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IN RE: Wilbur F. LITTLEFIELD, on Habeas Corpus.
Petitioner, Wilbur F. Littlefield, the Public Defender of Los Angeles County, challenges an order of the municipal court holding him in contempt of court for refusing to comply with a discovery order made pursuant to Penal Code section 1054.3, part of the “reciprocal discovery” provisions of Proposition 115 (Pen.Code, § 1054 et seq.).1
FACTS
In a misdemeanor complaint filed May 9, 1991, Armando Orosco Montiel (“defendant”) was charged with driving under the influence of alcohol or drugs, driving with a blood alcohol level of 0.08 percent or higher, and driving without a license. The following language appeared at the end of the complaint: “Pursuant to Penal Code Section 1054.5(b), the People are hereby informally requesting that defense counsel provide discovery to the People as required by Penal Code Section 1054.3.”
Defendant was arraigned on the charges in the complaint on the same date it was filed. He was represented by Deputy Public Defender Chapman. On June 12, 1991, the parties appeared in court for jury trial and the case was trailed to June 17, 1991. During the June 12, 1991 proceedings, Mr. Chapman requested that a defense witness, Sandra Pavon, who was present in court, be ordered back for June 17, 1991. Ms. Pavon was placed “on call” to Mr. Chapman, who had her phone number. The prosecution made an oral motion “for discovery of any statements of the defense witness that [the defense] would intend to use.” The court replied, “I will allow all discovery to be handled informally between counsel. The Court does not involve itself in discovery matters unless there is a failure to comply.”
When the defense answered ready for trial on June 17, 1991, the prosecutor informed the court that the defense had not complied with the prosecution's informal discovery request. The court ordered the defense to comply with the prosecution's discovery request forthwith. Mr. Chapman, having conferred with his “supervising attorney from the appellate section,” then requested a stay of any discovery order so he could file “appropriate Points and Authorities with respect to the very serious Constitutional issues involved․” After a short recess, a 29–page “Opposition to Request for Prosecution Discovery” and a “Demand For Fifteen Days Notice of Prosecution Motion” were filed by Mr. Chapman. Mr. Chapman argued that under rule 19 of the Uniform Rules of the Municipal Courts of Los Angeles County, the defense was entitled to 15 days' formal notice of any prosecution request for a formal discovery order. The court stated its interpretation of the Penal Code differed from that of defense counsel, and it found that section 1054.5 prevailed over the local rule cited by the defense.2 The court also found that the defense request for 15 days' notice of the prosecution's motion, in order to respond to the prosecution's request for discovery, was untimely. The court noted that the prosecution's discovery request was first made on May 9, 1991, was reiterated orally on June 12, 1991, and was not opposed until June 17, 1991, when a panel of prospective jurors was waiting outside the courtroom. The court again ordered the defense to provide the discovery immediately, pursuant to section 1054.7.3
Since the court had already made its immediate disclosure order and the deputy public defender had declined to comply, the court presumed that “Mr. Littlefield is intending to challenge [the order] directly.” The court put the matter over to the next day for further discussion of which of the sanctions authorized by section 1054.5 would be appropriate. When the parties appeared in court the next day, June 18, 1991, Mr. Chapman requested that the court not impose any sanction which would prejudice the defendant. The court then stated it was left with “no further option to consider other than a contempt proceeding.” The contempt hearing was set for the next day, June 19, 1991, and apparently trailed to June 20, 1991.
Petitioner appeared in court on June 20, 1991, accompanied by his attorney, Deputy Public Defender Albert Menaster. Petitioner filed with the court a “Brief in Opposition to Contempt Citation.” After extensive oral argument, the court made a finding that “there is a reasonable and likely possibility that Sandra Pavon is a witness who has material information with respect to this case, and the defense is under an obligation to provide either the witness' address or obtain the address so the prosecution may interview the witness.” The court further found that the defense intended to call Ms. Pavon as a witness and was able to obtain her address, because the defense had her phone number. The court ordered the defense to provide Ms. Pavon's address to the prosecution. The court alternatively ordered that the defense make Ms. Pavon available in court the next day. Petitioner respectfully declined to obey the court's order.
The court then stated, although it held the Los Angeles County Public Defender in the highest esteem, it had considered the explanation of the defense to the contempt charge and found the explanation “pales in comparison to the aggravating aspect of this refusal to comply with a lawful Court order.” The court also stated: “This is not a contempt which has occurred in the heat of trial with emotions running high or where a thoughtless remark or deed might have otherwise been avoided upon careful reflection. This is instead a contempt of contemplation, of study, and of some degree of calculation. It is in this Court's opinion a contempt which, in refusing to abide by a court order in this particular case, strikes at the very heart of the judicial system because it is a contempt which denies the sovereign power of the bench to be an arbiter of legal disputes. [¶] The precedent set by this action—that being the ability of any attorney who has a personal disagreement with the wisdom or validity of any law or ruling of the Court to defy either the law or the Court—is not a precedent that this Court may tolerate lightly.”
The court then asked petitioner if he would reconsider his position. Petitioner respectfully refused, stating that the Supreme Court had not yet ruled on the constitutionality of the reciprocal discovery provisions of Proposition 115, and “I feel it would be a gross neglect of my duty if I did not wait until the Supreme Court made a decision.” The court suggested that until that provision was invalidated by the Supreme Court, it was the law. The court found beyond a reasonable doubt that petitioner was in contempt of court, fined him $1,000, and sentenced him to 5 days in jail. The court indicated it would stay the sentence for 90 days to give the defense a chance to seek relief in this court.
Defendant's trial went forward on June 27, 1991, and the jury found him not guilty of all charges. Ms. Pavon testified at the trial on June 27, 1991, on behalf of the defense. Nothing in the record indicates that the defense complied with the court's discovery order.
On July 2, 1991, Mr. Chapman asked the court to reconsider its contempt finding in view of the revelation that defense witness Ms. Pavon had been at the scene of defendant's arrest and the police could have, but did not, obtain her address at that time. The court declined to withdraw its contempt order because the above “does not, in the Court's mind, excuse the conduct of contempt by the defense who refused to abide by a lawful Court order.”
The written contempt order was signed on June 24, 1991, but was not filed until July 2, 1991. On or about July 3, 1991, petitioner filed a petition for writ of habeas corpus in the superior court. The municipal court and the prosecution filed responses. The superior court denied the petition on August 29, 1991. This court summarily denied the petition by an unpublished opinion filed February 20, 1992. On April 23, 1992, the Supreme Court granted petitioner's petition for review, transferred the matter to this court, and ordered us to vacate our summary denial and issue an order “returnable before [this] court when the matter is ordered on calendar, directing the [municipal court]” to show cause why the relief prayed for should not be granted. We issued such an order on June 10, 1992, and heard oral argument on July 7, 1992.
DISCUSSION
Several of the issues raised by petitioner have been resolved adversely to him since the contempt order was filed. These include petitioner's constitutional challenges to the reciprocal discovery provisions of Proposition 115, upheld in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304, and the contention that these reciprocal discovery provisions do not apply in misdemeanor cases. (Hobbs v. Superior Court (1991) 233 Cal.App.3d 670, 284 Cal.Rptr. 655.)
Petitioner raises a number of objections to the contempt order itself, none of which we find to be persuasive. Petitioner contends that the order was invalid because it was not filed until 12 days after the contempt hearing. Certainly, there may be due process implications where, for example, the court does not expeditiously file its order and the contemner is immediately remanded (In re Jones (1975) 47 Cal.App.3d 879, 120 Cal.Rptr. 914 [contemner was remanded immediately for a 20–day jail sentence; written contempt order did not issue until 8 days later] ), or where the court's failure to enter an order jeopardizes the contemner's ability to seek review in a higher court (In re Easterbrook (1988) 200 Cal.App.3d 1541, 244 Cal.Rptr. 652 [written order not filed until after the contemner, an attorney, filed a petition for writ of habeas corpus].) That is not the case here, however. The contempt order was stayed for 90 days and remains stayed to this date. Petitioner has not been under immediate threat of incarceration, and, quite obviously, he has not been deprived of the opportunity to seek appellate review. Moreover, the contempt order was signed by the judge 4 days after the hearing. It is not clear from the record why the order was not filed by the clerk for 8 days thereafter.
