IN RE: Diana M. POLOS (1984)

OPINION

Petitioner Diana M. Polos seeks a writ of habeas corpus after being adjudged in contempt of the Orange County Superior Court.   As attorney for a defendant in a criminal trial, she refused to obey a court order compelling disclosure of certain information sought to be discovered under Penal Code section 1102.5.¹

Petitioner's client, Victor Rick Bailey, was charged with assault with a deadly weapon (§ 245, subd. (a)(1)) and attempted robbery (§§ 664/211).   He was also charged with personally using a deadly weapon (knife) in the commission of the attempted robbery (§ 12022, subd. (b)).

The main issue at trial was identification.   The prosecution presented testimony of the victim, of an eyewitness to the incident, and of law enforcement officers involved in investigation and arrest.   Petitioner called as a witness a defense investigator who testified to pretrial statements given him by the victim which contradicted her testimony concerning identification.   On cross-examination, the investigator admitted making a written report of the victim's statements.   The prosecutor then moved to discover the report pursuant to section 1102.5.   Petitioner objected.

A separate hearing was held wherein petitioner argued disclosure of the defense investigator's report violated defendant's privilege against self-incrimination (Cal. Const., art. I, § 15;  U.S. Const., 5th & 14th Amends.) and constituted a breach of the attorney-client privilege.   The court disagreed, finding section 1102.5 nonviolative of either privilege, and ordered petitioner to produce the investigator's report.   Petitioner then requested that the “in camera ” hearing provided by section 1102.5 be held by a “neutral magistrate” and indicated even if the court granted her request petitioner would refuse to disclose the report sought.   The court denied petitioner's request and, upon her refusal to comply, held her in direct contempt and sentenced her to one day in the county jail.   We granted a stay of execution of petitioner's contempt judgment and sentence pending resolution of the issues raised by her petition.²

We are asked to determine the constitutional validity of the Legislature's first explicit enactment allowing prosecutorial discovery in criminal cases.   Petitioner argues section 1102.5 violates defendant's privilege against self-incrimination and right to effective assistance of counsel.   We conclude neither of these contentions is meritorious but grant the requested habeas corpus relief for reasons stated below.

I

 We first address whether section 1102.5 sanctions a procedure for prosecutorial discovery which violates defendant's privilege against self-incrimination ³ .  Relying upon Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, petitioner argues section 1102.5 is constitutionally defective because it does not require predisclosure inquiry into the possible incriminatory nature of the sought material.

 We agree section 1102.5 does not expressly mandate a Prudhomme -type inquiry.   However, this does not preclude the trial court from undertaking the same.   In keeping with the fundamental principle that statutes must be construed in a constitutional manner whenever reasonably possible (People v. Smith (1983) 34 Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149;  In re Rodriguez (1975) 14 Cal.3d 639, 651, 122 Cal.Rptr. 552, 537 P.2d 384), we hold section 1102.5's provisions are capable of consistent interpretation with Prudhomme 's constitutional requirements.

In Prudhomme v. Superior Court, supra, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, our Supreme Court held a court order requiring pretrial disclosure of defendant's witnesses' names, addresses and anticipated testimony violated defendant's privilege against self-incrimination.   The court condemned the granting of a pretrial discovery demand without a preliminary judicial inquiry into the possibility the disclosure may tend to incriminate defendant.   The court reasoned a defendant resisting pretrial discovery enjoys the same privilege against self-incrimination as an ordinary witness.   Since the privilege against self-incrimination forbids compelled disclosures which “could serve as a ‘link in a chain’ of evidence tending to establish guilt of a criminal offense” (Id., at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673), the defendant “must be given the same right as an ordinary witness to show that disclosure of particular information could incriminate him.”   (Ibid.)  In so holding, the court declared the “principal element” in determining whether to allow a particular discovery demand is “whether disclosure ․ conceivably might lighten the prosecutor's burden of proving its case in chief” against the defendant.  (Ibid.)

 Prudhomme 's holding is not limited to pretrial discovery, but extends to any compelled disclosure prior to “actual use” of the evidence at trial.  (Bradshaw v. Superior Court (1970) 2 Cal.3d 332, 333, fn. 3, 85 Cal.Rptr. 136, 466 P.2d 680;  Allen v. Superior Court (1976) 18 Cal.3d 520, 526, fn. 3, 134 Cal.Rptr. 774, 557 P.2d 65.)   The privilege against self-incrimination cannot be legitimately claimed regarding information voluntarily disclosed at trial, however.   Thus, “once a defendant voluntarily elects to testify in his own defense, nothing prevents the prosecutor from inquiring fully into the facts and circumstances surrounding his assertion or from introducing evidence through cross-examination which explains or refutes his statements.”  (Prudhomme v. Superior Court, supra, 2 Cal.3d at 325, 85 Cal.Rptr. 129, 466 P.2d 673, citing People v. Schader (1969) 71 Cal.2d 761, 770, 80 Cal.Rptr. 1, 457 P.2d 841.)

