*1 August 1991.] S017642. [No. Petitioner, IZAZAGA, v. VALLE
JAVIER COUNTY, Respondent; OF TULARE COURT THE SUPERIOR PEOPLE, in Interest. Party Real THE
Counsel Defender, Pereira, Defender, Bazar, and Neal Tim Public Public Assistant Loza, Defender, Public Hugo Deputy for Petitioner. Nedom, Cantrall, Robertson,
Norwood Michael E. Linda F. Thomas Hav- lena, Littlefield, (Los Kevin Phillips, J. Wilbur Public Defender Angeles), Menaster, Defenders, Laurence M. Sarnoff and Albert J. Public Deputy Jay Gaskill, Friedman, B. Defender (Alameda), Public and G. Harold Assistant Defender, Public as Amici Curiae on behalf of Petitioner.
No for appearance Respondent. General,
John K. Van de and Daniel Kamp E. Richard Lungren, Attorneys B. Williamson, General, Iglehart and George Chief Assistant Arnold Attorneys General, O. and Overoye John H. Sugiyama, Assistant Michael J. Attorneys Salmon, General, Weinberger and David D. Deputy for Real Attorneys Party in Interest. Miller, Jr.,
Edwin L. McArdle, (San District Attorney Thomas F. Diego), District Deputy Attorney, Kent S. as Amici Scheidegger Curiae on behalf of Real Party Interest.
Opinion
LUCAS, C. J.
In thiscase we resolve several issues
presented by
5,1990,
adoption on June
of an initiative
designated
measure
on the ballot as
Proposition
and entitled the “Crime Victims Justice Reform Act.” Peti-
tioner raises various challenges under the federal and state Constitutions to
the provisions of the measure
reciprocal
authorizing
criminal
(See
cases.
also Raven v. Deukmejian (1990)
We conclude construed properly applied, discovery provi- sions of Constitutions, are valid under the state and federal and that Proposition 115 effectively reopened the two-way street of recipro- cal criminal cases in California.
I. Facts Petitioner was charged Code, two (Pen. counts of forcible rape former (2)), Code, subd. § one count (Pen. of kidnapping 207), and § numerous enhancement allegations. The acts were to have alleged occurred on June 1990. The served People on an petitioner informal for request *8 1054.5, to discovery pursuant newly adopted Penal Code section subdivision (b) (section 1054.5(b)). After refused the informal petitioner discovery court, filed a formal request, People motion for to discovery superior which filed an petitioner a the court opposition. Following hearing, granted the motion and issued an order requiring discovery.1
The Court of Appeal summarily denied for a writ petitioner’s application of mandate or We order and issued an prohibition. stayed discovery alternative writ of mandate to consider constitutional and important interpretive questions Petitioner presented. arguments regard- raises several tiie ing of the constitutionality discovery added provisions Proposition contentions, 115. Before we consider these we first review new these discovery provisions. Statutory
II. Constitutional and Provisions 115 added Proposition both constitutional and author- statutory language izing reciprocal (c), criminal discovery cases. Section subdivision I, I (article 30(c)) added to article California Constitution section (“In declares to be criminal Proposition discovery cases. “reciprocal” trials, order provide to for fair and in criminal speedy cases shall nature, reciprocal or prescribed by Legislature People through the initiative process.”) also added a new Penal (Pen. Code on chapter discovery.
Code, [hereafter, et the new The seq. § new Penal chapter].) Code sections relevant that issues arise this case are section 1054 (providing for of the interpretation effect to certain chapter give specified purposes), section 1054.1 (providing for defense section 1054.3 discovery), (providing for prosecutorial section 1054.5 mecha- discovery), (providing nism for compelled discovery), section 1054.6 that (providing shall not be of work required product or otherwise information privileged material), and section 1054.7 disclosure at least 30 (requiring days prior trial, placing continuing duty disclose on both made in connection with this mental names and call at fn. and/or order physical, evidence which the Defendant or counsel intend to offer in evidence at trial." This disclose counsel intend to offer as 1The 3.) required reports trial. examinations, court’s order pursuant addresses of [1] (2) to new Any petitioner statements of such required scientific persons, relevant written or recorded evidence at the trial of Penal Code section 1054.3 case, disclose all the information that he tests, other than the petitioner including, but not limited experiments, persons. disclose to the People Defendant, [1] this case. or (3) statements of the comparisons (section Any [1] counsel or Defendant reports to, 1054.3). (See, Any the results of which the Defendant or or statements of could be ‘real,’ persons following: i.e. compelled post, in #1 above physical tangible intends “(1) experts or
365 defense, for denial providing of disclosure on a showing “good cause”).2 115
Proposition repealed also several discovery provisions, including Penal Code former section 1102.5 declared unconstitutional In (previously (1985) re Misener Cal.3d 543 P.2d Cal.Rptr. 637] [Misen- er], below), discussed and Penal Code former section 1430 (requiring pros- Furthermore, ecutor to furnish defendant with and arrest police reports). in Penal repealed provisions Code section 859 requiring prosecutors to furnish defendants with and arrest police reports.
III. Discussion Privilege A. Against Self-incrimination
Petitioner asserts of the application discovery provisions enacted by Prop- osition 115 would violate his state and federal privileges constitutional against compelled self- incrimination. We disagree.
1. Federal Constitutional Challenge. The Fifth Amendment of the United States Constitution recites pertinent “No part: person . . . shall compelled criminal case to be a witness himself . . . .” against Petitioner asserts the new discovery chapter enacted by Proposition compels a criminal defendant to be a against witness oneself violation of the foregoing self-incrimination clause.
First, petitioner argues that the
under
requirement
section 1054.33
that the defense must disclose
prosecution
names and
addresses
trial,
all witnesses it
witnesses,
intends to call at
rather than
its alibi
merely
violates
self-incrimination clause. Decisions of the Supreme Court com
apel
contrary conclusion.
Williamsv.
Florida
(Williams), the high court upheld against a self-incrimination clause chal-
2Tbe new
chapter of the Penal Code also includes
(prohibiting
section 1054.2
defendant,
counsel,
disclosure to
but not to defense
of address and telephone number of
victims and prosecution witnesses) and section
(providing
1054.4
chapter
does not
limit law enforcement
lawfully
from
gathering
evidence).
nontestimonial
3Section
provides
1054.3
that “The defendant and
attorney
his or her
shall disclose to the
prosecuting attorney:
(a)
defendant,
The names and
[f]
addresses of persons, other than the
he
trial,
or she intends to call as witnesses at
together with any relevant written or recorded
statements of
persons,
those
reports
or
of the statements of those persons,
including any
reports or
case,
statements of experts made in connection
including
with the
the results of
examinations,
tests,
or
physical
mental
scientific
experiments,
comparisons
which the
defendant
intends to offer in evidence
(b)
at the
Any
trial.
real evidence which
[J]
defendant intends to offer in evidence at the trial.”
rule, which
a criminal defendant
required
“notice-of-alibi”
lenge Florida’s
notify
place
alibi defense to
on an
rely
intending
the time in
and of the names
to be at
question,
the defendant claimed
where
intended
call
support
the defendant
of the witnesses
and addresses
*10
Petitioner,
situations
not limited to
that section 1054.3 is
noting
the alibi.
defense,
argues
Williams and
distinguish
attempts
an alibi
involving
defense
discovery compelled
clause
prohibits
the self-incrimination
it
the special problems
in
an alibi defense and
witnesses
the absence of
language
cites the
argument petitioner
As
for this
presents.
support
fabricated,
that,
which an alibi can be
“Given the ease with
Williams
defense is both
an eleventh-hour
against
State’s interest
itself
protecting
(Id.
