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

PEOPLE of the State of California, Plaintiff and Respondent, v. Wilbert CROSS aka Wilbert Ford, Defendant and Appellant.


Decided: July 18, 1986

John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Stan M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. James M. Hollabaugh, Fremont, for defendant and appellant.

Defendant Wilbert Cross was charged with grand theft of money, by an information which alleged that he had previously been convicted of the crimes of attempted burglary in 1967, burglary in May 1970, attempted grand theft in December 1970, robbery in 1978, and attempted burglary in 1980.   He admitted three of the prior convictions, and was by a jury's verdict found guilty of grand theft, as charged.

The appeal is from the judgment entered upon the jury's verdict.

The sole contention of Cross' appeal is that:  “The compelled discovery pursuant to Penal Code § 1102.5 is reversible error.”

An investigator of the office of the public defender, a deputy of which represented Cross at the trial, testified in respect of a conversation he had with the case's complaining witness.   On cross-examination, the prosecutor asked the witness if he had made a “written report of your conversation.”   Upon receiving an affirmative reply, the prosecutor stated:  “Your Honor, under 1102.5 of the Penal Code and 771 of the Evidence Code,[** ] I would ask for discovery of the written statement.”

Penal Code section 1102.5 provided the following:

“(a) Upon motion, the prosecution shall be entitled to obtain from the defendant or his or her counsel, all statements, oral or however preserved, by any defense witness other than the defendant, after that witness has testified on direct examination at trial.   At the request of the defendant or his or her counsel, the court shall review the statement in camera and limit discovery to those matters within the scope of the direct testimony of the witness․”

Pursuant to section 1102.5, the witness was ordered to produce the written report, which the court reviewed in camera, and found to be “within the scope of the direct examination of the witness.”   Obviously using the report, the prosecutor on cross-examination established further conversation with the complaining witness which had not been brought out on direct examination.

The jury thereafter, as noted, returned its verdict finding Cross guilty as charged.

Pending Cross' appeal, the state's Supreme Court decided In re Misener (1985) 38 Cal.3d 543, 213 Cal.Rptr. 569, 698 P.2d 637, the holding of which is found to be faithfully encapsulated in the Reporter of Decisions' headnote (1), as follows:

“Pen. Code, § 1102.5, permitting the prosecution in a criminal case to discover from defendant or his counsel, following testimony on direct examination of defense witnesses other than defendant, prior statements made by those witnesses, is unconstitutional because it violates that aspect of a defendant's privilege against self-incrimination under Cal.Const., art. I, § 15, requiring the prosecution to carry the entire burden of proving defendant's guilt, by compelling a defendant to supply the prosecution with evidence that can impeach his defense witnesses and thereby tend to incriminate him.”

It will be seen that In re Misener permits a defendant charged with crime to produce a witness who falsely testifies to matters contrary to a written report previously made by him, which is made unavailable to the People.   The trial's sole purpose of developing the truth is thus frustrated.

Long ago, Justice Roger Traynor, a giant of California's judicial history, authored Jones v. Superior Court (1962) 58 Cal.2d 56, 58, 61, 22 Cal.Rptr. 879, 372 P.2d 919, holding that, “Discovery is designed to ascertain the truth in criminal as well as in civil cases, [and that a defense witness other than the defendant] will be subject to cross-examination and the reports [related to his direct examination] subject to study and challenge.”   And, the court said:  “Such statutes [as Pen. Code, § 1102.5] do not violate the right of a defendant to be forever silent” under the Fifth Amendment.

The rule of Jones v. Superior Court has been expressly followed by the United States Supreme Court in Williams v. Florida (1970) 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, and United States v. Nobles (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141.   As stated by Justice Lucas, dissenting in In re Misener:

“Nearly 10 years ago, the United States Supreme Court unanimously upheld a trial court order compelling a criminal defendant to disclose, during trial, relevant portions of a defense investigator's report for purposes of cross-examining him.  (United States v. Nobles (1975) 422 U.S. 225 [45 L.Ed.2d 141, 95 S.Ct. 2160].)  Speaking through Justice Powell, the court determined that the investigator's report (which contained statements by prosecution witnesses) appeared highly relevant to ‘crucial’ credibility issues, that production of the report might substantially enhance the ‘search for truth,’ and that compelled disclosure of the report would not impinge upon defendant's ‘personal’ privilege against self-incrimination.  (Pp. 232–233 [45 L.Ed.2d, p. 150, 95 S.Ct. pp. 2167] ).