Petitioner also contends the order of contempt is invalid in that it expressly incorporates by reference the reporter's transcript of the relevant proceedings and the written order is inadequate without the transcript.4
Code of Civil Procedure section 1211 provides: “When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.” The purpose of the requirement of an order reciting the facts of the contempt is to permit the correctness of the order to be reviewed on appeal. (In re Battelle (1929) 207 Cal. 227, 255, 277 P. 725.) The “order adjudging a person guilty must be stated with sufficient particularity, description and detail to show without aid of speculation or reference to any extrinsic document that a contempt actually occurred.” (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 125, fn. 16, 116 Cal.Rptr. 713; Raiden v. Superior Court (1949) 34 Cal.2d 83, 86, 206 P.2d 1081.)
The validity of a contempt order may not be determined on appeal by reference to: (1) documents or transcripts merely referred to in the order (In re Battelle, supra, 207 Cal. at p. 256, 277 P. 725); (2) an affidavit filed by the trial court with the appellate court (Raiden v. Superior Court, supra, 34 Cal.2d at p. 87, 206 P.2d 1081); (3) the reporter's transcript where there was no written order and the oral statement of the court was inadequate (Nelson v. Superior Court (1955) 135 Cal.App.2d 531, 532–533, 287 P.2d 535); or (4) the reporter's transcript of the proceedings leading up to the order of contempt where the transcript is not referenced in the order (Ex parte Hoar (1905) 146 Cal. 132, 133, 79 P. 853; In re Rosen (1973) 31 Cal.App.3d 71, 73–74, 106 Cal.Rptr. 757; In re Smith (1976) 65 Cal.App.3d 291, 296, 135 Cal.Rptr. 5; Merritt v. Superior Court (1928) 93 Cal.App. 177, 181, 269 P. 547). In such cases, the contempt order is inadequate on its face and the appellate court may not resort to extrinsic evidence to validate the order. (Hawk v. Superior Court, supra, 42 Cal.App.3d at p. 125, fn. 16, 116 Cal.Rptr. 713.)
We have, however, been cited to and have discovered no cases which hold that a trial court's express incorporation of the reporter's transcript of the contempt proceedings into its order of contempt invalidates the order. Nor can we find any reason to so hold. As noted previously, the purpose of the order is to facilitate appellate review. Where the contempt takes place on the record, the reporter's transcript constitutes the most reliable means of such review. To invalidate the court's very detailed and particularized contempt order on this basis would be to elevate form to the level of dogma.
In any event, we conclude the order on its face, without reference to the incorporated transcripts, adequately describes with sufficient detail the facts constituting the contempt. It is clear from the order that the prosecution requested discovery pursuant to Penal Code section 1054 et seq. These sections clearly state that the prosecution is entitled to the name, address and statements of any witness the defense intends to call. It is also clear from the order that the prosecution expressly requested statutory discovery in relation to defense witness Sandra Pavon, who was on call to the defense. The order further reflects that the trial court ordered the defense to comply with this discovery request and petitioner willfully refused to provide this discovery to the prosecution. The court found petitioner to be in contempt. The court's order of contempt is particular, descriptive and detailed. It is not cursory or abbreviated. It provides a full and complete explanation of the events leading up to and constituting the contempt. Although it would have been preferable for the written order, on its face, to contain the express order of the court, its failure to do so does not make the order jurisdictionally defective. The order is stated with sufficient detail to show that a contempt occurred without the aid of extrinsic evidence.
Moreover, petitioner does not assert he did not completely understand the discovery order of the court. The order and the refusal to comply are unambiguous and unequivocal. Nor has this court had any difficulty in reviewing the validity of the order.
Petitioner further contends (1) the contempt order is deficient because it does not apprise him of the specific discovery order he failed to obey, (2) the prosecution's informal demand for discovery was “not sufficiently specific,” (3) the court exceeded its jurisdiction in making the discovery order because section 1054.3 does not authorize the court to direct the defense to obtain a witness's address (where the defense has only the witness's telephone number), and (4) the court had no authority to order discovery because the defense stated it did not intend to call Ms. Pavon as a witness (an untenable claim in view of the fact that Ms. Pavon was on call as a defense witness and, in fact, testified as a defense witness at defendant's jury trial, one week later).
The record in this case belies petitioner's claim that his refusal to comply with the discovery order was due to irregularities in the order itself. The record clearly establishes petitioner deliberately chose not to comply with the court's order based upon his ill-advised belief that he should stand on principle and not provide any discovery until the Supreme Court issued a decision on the validity of section 1054.3 and related statutes.
Petitioner was well aware of the nature and scope of the discovery being sought and had the ability to comply immediately with the court's order. The prosecution sought the discovery it was entitled to pursuant to section 1054.3. That discovery included the names and addresses of persons the defense intended to call as witnesses. The defense intends to call “as witnesses all persons it reasonably anticipates it is likely to call” as witnesses. (Izazaga, supra, 54 Cal.3d at p. 376, fn. 11, 285 Cal.Rptr. 231, 815 P.2d 304.) Clearly, the defense anticipated that Ms. Pavon would be called as a defense witness, in light of its request to have the court order her to remain on call to the defense. Therefore, the defense was required to provide Ms. Pavon's name and address to the prosecution.
Although section 1054.3 specifically requires the defense to provide both the names and addresses of defense witnesses, petitioner asserts that its discovery obligations were satisfied because the prosecution knew Ms. Pavon's name, the statute did not require disclosure of her telephone number (which the defense had), and the defense did not have her address. In other words, the court's discovery order was defective because it required the defense to obtain information it did not have. Petitioner has not asserted that Ms. Pavon's address was not available to the defense. Nor, has he asserted that there was some bona fide reason for not disclosing the address to the prosecution.
Prior to the passage of Proposition 115, when the obligation to provide discovery in criminal cases rested with the prosecution only, the prosecution was required not only to disclose relevant materials in its possession, but also was obligated to make a diligent, good faith effort to obtain and make available to the defense information which it did not have, but which was readily available. (People v. Coyer (1983) 142 Cal.App.3d 839, 843, 191 Cal.Rptr. 376; Engstrom v. Superior Court (1971) 20 Cal.App.3d 240, 243–244, 97 Cal.Rptr. 484.) For example, when the defense requested the “identity” of a material witness, the prosecution was obligated to provide not only the witness's name, “but all pertinent information which might assist the defense to locate him.” (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851, 83 Cal.Rptr. 586, 464 P.2d 42.) The prosecution was not permitted to “deliberately resolve[ ] to make no effort to learn the residence of the [witness] or to establish a way by which to locate him.” (Id. at p. 852, 83 Cal.Rptr. 586, 464 P.2d 42.) An acceptable alternative was to make the witness available to be subpoenaed or interviewed (see People v. Rios (1977) 74 Cal.App.3d 833, 141 Cal.Rptr. 677), an option which the municipal court offered the defense in this case.
Since “[t]he manifest intent behind [Proposition 115] was to reopen the two-way street of reciprocal discovery,” (Izazaga, supra, 54 Cal.3d at p. 372, 285 Cal.Rptr. 231, 815 P.2d 304), both the letter and the spirit of section 1054.3 require the defense to conform to the same rules which bound the prosecution prior to the passage of Proposition 115. Under those rules, the prosecution is not obligated to gather evidence it does not have or conduct an investigation to assist the defense, but neither is it entitled to thwart legitimate discovery efforts by refusing to obtain information which was readily available. Likewise, the defense cannot subvert the intent of the statute by failing, inadvertently or deliberately, to obtain the readily available address of a witness.
