HERNANDEZ v. PEOPLE (1986)

INTRODUCTION

Michael Chavez Hernandez petitions for a peremptory writ of mandate by which he seeks to compel the superior court to set aside its order quashing a subpoena duces tecum and denying his motion to compel discovery and instead require the production of certain documents in the control of the Los Angeles County Department of Children's Services (DCS), successor to the Department of Public Social Services (DPSS).

PROCEDURAL BACKGROUND

On April 16, 1984, petitioner was charged by information with three counts of child molestation and rape in violation of Penal Code sections 288a, subdivision (c), 288, subdivision (a), and 261, subdivision (2).   Previously, proceedings were brought to have petitioner's minor daughter, the alleged victim and complaining witness in the criminal matter, declared a dependent child of the juvenile court pursuant to Welfare and Institutions Code section 300.   During those proceedings, petitioner's minor daughter made out-of-court statements to experts appointed by the juvenile court, as well as in-court statements, about the events underlying both the juvenile court petition and the criminal proceeding.   Petitioner has information which leads him to believe these statements are inconsistent with those she made to the police and in giving testimony at petitioner's preliminary hearing.

On September 5, 1984, petitioner's defense counsel served on DPSS a subpoena duces tecum seeking “any and all records (case-work, case study, work-up, notes, interviews) with [petitioner's minor daughter or petitioner] and any other witnesses to this alleged event or any statements made either prior to or subsequent to this alleged event.”   The prosecution moved to quash the subpoena, after which a hearing was held in the superior court.   The superior court considered the question not to be petitioner's entitlement to the information requested, but the proper method of obtaining that information.   Accordingly, the superior court ruled Welfare and Institutions Code sections 827 and 828 provided the exclusive means by which petitioner could gain access to the information he sought and granted the motion to quash the subpoena on September 21, 1984.   Thereafter, on November 14, 1984, petitioner sought a writ of mandate in this court;  that petition was denied on February 7, 1985 (2d Civil No. B008335).   Petitioner then sought review in the Supreme Court;  his petition was denied on April 25, 1985.

On August 14, 1985, petitioner's counsel again served on DPSS a subpoena duces tecum, by which he sought all records pertaining to interviews with his minor daughter.   The prosecution again moved to quash the subpoena.   Following a hearing, the superior court again granted the motion to quash on September 4, 1985, ruling that petitioner must request the material from the presiding judge of the juvenile court.   Petitioner immediately sought the permission of the presiding judge of the juvenile court to inspect the juvenile files pertaining to his minor daughter's dependency proceeding, pursuant to Welfare and Institutions Code section 827.   The request was denied summarily on September 13, 1985.

Thereafter, on September 16, 1985, petitioner served on DPSS yet another subpoena duces tecum, again seeking records of any interviews with his minor daughter.   In addition, on September 17, he moved for pretrial discovery, requesting in part all notes of any DPSS employees of their conversations with any witness in his minor daughter's dependency proceeding.   The prosecution again moved to quash the subpoena.   Following a hearing, that motion was granted on September 26, 1985;  however, the superior court expressed the view that petitioner was entitled to receive his minor daughter's statements.

On September 27, 1985, petitioner again sought the permission of the presiding judge of the juvenile court to inspect this material, stating his reasons.   On October 1, 1985, that request also was denied summarily.   Consequently, petitioner's counsel once again served on DPSS a subpoena duces tecum requesting the pertinent material on October 7, 1985.   The following day, he also renewed his motion for pretrial discovery of this material.   A hearing was held on October 15, 1985, during which petitioner's defense counsel explained to the superior court that his second request to the juvenile court had been denied without explanation.   At this point, the prosecution took the position that the juvenile court order of denial was binding in the criminal proceeding.   The superior court opined that petitioner was being denied the material he sought impermissibly, but deferred to the order of the juvenile court and consequently denied petitioner's request to order production of the material.   This proceeding followed.¹

CONTENTION

Petitioner contends the superior court erred and abused its discretion in quashing the subpoena duces tecum and denying his motion to compel discovery by which he sought production of any materials in the DPSS records pertaining to statements by any witnesses, potential witnesses or parties to the juvenile proceeding which formed the basis for the instant criminal proceeding.   For the reasons set forth below, we agree.