“As the high court in Nobles observed, ‘The [trial] court's order was limited to statements [in the report] made by third parties who were available as witnesses to both the prosecution and the defense.   Respondent [defendant] did not prepare the report, and there is no suggestion that the portions subject to the disclosure order reflected any information that he conveyed to the investigator.   The fact that these statements of third parties were elicited by a defense investigator on respondent's behalf does not convert them into respondent's personal communications.   Requiring their production from the investigator therefore would not in any sense compel respondent to be a witness against himself or extort communications from him.’  (Pp. 233–234 [45 L.Ed.2d, p. 151, 95 S.Ct. p. 2168].)

“The Nobles court concluded that ‘the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial.’  (P. 234 [45 L.Ed.2d, p. 151, 95 S.Ct. p. 2168].)  This unanimous holding clearly should control disposition of the present case.”  (38 Cal.3d Pp. 559–560, 213 Cal.Rptr. 569, 698 P.2d 637.)

But nevertheless, a later Supreme Court of California decision found that Jones v. Superior Court's “form of discovery proved to be unwise.”  (In re Misener, supra, 38 Cal.3d 548, 213 Cal.Rptr. 569, 698 P.2d 637.)   And, the court said:  “[W]e made it clear that our decision ․ did not depend on federal law.”  (P. 549, 213 Cal.Rptr. 569, 698 P.2d 637.)  “ ‘While Williams [Williams v. Florida, supra, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446] may have laid to rest the contention that [such discovery] procedures are inconsistent with the federally guaranteed privilege against self-incrimination, this privilege is also secured to the people of California by our state Constitution, whose construction is left to this court, informed but untrammelled by the United States Supreme Court's reading of parallel federal provisions.’ ”  (Id., p. 549, 213 Cal.Rptr. 569, 698 P.2d 637.)

Thus, the In re Misener court's rejection of Penal Code section 1102.5 rested, not upon its earlier decision in Jones v. Superior Court finding no constitutional fault in such statutes, nor upon “parallel provisions” of the United States Constitution, but instead on its more recent changed interpretation of the parallel provisions of California's Constitution.

And In re Misener's holding that Penal Code section 1102.5 is unconstitutional, accomplishes this result.   The same court has recently, in People v. Saddler (1979) 24 Cal.3d 671, 679, 156 Cal.Rptr. 871, 597 P.2d 130, “reiterated the well settled rule that a defendant who takes the stand and testifies in his behalf waives his Fifth Amendment privilege (Johnson v. United States (1943) 318 U.S. 189 [87 L.Ed. 704, 63 S.Ct. 549] ) and his state constitutional privilege to the extent of the scope of relevant cross-examination.”   Such a defendant, testifying in his own behalf to a recorded conversation lawfully will be obliged on demand to produce his written report of the discussion.   In such a case he has waived his Fifth Amendment rights and the People may “ ‘fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.’ ”  (People v. Harris (1981) 28 Cal.3d 935, 953, 171 Cal.Rptr. 679, 623 P.2d 240.)   Thus a criminally charged defendant who places a witness on the stand has greater Fifth Amendment rights in respect of his witness' testimony, than he would have in respect of his own.

Respectfully, the In re Misener decision makes no sense to this court.

But nevertheless we are bound by the holding of In re Misener.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   As contended by Cross, the trial court's “compelled discovery pursuant to Penal Code § 1102.5” was error.

There remains for our determination the question whether the error we find was harmless.

We regard the proof of Cross' guilt, aside from the effect of the above-noted error, to be strong.   And he makes no claim that his conviction was unsupported by substantial evidence.

And we observe that the previously undisclosed portions of the investigator's report added little more than corroboration of the complaining witness' testimony.

We therefore are of the opinion that the error was harmless under the criteria of the state's Constitution, article VI, section 13, People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

The judgment is affirmed.

I concur in the result.


FOOTNOTE.   Evidence Code section 771 deals generally with the production of writings previously made by a witness found relevant on the issue of his present testimony.

ELKINGTON, Acting Presiding Justice.

HOLMDAHL, J., concurs.