450].)
at p.
at
81
L.Ed.2d
legitimate.”
p.
and
[26
obvious
which he
The
Williamson
language
is
argument misguided.
Petitioner’s
case,
in that
trial
addressed
the due
and fair
issues
process
relies relates to
Moreover,
Amendment analysis.
petitioner’s
relevant to the Fifth
and is not
clause, which
of the self-incrimination
scope
argument misinterprets
compelled
own
incriminated
his
against being
a person only
“protects
391,
(1976) 425 U.S.
(Fisher United States
v.
testimonial communications.”
55,
39,
1569],
added.)
Under cases of
italics
L.Ed.2d
96 S.Ct.
409 [48
Court,
this privi
that together trigger
there are four requirements
Supreme
(ii)
(i) “incriminating”;
“personal
must be
lege:
sought
information
defendant”;
(iv)
or commu
(iii)
and
“testimonial
by “compulsion”;
obtained
422
225
(1975)
U.S.
(See
nicative in
United States v. Nobles
[45
nature.”
141,
[Nobles];
(1966) 384
Schmerber v.
L.Ed.2d
names and a defendant’s alibi witnesses is not addresses of self-incrimination, (Id. Amendment. does violate the Fifth therefore not requirements directly wording of the self-incrimination 4These four emanate from against case to be a witness compelled person clause: “No . . . shall be criminal . . .” (Italics added.) himself. reasoned, most, 452].) “At the rule only at L.Ed.2d at p. p. [26 disclosure, timing by forcing to accelerate the of his compelled [defendant] him that the from the divulge at an earlier date information [defendant] 452], (Ibid. italics at trial." beginning planned divulge p. Thus, added.) that the of the names and addresses of the witnesses trial, support defense, defense intends to call at whether or not in an alibi merely forces the defendant “to at an earlier date information divulge (Ibid. from the at trial.” beginning planned divulge [defendant] Williams, 452].) L.Ed.2d at Under not the rationale of such does self-incrimination, compelled constitute and therefore does not implicate privilege.5 contention,
We thus address second that insofar as petitioner’s *11 section 1054.3 the defense trial statements of requires any to disclose before trial, it witnesses intends to call at that section violates the self-incrim ination clause. Once again, decisions of the Court a con Supreme compel trary conclusion.
Compelled disclosure of the statements of defense witnesses does not
meet all of the
requirements necessary to
self-incrimination
implicate
clause. We agree with
that the
petitioner
acceleration doctrine of Williams
here,
discussed above is not
for it is
a matter of
dispositive
merely
not
forcing
defendant
divulge
“to
at an earlier date information that the
(Williams,
from the beginning
supra,
to
at trial.”
planned
divulge
[defendant]
78,
446,
399 U.S.
85
452].)
L.Ed.2d
Some statements of witnesses
[26
Thus,
defense intends
call might
to
never be
trial
by
offered at
defense.
to the extent that the statements are
such incrimination is
incriminating,
indeed
And
compelled.
clearly such
are “testimonial or commu-
statements
757,
nicative
(See
nature.”
California, supra,
Schmerber v.
384 U.S.
761
908,
not, however,
L.Ed.2d
914].) Such
[16
statements are
to the
“personal
defendant.”
here,
rejecting
5In
our analysis
Justice Broussard’s dissent relies on Brooks v. Tennessee
(1972)
358,
406
[Brooks;
U.S. 605
L.Ed.2d
holding
requiring
[32
92 S.Ct.
rule
1891]
witnesses,
all,
testify
defendant
before other defense
or not at
violative of accused’s
right
silent],
constitutional
(1965)
to remain
v.
misplaced. We also note language that the quotes Justice Broussard from Estelle v. Smith 454, (1981) 359, 368, 1866], 451 U.S. 462 L.Ed.2d 101 S.Ct. eloquently supports [68 our analysis: “The essence of this basic principle requirement constitutional is ‘the that the State which proposes to punish convict and an produce against individual the evidence him the officers, independent labor of its not the simple, expedient forcing cruel it his own from ” (See Broussard, J., lips.’ 405, opn. by dis. post, p. added.) italics omitted and Nobles, As the court 422 U.S. high stated “ against personal basically self-incrimination ‘is a it adheres privilege: ” (Id. not to information that incriminate him.’ person, may [45 150-151], at pp. L.Ed.2d Couch v. United States 409 U.S. quoting 548, 553-554, 611], L.Ed.2d original.) 93 S.Ct. italics [34 Nobles, the court rejected a self-incrimination to atrial court order challenge the defense made to disclose its of statements requiring investigator’s report as a trial by prosecutorial investigator witnesses once defense called its witness.
In Nobles the “The third high court reasoned: fact that these statements of were elicited does parties investigator defense on behalf [defendant’s] them not convert into communications. personal Requiring [defendant’s] their from the therefore would not sense production investigator to be a witness communications compel against himself or extort [defendant] (Nobles, 151].) from him.” The U.S. L.Ed.2d concluded, “the Fifth Amendment self- privilege against compulsory incrimination, defendant, extend being does not personal (Ibid. testimony or statements of third called as witnesses at trial.” parties 141, 151].) high court’s Nobles Section 1054.3 reasoning controlling here. *12 statements, statements, requires disclosure the defense of of reports defendant,” of other “persons, than that the defense intends to call as Thus, witnesses at trial. “third statements are those of compelled within parties” of Nobles and are therefore of the meaning scope outside 225, of the (Nobles, self-incrimination 234 clause. U.S. [45 141, 151].)6 L.Ed.2d Nobles,
Petitioner
that the
Court
attempts
distinguish
noting
Supreme
never
has
upheld disclosure of statements of defense witnesses
trial.7
before
He further observes that the Federal Rules Criminal
for
provide
of
Procedure
trial,
disclosure of statements of defense witnesses
at
only
they testify
after
(18 U.S.C.).
rule 26 of the
citing
Federal Rules of Criminal Procedure
Here
again petitioner’s argument
of
self-
misinterprets
scope
disclosure,
incrimination clause. The
of the
whether before or
timing
during
6We
high
note that
holding
persons
court’s
in Nobles that
such third
are
statements of
scope
outside the
of
applicable
self-incrimination clause is no less
to the statements
defense witnesses than
prosecution
it is to the statements of
witnesses in the hands of the
defense,
case,
as was
parties
the situation in Nobles. In
“third
either
such statements are of
[to
trial,”
(Nobles,
called as witnesses at
rather
“personal
be]
than defendant’s
communications.”
225,
141,
supra, 422
151].)
U.S.
Nobles,
support
(D.C.
7As
for his reading
petitioner
cites Middleton v. United States
109;
1979)
71;
(D.D.C. 1980)
401 A.2d
United
F.Supp.
States v. Felt
and United States v.
(N.D.Cal.
cases,
Layton
1981)
Having application discovery provisions that Fifth Amendment 115 does not violate petitioner’s privilege self-incrimination, we turn under the state against now to Constitution.
2. I Challenge. State Constitutional Section 15 of article of the Cali I, (hereafter 15) fornia Constitution article section the defendant guarantees in a criminal case certain procedural rights, including right not to be relied compelled testify against oneself. This court on provision Misener, supra, 38 Cal.3d to invalidate former Penal Code section 1102.5, defendant, which permitted the to discover from the prosecution on direct following testimony examination of defense witnesses other than defendant, prior statements made by those witnesses. Petitioner asserts the new under unconstitutional our decisions chapter Misener and other cases the state interpreting privilege against constitutional self-incrimination.
Misener,
supra, 38 Cal.3d
was
line
preceded by long
of decisions of
this court
the subject
on
of prosecutorial
discovery, beginning
Jones v.