DISCUSSION

 A criminal defendant is entitled to the discovery of any unprivileged information when it appears reasonable the knowledge he thereby gains will aid in the preparation of his defense.  (State of California ex rel. Dept. of Transportation v. Superior Court (1985) 37 Cal.3d 847, 852, 210 Cal.Rptr. 219, 693 P.2d 804.)   His right of discovery extends to information which is not itself evidence but may lead to the discovery of evidence of value in the preparation of his defense.  (Ibid.)  The broad scope of discovery permitted a criminal defendant reflects the courts' “ ‘fundamental concern that an accused be provided with a maximum of information that may illumine his case.’ ”  (Ibid., quoting from Ballard v. Superior Court (1966) 64 Cal.2d 159, 167, 49 Cal.Rptr. 302, 410 P.2d 838.)   Accordingly, “ ‘[a]bsent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case․’  [Citation.]”  (State of California ex rel. Dept. of Transportation v. Superior Court, supra, 37 Cal.3d at p. 852, 210 Cal.Rptr. 219, 693 P.2d 804.)

To compel discovery, the accused in a criminal proceeding need only demonstrate “that the requested information will facilitate the ascertainment of the facts and a fair trial․  The requisite showing may be satisfied by general allegations which establish some cause for discovery other than ‘a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.’․”  (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536–537, 113 Cal.Rptr. 897, 522 P.2d 305.)

 While an accused must describe the information sought with enough specificity to rule out the possibility he is engaged in a “fishing expedition” (id., at p. 538, 113 Cal.Rptr. 897, 522 P.2d 305), his need for it is established adequately if he shows he cannot obtain the information through his own efforts and, from its description, it is reasonable that the knowledge will assist in the preparation of his defense.  (State of California ex rel. Dept. of Transportation v. Superior Court, supra, 37 Cal.3d at p. 855, 210 Cal.Rptr. 219, 693 P.2d 804.)

 Petitioner's prosecution in the instant matter arises out of a juvenile dependency proceeding grounded on allegations that he sexually molested his minor daughter.   By subpoena duces tecum, petitioner's attorney sought the production of “[a]ny and all [DPSS] records (case-work, case study, work-up, notes, interviews with [the minor or defendant] and any other witnesses to this alleged event or any statements made either prior to or subsequent to this alleged event.”   Beyond question, the subpoena identifies the material sought with sufficient specificity to rule out a “fishing expedition,” establishes the reasonable likelihood it will aid defendant in the preparation of his defense and shows he cannot readily obtain the information through his own efforts.   In a word, defendant has met those requirements which entitle him to compel discovery.  (Ibid.;  Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 536–537, 113 Cal.Rptr. 897, 522 P.2d 305.)

 Nonetheless, noting that petitioner was provided with a transcript of the testimony his minor daughter gave in the juvenile proceeding, respondent defends the superior court's order quashing the subpoena on the ground petitioner made no showing why the transcripts were inadequate or the disclosure of additional information necessary.   It is not only the prior testimony of a witness or potential witness which is of aid to an accused in the presentation of his defense;  it is well established that he may compel the discovery of any statements or recorded conversations, extrajudicial as well as judicial, by a witness for the prosecution.  (Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 805, 91 Cal.Rptr. 594, 478 P.2d 26;  People v. Estrada (1960) 54 Cal.2d 713, 716, 7 Cal.Rptr. 897, 355 P.2d 641.)   Moreover, to be entitled to discovery an accused need not show either that the document sought was acknowledged as accurate by the witness or that there is an inconsistency with prior or expected testimony.  (Ibid.)  It is extrajudicial statements, made to DCS caseworkers and interviewers, which defendant sought to discover;  he was entitled to their production without any greater showing of need than that made.

In quashing the subpoena, the superior court relied largely on Welfare and Institutions Code section 827, subdivision (a), which provides in pertinent part:  “Except as provided in Section 828, a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in any such case or made available to the ․ judge ․ and thereafter retained ․ may be inspected only by court personnel, the minor who is the subject of the proceeding, his or her parents or guardian, the attorneys for those parties, and such other persons as may be designated by court order of the judge of the juvenile court upon filing a petition therefor.”   Subdivision (a) specifically applies to “records or reports relating to a matter within the jurisdiction of the juvenile court prepared by ․ the county department of social services․”  (See also 62 Ops. Attorney General 634 (1979).)