Petitioner further contends the defense did not receive sufficient notice. Specifically, petitioner contends he was entitled to 15 days' formal notice of the prosecution's intention to seek a court order directing petitioner to comply with the informal discovery request. Petitioner's claim is based on rule 19 of the Uniform Rules of the Municipal Courts of Los Angeles County, which provides: “Except as otherwise provided by law or rule, all notices of motion in criminal cases shall conform to the requirements of sections 1010 and 1005 of the Code of Civil Procedure and California Rules of Court, [r]ule 503(a).” Code of Civil Procedure section 1005, subdivision (b), requires 15 days' notice of motions (20 days if service is by mail). Code of Civil Procedure section 1010 request notices of motions to be in writing and accompanied by supporting papers.
The purpose of the reciprocal discovery provisions, enacted by the voters in Proposition 115, is “[t]o save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested,” and “[t]o save court time in trial․” (§ 1054, subds. (b) & (c).) The discovery provisions anticipate voluntary compliance with informal requests for discovery, but set forth flexible procedures for formal intervention by the court where necessary.
For example, if a party believes a disclosure should be denied, restricted, or deferred, the party may request that the court deny or regulate disclosure upon a showing of good cause. The court may permit the good cause showing to be made in camera. (§ 1054.7.) If a party refuses or fails to make any required disclosures within 15 days of the other party's informal request, the party seeking discovery may request court enforcement of the disclosure requirements. (§ 1054.5, subd. (b).) If the moving party shows that a party has not complied with an informal discovery request and that the moving party has complied with the informal discovery procedures, the court may enforce the discovery provisions. (Ibid.)
The discovery provisions thus contemplate as the general rule compliance with informal discovery requests and timely requests for protective orders if a party believes the request seeks privileged information or information for which there is good cause to deny or restrict disclosure. Court enforcement of the disclosure requirements is intended to be the exception to the general rule. Although not expressly required by the reciprocal discovery provisions, it is clear that prior to court enforcement of the disclosure requirements, due process requires that a party have notice and an opportunity to be heard.
It is not necessary that we formulate a hard and fast rule as to the type or length of notice the defense must be afforded of a prosecution discovery request. The reciprocal discovery provisions were designed to allow a court sufficient flexibility “to make any order, including immediate disclosure, necessary to enforce the discovery provisions of Proposition 115. In other words, Proposition 115 has set up a procedure to deal with problems associated with such time limits.” (Hobbs, supra, 233 Cal.App.3d at p. 696, 284 Cal.Rptr. 655.) If time limits are established by local court rules,5 courts “have authority under section 1054.5 to issue an order to shorten time or an ex parte order to deal with any time problems posed by the local court rule” (id.), provided such rules effectuate the purposes of the reciprocal discovery provisions and are consistent with due process considerations.
In this case, petitioner does not argue the defense did not receive notice, or that the defense did not receive an opportunity to be heard. The defense received the prosecution's informal request for discovery on May 9, 1991. At no time thereafter did the defense comply with the disclosure requirements or request a protective order from the court denying or restricting disclosure. On June 12, 1991, the date set for trial, the prosecution announced in open court that it had requested informal discovery and the defense had failed to comply with respect to Ms. Pavon. Mr. Chapman told the prosecutor that he refused to comply with the prosecutor's request. On June 17, 1991, the prosecutor requested court enforcement. Mr. Chapman asked for and received a short recess, in order to file opposition to the prosecutor's request. He filed a 29–page opposition. After extensive oral argument, the court ordered compliance. Mr. Chapman refused to comply. On June 20, 1991, the entire issue was again relitigated by petitioner and the trial court heard further extensive oral argument.
Nor does petitioner contend that he was prejudiced by the lack of any additional notice. This was a misdemeanor driving under the influence case; the only discovery at issue was the address of a defense witness, which was clearly available to the defense. Further, petitioner refused to comply with the court's discovery enforcement order, because he believed that the reciprocal discovery provisions were unconstitutional. The record establishes that he had no intention of complying with a court order requiring defense discovery. No amount of additional notice would have served any purpose other than delay.
Petitioner's argument that the prosecution's motion did not comply with rule 19 of the Uniform Rules of the Municipal Courts and Code of Civil Procedure section 1005, subdivision (b) is completely unpersuasive. Code of Civil Procedure section 1005, subdivision (b) provides that its time limits may be shortened by the court. Here, the court found that the defense's request for 15 days additional notice on the date set for trial, after more than a month's actual notice, was untimely. Moreover, the original request for discovery was in writing, and there were no issues as to the disclosures sought or the reason for noncompliance. We cannot say that the trial court abused its discretion, under the facts of this case, in failing to require strict compliance with the local rule. Strict compliance would have thwarted the purposes of the reciprocal discovery provisions.
This brings us to petitioner's final issue, that he should not have been held in contempt because he acted in good faith in refusing to comply with the court's order. Not only do we disagree with this contention, we take great exception to it. Petitioner, in effect, has asked us to hold that an attorney may decide which court orders he or she intends to obey, as long as the decision to disobey is made “in good faith.” Such a holding would create chaos in the trial courts of this state.6
A trial attorney is required to comply with all lawful orders of a trial court. If the attorney believes an order is unlawful, he or she should seek appellate review of the order by petition for writ of mandate where appropriate. If the order is not reversed or vacated by an appellate court, the attorney must promptly comply with the order. If the order is subsequently found to be prejudicially erroneous, any judgment against the attorney's client may be reversed on appeal. An attorney willfully and deliberately violates a court order at his or her peril, thereby risking an order of contempt. (Maness, supra, 419 U.S. at pp. 458–459, 95 S.Ct. at p. 591.)
If an attorney believes a court order directed at the attorney is unlawful and appellate remedies are inadequate, the attorney has an alternative to compliance. The attorney may refuse to comply with the court order in order to obtain meaningful precompliance appellate review “ ‘with the concomitant possibility of an adjudication of contempt if [the attorney's] claims are rejected on appeal.’ ” (Maness, supra, 419 U.S. at p. 460, 95 S.Ct. at p. 592.) An attorney may be justified in refusing in good faith to comply with a court order, however, the attorney's good faith will not exonerate him or her from an order of contempt if the attorney's claims are subsequently rejected on appeal. “Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.” (Id. at p. 458, 95 S.Ct. at p. 591.)
DISPOSITION
The petition for writ of habeas corpus is denied.
I. INTRODUCTION
I respectfully dissent from the order denying the habeas corpus petition. Although my heart is, and always will be, with my colleagues, intellectually I am persuaded for the two reasons set forth in this concurring and dissenting opinion that the order of contempt was invalid. First, the provisions of Penal Code section 1054 et seq.1 did not grant the trial court the power to order petitioner to either learn and disclose the address from Sandra Pavon or produce her in court for a purpose other than that of testimony.2 Second, the order of contempt was jurisdictionally defective because it improperly incorporated by reference reporter's transcripts and, without them, it failed to recite “facts with sufficient particularity to demonstrate on its face that petitioner's conduct constituted a legal contempt. [Citations.]” (In re Buckley (1973) 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 514 P.2d 1201.)
It is axiomatic that no valid order of contempt can be entered if the underlying order which is disobeyed is invalid. (Code Civ.Proc., § 1209, subd. (a)(5); In re Misener (1985) 38 Cal.3d 543, 558, 213 Cal.Rptr. 569, 698 P.2d 637.) The scope of a defense lawyer's discovery duties are set forth in section 1054.3 which states: “The defendant and his or her attorney shall disclose to the prosecuting attorney: [¶] (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. [¶] (b) Any real evidence which the defendant intends to offer in evidence at the trial.” In the present case, the defense did not have possession of Ms. Pavon's address. Of crucial importance is the fact that there is no evidence petitioner, Mr. Chapman, or defendant were aware of Ms. Pavon's address. There was no evidence petitioner, Mr. Chapman, or defendant advised her not to tell them her address. Further, there was no evidence Ms. Pavon had been subpoenaed or that any representative of the defense had been to her residence or place of business. On June 12, 1991, the day the case was set for trial, Mr. Chapman announced in open court in the presence of the prosecutor: “In this matter we have a witness in court, Miss Sandra Pavon. Could she be ordered back for that date?” When the court asked whether she could be on call, Mr. Chapman responded: “Yes. She has given me a phone number, and she can be on call.” Code of Civil Procedure section 1990 allows a court to order a person present in court to return. The issue presented in this case is the validity of the underlying order which directed petitioner to learn the address and provide it to the prosecutor or, in the alternative, produce Ms. Pavon in court.3
II. STATUTORY CONSTRUCTION
Because the language in sections 1054 et seq. does not unambiguously and clearly speak to the issues raised by the present case (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299), this is a matter of statutory interpretation and construction and a court's primary responsibility is to effectuate the voters' intent in the case of a law enacted pursuant to an initiative. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934.) This duty applies to the construction of the provisions of Proposition 115. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1072–1074, 2 Cal.Rptr.2d 160, 820 P.2d 262.) Based upon seven different statutory interpretation considerations, when considered together, section 1054.3, subdivision (a) does not permit a trial court to require defense counsel to learn and produce information not in the attorney's or client's possession or, in the alternative, to direct an on-call witness to appear in court for a reason other than to testify.