The principles enunciated in Prudhomme have been continuously reaffirmed by our Supreme Court.  (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45;  Allen v. Superior Court, supra, 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65;  People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534.)   While Prudhomme relied largely on federal constitutional principles (2 Cal.3d at pp. 323–325, 85 Cal.Rptr. 129, 466 P.2d 673), later cases reaffirmed Prudhomme 's stringent standards solely under California constitutional principles, recognizing the establishment of a more solicitous attitude toward the privilege in this state ⁴ .  (Allen v. Superior Court, supra, 18 Cal.3d at p. 525, 134 Cal.Rptr. 774, 557 P.2d 65;  Reynolds v. Superior Court, supra, 12 Cal.3d at p. 843, 117 Cal.Rptr. 437, 528 P.2d 45.)   Our Supreme Court has, however, declined to sanction judicial creation of a procedure allowing prosecutorial discovery absent explicit legislative authorization for the same.  (Reynolds v. Superior Court, supra, 12 Cal.3d at p. 846, 117 Cal.Rptr. 437, 528 P.2d 45 (notice of alibi procedures);  People v. Collie, supra, 30 Cal.3d at p. 54, 177 Cal.Rptr. 458, 634 P.2d 534 (prosecutorial discovery for the purpose of impeaching defense witnesses)).

We are faced with an express legislative enactment sanctioning prosecutorial discovery.   It provides for prosecutorial discovery of statements of a defense witness other than the defendant after such witness has given testimony at trial.   It limits the available discovery to matters falling within the scope of the witness' direct testimony and provides an in camera judicial screening of the same at the request of defendant or defendant's counsel.  (§ 1102.5, subd. (a).)  It further requires the prosecution to make available to the defendant all evidence obtained or prepared as a result of the disclosure of information thus discovered.  (§ 1102.5, subd. (b).)

 Section 1102.5 does not explicitly require a predisclosure judicial inquiry into the possible incriminating nature of the statements sought by the prosecution, as Prudhomme holds, but neither do any other statutes which require an individual to disclose information to the government.   The privilege against self-incrimination is a firmly established constitutional privilege which does not need further reenactment through section 1102.5.   We hold, therefore, that a Prudhomme predisclosure inquiry must be undertaken by the trial court, upon invocation of the privilege, before prosecutorial discovery under section 1102.5 is allowed.   Only after the trial court finds “it clearly appears from a consideration of all the circumstances in the case” (Prudhomme v. Superior Court, supra, 2 Cal.3d at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673) that disclosure of the sought information “cannot possibly have a tendency to incriminate” (ibid.) the defendant, shall the disclosure mandated by section 1102.5 and its in camera review take place.   Once the court has undertaken the Prudhomme inquiry, disclosure is further limited by section 1102.5 to matters within the scope of the witness' direct testimony.⁵  Thus, both incriminating evidence,⁶ as well as unrelated matters outside the scope of direct examination, are shielded from prosecutorial discovery.

 Here, a defense investigator testified on direct examination concerning pretrial statements of a prosecution witness, the victim of the crime.   These statements contradicted the victim's trial identity testimony.   The obvious purpose of the defense investigator's testimony was impeachment of the victim.   On cross-examination, the defense investigator stated he had made a written report of her pretrial statements.   No judicial predisclosure inquiry was undertaken regarding the possible incriminating nature, if any, of the report.   At the time the court ordered disclosure of the report, it was conceivable it contained information which was incriminating to the defendant.   Thus the trial court erred in ordering disclosure of the investigator's report without first undertaking the predisclosure inquiry Prudhomme mandates.

II

Petitioner next argues section 1102.5 deprives him of his constitutional guarantee to effective assistance of counsel in two respects:  (a) it undermines the attorney-client privilege, and (b) violates the work-product doctrine.  (U.S. Const., 6th and 14th Amends.;  Cal. Const. art. 1, § 15.)   Neither of these contentions is meritorious.

 Evidence Code section 954 provides in relevant part a client “․ has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer․”  Evidence Code section 952 protects “confidential communications between client and lawyer”, including “․ a legal opinion formed and the advice given by the lawyer in the course of that relationship.”   The attorney client privilege does not, however, protect information coming to an attorney from a third person who is not a client unless such person is acting as the client's agent.  (People v. Lee (1970) 3 Cal.App.3d 514, 527, 83 Cal.Rptr. 715;  see also People v. Meredith (1981) 29 Cal.3d 682, 693, fn. 5, 175 Cal.Rptr. 612, 631 P.2d 46.)

 In the case at bar, the prosecution sought to discover statements given by the victim to a defense investigator.   Although the defense investigator was an agent of defense counsel, the attorney-client privilege does not protect statements given to him by the victim, a third party not acting as the client's agent.   Thus, the court's discovery order did not, in the factual context of this case, violate the attorney-client privilege.

 Petitioner next argues section 1102.5 fails to protect the “work product” of the defense which may be part of the “factual summaries” the prosecution is allowed to discover.   She asserts that once work product is disclosed, the defense counsel's ability to prepare and present a defense is undermined and so is defendant's right to effective assistance of counsel.   This argument, however, completely ignores the express language of the section which excludes attorney work product from its application ⁷ .  We decline to hold section 1102.5's discovery provisions violate the privilege derived from the work product doctrine.