Superior
Court
promote (Id. 60.) at p. street.” short was two-way Traynor street envisioned then-Justice Jones in Prud-
lived the road was closed effectively as to prosecutorial 129, 466 P.2d Superior (1970) v. Court Cal.3d 320 Cal.Rptr. homme [85 Prudhomme, (Prudhomme). significant we reasoned that “certain 673] Jones,” Supreme in the law since a decision of the developments including self-incrimination to against Court the Fifth Amendment applying privilege 653, (1964) Hogan 84 S.Ct. (Malloy the states v. 378 U.S. [12 1489]), and the upon by” court’s the role high “increasing emphasis played were cause to reexamine the privilege, policies underlying prosecutorial Prudhomme, (Prudhomme, 323.) supra, essentially Cal.3d at discovery. p. facts, Jones reasoned that the focus must be whether limiting to its burden of “conceivably lighten prosecution’s compelled discovery might held compelled its case in chief” and that the “forbids proving privilege tending disclosures which could serve as a ‘link a chain’ of evidence 326.) (Id. Prud- guilt p. Accordingly, establish of a criminal offense.” at defendant to required homme annulled a order that would have names, expected testimony disclose to addresses prosecution 328.) (Id. he call at p. all witnesses intended to trial. at Prudhomme, The federal perceived trend that we Cal.3d was terminated two later decision abruptly high months court’s Williams, notice-of-alibi rule against 399 U.S. Florida’s upholding Thereafter, a Fifth case ad- Amendment self-incrimination in a challenge. defense dressing the order validity requiring of nonstatutory it to disclose to the and addresses of the witnesses names call, rule, we it resting would retained Prudhomme on the (Reynolds self-incrimination contained in the Constitution. against California (1974) 12 Superior v. Court Cal.3d 528 P.2d Cal.Rptr. 45] [Reynolds].) Reynolds, We Prudhomme gainsaid stated “it cannot be this court on more put being privi- record solicitous of considerably (Id. than lege against currently self-incrimination federal law requires.” 843; see also Allen v. 18 Cal.3d 524-526 Superior Court 774, 557 P.2d Cal.Rptr. requiring court order disclosure [invalidating 65] witnesses, defendant of *14 they so could ascertain whether prospective jurors them, were with as self- acquainted against violative of state privilege incrimination in of finding absence that such disclosure could not possibly tend to incriminate defendant or lessen burden of prosecution’s proof].)
Any that the state self-incrimination would possibility privilege against nonetheless eliminated permit some form of was prosecutorial 371 Misener, 543, supra, 38 Cal.3d which we down struck the Legislature’s statute, attempt to fashion a reciprocal discovery reasoning extent case, a compelled disclosure is useful to the it prosecution’s violates defendant’s state constitutional privilege against self-incrimination.
The cases foregoing represented the state of the law facing voters June when they 1990 voted amend the California Constitution. As dis- above, I, cussed 115 30(c) added article section the California Proposition Constitution, providing that criminal “discovery cases shall be reciprocal nature, as prescribed by Legislature by through people initiative process.” concept mandated “reciprocal” discovery by I, article 30(c) section inherently inconsistent the roadblock to prosecutorial created our earlier by of the state interpretations constitutional privilege against self-incrimination as in the Prud- developed Thus, homme line of cases. this we resolving inconsistency must apply principles of constitutional interpretation.
Rudimentary
principles
construction dictate that when constitu
tional
conflict,
provisions can reasonably be construed so as to avoid
a
such
584,
construction should
(Serrano
be adopted.
(1971)
v. Priest
5 Cal.3d
596
601,
1241,
Cal.Rptr.
1187];
P.2d
[96
487
41 A.L.R.3d
see
Lungren
also
v.
Deukmejian
727,
(1988)
45 Cal.3d
735
299].)
755 P.2d
Cal.Rptr.
[248
conflict,
As a
recent,
means of avoiding
specific provision is deemed to
older,
carve out an
to and
exception
thereby
(See,
limit an
general provision.
e.g., People
v.
(1986)
Valentine
42 Cal.3d
181
720
Cal.Rptr.
913];
Priest,
P.2d
596;
Serrano
supra,
v.
People
Cal.3d at p.
v. Western
Airlines,
Inc.
Therefore,
Cal.2d
723].)
P.2d
extent that the Prudhomme line of cases impeded reciprocal discovery,
I,
article
30(c)
section
cases,
must be seen as abrogating those
and limiting
scope
state constitutional privilege against self-incrimination
itas
relates
Valentine,
to reciprocal
(See
discovery.
People v.
Cal.3d at
I,
181.)9
Article
30(c)
section
constitutes a specific
exception
broad
dissent,
9In
Justice
I,
Mosk incorrectly argues
interpretation
our
30(c)
of article
section
removing
I,
the Prudhomme roadblock renders
30(c)
article
section
redundant to section 3 of
Proposition
(“[T]he
rights of a defendant...
to due process of law . . .
to not be
[and]
compelled to be a
against
witness
himself or herself . . . shall be
construed
the courts of
this state in a manner consistent with the
.”),
Constitution of the United States.
. .
invali
Raven,
dated
our decision in
(See
Mosk, J.,
privilege against forth (Ibid.) California Constitution. in passing the voters
Such an
effect to the intent of
interpretation gives
the measure was to
115.
The manifest intent behind
The
discovery.
preamble
Propo
street of
reopen
two-way
reciprocal
sition 115
are needed to restore balance
states that
reforms
“comprehensive
115,
1(a),
and fairness to our criminal
italics
justice system.” (Prop.
§
added.) In
goal,
order to
this
the voters intended to
accomplish
remove
roadblock to
created
our
prosecutorial discovery
interpretations
state constitutional
privilege against self-incrimination as
developed
states,
Prudhomme line
The
of cases.
further
“In order to address
preamble
these concerns and to
these
find that
accomplish
goals, we
further
people
it is
necessary to reform the law as
numerous California
developed
115,
Court decisions .
Supreme
1(b).)
. . .” (Prop.
§
We note the California Constitution continues to afford criminal
an independent
infringement
defendants
source of
from
of certain
protection
Raven,
rights,
(See
including
privilege against self-incrimination.
B. Right to Due Process Lawof Petitioner asserts the new his due discovery chapter right violates process of the law under the Fourteenth Amendment of the United States Constitution. We disagree. The Fourteenth Amendment recites pertinent life, part: “No state shall . . . deprive any person liberty, or property, without due of law . . . process .”
1. Reciprocity Challenge. due clause has foregoing process little to say about the amount of which must be afforded the parties (Wardius criminal prosecution. Oregon, v. 412 U.S. [Wardius]; L.Ed.2d Brady (1963) [37 but cf. v. Maryland 87] U.S. 83 L.Ed.2d 83 S.Ct. [Brady; has prosecutor obligation to 1194] clause, however, disclose evidence].) exculpatory The due “does process discovery in criminal cases to parallel the federal right constitutional of criminal defendants Wardius Oregon under v. U.S. S.Ct. 2208]. *16 (War- balance between the and his accuser.” accused
speak dius, of forces is, when 87], added.) at at That L.Ed.2d italics p. p. defense, discovery is of the that must be discovery allowed prosecution (Ibid. 87.].) at Court held reciprocal. Supreme Wardius clause, that under due cannot be compelled criminal defendant process in of fair discovery reveal the absence by procedures his alibi defense he notice that would have to discover opportunity prosecution’s rebuttal witnesses. face
Petitioner the new fails on its chapter asserts discovery clause. provide discovery by for as due reciprocal required process construed, Properly discovery chapter we conclude that the new affords defendants sufficient to meet the rights reciprocal discovery requirements of reasons, that, due At the note our process clause. outset we for two of the scheme favor an interpretation requirement should statutory implicit of reciprocity.
