YOUNGER v. MONICA

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

Evelle J. YOUNGER, Attorney General et al., Petitioners and Appellants, v. The MUNICIPAL COURT FOR the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Respondent; John MONICA, Real Party in Interest.

Civ. 57355.

Decided: August 28, 1980

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and Paul C. Ament, Deputy Attys. Gen., for petitioners and appellants. Law Offices of Barry Tarlow, Barry Tarlow and Richard Fannan, Los Angeles, for real party in interest John Monica. No appearance for respondent Municipal Court.

This is an appeal from an order denying the Attorney General's petition for a writ of mandate sought to set aside the decision of respondent municipal court denying petitioner's motion to quash John Monica's subpoena duces tecum in its entirety and compelling petitioner to produce certain documents pursuant to the subpoena.

STATEMENT OF FACTS

An information was filed in June 1978 charging John Monica (real party in interest) with the murder of Julius Petro whose body was found in a car at the Los Angeles International Airport in January of 1969. On June 30, 1978, Monica filed a discovery motion directed to the district attorney's office and the law enforcement agencies within its control. After hearing, discovery was granted as to most of the requests. At that time the district attorney stated that he would not attempt to acquire ordered discovery material from other state or federal agencies because the attempts would be futile. On July 14, 1978, Monica served a subpoena duces tecum (criminal) and supporting affidavits upon petitioner requiring the production of certain documents and records of the state's Organized Crime Control Commission on July 24, seven days before the date set for Monica's preliminary hearing. On July 24th, petitioner filed a motion to quash the subpoena duces tecum. After a hearing on September 1st, respondent municipal court refused to grant petitioner's motion in its entirety, and ruled on each individual request in the subpoena. Several items were quashed, others were put “off calendar” until later motions for discovery were heard, some of the requests were altered, and the rest were ordered to be produced by petitioner on October 2, 1978, so that a determination could be made with respect to petitioner's claim of privilege under Evidence Code section 1040.

On September 26, petitioner filed a petition for writ of mandate in the superior court alleging irreparable harm if the municipal court's order was not overturned. The superior court granted an alternative writ of mandate and stay order compelling the municipal court to enter an order quashing the subpoena duces tecum in its entirety or to show cause why a peremptory writ should not issue. After argument the superior court discharged the alternative writ of mandate and denied the petition. Petitioner now appeals from this order.

On July 31, 1978, Raymond Ferritto had pleaded guilty to the second degree murder of Petro.

In the declaration supporting the subpoena duces tecum, Monica's attorney, Richard Fannan, stated that through preliminary discovery materials provided by the district attorney and through conversations with persons familiar with Petro and his activities, he discovered that the state's main prosecution witness against Monica will be Ferritto; that Ferritto has testified under oath that Monica hired him to kill Petro; and that Monica will attempt to establish as an essential element of his defense that Ferritto possibly did kill Petro but at the orders of members of organized crime, rather than at his orders. The subpoena basically seeks information about some 28 or so persons who allegedly may have had motives to kill Petro. An incredible web of illegal activities within the confines of organized crime involving murder, extortion, loan sharking operations, assaults, the burning or bombing of the nightclub, P.J.‘s, burglary, narcotics, forgery and perjury was outlined in the numerous requests for documents and records concerning certain persons.

On appeal petitioners contend that the municipal court abused its discretion in failing to quash the subpoena in its entirety, in that: (1) Monica's use of a subpoena duces tecum for discovery purposes in advance of a preliminary hearing was improper; (2) the subpoena failed to indicate that Monica followed the proper procedure of normal discovery through the district attorney; (3) the subpoena failed to intelligibly describe the papers or documents required; (4) the subpoena was not supported by a showing of good cause; (5) the subpoena was not supported by a showing of necessity; and (6) failure to quash the subpoena as to Mr. Younger and Mr. Glavas (Chairman of the Organized Crime Control Commission) was a clear abuse of discretion.

Monica contends that our order directing the municipal court not to delay the preliminary hearing solely because of this appeal should be vacated as moot.

Contrary to petitioner's argument, Monica's use of a subpoena duces tecum prior to the preliminary hearing was not improper. In Jennings v. Superior Court, 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304, our Supreme Court rejected the argument that because the purpose of the preliminary hearing is limited to a determination of probable cause, defendant's rights to cross-examination and to present an affirmative defense are curtailed. At page 880, 59 Cal.Rptr. at page 448, 428 P.2d at page 312, the court stated, “ ‘The preliminary examination is not merely a pretrial hearing. ”The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and expense of a criminal trial. Many an unjustifiable prosecution is stopped at that point, where the lack of probable cause is clearly disclosed.“ (Citation.)’ . . . To effectuate this constitutional and statutory purpose the defendant must be permitted, if he chooses, to elicit testimony or introduce evidence tending to overcome the prosecution's case or establish an affirmative defense.”