III

 Although we have rejected petitioner's constitutional challenge to section 1102.5's prosecutorial discovery provisions, we nevertheless grant petitioner the habeas corpus relief requested.   In light of our holding, petitioner's disobeyance of the court's discovery order represented a good faith assertion of her client's privilege against self-incrimination in the context of prosecutorial discovery, as enunciated by Prudhomme.

The case under review bears a significant resemblance to Maness v. Meyers (1975) 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574, where a defense attorney was held in contempt for advising his client to not produce material demanded by a subpoena duces tecum in the good faith belief that it might tend to incriminate him.   The United States Supreme Court held counsel may not be subject to the penalty of contempt for advising his client, in good faith, to claim the privilege against self-incrimination, concluding that “[t]o hold otherwise would deny the constitutional privilege against self-incrimination the means of its own implementation.”  (Id., at p. 468, 95 S.Ct. at p. 596.)

By a parity of reasoning, we conclude petitioner should not be penalized in the prosecutorial discovery context of this case with a contempt citation for her good faith assertion of her client's self-incrimination privilege absent a Prudhomme inquiry.

We therefore annul petitioner's contempt judgment and sentence.   The habeas corpus petition is hereby granted.

CERTIFIED FOR PUBLICATION

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to the Penal Code.Section 1102.5 provides in its entirety:“(a) Upon motion, the prosecution shall be entitled to obtain from the defendant or his or her counsel, all statements, oral or however preserved, by any defense witness other than the defendant, after that witness has testified on direct examination at trial.   At the request of the defendant or his or her counsel, the court shall review the statement in camera and limit discovery to those matters within the scope of the direct testimony of the witness.   As used in this section, the statement of a witness includes factual summaries, but does not include the impressions, conclusions, opinions, or legal research or theories of the defendant, his or her counsel, or agent.“(b) The prosecution shall make available to the defendant, as soon as practicable, all evidence, including the names, addresses and statements of witnesses, which was obtained or prepared as a consequence of obtaining any discovery or information pursuant to this section.“(c) Nothing in this section shall be construed to deny either to the defendant or to the people information or discovery to which either is now entitled under existing law.”

2.   Petitioner also filed a companion writ of mandate seeking an order staying defendant's trial.   We declined to issue the writ since the trial court's ruling on the section 1102.5 discovery motion did not affect defendant's trial to his detriment.

3.   Although petitioner originally claimed section 1102.5 violates defendant's privilege against self-incrimination under both the United States and California Constitutions, petitioner's briefing is limited to authorities dealing with the state constitutional privilege.   It thus appears petitioner's claim of unconstitutionality under the federal constitution (U.S. Const., 5th and 14th Amends.) has been abandoned by implication.   Accordingly, we do not address the issue whether section 1102.5 violates the United States Constitution, although we note the dubious viability of the unconstitutionality argument in light of United States v. Nobles (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141.   Our discussion is therefore limited to the California privilege against self-incrimination.  (Cal. Const., art. I, § 15.)

4.   Subsequent to Prudhomme and prior to Allen, the United States Supreme Court decided Williams v. Florida (1970) 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (upholding a Florida notice-of-alibi statute sanctioning grant of a continuance to the prosecution after unanticipated presentation of alibi evidence) and United States v. Nobles, supra, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (holding defendant's Fifth Amendment privilege is “personal” to the defendant and does not extend to statements made by third parties to the defense).

5.   We note that barring a judicial finding disclosure tends to incriminate the defendant, section 1102.5 sanctions the discovery of defense witnesses' statements having impeachment value to the prosecution, provided such statements refer to matters within the scope of the witnesses' direct testimony.   Discovery of these non-incriminating scope-related impeaching statements does not in our view violate defendant's privilege against self-incrimination.  (Compare People v. Thornton (1979) 88 Cal.App.3d 795, 802, 152 Cal.Rptr. 77 [holding discovery of non-incriminating, solely impeaching defense alibi witnesses' statements violates defendant's privilege against self-incrimination] with People v. Chavez (1973) 33 Cal.App.3d 454, 459, 109 Cal.Rptr. 157 [noting solely impeaching matter is discoverable in contrast to non-impeaching collateral matter which may be of assistance to the prosecution in proving its case].)

6.   Defendant's self-incrimination privilege does not extend to matters voluntarily disclosed by defendant at trial, however.   (Prudhomme v. Superior Court, supra, 2 Cal.3d at p. 327, fn. 10, 85 Cal.Rptr. 129, 466 P.2d 673.)

7.   Section 1102.5, subdivision (a) provides in relevant part:“As used in this section, the statement of a witness includes factual summaries, but does not include the impressions, conclusions, opinions, or legal research or theories of the defendant, his or her counsel, or agent.”  (Emphasis added.)We note section 1102.5's work product exclusion from discovery closely parallels the absolute protection from discovery afforded work product by section 2016, subsection (b) of the Code of Civil Procedure, which provides in relevant part:“․ any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.”

TROTTER, Presiding Justice.

WALLIN and CROSBY, JJ., concur.