First, in interpreting a statute, a court first turns to the words of the enactment. (People v. Black (1982) 32 Cal.3d 1, 5, 184 Cal.Rptr. 454, 648 P.2d 104.) Nothing in the language of section 1054.3, subdivision (a) grants a trial judge the authority to order a lawyer to learn information which she or he does not know. Rather, all a court may do is order defense counsel to “disclose”; there is nothing in the statute which requires the attorney to learn information. Moreover, section 1054.3, subdivision (a) does not grant a judge the power to order defense counsel to produce any on-call witness in court for a purpose other than testimony, be the witness under subpoena or not.
Second, the express language of section 1054.7, which applies to disclosures made within 30 days prior to trial, indicates that the duty to reveal information only exists when the party knows or actually has possession of the data. As noted previously, there is no evidence defendant, Mr. Chapman, or petitioner knew Ms. Pavon's address. Hence, any discovery of the address by petitioner would have occurred within the 30 days prior to trial. Defendant was arraigned on May 9, 1991, and a pretrial conference was held on May 23, 1991. The trial date was June 12, 1991, and it was on that date Ms. Pavon was in court along with Mr. Chapman and the prosecutor. While Ms. Pavon was standing in the courtroom, the prosecutor moved “for discovery of any statements of the defense witness that they would intend to use.” 4 The court was first apprised of a potential discovery dispute on June 17, 1991. Therefore, as of that date, it was undisputed that no attorney for defendant knew Ms. Pavon's address. Any disclosure of that information would be governed by section 1054.7 which states in pertinent part: “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred.” (Italics added.) In the 30 days prior to trial, there is a duty to disclose only if the information is “known” or “comes into the possession” of the party. Under these circumstances, the disclosure duty can not exist absent knowledge or possession of the address.
Third, as a general rule, the prosecution is under no duty to secure evidence not in its possession. As will be noted, section 1054 et seq. cannot be construed to require the defense to disclose information it does not possess. Section 1054.1, which defines the prosecutor's discovery duties only requires government disclosure of specified information “if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” 5 Prior to the enactment of Proposition 115, there was no duty on the part of the prosecution to secure information it did not possess for delivery to the defense. The general rule of law was articulated by the California Supreme Court as follows: “It is significant, however, that the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused. Rather it is the accused who must act to protect his interests․” (In re Koehne (1960) 54 Cal.2d 757, 759, 8 Cal.Rptr. 435, 356 P.2d 179.) In People v. Hogan (1982) 31 Cal.3d 815, 851, 183 Cal.Rptr. 817, 647 P.2d 93, the Supreme Court held that no duty exists on the part of the police to obtain evidence “or to conduct any particular tests” [fn. omitted] or to “ ‘gather up everything which might eventually prove useful to the defense.’ [Citations.]” These general rules of law have found application in a number of circumstances. (Ibid. [no duty on the part of the authorities to take fingernail scrapings from a decedent's body]; Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 79, 81 Cal.Rptr. 348, 459 P.2d 900 [arresting officer has no obligation to advise a suspect of the right to secure a chemical test at her or his own expense]; In re Koehne, supra, 54 Cal.2d at p. 759, 8 Cal.Rptr. 435, 356 P.2d 179 [no responsibility on part of police officer in field to allow a suspect to call a doctor to arrange for a blood test to be used as defense evidence]; People v. Alexander (1983) 140 Cal.App.3d 647, 659, 189 Cal.Rptr. 906 [no prosecutorial duty to make notes of conversations with witnesses]; People v. Newsome (1982) 136 Cal.App.3d 992, 1004–1005, 186 Cal.Rptr. 676 [no governmental obligation to refrigerate a blood sample so as to later allow defense PGM testing]; People v. Watson (1977) 75 Cal.App.3d 384, 399, 142 Cal.Rptr. 134 [arresting officers had no responsibility to administer a blood test to a defendant which could later be used to determine voluntariness or diminished capacity issues]; People v. Jenkins (1974) 40 Cal.App.3d 1054, 1056–1057, 115 Cal.Rptr. 622 [no duty to take a blood test from a drunken defendant in order to assist him later at trial]; People v. McManis (1972) 26 Cal.App.3d 608, 617, 102 Cal.Rptr. 889 [duty to disclose existence of tape-recorded statements existed “when the prosecution finally became aware of them before trial.”]; People v. Macknic (1967) 257 Cal.App.2d 370, 374, 64 Cal.Rptr. 833 [no obligation to offer a “test” for presence of a drug in a defendant's system].) 6
These general rules of law limiting prosecutors' duties to assist in an investigation have specific application to the state's duty to secure addresses for the benefit of criminal defendants. In People v. Avila (1967) 253 Cal.App.2d 308, 330, 61 Cal.Rptr. 441, the Court of Appeal held, “Generally it is not the duty of the district attorney or public officials to locate or to assist a defendant in locating a witness whose address is unknown to him.” In People v. Sullivan (1962) 206 Cal.App.2d 36, 41, 23 Cal.Rptr. 558, the court reached the same conclusion as in Avila—the prosecution had no duty “to locate, or assist an appellant in locating, a witness whose address is unknown to appellant.” In People v. Berry (1962) 199 Cal.App.2d 97, 105, 18 Cal.Rptr. 388, the court stated, “It has been held that it is not a duty of public officials to help a defendant to locate witnesses whose names or whereabouts are unknown.” The prosecutor has no duty, apart from that imposed by the Constitution or section 1054.1, to assist a defendant in securing a witness's address.
There is no reason to believe the framers of Proposition 115 or the voters intended to abrogate this aspect of California criminal case discovery law. Nothing in the purposes stated in the preamble of Proposition 115 indicate an intent to repeal the foregoing rule of law. (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 342, 276 Cal.Rptr. 326, 801 P.2d 1077.) Further, none of the judicially enunciated general reasons for the adoption of the initiative as a whole evidence a desire to repeal the rule which excuses the prosecution from investigating on behalf of the defense. (Ibid.) Additionally, the specific purpose of section 1054 et seq. was described by our Supreme Court as follows: “The manifest intent behind the measure was to reopen the two-way street of reciprocal discovery. The preamble to Proposition 115 states that ‘comprehensive reforms are needed to restore balance and fairness to our criminal justice system.’ (Prop. 115, § 1(a), italics added.) In order to accomplish this goal, the voters intended to remove the roadblock to prosecutorial discovery created by our interpretations of the state constitutional privilege against self-incrimination as developed in the Prudhomme [v. Superior Court (1970) 2 Cal.3d 320, 322–326, 85 Cal.Rptr. 129, 466 P.2d 673] line of cases. The preamble further states, ‘In order to address these concerns and accomplish these goals, we the people further find that it is necessary to reform the law as developed in numerous California Supreme Court decisions․' [Citation.]” (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372, 285 Cal.Rptr. 231, 815 P.2d 304.) As can be readily noted, none of the authority describing the intentions of the framers or the voters indicates that the aforementioned limitations on governmental duties to investigate on behalf of the defense were effected by the initiative's adoption.7
The fact that the voters or the framers had no such intent is of crucial importance. In Izazaga, the Supreme Court emphasized that the initiative provided for “reciprocal discovery” (id. at pp. 363–364, 371–374, 378, 285 Cal.Rptr. 231, 815 P.2d 304) or reciprocity in the discovery process. (Id. at pp. 374, 376–377, 285 Cal.Rptr. 231, 815 P.2d 304.) The court further noted that “the new discovery chapter should, if possible, be interpreted as providing [for] such reciprocity.” (Id. at p. 373, 285 Cal.Rptr. 231, 815 P.2d 304.) All of this is relevant to the present case for the following reasons. Petitioner was ordered to secure a witness's address so as to assist his client's adversary—something the prosecution could not be ordered to do absent some constitutionally imposed duty to do so. Unless an address is in the prosecuting attorney's possession, as noted previously, section 1054.1 does not require disclosure to defense counsel. In the alternative, petitioner was ordered to produce a witness in court so that an interview could be conducted. No prosecutor could be lawfully ordered to compel a witness to come to court unless there was some constitutional basis for such an order. Nothing in the express language of section 1054.1 empowers a court to order a prosecutor to force a witness to appear in court. There is no basis for concluding the voters or the initiative's framers intended to impose a greater burden on the defense in the discovery phase of criminal proceedings than on the prosecution. Since, there could be no duty under the terms of the initiative on the prosecution to learn an address to as to assist the defense in its investigation, it should not be construed to impose such a burden on the counsel for the accused. The same is true as to the order to produce Ms. Pavon in court.