First, I, 30(c), article section the new enacted provision constitutional with the new that contemporaneously discovery chapter, expressly provides nature, in criminal “discovery cases shall be by as reciprocal prescribed the Legislature or It People through the initiative follows process.” voters, that that requiring any prescribing discovery initiative nature,” criminal cases be intend that their “reciprocal naturally would of a contemporaneous enactment for criminal cases would discovery scheme in fact for such provide reciprocity.
Second, itself, turning to the Penal statutory enactment Code section 1054 (section 1054) expressly provides discovery that the entire new chapter “shall be effect interpreted to all includ- give following of the purposes,” ing the provision “no shall except occur criminal cases as provided this other chapter, express statutory provisions, mandated or as the Constitution (§ added.) the United (e), States.” subd. italics Given that the due process clause mandates when the reciprocity obtains from the (Wardius, 470), materials defense 412 U.S. and given that the new discovery for chapter provides discov- prosecutorial Code, ery of defense evidence (see Pen. 1054.1]),10 1054.1 it [section § should, follows that new discovery if chapter possible, interpreted such providing reciprocity.
prosecuting attorney or if the prosecuting attorney or her of a call as seized or obtained as a part of investigating agencies: 10Section 1054.1 felony attorney witnesses conviction all of the following materials and trial, provides, [|] [f] (a) (b) “The prosecuting material The names Statements of all investigation witness whose and addresses attorney shall disclose of the offenses defendants. information, knows it to be in the credibility persons [1] if it is in the charged. (c) likely All relevant prosecutor H] the defendant or his to be possession possession (d) critical to real evidence intends to existence of the mind, review determine we the new With this chapter *17 whether, it reciprocity or meets the explicitly implicitly, requirement defense the obligations the due clause. the process Comparing under ante, 365, 3) (see, prosecutor fn. with those of the p. under section 1054.3 ante, 373, the two 10), it is that (see, section fn. clear p. under 1054.1 other, the defend- favoring each imbalance any track provisions closely Wardius, (See under due clause. required process ant as the by reciprocity 470, 475, any is to be U.S. fn. 9 there supra, [“If L.Ed.2d 88] favor.”].) it work the defendant’s discovery rights, imbalance should identities and the the disclose the Both and defense must prosecution trial, although intend addresses of all to call as witnesses at they persons relevant Any need defendant will testify. defense disclose whether the not witnesses, the statements reports written or of such or recorded statements witnesses, must And while the of such must also be disclosed. prosecution inves- as of the disclose all “relevant real evidence or obtained part seized intends to offer need disclose that real evidence it tigation,” only defense Moreover, timing at trial. of disclosure relating to provisions to both the mechanics of enforcement apply evenhandedly prosecution is new it is clear the scheme the defense. these that reviewing provisions, state disclosure “carefully hedged with duties reciprocal requiring 450].) (Williams, defendant.” supra, 399 U.S. 81 [26 or insufficiency Petitioner makes arguments asserting nonetheless several in turn. lack new which we address reciprocity discovery chapter, First, inadequate is petitioner discovery claims new chapter defense, it, under by because a disclosure following compelled rather, is of the compelled discovery prose not to prosecution reciprocate; appears cution is demand” the defendant. Petitioner required only “upon by that of the argue compelled, discovery to once a of the defense is should prosecution disagree. be automatic. We en- 1054.5(b) Section seek court party may before either provides scheme, the forcement of disclosure the new required party make must first an informal the other for the information. request party that the through Given must also of the defense prosecution obtain 1054.5(b), violated mechanism of section due clause is not process to use mechanism effectuate his or by requiring defendant the same her The is that the same reciprocal discovery rights. reciprocal scheme enforcement defense. mechanism is used and the both case, comparisons to call at the outcome of the statements of including the trial, including any reports which the witnesses or trial. results of H] prosecutor (e) reports Any exculpatory physical of the intends to or or mental statements statements of offer evidence. examinations, in evidence at the of witnesses experts [1] (f) scientific Relevant written made whom the trial." tests, conjunction prosecutor experiments, or recorded with the intends Wardius, the due process 412 U.S. held that high opportunity would have an clause “notice requires defendant] [the (Id. 90].) L.Ed.2d at p. rebuttal discover the State’s witnesses.” an 1054.5(b) opportunity. a defendant with notice of such Section provides Second, insufficient the new discovery chapter asserts petitioner witnesses, a there is because disclosure of defendant’s following compelled no on the disclose the defense the duty prosecutor prosecu part witnesses, Wardius, tion’s U.S. 470. required rebuttal *18 the witnesses he or Petitioner notes that must disclose those prosecutor only trial, she at and that take the argues prosecutors position “intends” to call can that disclosure rebuttal not their intent to witnesses is because required call such witnesses is on whom the defense calls and the any dependent testimony of the defense We find no infirmity. witnesses. constitutional
The due clause that the defendant will have the process requires notice (Wardius, opportunity to discover the rebuttal prosecutor’s supra, witnesses. 412 90].) U.S. addressing Before petitioner’s that argument, we note the of a criminal enumeration defendant’s discovery rights under specify section 1054.1 that does hot rebuttal witnesses are However, included. the only interpretation reasonable of the that requirement the prosecution disclose the names and addresses of persons prosecu- “[t]he tor intends to call as witnesses at trial” is that this section includes both witnesses in the prosecution’s case-in-chief rebuttal witnesses that the prosecution intends call. The “at trial” phrase exactly means that—at the trial, not the merely during A like prosecution’s provision case-in-chief. Ohio’s discovery scheme was similarly the Ohio interpreted by Supreme Court, which held the the requirement that disclose the wit- prosecution nesses it “intends to call at trial” includes “all it witnesses reasonably call, it anticipates likely is whether in its or in rebuttal.” case-in-chief (State v. Howard Op.3d Ohio St.2d 328 Ohio 912, 915], N.E.2d italics added.)
Addressing petitioner’s argument, begin we with the observation that the prosecution’s right to discover defendant’s witnesses under section 1054.3 is Thus, triggered intent of the call defense to that witness. the disclo sure by the of its defense under signals witnesses section 1054.3 prosecution that the defense “intends” to call those witnesses trial. It follows that the prosecution must call necessarily any “intend” to of its witnesses will who be used in if refutation defense witnesses A called. prosecutor cannot “sandbag” defense by disclosure of compelling call, witnesses the defense intends to and then in effect redefining meaning of “intends” when it comes time to disclose rebuttal witnesses.