 Notwithstanding petitioner's clear entitlement under the terms of section 827 to inspect the entire file pertaining to his minor daughter's dependency proceeding, the superior court took the position he must seek an order of the juvenile court and submit to that court's censoring review of the file before gaining access to its contents.   That interpretation of section 827 was erroneous.

 It is settled that the state's interest in the confidentiality of juvenile records must give way to a criminal defendant's constitutional rights of confrontation and cross-examination.  (Davis v. Alaska (1974) 415 U.S. 308, 319–320, 94 S.Ct. 1105, 39 L.Ed.2d 347;  Foster v. Superior Court (1980) 107 Cal.App.3d 218, 229, 165 Cal.Rptr. 701.)   Hence, juvenile court records properly are the subject of pretrial discovery motions in the criminal courts.  (Id., at pp. 228–230, 165 Cal.Rptr. 701.)   In any event, the requirement for an order of the juvenile court applies only to those persons seeking to inspect the records to whom section 827 does not provide that entitlement.  (See Wescott v. County of Yuba (1980) 104 Cal.App.3d 103, 108–110, 163 Cal.Rptr. 385;  T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 779–782, 94 Cal.Rptr. 813, 484 P.2d 981.)   A court order must precede a parent's inspection only where the records in question also involve other juveniles to whom that parent is a stranger;  otherwise, a parent is entitled absolutely to the release of the records.  (Wescott v. County of Yuba, supra, 104 Cal.App.3d at pp. 108–109, 163 Cal.Rptr. 385;  accord, Davis v. Superior Court (1985) 166 Cal.App.3d 13, 17, 212 Cal.Rptr. 111.)

In the instant matter, the juvenile records petitioner seeks to discover involve no juvenile other than his daughter.   While conceding petitioner's absolute right to inspect those records, respondent maintains the superior court nonetheless was correct in quashing the subpoena, in that the right section 827 confers upon petitioner is only the right of inspection, not the right to copy portions or to have the records in his possession.   This is sophistry.

 Traditionally, “inspection” means more than visual observation or casual perusal;  it encompasses close scrutiny and prying or searching examination.  (O'Hare v. Peacock Dairies, Inc. (1938) 26 Cal.App.2d 345, 353, 79 P.2d 433;  People v. Floom (1977) 52 Ill.App.3d 971, 10 Ill.Dec. 815, 368 N.E.2d 410, 413;  Detmering v. State (Tex.Crim.App.1972) 481 S.W.2d 863, 864.)   Accordingly, the right of inspection generally carries with it the right to make or obtain copies of the information inspected.  (Mulford v. Davey (1947) 64 Nev. 506, 186 P.2d 360, 362;  see also Gov. Code, §§ 6253, 6256.)

When section 827 is read as a whole, it is clear the right of inspection which it confers includes the right to receive the information and to copy it if necessary.  (See also In re Maria V. (1985) 167 Cal.App.3d 1099, 213 Cal.Rptr. 733.)   Indeed, no other interpretation makes sense.   Petitioner's right to inspect his daughter's juvenile dependency records would be rendered essentially meaningless if it did not carry with it the right to make a searching, exhaustive review of the records and to copy those portions pertinent to his defense.   In sum, the order quashing the subpoena duces tecum cannot be justified on this basis any more than it can on any other.   It is unequivocally clear the superior court abused its discretion in quashing the subpoena.

Let a peremptory writ of mandate issue, commanding the superior court to vacate the order of October 15, 1985, granting the People's motion to quash the subpoena and denying petitioner's motion to inspect and copy the files and records pertaining to the juvenile dependency proceeding which concerns petitioner's minor daughter, and thereafter to make a new and different order granting said discovery motion.

FOOTNOTES

1.   At some point in time, petitioner was provided with a transcript of his minor daughter's in-court statements during the juvenile dependency proceeding.

SPENCER, Presiding Justice.

L. THAXTON HANSON and DEVICH, JJ., concur.