Fourth, in construing Proposition 115, or any enactment for that matter, a court should adopt a construction “to avoid constitutional doubts.” (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1074, 2 Cal.Rptr.2d 160, 820 P.2d 262; People v. Smith (1983) 34 Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149.) If section 1054 et seq. requires the defense to secure information not within counsel's knowledge or to bring a witness to court, things a prosecutor could not be required to do, then the discovery provisions of Proposition 115, as so construed, would be of doubtful constitutional validity. In Izazaga v. Superior Court, supra, 54 Cal.3d at pp. 372–377, 285 Cal.Rptr. 231, 815 P.2d 304, our Supreme Court emphasized that section 1054 et seq. was constitutional because it provided for the reciprocity required by the Due Process Clause. Citing Wardius v. Oregon (1973) 412 U.S. 470, 474–479, 93 S.Ct. 2208, 2211–2214, 37 L.Ed.2d 82 and Williams v. Florida (1970) 399 U.S. 78, 81–86, 90 S.Ct. 1893, 1895–1898, 26 L.Ed.2d 446, the Izazaga majority held that: there was no due process violation because section 1054 et seq. should be interpreted to “favor an implicit requirement of reciprocity” (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 373, 285 Cal.Rptr. 231, 815 P.2d 304); any imbalance in the prosecutorial and defense disclosure duties favored the defendant as it constitutionally must (id. at p. 374, 285 Cal.Rptr. 231, 815 P.2d 304); the timing of the duty to disclose a witness's identity, i.e., when the lawyer “intends” to call the witness, was the same for both the prosecution and defense and reciprocity was thereby assured (id. at pp. 375–376, 285 Cal.Rptr. 231, 815 P.2d 304); and “the new discovery chapter enacted by Proposition 115 creates a nearly symmetrical scheme of discovery in criminal cases, with any imbalance favoring the defendant as required by reciprocity under the due process clause.” (Id. at p. 377, 285 Cal.Rptr. 231, 815 P.2d 304.) At another point the court held, “We note the near mirror-image symmetry under California's new discovery chapter.” (Id. at p. 377, fn. 14, 285 Cal.Rptr. 231, 815 P.2d 304.) Further, the court stated: “Following disclosure of the prosecution's witnesses, on demand the defense must disclose only the witnesses (and their statements) it intends to call in refutation of the prosecution's case, rather than all the evidence developed by the defense in refutation. (See §§ 1054.1, 1054.3.) Thus, the defense is not required to disclose any statements it obtains from prosecution witnesses that it may use to refute the prosecution's case during cross-examination. Were this otherwise, we would be presented with a significant issue of reciprocity.” (Ibid., original italics.) To uphold the contempt order in the present case, it would require the defense to engage in acts not required of the prosecution thereby, raising at the very least, a question of whether there has been a violation of the reciprocity requirement imposed by the Due Process Clause of the Fourteenth Amendment as interpreted in Izazaga. Therefore, it is appropriate to construe the new discovery chapter as not authorizing the challenged discovery order.
Fifth, in interpreting section 1054 et seq. in Izazaga, the Supreme Court gave a qualified construction to the duties of defense counsel to disclose information. The court noted that the new discovery statute was valid when “[p]roperly construed.” (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 373, 285 Cal.Rptr. 231, 815 P.2d 304.) At one point our high court held: “Reciprocity under the due process clause requires notice that the defendant will have the opportunity to discover the prosecutor's rebuttal witnesses (and their statements) following discovery of defense witnesses by the prosecutor. [Citation.] Reciprocity requires a fair trade, defense witnesses for prosecution witnesses, and nothing more.” (Id. at p. 377, 285 Cal.Rptr. 231, 815 P.2d 304; italics added.) At another point, while discussing the duty to disclose statements, the court stated, “Under the new discovery chapter, discovery is limited to relevant statements and reports of statements of defense witnesses and conditioned upon the defendant's intent to call the witnesses at trial.” (Id. at p. 380, 285 Cal.Rptr. 231, 815 P.2d 304, original italics.) At another point, the court referred to section 1054 et seq. as the “limited and conditional discovery authorized by the new discovery chapter․” (Ibid.) The restricted manner in which the court in Izazaga construed the new discovery chapter is an additional factor which warrants interpreting it to preclude the issuance of the type of the order under review.
Sixth, the People argue that the alternative order to either find out Ms. Pavon's address or produce her in court was appropriate because section 1054.5, subdivision (b) which sets forth the enforcement provisions of the new discovery law, states as follows: “Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” The People focus on a single phrase in section 1054.5, subdivision (b) which states that court “may make any order necessary to enforce the provisions of this chapter․” However, as noted previously, petitioner did not fail to comply with the disclosure provisions of section 1054.3, subdivision (a) and the enforcement powers of a court do come into play until, in the words of section 1054.5, subdivision (b), “a party has not complied with ․ Section 1054.3․” Since he did not fail to comply with section 1054.3, subdivision (a) as construed, the enforcement powers of section 1054.5, subdivision (b) did not justify the order to petitioner.
Seventh, although the parties do not directly discuss the question, the fact that Ms. Pavon was on call did not grant the court the authority to order defense counsel to have her appear in court for a purpose other than testimony. As previously noted, because there was no duty of disclosure pursuant to section 1054.3, subdivision (a), the residual powers under section 1054.5, subdivision (b) did not grant the court authority to act. Further, the existence of Ms. Pavon's on call-status did not, under currently existing law, permit the trial court to order her appearance for purposes of submitting to an interview by the prosecution. The statutory purpose of a subpoena is to compel a witness to appear before a court (§ 1326) in order to “testify as a witness” or “bring any books, documents, or other things under the witness's control which the witness is bound by law to produce in evidence.” (Code Civ.Proc., § 1985, subd. (a).) Cases discussing the quashing of subpoenas focus on the potential testimony of a witness. (See In re Finn (1960) 54 Cal.2d 807, 813, 8 Cal.Rptr. 741, 356 P.2d 685; Lucas v. Superior Court (1988) 203 Cal.App.3d 733, 740, 250 Cal.Rptr. 76; People v. Fernandez (1963) 222 Cal.App.2d 760, 768, 35 Cal.Rptr. 370.) Appellate court decisions have characterized the subpoena power as one relating to testimony or document production in court and its use as an “investigatory procedure” (People v. Mersino (1965) 237 Cal.App.2d 265, 269, 46 Cal.Rptr. 821) or for purposes of compelling a deposition in a misdemeanor case are prohibited. (People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 530–532, 143 Cal.Rptr. 609, 574 P.2d 425.) As to the inherent power of the court, the power to compel attendance is for testimonial purposes (Code Civ.Proc., § 128, subd. (a)(6)) and in civil cases “the court has no inherent power to order the physical presence of a party before it, except as a witness․” (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1008, 98 Cal.Rptr. 855.) In misdemeanor cases, the court does not even have the power to order a defendant to personally appear prior to trial. (§§ 1043, subd. (e), 977, subd. (a); see Beasley v. Municipal Court (1973) 32 Cal.App.3d 1020, 1025–1027, 108 Cal.Rptr. 637.) In the absence of specific statutory authority allowing a court to order a witness to be present to submit to an interview, it is inappropriate for courts to fashion such a remedy. (See Reynolds v. Superior Court (1974) 12 Cal.3d 834, 845–850, 117 Cal.Rptr. 437, 528 P.2d 45.)