The same definition
applies
prosecution
to both
A
of witnesses
assures
disclosure
thereby
reciprocity.11
and the defense
discover rebuttal
defendant’s
triggers
right
1054.3 thus
under section
1054.1,
of reciprocity
fulfilling
requirement
under section
witnesses
Wardius,
Third, the due process claims that under reciprocity petitioner witnesses not its rebuttal only clause disclose requires prosecution statements), all their also statements or but (and reports their recorded the evidence disclosed evidence it intends to use to refute other defense, such reciprocit fails to discovery chapter require and that the new that under the new chapter We agree petitioner y.12 evidence not otherwise discoverable need not disclose prosecutor conclude, however, process We due defense under section 1054.1. does such disclosure. clause not require Williams, rule under U.S. court held a high its disclose evidence refutation required
which not (other the defense than its rebuttal witnesses the alibi evidence disclosed by *19 reci- statements) of requirement their not violate the due process does 449-450].) The (Id. high 81-82 L.Ed.2d at pp. at procity pp. [26 rule, to the the disclose requiring prosecution concluded that Florida’s in for the to to rebut the alibi defense exchange witnesses it offer proposes witnesses, of requirement met the due process defendant’s disclosure of alibi (Ibid. 450].) at p. L.Ed.2d reciprocity. [26 some
We that the Wardius general language opinion gives recognize unfair a to “It is to argument: fundamentally require support petitioner’s at the time defendant the details of his own case while same divulge to very him to a refutation of the subjecting surprise concerning hazard of 412 (Wardius, supra, of which he the State.” evidence disclosed to pieces 470, 82, 88].) read to U.S. this could be Although language L.Ed.2d [37 that of all evidence the prosecutor disclosure the of require possession alibi, refute the is an will be used to defendant’s this incorrect interpretation the due clause. opinion process of Wardius and the 834, the Reynolds, supra,
We stated in Cal.3d that under Wardius only federal of disclosure reciprocity constitutional requirement requires of Ohio the Supreme requirement prosecution 11The Court defined the that the disclose reasonably including anticipates it to call at it is witnesses “intends trial” as “all witnesses it 912, Howard, (State 915.) likely adopt to call. v. We definition . . .” 383 N.E.2d this purposes interpreting chapter. for requirements discovery of the of the new discovery, attorney 12We note both his for the that on informal and formal motions district provision stating a with evidence voluntarily included it would furnish defendant “All or by impeaches obtained corroborates defense materials possessed prosecution however, voluntary promise, apart obligations by Such from the created the new . . . .” a discovery challenge constitutionality and is therefore not relevant to a facial of chapter, by 115. provisions Proposition enacted a an defense witnesses to defendant’s disclosure of alibi rebuttal response Wardius “Two indicate that witnesses: passages and alibi the witnesses which the will defendant of the identities seek prosecution defense is the qua reciprocity or refute an alibi sine non of to rebut 13, 844, (Id. fn. of notice-of-alibi constitutionally procedures.” required Wardius that make this added.) then two italics We sections of quoted clear.13 point that the defend under due clause notice
Reciprocity process requires ant have the discover rebuttal witnesses will opportunity prosecutor’s statements) (and their of defense witnesses following discovery 82, (Wardius, supra, 412 U.S. 90].) Reci prosecutor. L.Ed.2d trade, witnesses, defense for requires a fair witnesses procity nothing more. We from the Court’s glean nothing Supreme interpretations process requires due clause lead us conclude reciprocity to disclose other evidence prosecutor gathered response compelled case, defense disclosure that be used to refute the defendant’s when may is not following defense to do the same required prosecu witnesses.14 tion’s we summary, conclude that the new discovery chapter enacted 115 creates a scheme nearly symmetrical crimi- cases,
nal
imbalance
reci-
favoring
defendant as required by
Wardius,
under
(See
the due
procity
process clause.
U.S.
fn. 9
88].)
“Brady”
Challenge.
Evidence
2.
Petitioner asserts the new
*20
discovery
violates the due
the
chapter
failing
clause
process
by
require
prosecutor
to disclose all
high
evidence as mandated
the
exculpatory
83,
court in Brady, supra, United States
(See,
U.S.
and
e.g.,
its
progeny.
481,
v. Bagley (1985)
3375];
States v. 104, 763].) 92 S.Ct. (1972) U.S. 150 v. United States required by a a fair trial as that defendant secure may order clause, to disclose all substantial duty “the has a due process That exists duty an material evidence favorable to accused. [Citations.] [citation], evidence been for such request of whether there has a regardless or inadvertent.” whether the was intentional irrespective suppression and P.2d (.People Cal.Rptr. v. Morris 46 Cal.3d 29-30 [249 under new sec 843].) obligation Petitioner asserts prosecutor’s 1054.1, (e) evidence” “any tion subdivision to disclose exculpatory of disclosure duty defendant defined than the prosecutor’s is more narrowly argument misplaced. under the due clause. Petitioner’s is process are the due clause process The disclosure under prosecutor’s duties of The due scheme of wholly independent statutory reciprocal discovery. be need statutory support are no process self-executing requirements has a or not state obligations adopted effective. Such exist whether Furthermore, if a scheme statutory discovery statute. reciprocal discovery exists, a scheme. outside such these due process requirements operate voluntarily, whether or not such evidence obligated to disclose prosecutor discovery. the defendant makes for request criminal defend-
No statute can limit the due foregoing process rights ants, not to do so. On chapter attempt the new does contrary, contemplates the new disclosure outside discovery chapter scheme as enunciated statutory requirements to constitutional pursuant Brady, 373 U.S. and its Section 1054 progeny. expressly provides that the new shall effect to give chapter interpreted that “no in criminal cases except provided shall occur provision this as mandated other chapter, express statutory provisions, (§ added.)15 We (e), Constitution subd. italics United States.” due chapter conclude there is no because the new discovery violation process *21 disclosure of all right does not affect the defendant’s to constitutional the evidence in hands of as mandated exculpatory the the high Brady, court 373 U.S. and its progeny. due clause discovery chapter process 15Petitioner asserts the new violates the also requiring only possession prosecutor, of of the disclosure that favorable evidence in all prosecutor possession investigating agencies, known to rather than be in the of (United favorable “within of law States v. Hsieh Hui Mei evidence the control enforcement.” (9th 1985) 824.) scope Brady argument merely goes Chen Cir. 754 F.2d This and, outside, of, such, prosecutors statutory
duties of as and independent is also both discovery scheme. Right C. Assistance Counsel Effective of effective violates his right
Petitioner asserts new chapter States counsel under Sixth of the United assistance of Amendment We Sixth part: Constitution. The Amendment recites disagree. pertinent “In to have enjoy right... all criminal the accused shall prosecutions, his assistance of counsel for defense.” Challenge. prose 1. Assistance Petitioner asserts Counsel of the fore cutorial of the statements of defense witnesses violates going right by chilling to counsel clause counsel’s trial preparation. defense view, such defendant petitioner’s discovery penalizes attorney whose is most Amendment vigilant the defense. We no Sixth preparing perceive violation.
We a first note Court never struck down discovery has Supreme scheme as violative of the to effective Further- right assistance counsel. more, under the new discovery chapter, a criminal defendant need disclose (and those witnesses call only statements) their the defendant intends to at trial. It is logical only assume that those defense deems witnesses counsel helpful to the will on a defendant’s witness appear identity list. defense of damaging witnesses that the defense intend call at trial need does not Thus, not be disclosed. is there the new nothing discovery chapter would penalize investigation exhaustive chill preparation or otherwise trial of defense counsel such that criminal would denied the right defendants to effective assistance of counsel under the Sixth Amendment. Nobles,
Our conclusion inis line with that of the court which high rejected an argument that the court order the Sixth Amendment by violated defense, witness, requiring called once it its as a investigator trial disclose the investigator’s made statements wit report by prosecutorial (Nobles, 225, 240, nesses. 422 U.S. 154- fn. stated, 155].) In Nobles “The Sixth Amendment does confer the not right to present testimony free from the legitimate demands of the adversar ial system; one cannot invoke Sixth Amendment as a justification for what presenting might (Id. have been half-truth.” L.Ed.2d at p. 155].) Prosecutorial discovery of the statements intended de fense witnesses a “legitimate demand” criminal justice system aimed at avoiding testimonial “half-truths” by what then-Justice promoting Traynor referred to “the orderly (Jones, supra, ascertainment of the truth.” 56, 60.) 58 Cal.2d *22 Nobles,
Petitioner attempts to distinguish arguing rejection its of right waiver, i.e., to counsel challenge was based on a of the defend- theory
380 election to make “voluntary claim his by waived his Sixth Amendment ant (Nobles, supra, 422 investigator’s report.” use of [the testimonial defense] court, 141, however, 240, 225, 154-155].) 15 The high fn. L.Ed.2d U.S. [45 right the sole to rejecting that waiver was not basis for stated expressly waiver, stated, “Moreover, this we apart As the challenge. counsel court from the limited recognize think the concern voiced fails to by [defendant] 141, 155], (Ibid. nature of order.” L.Ed.2d and conditional the court’s [45 discovery is added.)16 the new discovery chapter, italics Under of statements of defense witnesses limited to relevant statements and reports (See trial. intent to call witnesses at defendant’s upon and conditioned 141, Nobles, 225, 240, 154-155].) The 422 U.S. fn. 15 supra, [45 rein over free all give do not discovery provisions new defense files.17 disclosure involving attempts distinguish
Petitioner also Nobles trial, discovery during discovery chapter contemplates whereas new lead us to conclude no that would argument trial. We discern credible before before, than trial renders such discovery during, the fact that rather occurs conditional Amendment. The limited and violative of Sixth discovery constitutionally by discovery chapter accept- authorized the new discovery Nobles, 225, 422 of the supra, regardless reasoning able under the U.S. the discovery. timing Petitioner contends Attorney Challenge.