Petitioner relies upon Saulter v. Municipal Court, 75 Cal.App.3d 231, 142 Cal.Rptr. 266, wherein defendant, after the first witness had testified at the preliminary hearing, sought an order requiring the prosecution to furnish him with certain federal and police department records. The motion was denied and the court suggested that he attempt to secure the records by subpoena duces tecum. As to the federal records, the subpoena duces tecum was issued. The matter was then continued to allow federal authorities to comply with the subpoena. On appeal, it was held that the trial court erred in denying defendant either an order or a subpoena for the production of the federal records without first requiring the prosecution to request the records. However, the court also criticized the way the proceedings in the case ensued. It stated that defendant's supplemental motion for pretrial discovery could have been denied on the ground that it was untimely. Also, the preliminary hearing should not have been stayed since defendant would not have been prejudiced had the preliminary hearing proceeded on the assumption that the incidents of which complaint had been made in the reports had occurred, without prejudice to the defendant's right to renew his motion in the superior court.

In the present case, however, Monica's use of a subpoena duces tecum for discovery purposes was not untimely in that he sought production of the records seven days before the date set for the preliminary hearing. No delay was requested.

Clearly, a defendant has a right to present an affirmative defense at a preliminary hearing, and he is entitled to proper discovery on timely motion. (Saulter v. Municipal Court, supra, at p. 248, fn. 4, 142 Cal.Rptr. 266.) As the court said in Mitchell v. Superior Court, 50 Cal.2d 827, 829, 330 P.2d 48, 50: “The exercise of these rights at the preliminary hearing may enable the defendant to show that there is no reasonable cause to commit him for trial and thus avoid the degradation and expense of a criminal trial.”

Petitioner also contends that Monica did not follow normal discovery procedures and that such procedures are a prerequisite to serving a subpoena duces tecum on a third party.

The record, however, shows that on June 30, 1978, Monica filed a comprehensive discovery motion directed to the district attorney's office and the law enforcement agencies “under its control.” On August 4, 1978, a hearing on the discovery motion was held and discovery was ordered as to most of the requested items. At that time the deputy district attorney stated that he would not attempt to acquire the ordered discovery material from other state or federal agencies because such attempt would be futile. The trial court agreed that because other state agencies had indicated they would oppose any attempt to produce information concerning this case, the district attorney was excused from making futile requests to these agencies. Later, at the hearing on petitioner's motion to quash the subpoena duces tecum, the court stated that Monica had complied with all normal discovery procedures “to (his) satisfaction.”

Although the declaration does not describe how the normal discovery procedures were utilized, literal adherence to such a requirement in the present case is not a fatal error. In Pitchess v. Superior Court, 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305, defendant in a criminal proceeding served a subpoena duces tecum on a sheriff for production of records of misconduct by several deputy sheriffs. The sheriff resisted production on the grounds that the affidavits in support of the subpoena were insufficient to justify discovery because they failed to demonstrate “good cause” with adequate specificity as required by Code of Civil Procedure sections 1985 and 2036. The court, in rejecting this argument, stated at pages 535-536, 113 Cal.Rptr. at page 900, 522 P.2d at page 308, “(This) contention is premised on the erroneous assumption that the statutory provisions governing discovery in civil actions apply to criminal proceedings. (P) 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 reasonably accessible information. (Citations.) (P) In accordance with these principles, it has long been held that civil discovery procedure has no relevance to criminal prosecutions. (Citations.)”

Here, it appears that Monica did in fact utilize normal procedures for discovery and since the declaration stated that the requested information was “not accessible to the defense,” implying that discovery procedures were utilized, it cannot be said that the court erred in failing to quash the subpoena.

Petitioner also contends that the court erred in failing to quash the subpoena because it fails to intelligibly describe the papers or documents requested and, further, because it is not supported by good cause. Whether a motion to quash a subpoena duces tecum should be denied or granted is a matter solely within the discretion of the court. (Pitchess v. Superior Court, supra, at p. 535, 113 Cal.Rptr. 897, 522 P.2d 305.) Here, neither Monica nor his attorneys could be privy to the internal filing system of petitioner. Without such knowledge Monica could not describe with any greater particularity the papers or documents in petitioner's possession. Petitioner's contention that the search would be burdensome is not supported by any evidence in the record. The subpoena is not a blanket request of all relevant information.