To sum up, utilizing standard canons of judicial construction, section 1054.3, subdivision (a) should not be construed to permit a court to require a defendant to disclose information it does not have or to present a witness in court for a reason other than to testify. The language of sections 1054.3, subdivision (a) and 1054.7 do not permit such an order. No intent existed on the framers' or voters' part to abrogate the rule excusing prosecutors from investigating on behalf of the defense. As a result, no reciprocal obligation to assist the prosecution exists. To create a new responsibility for the defense to uncover information for the prosecution's benefit when the new discovery chapter cast no such obligation on the attorneys for the state, would raise constitutional problems which can be avoided by a narrow yet reasonable construction of the statutes in question. The Supreme Court narrowly interpreted the defense duties in Izazaga. No authority permits a judge to order a non-party to come to court just to be interviewed. Collectively, the foregoing considerations warrant a construction of section 1054.3, subdivision (a) which invalidates the order under review. Further, section 1054.5, subdivision (b) does not permit the court to formulate such orders because section 1054.3, subdivision (a) does not require disclosure of information neither the attorney nor the accused possesses.
III. THE ORDER
The document entitled “ORDER AND JUDGMENT OF CONTEMPT” fails to comply with the jurisdictional requirement that the written contempt order recite all of the relevant facts which support the judgment of contempt. The following constitutes the order and judgment in its entirety: “[¶] 1. On May 9, 1991, defendant Armando Orosco Montiel was arraigned in Division 3 of the Glendale Municipal Court on numerous alleged vehicle code violations. The Office of the Los Angeles County Public Defender was appointed to represent the defendant. Deputy Public Defender Stuart Alan Chapman accepted the appointment on behalf of Wilbur F. Littlefield, Public Defender of Los Angeles County. On the same date, the prosecution requested informal pretrial discovery pursuant to Penal Code Section 1054 et seq. No objection was raised by the defense on the record to the prosecution's discovery request. [¶] 2. On June 12, 1991, the Montiel case was on calendar for trial. Mr. Chapman announced ‘ready for trial’ on behalf of the defendant. The trial was trailed to June 17, 1991. Mr. Chapman asked the Court to order a defense witness, Ms. Sandra Pavon, to return to court on the next date. [¶] 3. On June 17, 1991, the case was again called on the trial calendar. Both the People and the defense announced they were ready to proceed. The prosecutor informed the Court that the defense had failed to provided any discovery, either formally or informally, and requested discovery relating Ms. Pavon. The defense thereupon filed points and authorities respecting their opposition to the discovery request, and filed the demand for fifteen days notice of request. After reading and considering each motion, and upon hearing argument, the Court denied the defense motion to oppose discovery and ordered the defense to comply with the discovery request. Mr. Chapman stated it was the position of the Los Angeles County Public Defender to refuse to comply with any such order and thereupon refused to yield the requested information. [¶] 4. The Court considered the numerous options for noncompliance with Penal Code Section 1054.5(b), and made certain findings. The transcript of those findings from June 17, 1991 are incorporated into this Order and Judgment by reference. [¶] 5. On June 20, 1991, the Court held a hearing to determine whether the Los Angeles County Public Defender should be held in contempt of court for refusing to comply with the Court's discovery order. Present representing the Office of the Los Angeles County Public Defender was Public Defender Wilbur F. Littlefield (hereinafter, ‘contemner’). After reviewing the history of the proceedings and upon hearing lengthy argument from contemner's counsel, the Court directly ordered contemner to comply forthwith with the discovery order. [¶] 6. Contemner refused to obey the order. [¶] 7. The court heard and considered contemner's explanation for his conduct and rejected it because, in light of controlling federal and state authority, contemnor's position cannot be entertained in good faith. [¶] 8. The Court again ordered contemner to comply with the mandate and warned contemner that any further refusal would necessitate a finding of contempt of court. [¶] 9. In the immediate view and presence of the Court, contemner willfully failed to comply with the order of the Court by refusing to provide discovery to the prosecution. [¶] 10. The Court judged contemner guilty of contempt of court beyond a reasonable doubt under Code of Civil Procedure Section 1209(a)(5). [¶] 11. The transcript of the June 24, 1991 proceeding is incorporated by reference into this Order and Judgment. [¶] GOOD CAUSE NOW APPEARING: contemner is sentenced to pay a fine in the sum of One Thousand Dollars ($1,000.00) and spend five (5) days in the county jail. [¶] Execution of sentence is stayed to August 5, 1991. [¶] The clerk of the court is ordered immediately to file this order and enter the contempt upon the docket of the Court and to deliver to contemner a copy of this Order and Judgment.”
In the case of a direct contempt, the trial judge has a duty to prepare an order setting forth the circumstances of the contempt. Code of Civil Procedure section 1211 states: “When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.” The applicable standard of review of a written order of contempt was described by the California Supreme Court as follows: “The order adjudicating a direct contempt is valid only if the recital of facts therein shows acts which constitute a contempt. If the facts so recited do not constitute a contempt the order is not enforceable. [Citations.] Because of the penalties imposed a contempt is criminal in nature and presumptions or intendments may not be indulged in support of the order. The findings and judgment are strictly construed to favor the accused. [Citations.]” (Raiden v. Superior Court (1949) 34 Cal.2d 83, 86, 206 P.2d 1081.) Although documents may be incorporated by reference into a judgment under many circumstances (Flynn v. Flynn (1954) 42 Cal.2d 55, 59, 265 P.2d 865), California law prohibits the incorporation by reference of documents into an order of contempt. In the decision of In re Battelle (1929) 207 Cal. 227, 253–257, 277 P. 725, the California Supreme Court construed the language in a predecessor of Code of Civil Procedure section 1211 which, as does the present statute does require that an “ ‘order must be made reciting the facts as occurring in such immediate view and presence.’ ” (Id. at p. 254, 277 P. 725.) In Battelle, a case involving the refusal of a witness to comply with an order of a Senate committee, the contempt order stated as follows: “ ‘Whereas, in pursuance of said subpoenas duly and regularly issued and served, said persons appeared before said committee of investigation of this senate, and refused and declined to answer certain questions material to the issues and refused to produce proper books, papers, documents and records required of them, such being in their possession or under their control and material to said issues, all as more particularly appears from the report of said committee presented to and filed with this senate, on March 8, 1929, and from the supplemental report of said committee presented to and filed with this senate on March 11, 1929, said questions being set forth in the “Excerpts from the transcript of testimony” submitted to the senate, March 8, 1929, to which reference is hereby made․’ ” (Id. at p. 238, 277 P. 725.) The California Supreme Court held that the order and adjudication of contempt did not comply with the requirements of Code of Civil Procedure section 1211. Specifically, the Supreme Court held: “Bearing in mind this fundamental principal of procedure in contempt cases of this character, when we refer to the order and adjudication of contempt which the senate purported to adopt and enforce in the instant case, we find it to be entirely lacking in the precision of statement which the law requires. It is true that the order in question contains the recital that ‘In pursuance of said subpoena duly and regularly issued and served said persons appear before said committee of investigation of this senate and refused and declined to answer certain questions material to the issues, and refused to produce proper books, papers, documents and records required of them, such being in their possession or under their control, and material to said issues, all as more particularly appears from the report of said committee presented to and filed with this senate on March 8th, 1929, and from the supplemental report of said committee filed with this senate on March 11th, 1929, said questions being also set forth in the “Excerpts from the transcript of testimony” submitted to the senate March 8th, 1929, to which reference is hereby made.’ We are of the opinion, however, that the mere ‘reference’ which is thus made to the report of the committee and certain ‘questions being also set forth in the “Excerpts from the transcript of testimony” ’ are and each of them is insufficient to so far embody the content of such report or the ‘Excerpts from the transcript of testimony’ therein contained in the order of commitment as to satisfy the precise requirement of the aforesaid section of the Code of Civil Procedure with respect to what the ‘recitals' in said order must contain.” (Id. at p. 256, 277 P. 725.) Stated differently, the California Supreme Court in Battelle held, in the context of a contempt order issued by the California State Senate, the provisions of Code of Civil Procedure section 1211 required that the facts concerning the contempt be recited in the order and not incorporated by reference from a transcript or other document.