2.
Work Product
the new
disclosure of
provision of
discovery chapter requiring pretrial
Amendment
violat
statements of defense
the Sixth
implicates
witnesses
in Hickman v.
the work
doctrine enunciated
ing
product
high
451,
(1947)
(Hickman).
Taylor
U.S.
67
495
L.Ed.
S.Ct. 385]
States,
Nobles,
reading
support
petitioner
16In
of his
cites Middleton v. United
high
unpersuaded
We are
makes
of the
court’s
A.2d
Middleton as it
no mention
109.
challenge.
rejecting
was not
Amendment
statement
that waiver
the sole basis for
the Sixth
Felt,
71,
cases,
two federal
and United
F.Supp.
Petitioner also cites
United States v.
misreads
Layton, supra,
proposition.
States v.
for the same
Petitioner
90 F.R.D.
theory
solely
federal cases. Neither stands
that Nobles was based
on
proposition
for the
trial
compelled
prior
waiver or that
of statements of defense witnesses
denies a
disclosure
guaranteed by
the effective
Amendment. Petitioner
defendant
assistance of counsel
the Sixth
43,55
People
Cal.Rptr.
v.
Cal.3d
634 P.2d
also cites dictum in
Collie
776],
investigator’s
that if
of interviews of defense
report
A.L.R.4th
of a defense
allowed,
right
potentially
of counsel is
witnesses is
“defendant’s constitutional
assistance
issue,
(Italics added.)
being
presented
threatened.”
we find no threat to
squarely
After
with the
the effective assistance of counsel.
dissent,
that there
attempts
distinguish
by pointing
17In
Justice Broussard
Nobles
out
only
portion
order
it
“the relevant
trial court’s
was “limited” in that
reached
Broussard, J.,
(See
investigator’s
original.)
. . .”
italics in
report.
opn. by
post, p.
dis.
fails;
similarly
only
The distinction
section
limits
the “relevant written or
1054.3
added.)
(Italics
recorded statements” of witnesses.
*23
Hickman, supra,
developed
misreads
Moreover, we note the
that
expressly
new
chapter
provides
there
attorney
product
work
is nondiscoverable. Because
is no constitutional
basis for a
the work
product
any protection
work
California of
privilege,
product
statutory
of an
must
based on state common or
law.
attorney
be
2016)
Section
(formerly
Code of Civil Procedure codified
§
work
doctrine
civil
product
that
law as to
cases
developed
common
Greyhound,
our
subsequent
supra,
(See People
decision
Section 2018 of is nondiscovera that work attorney product expressly provides section thus ble.19
D. Issues Other of the new constitutionality challenge to
Beyond facial informa disclosure of defense that discovery chapter, petitioner speculates the United States Constitution. will certain circumstances violate tion However, defendant nor the prosecut section 1054.6 “Neither provides, . . . materials or information which to disclose ing attorney required any Thus, the United States.” of are as Constitution privileged provided by limitations on new discovery appears provide adequate chapter under the federal a defendant’s discovery rights requirements protect Constitution. no also that the new contains discovery chapter
Petitioner argues that a issues procedural means for defendant to raise constitutional potential are certain materials discoverable. bear on whether or not might requested 1054.7, provides Penal which Petitioner Code section correctly notes cause,” and which showing of on of “good mechanism for denial a review, a not of camera does contemplates possibility apply be violated rights that his constitutional would defendant’s assertion discovery.20 and need no self-executing are rights
Constitutional of criminal defendants in other areas of criminal statutory prose- enforcement mechanism. Just as cutions, (§ 1054.5(b)) a defendant file to the may opposition prosecution’s hearing motion calendared for motion for formal have the to prosecutorial before the trial court. The normal avenues of opposition of constitutional motions are available to defendants claiming infringement (See Superior (1988) 205 City Cal.App.3d Alhambra v. Court rights. of 789].) are Cal.Rptr. safeguards adequate 1130-1131 These procedural criminal the constitutional of defendants. protect rights note, however, 19We of “work expressly product” that section 1054.6 limits definition is, writing reflecting attorney’s impres “an any criminal cases to “core” product, work sions, Thus, conclusions, legal qualified of opinions, protection research or theories.” or (b), applicable certain materials under Code of Civil Procedure section subdivision cases, limiting longer civil The more recent statute is no available criminal cases. exception product older product definition work in criminal cases carves out an to the work (See applicable rule to civil criminal cases alike. Estate 20 Cal.3d of Kramme 1369].) Cal.Rptr. 573 P.2d “threats “good possible danger safety 20Penal Code section 1054.7 limits cause” to or witness, evidence, possible possible victim or loss or destruction compromise investigations by other law enforcement.” Moreover, 1054.5(b) to “make order any section the trial court empowers Among . . . .” those enforce the of this necessary provisions chapter 1054.6, are which that defendants provisions unequivocally is section states which are . . . not “to disclose materials or information required Thus, under of the United States.” privileged provided the Constitution discretion, briefing new the trial its order may, chapter *25 and in camera on a issue and conduct an argument contested of privilege, The case belies hearing where necessary. procedural history petitioner’s the argument his to After filed contrary. opposi petitioner claims, tion was the trial raising constitutional motion heard papers by court its on the to decision order.21 prior discovery
Last, 115, petitioner contends section 3 of which Proposition purports that of criminal require interpretation certain state constitutional of rights defendants, trial, rights to due and including speedy and a process public Constitution, be consistent with him analogous rights the federal denies of the equal protection law because the new interpretation People’s rights (Cal. constitutional process to due and a and trial speedy public Const., I, 29) art. are so limited Our § not federal law. recent decision by Raven, 52 Cal.3d and 3 section of striking severing Proposition 115, and thus of acknowledging continued these independent vitality enumerated state constitutional renders this claim moot. rights, Disposition
IV. that, construed, Because we conclude the new properly discovery chapter is, face, enacted by Proposition 115 on constitutionally its valid under Constitutions, federal and state the alternative writ mandate of issued this by 22,1991, court on February is and the discharged, writ is denied. peremptory The order of Court of Appeal is affirmed.