Most of the information requested concerns various persons who had a motive to kill Petro. As to each of them, information is requested so that Monica can attempt to establish at the preliminary hearing that one of these persons was responsible for killing Petro.

As to the request for information about Ferritto, it appears that Ferritto will be the principal witness against Monica and has already testified that Monica hired him to kill Petro. The information requested would tend to establish bias on the part of Ferritto and would thus be admissible evidence at the preliminary hearing.

The record further shows that at the hearing on the motion to quash the subpoena, the court considered each item in great detail. Extensive argument was heard as to whether each request was supported by good cause. The court granted petitioner's motion to quash 31 of the items, ordered many of the other items to be put “off calendar” until later motions for discovery of informants and disclosure of electronic surveillance be heard, granted petitioner's motion to some of the items in part and altered some of the others. It is apparent from the record that the court gave considerable thought to its decisions. It severely limited the scope of the subpoena in some instances and in others only mildly limited its scope. Clearly the court's discretion was not exercised in an arbitrary manner but in a careful and thoughtful way. Under these circumstances we cannot say the court abused its discretion in concluding that Monica described the papers and documents with sufficient particularity; that such information is relevant to Monica's stated defense; and that it will facilitate the ascertainment of the facts and a fair trial. (See Pitchess v. Superior Court, supra, 11 Cal.3d 531, 535, 113 Cal.Rptr. 897, 522 P.2d 305; Ballard v. Superior Court, 64 Cal.2d 159, 167, 49 Cal.Rptr. 302, 410 P.2d 838.)

Petitioner also argues that Monica's request for discovery was unnecessary since he can, through his own efforts, obtain the material sought. However, the declaration in support of the subpoena states that the requested information is not accessible to Monica or his counsel. Further, it is apparent that the police and intelligence material requested is in the possession of petitioner, that it is not available to public examination and that petitioner is actively resisting disclosure of any of this information. Clearly, the only way this information will be revealed to Monica or his attorneys is through a subpoena. (Cf. In re Valerie E., 50 Cal.App.3d 213, 219, 123 Cal.Rptr. 242.)

Petitioner contends that the subpoena should have been quashed as to Evelle J. Younger, who at the time was the Attorney General of California and as to B. James Glavas, the chairman of the Organized Crime Control Commission because compelling need for their testimony was not established and “prejudice and injustice will be caused to the subpoenaing party.”

The court, in denying petitioner's motion to quash as against Younger and Glavas, stated, “. . . I am not requiring that they be here. I am merely requiring that they be here through their representative.” Monica's counsel agreed that they never intended that Younger or Glavas be present during the motion to quash.

Under these circumstances, where no prejudice is revealed, the court did not abuse its discretion in failing to quash the subpoena as to Younger and Glavas.

Additionally, Monica contends that our order directing the municipal court to not delay the preliminary hearing solely because of this appeal should be vacated as moot. He requests that we take judicial notice of the proceedings before the municipal court on June 29, 1979, wherein it is revealed that there is an agreement whereby, in exchange for defense counsel agreeing to a bifurcated preliminary examination the deputy district attorney has agreed to postpone the second half of the preliminary hearing until all discovery proceedings have been completed. Despite any agreement to the contrary, judicial efficiency demands that preliminary hearings be held within a reasonable time. As the court stated in Saulter v. Municipal Court, supra, 75 Cal.App.3d 231, 247, 142 Cal.Rptr. 266, 277, “It would be the height of judicial inefficiency and futility if in a case like this, the hearing of a preliminary examination was delayed a year for discovery motions only to produce a finding of lack of probable cause on the evidence already available.”

However, in view of our decision herein it seems ridiculous to have the preliminary hearing held at this late date just before petitioner is forced to comply with the subpoena. For this reason our order not to delay the preliminary hearing should be vacated.1

The order is affirmed.

ADDENDUM A

STIPULATION

It is hereby stipulated between counsel for appellants and counsel for real party in interest that:

1. The body of the final authorized subpoena duces tecum, upon which this litigation shall proceed, is as follows:

The person named on the face of this subpoena duces tecum has in his possession or under his control the following documents, reports, memoranda or other materials relating to this case:

1. (a) All writings, reports, recordings, memoranda or other accounts (hereinafter referred to as “all information”), of the five years preceding Julius Petro's death indicating:

1. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Artie Tamburello and Julius Petro. Also, all information concerning the substantial debts owed by Tamburello to Petro.

2. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Sonny De Falco and Petro or between Sonny De Falco and his associates. Also, all information concerning the loan sharking activities engaged in by De Falco and Petro as partners.

3. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between James Fratianno and Petro. Also, all information concerning approximately $40,000 owed by Petro to Fratianno, alleged threats made by Fratianno to Petro and Petro's expressed desire to move into Fratianno's prostitution trade.

4. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Shelton Stern and Petro. Also, all information concerning statements made by Stern to Clifford Sidenstick advising him to keep his mouth shut about Petro's murder.

5. all information concerning allegations made by Clifford Sidenstick that Petro owed the Mafia $40,000 which he had collected but not paid over.

6. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Robert Emmet Walsh and Petro. Also, all information concerning Walsh's involvement with Ferritto in burglary activities and Walsh's involvement in the death of Petro.

8. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Frank “the Bomp” Bompensiero and Petro.

9. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Richard Patrick Viccarone, a confederate of Ferritto, and Petro. Any information that Petro informed on Viccarone, leading to his arrest in San Mateo.

10. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Theodore Rocco Ricci, a confederate of Ferritto, and Petro. Any information that Petro informed on Ricci, leading to his arrest in San Mateo.

11. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Frank Vellotta and Petro. Also, all information concerning an occasion when Velotta prevented Petro from attacking Raymond Ferritto with a butcher knife and any information that Petro assaulted Velotta's wife.

12. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Leo Moceri and Petro. Also, all information concerning approximately $10-15,000 owed to Moceri by Petro which money was paid off by Sonny De Falco after Petro's death.

13. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Eddie Stevens and Petro.

14. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Al Loeb and Petro. Also, all information concerning a loan of $75,000 from Loeb to Petro and the activities of James Fratianno in attempting to go after the money after it was not paid back.

15. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Pete Rooney and Petro. Also, all information concerning attempts by Ferritto and Petro to burn or bomb Rooney's nightclub, P.J.‘s, and attempts by Petro to extort approximately $5,000 from Rooney.

16. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Raymond Ferritto and Petro. All information concerning a fight between Ferritto and Petro where Petro went after Ferritto with a butcher knife.

17. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Happy Meltzer and Petro. All information concerning orders given by James Fratianno, Frank Bompensiero or Nick Licata to Petro to kill Happy Meltzer.

18. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Louis Dragna and Petro including Dragna's involvement in Petro's orders to kill Happy Meltzer.

19. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Frank Tedesco and Petro.

20. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Robert Teagey and Petro. All information regarding any part Petro might have played in informing on Teagey, muscling him out of his interest in 7-11 Tours, or trying to hit him with a board on an occasion when Frank Velotta intervened.

21. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Peter Di Gravio and Petro. All information indicating that Petro traveled to Cleveland shortly before Di Gravio's death and had a part in his murder.

22. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Marty Eschman and Petro including information that Petro attempted to extort Eschman on orders of Fratianno, Licata or Bompensiero.

23. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Sammy Meyers and Petro including information that Petro attempted to extort Meyers on orders of Fratianno, Licata or Bompensiero.

24. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Sam Farkus and Petro.

25. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Eddie Gordon and Petro.

27. all information concerning Petro's involvement in the vending machine business specifically including strong-arm attempts to force his machines on proprietors.

31. all information concerning an attempted assault by Petro on Frank Velotta using an iron pipe.

32. all information concerning a rivalry between Petro's partner Sonny De Falco and Jerry Kilgore, both of whom ran sporting news sheets. Also, all information concerning an occasion when Kilgore's enterprise, J. K. Sports Journal, had its telephone cables sawed in half and its windows shot out.

34. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Bobby Knausse and Petro. All information that Petro played a part in Knausse's murder in Cleveland.

35. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Joe Sanzo and Petro. All information that Petro attempted to kill Joe Sanzo.

36. all information of threats, disputes, quarrels, moneys owed or moneys due, violent acts or extortion between Sonny Orling and Petro. All information that Petro bombed Orling and Pete Rooney's club, P.J.‘s, and all information that Petro attempted to extort Orling for a share of the club's take.

44. all information concerning a meeting between Bompensiero, Fratianno and others in San Diego shortly after Petro's death.

4(k). all crimes which Ferritto has committed but has not been prosecuted for.

2. Appellants do not by this stipulation waive or abandon any claim of error heretofore made in this case relevant to the language or contents of the above final authorized subpoena duces tecum.

Dated: 8/25/80

FOOTNOTES

1.  The Attorney General's petition for a rehearing was granted in order to resolve certain disputed portions of the subpoena duces tecum. The parties, by stipulation filed with this court, have now agreed on the final wording of the subpoena duces tecum, a copy of which is appended hereto as Addendum A to this opinion.

HASTINGS, Associate Justice.

KAUS, P. J., and ASHBY, J., concur.