Although Battelle was a case involving contempt of an order of a senate committee, it is directly relevant to the present case. In Battelle, the Supreme Court was construing the language of the then existing provisions of Code of Civil Procedure section 1211 which is the precise same language applicable to the present case. (Id. at pp. 254, 256, 277 P. 725.) Additionally, on one later occasion, the California Supreme Court has cited the language in Battelle concerning the necessity of the order showing “ ‘on its face acts sufficient to constitute a legal contempt’ ” (In re Battelle, supra, 207 Cal. at p. 255, 277 P. 725) as authority in a habeas corpus proceeding involving a direct contempt occurring before a superior court judge. (In re Wells (1946) 29 Cal.2d 200, 201–202, 173 P.2d 811.) Further, Battelle has been cited as authority in Court of Appeal decisions in cases involving direct contempts before judicial officers. (In re Blaze (1969) 271 Cal.App.2d 210, 212, 76 Cal.Rptr. 551; Nelson v. Superior Court (1955) 135 Cal.App.2d 531, 533, 287 P.2d 535; Bennett v. Superior Court (1946) 73 Cal.App.2d 203, 216, 166 P.2d 318; In re Zuker (1936) 13 Cal.App.2d 427, 431–432, 56 P.2d 1261.) Accordingly, Battelle, which prohibits incorporation by reference of a transcript, is binding California Supreme Court authority in cases involving direct contempts before judges.
Further, in Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 125, fn. 16, 116 Cal.Rptr. 713, the Court of Appeal held, “For the guidance of the trial bench we point out that in case of direct contempt, the order adjudging a person guilty must be stated with sufficient particularity, description and detail to show without aid of speculation or reference to any extrinsic document that a contempt actually occurred. [Citation.]” Finally, there is a body of decisional authority which holds that a defective direct contempt order cannot be saved by reference to the reporter's transcript or other extraneous documents in an effort to uphold an otherwise flawed order. (In re Smith (1976) 65 Cal.App.3d 291, 296, 135 Cal.Rptr. 5 [missing jurisdictional facts in written order may not be supplied by reference to record]; In re Rosen (1973) 31 Cal.App.3d 71, 73–74, 106 Cal.Rptr. 757 [reporter's transcript cannot be relied upon to supply facts in contempt order]; Merritt v. Superior Court (1928) 93 Cal.App. 177, 179–181, 269 P. 547 [contents of a bill of exceptions may not be utilized to prove that the petitioner had the ability to pay alimony when such was not included within the contempt order].) Therefore, with all due respect to the very fine trial judge who in good faith sought to fully comply with and enforce the law, it was inappropriate to incorporate by reference the contents of the reporter's transcripts of June 17, 1991, and June 24, 1991, into the contempt order.
Without those transcripts, the contempt order filed July 2, 1991, failed to recite sufficient facts to constitute a contempt of court. If the transcripts are disregarded, the following is not included in the July 2, 1991, order: the precise discovery request of the prosecution; the order of the court of June 20, 1991; the reasons petitioner failed to comply with the order; and any facts indicating petitioner had the ability to comply with the discovery order. Under these circumstances, after the references to the reporter's transcripts are deleted, the jurisdictional facts necessary for a finding of contempt of court are not contained in the order. (See In re Buckley, supra, 10 Cal.3d at p. 247, 110 Cal.Rptr. 121, 514 P.2d 1201.) Therefore, the order is void and a writ of habeas corpus should issue.
FOOTNOTES
1. All further statutory references are to the Penal Code unless otherwise indicated.Section 1054 provides in pertinent part: “This chapter [Chapter 10 of Title 6 of the Penal Code] shall be interpreted to give effect to all of the following purposes: ․ (b) To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested.”Section 1054.3 provides: “The defendant and his or her attorney shall disclose to the prosecuting attorney: (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. (b) Any real evidence which the defendant intends to offer in evidence at the trial.”
2. Section 1054.5 provides in pertinent part: “(a) No order requiring discovery shall be made in criminal cases except as provided in this chapter․ (b) Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order. Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.”
3. Section 1054.7 provides in pertinent part: “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred.”
4. The following constitutes the order and judgment in its entirety: “[¶] 1. On May 9, 1991, defendant Armando Orozcal Montiel was arraigned in Division 3 of the Glendale Municipal Court on numerous alleged vehicle code violations. The Office of the Los Angeles County Public Defender was appointed to represent the defendant. Deputy Public Defender Stuart Alan Chapman accepted the appointment on behalf of Wilbur F. Littlefield, Public Defender of Los Angeles County. On the same date, the prosecution requested informal pretrial discovery pursuant to Penal Code Section 1054 et seq. No objection was raised by the defense on the record to the prosecution's discovery request. [¶] 2. On June 12, 1991, the Montiel case was on calendar for trial. Mr. Chapman announced ‘ready for trial’ on behalf of the defendant. The trial was trailed to June 17, 1991. Mr. Chapman asked the Court to order a defense witness, Ms. Sandra Pavon, to return to court on the next date. [¶] 3. On June 17, 1991, the case was again called on the trial calendar. Both the People and the defense announced they were ready to proceed. The prosecutor informed the Court that the defense had failed to provided any discovery, either formally or informally, and requested discovery relating Ms. Pavon. The defense thereupon filed points and authorities respecting their opposition to the discovery request, and filed the demand for fifteen days notice of request. After reading and considering each motion, and upon hearing argument, the Court denied the defense motion to oppose discovery and ordered the defense to comply with the discovery request. Mr. Chapman stated it was the position of the Los Angeles County Public Defender to refuse to comply with any such order and thereupon refused to yield the requested information. [¶] 4. The Court considered the numerous options for noncompliance with Penal Code Section 1054.5(B), and made certain findings. The transcript of those findings from June 17, 1991 are incorporated into this Order and Judgment by reference. [¶] 5. On June 20, 1991, the Court held a hearing to determine whether the Los Angeles County Public Defender should be held in contempt of court for refusing to comply with the Court's discovery order. Present representing the Office of the Los Angeles County Public Defender was Public Defender Wilbur F. Littlefield (hereinafter, ‘contemner’). After reviewing the history of the proceedings and upon hearing lengthy argument from contemner's counsel, the Court directly ordered contemner to comply forthwith with the discovery order. [¶] 6. Contemner refused to obey the order. [¶] 7. The court heard and considered contemner's explanation for his conduct and rejected it because, in light of controlling federal and state authority, contemner's position cannot be entertained in good faith. [¶] 8. The Court again ordered contemner to comply with the mandate and warned contemner that any further refusal would necessitate a finding of contempt of court. [¶] 9. In the immediate view and presence of the Court, contemner willfully failed to comply with the order of the Court by refusing to provide discovery to the prosecution. [¶] 10. The Court judged contemner guilty of contempt of court beyond a reasonable doubt under Code of Civil Procedure Section 1209(a)(5). [¶] 11. The transcript of the June 24, 1991 proceeding is incorporated by reference into this Order and Judgment. [¶] GOOD CAUSE NOW APPEARING: contemner is sentenced to pay a fine in the sum of One Thousand Dollars ($1,000.00) and spend five (5) days in the county jail. [¶] Execution of sentence is stayed to August 5, 1991. [¶] The clerk of the court is ordered immediately to file this order and enter the contempt upon the docket of the Court and to deliver to contemner a copy of this Order and Judgment.”
