for the discovery order made in the instant case. This reliance is appropriate in light of the decisional law development in the field and the change in the California Constitution provisions relating to depositions.

Runyan, the real party in interest before us, and the defendant below, is charged with the commission of misdemeanors. There will be no preliminary examination to operate as a ‘screening process' in this matter. Without the assistance of the order made, defendant will not have the opportunity to call and examine the four police officers who participated in his arrest prior to trial. Two of the three charges against defendant arose from events which occurred after the police arrived at the scene. It is reasonable to assume that no voluntary assistance by the police officers to this defendant will be forthcoming to enable him to prepare an ‘intelligent defense.’

The trial judge was of the opinion that deposing the officers was necessary to ensure a fair trial of the charges, and the transcript of proceedings makes it clear that he was not relying on the likely unavailabilty of these police officers at trial, as the procedure outlined in Penal Code sections 1335–1345 was not employed by him. Such procedure had no application or relevance to the facts of the matter before the trial judge. He was relying on the general standard concerning discovery in criminal cases expressed by our Supreme Court. We have concluded that this standard controls, especially in the absence of comprehensive legislative treatment of criminal discovery procedure.

We hold that judicial discretion was properly exercised in the case at bench. Hence, the People's petition for writ of prohibition was properly denied.

The judgment appealed from is affirmed.

JEFFERSON, Associate Justice.

KINGSLEY, Acting P. J., and DUNN, J., concur.

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