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Court of Appeal, First District, Division 5, California.

TRIPLE A MACHINE SHOP, INC., Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; The PEOPLE of the State of California, Real Party in Interest.

No. A053268.

Decided: April 30, 1992

Daniel F. Cook, Marcus S. Topel, William M. Goodman, Stephen N. Adams, Topel & Goodman, San Francisco, for petitioner Triple A Mach. Shop, Inc. No appearance by respondent. Arlo Smith, Dist. Atty., Steven J. Castleman, Asst. Dist. Atty., San Francisco, for real party the people.

This case involves prosecutorial discovery against a corporate criminal defendant.   Petitioner Triple A Machine Shop, Inc., is charged with five felony counts of unlawful disposal of hazardous waste (Health & Saf. Code, § 25189.5), including polychlorinated biphenyls (PCBs) and asbestos.   The trial court granted the People discovery of five categories of corporate documents and records.   Petitioner contends the discovery order violates the provisions of Proposition 115.   We disagree.   Having originally denied the petition summarily, then having issued an alternative writ and hearing oral argument on the order of the Supreme Court, we again deny the petition.

 We need not recite at length facts well known to the parties.   In granting the People's discovery motion, the trial court ruled that petitioner had failed to make an adequate showing that any document was covered by the attorney-client or work-product privileges.   Petitioner did not raise an objection to the discovery based on its Fifth Amendment privilege against self-incrimination, for the eminently sensible reason that as a corporation, petitioner does not enjoy a Fifth Amendment testimonial privilege.  (See Campbell Painting Corp. v. Reid (1968) 392 U.S. 286, 288–289, 88 S.Ct. 1978, 1979–80, 20 L.Ed.2d 1094;  Brovelli v. Superior Court (1961) 56 Cal.2d 524, 529, 15 Cal.Rptr. 630, 364 P.2d 462;  Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 137, fn. 3, 261 Cal.Rptr. 493.)

When the Supreme Court decided Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434, which held the reciprocal discovery provisions of Proposition 115 were retroactive, petitioner sought reconsideration of the discovery order based on several claimed violations of Proposition 115.   The trial court denied reconsideration, and we summarily denied petitioner's writ petition challenging the discovery order.   The Supreme Court, which was then considering a general constitutional challenge to Proposition 115, granted review and held the case until it rejected the constitutional challenge in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304.   The court then transferred this matter to us with directions to issue the alternative writ, citing Izazaga and People v. Superior Court (Keuffel & Esser Co.) (1986) 181 Cal.App.3d 785, 227 Cal.Rptr. 13.

 We see no application of Proposition 115 to this case, and nothing in the two decisions cited by the Supreme Court sways our perspective.   Proposition 115 makes it clear that it does not effect existing law of prosecutorial discovery of nontestimonial information:  “Nothing in this chapter shall be construed as limiting any law enforcement or prosecuting agency from obtaining nontestimonial evidence to the extent permitted by law on the effective date of this section.”  (Pen.Code, § 1054.4.)   At the time this section was enacted, corporations enjoyed no testimonial privilege;  it therefore follows that evidence obtained by the People from a corporate criminal defendant can only be “nontestimonial” and falls outside the ambit of Proposition 115.

 Petitioner's primary argument, that the document discovery order violates Proposition 115's limitation of discovery to “real evidence” intended to be offered at trial, thus misses the point.   Proposition 115 does not apply to the corporate criminal defendant.   Petitioner's secondary contention, that the discovery order is too broad in scope under certain discussion contained in Keuffel & Esser Co., is not of the magnitude of significance to warrant review of a discovery order by extraordinary writ.   The remaining contentions have either been mooted by the decision in Izazaga or need not be discussed.

The alternative writ is discharged.   The petition for extraordinary relief is denied.

HANING, Acting Presiding Justice.

KING and ROUSE **, JJ., concur.

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