5. Courts may adopt local rules which are not inconsistent with law establishing pleading requirements, such as written notice and time limits for filing motions. (People v. Lewis (1977) 71 Cal.App.3d 817, 820, 139 Cal.Rptr. 673; People v. Hallman (1989) 215 Cal.App.3d 1330, 1341–1342, 264 Cal.Rptr. 215; People v. Davis (1989) 215 Cal.App.3d 1348, 1349, 264 Cal.Rptr. 225.)
6. We note that this case does not involve an attorney's good faith advice to a client to refuse to comply with a court order to reveal assertedly privileged information in order to obtain precompliance appellate review. (See Maness v. Meyers (1974) 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574.) Nor does this case concern the good faith urging of an erroneous legal position or the legitimate protest of a court ruling. (See Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 192 P.2d 905; Cooper v. Superior Court (1961) 55 Cal.2d 291, 10 Cal.Rptr. 842, 359 P.2d 274.) This case involves a deliberate albeit good faith refusal of an attorney to obey a lawful order of the court directed at the attorney.
1. Unless otherwise indicated, all future statutory references are to the Penal Code.
2. I concur in my colleagues' resolution of the issues relating to the constitutionality of the new discovery chapter: whether section 1054 et seq. applies to misdemeanor prosecutions; the presence of evidence defense counsel had decided to call Ms. Pavon as a witness; the sufficiency of notice given to petitioner; and the ethical duties of attorneys to comply with all lawful court orders.
3. A sound argument can be made that conduct such as was engaged in by the defense in this case is unwise and possibly unethical. Such concerns have serious merit. Refusing to secure Ms. Pavon's address for the purpose of concealing her whereabouts contributes to disrespect for the entire judicial system. (People v. Hannon (1977) 19 Cal.3d 588, 602, fn. 5, 138 Cal.Rptr. 885, 564 P.2d 1203.) Further, the failure of a lawyer to obtain a witness's address is probably legal malpractice. In the present case, had Ms. Pavon failed to appear at the time her testimony was needed, defense counsel would have been unable to have a deputy marshal of Los Angeles County go to her residence and bring her to court pursuant to Code of Civil Procedure section 1993. Most criminal defense lawyers do not negligently fail to take steps to verify a witness's address. Repeated negligent failure to secure a witness's address would be unethical. (Rule 3–110(A), Rules of Prof. Conduct of State Bar.) Advising a witness not to reveal an address would likewise be unethical (rule 5–220, Rules of Prof. Conduct of State Bar) and would be an act of contempt of court. (In re Serra (9th Cir.1973) 484 F.2d 947.) As noted previously, there is no evidence in this case that petitioner or Mr. Chapman advised Ms. Pavon to conceal her address from them. Rather, Mr. Chapman negligently failed to comply with his obligations to his client and apparently simply forgot to ask her for it prior to the time of the contempt hearing and then petitioner refused to learn it in order to pass the address on to the prosecutor. Despite the legitimate ethical problems raised by Mr. Chapman's and petitioner's litigation decisions, particularly if the Los Angeles County Public Defender's Office continues to engage in the negligent failure to secure witness's address (an extremely unlikely prospect given its record of competent professional representation under petitioner's personal leadership over the years), the Rules of Professional Conduct cannot effect the duty of disclosure under section 1054.3 because those ethical rules which can lead to disciplinary action by the State Bar by their very terms do not enlarge upon the statutory obligations of attorneys. (Rule 1–100(A), Rules of Prof. Conduct of State Bar.) Further, the duties under the new discovery chapter may only be modified by “express statutory provisions, or as mandated by the Constitution of the United States.” (§ 1054, subd. (e).) The Rules of Professional Conduct are neither a statute nor a part of the United States Constitution. Accordingly, despite the fact that negligence of the type present in this case inexorably leads to a lack of public respect for those performing the defense function as well as the courts, the absence of statutory authority allowing a trial court to direct a lawyer to learn something to assist her or his adversary or to produce a witness in court for a purpose other than testimony precludes the sustaining of the contempt order.
4. This request was overbroad. Section 1054.3, subdivision (a) only permits discovery of “written or recorded statements of those persons, or reports of the statements of those persons․” (Italics added.) The initial request appearing on the face of the complaint which sought “discovery to the People as required by Penal Code Section 1054.3” was, however, entirely proper.
5. Section 1054.1 provides: The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [¶] (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. [¶] (b) Statements of all defendants. [¶] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [¶] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. [¶] (e) Any exculpatory evidence. [¶] (f) Relevant written or recorded statements of witnesses or reports of statements of witnesses whom the prosecutor intends to call at trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” Section 1054.2 limits the authority under certain circumstances not relevant to this proceeding of an attorney to reveal an address or telephone number of a victim or witness.
6. Federal courts have adopted a similar view in terms of government disclosure duties under rule 16 of the Federal Rules of Criminal Procedure (18 U.S.C.). When the United States Attorney does not have information in its possession which was otherwise subject to a discovery order, no sanction need be imposed pursuant to rule 16(d)(2) of the Federal Rules of Criminal Procedure (18 U.S.C.). (United States v. Barrett (1st Cir.1985) 766 F.2d 609, 617–618; United States v. Joyner (5th Cir.1974) 494 F.2d 501, 506–507; United States v. Schembari (4th Cir.1973) 484 F.2d 931, 935; United States v. Panzar (5th Cir.1969) 418 F.2d 1239, 1240.) Other states, in enforcing their reciprocal discovery laws in criminal cases also hold that when a party does not have information in their possession, no sanction may be imposed for non-disclosure. (Henry v. State (1983) 278 Ark. 478, 647 S.W.2d 419, 424–425; People v. Pugh (1977) 49 Ill.App.3d 174, 7 Ill.Dec. 50, 54–55, 363 N.E.2d 1212, 1216–1217; Williams v. State (Fla.App.1972) 264 So.2d 106, 107–109.)
7. Quite obviously, the People do not argue they have wide-ranging duties to develop information for the benefit of the defense. My colleagues, whose obligations to the pursuit of justice extend beyond those of the advocates, including those representing the state, have digested the applicable cases, which do not arise in the context of informant disclosure matters, which do place a burden on the prosecution to secure some information for the defense. (People v. Coyer (1983) 142 Cal.App.3d 839, 843, 191 Cal.Rptr. 376; Engstrom v. Superior Court (1971) 20 Cal.App.3d 240, 245, 97 Cal.Rptr. 484.) However, reading these two cases to require the prosecution to engage in investigation for the benefit of its adversary conflicts with the binding California Supreme Court authority cited in the body of this opinion. Additionally, in Coyer and Engstrom, the materials which were sought were in the nature of exculpatory evidence which the prosecution had a constitutional duty to disclose prior to the enactment of the new discovery chapter (see People v. Hayes (1992) 3 Cal.App.4th 1238, 1244–1245, 5 Cal.Rptr.2d 105) and still does. (See Izazaga v. Superior Court, supra, 54 Cal.3d at pp. 377–378, 285 Cal.Rptr. 231, 815 P.2d 304.) Finally, informant disclosure cases relied upon by the majority (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851, 83 Cal.Rptr. 586, 464 P.2d 42; People v. Rios (1977) 74 Cal.App.3d 833, 837, 141 Cal.Rptr. 677) involve informant disclosure matters where the United States Constitution was interpreted to impose a duty to disclose an address of an informer. Because federal constitutional rights are implicated in such cases, Proposition 115 does not effect such case authority. (Izazaga v. Superior Court, supra, 54 Cal.3d at pp. 377–378, 285 Cal.Rptr. 231, 815 P.2d 304.)
GRIGNON, Associate Justice.
BOREN, J., concurs.
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Docket No: No. B061445.
Decided: September 03, 1992
Court: Court of Appeal, Second District, Division 5, California.
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