Panelli, J., Arabian, J., Baxter, J., and concurred. KENNARD, Concurring. I concur in the reached result by majority J. I opinion, and agree with most of the I majority’s reasoning. disagree, 21 petitioner We note that requested parte hearing an ex on that camera the basis self-incrimination clause by disclosing would violated a the name address of witness whose identity defense directly petitioner. learned properly rejected from The trial court petitioner’s request. has hearings inherent discretion conduct camera determine objections to based (City disclosure on privileges. Superior asserted Alhambra v. of Court, supra, Cal.App.3d 1118,1130-1131.) properly The trial court reasoned even if petitioner effect, make could showing camera to this the self-incrimination would clause witness, not compelled bar the identity given that petitioner intended call (Williams, that witness later at trial. 399 U.S. 81-82 449-450].)
however, that the contention analysis petitioner’s with the majority’s Sixth Amendment implicate provisions ante, 380-381.) (Maj. pp. work doctrine. violating product opn., case, ordered petitioner In this which is at the the trial court pretrial stage, names, addresses, whom the of witnesses to disclose statements illegal, the order is intends to call at trial. Petitioner contends defense that are protected because it his to disclose matters requires attorney in criminal cases recognizes Proposi- Petitioner product privilege. work an work statutory attorney’s tion 115 has limited California’s for privilege however, inherent in his Sixth He that a argues, privilege broader product. counsel, has been Amendment and that this broader right on relies primarily violated the trial court’s order. Petitioner 385], in S.Ct. Taylor Hickman v. U.S. 495 L.Ed. *26 work product which the United States Court established a broad Supreme in federal proceedings for court. privilege created
The the correctly product privilege out that work majority points U.S. Taylor, supra, the United in Hickman v. States Court Supreme 495, supervisory powers is based on federal statutes and the court’s high observation, majority leaps the federal judiciary. general over From this constitutionally to the conclusion that “the work doctrine is not product ante, 381.) But conclusion finds no (Maj. founded . . . .” this opn., p. in in United States Supreme Hickman or other decisions of the support Hickman, In Court. did not hold that there was no constitu- high court established a tional basis for the work Once court product privilege. to, need and the court nonconstitutional basis for the there was no privilege not, a therefore did determine whether the federal Constitution provided basis for the work separate attorney product privilege.1 the United never decided Although expressly States Court has Supreme whether the federal attorney work is founded on product privilege Constitution, (1975) in United States v. Nobles U.S. 2160], it in criminal cases the privilege 95 S.Ct. has hinted that strongly Nobles,
is in the Sixth the defense grounded right Amendment to counsel. calling to attack the of a witness attempted credibility prosecution had defense that the witness investigator testify regarding statements majority Greyhound Corp. Superior 1The it v. claims “follows” this court’s decision in 266], Greyhound Cal.Rptr. Court 56 Cal.2d 364 P.2d and 399-401 [15 (Maj. held “that the . federal Constitution.” product . . work doctrine is not rooted in the ante, 18.) Greyhound. in opn., fn. I find no discussion of the federal Constitution action, Greyhound right Because and Sixth Amendment’s to counsel involved a civil cases, applies only relationship right in between the to counsel criminal discussion of the product and the work under the facts of that privilege would have been irrelevant case. The then of the investigator. sought discovery made witness, use in of his interview for investigator’s report written investigator. cross-examining found that the defense high ultimately Nobles
Although it did explaining— case had waived the work so after product privilege, only Taylor,supra, U.S. 495—how from its decision Hickman v. quoting enabling role in attorneys work an essential product plays “ ‘In their vari- properly clients’ interests: his represent performing [or her] it is lawyer degree ous duties ... essential that a work with a certain free and their privacy, from intrusion unnecessary opposing parties which counsel. . . . That is the historical necessary way lawyers and act within the justice framework of our system jurisprudence promote reflected, course, and to their clients’ This work protect interests. interviews, statements, memoranda, briefs, mental correspondence, impres- sions, beliefs, personal intangible and tangible ways— countless other . . . termed aptly ... as the Were such product lawyer.” “work demand, materials open opposing counsel mere what on much of is now down in put writing would remain An thoughts, unwritten. here- attorney’s inviolate, tofore would not be his own. unfairness and Inefficiency, [or her] sharp practices in the inevitably would advice and develop giving legal the preparation of cases for trial. effect on would be legal profession demoralizing. And justice interests of the clients the cause of would *27 ” Nobles, be (United poorly served.’ States 422 at v. U.S. 237 p. [45 L.Ed.2d at p. 153].) case,
After that noting Hickman was a civil the Nobles pointed court out that the role of the attorney work “in product privilege assuring the proper functioning of the criminal justice (United is even system more vital.” States Nobles, v. supra, 422 U.S. at p. 153].) L.Ed.2d at the p. Finally, court [45 discussed the various that the aspects form essence of the At its privilege. core, said, the court are “the attorney.” mental of the The processes court then observed one of the litigation” “realities of attorneys is that often rely on for investigators (Ibid. 154].) assistance. L.Ed.2d at Accord- p. [45 ingly, the court concluded: “It is therefore that the doctrine necessary protect material by for prepared agents attorney the as well as by those the prepared (Id. attorney himself.” at 238-239 L.Ed.2d at pp. 154].) p. [45 By stressing the fact that the work is “vital” attorney product privilege ensure to “necessary” can their lawyers properly clients’ represent interests, implies Nobles that this anis of a criminal privilege integral part defendant’s Sixth Amendment right to counsel. the court in Although high Nobles declined to delineate the expressly (United scope Nobles, supra, 422 States v. U.S. 154]), at L.Ed.2d p. [45 at it p. implied witnesses, whether prepared attorneys of by of the statements that reports (Id. within are included the investigators, privilege. defense by themselves Thus, case, 153-154].) by ordering this at pp. at 237-238 L.Ed.2d pp. to the defense intends the statements of witnesses disclosure reports call, within of materials that fall discovery the trial court have directed may the Sixth Amendment. the afforded protection counsel, if the to right Even the product privilege grounded work however, of waiver. here on discovery may upheld ground ordered Nobles, if held that a United States v. high 422 U.S. trial, waives the work testify defendant calls a witness to at the defendant to that witness’s statements regard gathered with product privilege (Id. at at attorney’s p. defendant’s and the attorney agents. 154].) call any this at the the defense has to pretrial stage, yet Because case is only has of statements discovery witnesses. trial court ordered fact waiver has defense intends to call. But that no witnesses despite witnesses), I no (because has see occurred the defense not called discovery a rule to take place constitutional to impediment permitting trial, anticipation the work waiver of expected advance of defendant’s occurs, that when the actually prosecution so waiver product privilege, in a evidence position effectively will be to rebut presented trial, If when the defense. no until the time of provides defense under- waiver takes not have sufficient time to place, may prosecution adequate take the an rebuttal investigation necessary prepare appropriately defense To address this testimony. problem, Proposition trial, in give allows to take before order place an Because this opportunity investigate response. prepare is limited to the defense intends to waive regard witnesses whom trial, work them it does not violate product privilege by calling testify *28 a defendant’s Sixth Amendment rights. view, however,
In there the manner in which the my is limitation on justified the If is the prosecution may discovery. discovery only by use will product the defendant waive the work expectation privilege, allowed utilize at trial fruits of such prosecution should not be until If witnesses discovery actually prosecution that waiver takes place. fashion, in an decide to call its testify may the defense not unanticipated witnesses, intended thus may and the waiver of the work product privilege use, Therefore, not occur. for as impermissible prosecution it would case-in-chief, gained through of its evidence of part discovery of statements potential defense witnesses. case, that the will use the is no this there reason to believe Moreover, the trial case-in-chief.
court-ordered of its part out, majority correctly points court’s was As proper. order Constitution, under the California rights order does not violate defendant’s nor does it his Fifth self-incrimination. privilege against violate Amendment violated, his petition Because constitutional have not been rights defendant’s writ of mandate should I therefore agree majority’s for be denied. writ, have I expressed, for the reasons I holding denying although, Amendment cannot concur Sixth majority’s analysis petitioner’s claim.
MOSK, J. IAs shall scheme in statutory discovery I dissent. explain, challenged is invalid and therefore the order is question unsup- as a matter of law. ported
I Election, At the June an voters initiative Primary approved constitutional amendment and on the statute that was ballot as designated Proposition 115—the “Crime Reform Act.” self-styled Victims Justice
Section 23 of added 10 to title 6 of purportedly chapter Code, 2 of the part Penal “Discovery,” entitled Penal Code comprising sections 1054 1054.7. Within through section 1054.1 chapter, provides for discovery the defense1 and section 1054.3 for provides discovery by the prosecution.2 1“The prosecuting attorney attorney shall disclose to the defendant or his or her all of the information,
following materials and possession if it is in the of the prosecuting attorney or if the prosecuting attorney it to agencies: knows be in the of the possession investigating “(a) The names and addresses of persons the intends as witnesses prosecutor to call at trial. “(b) Statements of all defendants. “(c) All relevant evidence investigation real seized or obtained as a part of the charged. offenses “(d) The existence a felony credibility conviction of material witness whose likely to be critical to the outcome of the trial. “(e) Any exculpatory evidence. “(f) Relevant written or recorded reports statements witnesses or of the statements of trial, witnesses whom the prosecutor reports intends to including any call at or statements case, experts made in conjunction including with the physical the results of or mental examinations, tests, experiments, scientific or comparisons which the intends prosecutor *29 offer in evidence at the trial.” 2“The defendant and or her attorney his disclose to prosecuting attorney: shall the “(a) defendant, The names and persons, addresses of than the other or she he intends to call trial, as witnesses at together with relevant written or recorded statements of those persons, reports or of the statements of persons, including those any reports or statements of 1990, 6, (See Cal. June effective.
On became Proposition purportedly id., XVIII, Const., II, art. art. (a) [statutory provisions]; § subd. § provisions].) [constitutional Tulare Court the filed an information the
Subsequently, People Superior and The pleading Javier Valle a codefendant. against petitioner, Izazaga, commission, the of two counts of with the on June charged pair Code, (Pen. (2)) simple former and one count of rape forcible subd. § Code, 207, (a)); it and varied (Pen. alleged many subd. also kidnapping § sentence enhancements. of and for People Izazaga made an his counsel request informal Penal the of Code section
discovery pursuant procedural requirements to 1054.5, the and covered Penal Code by all information material seeking section Izazaga 1054.3. refused. Penal an order under
Thereupon, the moved the court for People superior to the Code section and his counsel disclose compelling Izazaga 1054.5 informally information material had requested. and they scheme, Izazaga statutory discovery the motion. He attacked the opposed Penal including Code section 1054.3 especially permitting prosecutorial criminal defend of the discovery, following protections granted as violative tiie due law under by right process ants United States Constitution: to of Amendment; the Fourteenth self-incrimination of against Amendments; Fifth and right Fourteenth to the assistance of counsel Amendments; right under the Sixth and Fourteenth and the to the equal He attack of the laws under the Fourteenth Amendment. did not protection Constitution, evidently scheme as violative of the California because *3 3 of section 115.* Proposition case, experts including physical made with and results of or mental in connection examinations, tests, experiments, comparisons which the intends to scientific or defendant offer evidence at the trial. “(b) Any evidence which defendant intends offer in evidence at the trial.” real to following 3Section 3 add the text to section 24 of article I purported rights to equal protection of the Constitution: “In cases the of a defendant California criminal laws, counsel, law, process personally present due to the assistance of to be counsel, trial, witnesses, public to a to confront the speedy compel attendance her, seizures, against privacy, to be witnesses him or free from unreasonable searches herself, to not be be a to not be twice in compelled against placed witness himself or offense, jeopardy punish for of cruel unusual imposition the same and to not suffer ment, in a consistent Constitu shall construed this state manner with the courts of not to afford tion of United States. This shall be construed courts Constitution greater rights afforded the Constitution of the United to criminal than those defendants *30 motion to compel. The court conducted a on hearing People’s superior course, In the court to hold unsuccessfully requested its defense counsel camera, on the certain outside the presence prosecutor, proceedings came and directly that all information and material ground sought hence disclosure exclusively Izazaga compelled from himself and that its federal self-incrimination. might against violate his constitutional After the motion to hearing, superior granted People’s “(1) It ordered the immediate The names and addresses compel. disclosure of Defendant, persons, other than the or Defendant intends to call as counsel trial”; “(2) witnesses at relevant Any written or recorded statements of in #1 “(3) persons reports above and/or statements of such persons”; case, Any or statements of made in reports experts connection this to, examinations, including, but not limited the results of or mental physical tests, scientific or which the Defendant experiments, or counsel comparisons case”; ‘real’, “(4) offer as evidence at the trial of Any this intend[s] i.e. tangible evidence which the Defendant physical, or counsel intend[s] to offer evidence at the trial.”
Thereafter, Izazaga submitted to the the Fifth Court of for Appeal Appel- late District a for writ petition and/or mandate prohibition against court with superior for a request stay, seeking to restrain court from enforcing its order He compelling prosecutorial discovery. attacked the scheme, statutory discovery Penal Code including especially section 1054.3 permitting prosecutorial discovery, on the same federal constitutional grounds he relied inon his opposition People’s motion to compel. Court of denied Appeal summarily relief solely ground on procedural that this court was the forum. appropriate then
Izazaga petitioned this court for review with a request stay enforcement superior court’s order compelling prosecutorial discovery pendente lite. He made the same federal constitutional attack he had made in thereafter, Court of We Appeal. stayed enforcement as long Not prayed. granted we review. We then caused an alternative writ of mandate to issue. response, People as real party interest submitted simultaneously a return and a “Motion for Briefing of Additional Argument Issue.” motion,
In their drafted in the wake of our decision Raven v. Deukme- jian (1990) 52 Cal.3d 1077], 349-355 Cal.Rptr. P.2d invalidating section 3 substance, of Proposition the People requested, that we consider the question whether the statutory scheme is violative of a criminal defendant’s privilege against self-incrimination under States, nor shall it be construed to greater rights afford juvenile minors in proceedings on criminal causes than those afforded the Constitution of the United States.” *31 I, Izazaga subsequently of the California Constitution.
article section We the granted request. the motion. joined return, mounted a In maintain that has not Izazaga their the People which federal on protections successful based on the constitutional challenge chal- he cannot mount a successful he has relied. also maintain that They the including lenge protection, based on state constitutional self-incrimination. against brief,
In makes an attack on state Izazaga essentially a supplemental self-incrimination— grounds—including privilege against constitutional grounds. the attack he had made on federal constitutional already parallel II above, has several claims Izazaga against validity As noted raised scheme, Penal Code section including the statutory discovery especially view, In at least one is discovery. my 1054.3 permitting prosecutorial show, I fails muster under the privilege meritorious. As shall scheme I, the California Constitu- self-incrimination of article section against criminal cause be a “Persons not ... a tion: may compelled . . against witness themselves . .” called, I set out the
Before
so
shall
undertaking
analysis properly
necessary legal background.
(1962)
372 P.2d
Superior
Jones v.
Court
prohibition attacking compelling prosecutorial On the defendant day successfully set for trial on a charge rape, continuance, and that he moved for a that he had been stating long impotent injuries needed time to medical evidence connection with certain gather he had suffered. moved for Subsequently, successfully People (1) and material: the names and addresses of all following information on physicians testify injuries bearing defendant about subpoenaed (2) the all who had treated impotence; names addresses of physicians him; (3) all on injuries bearing about his condition and reports physical all taken after the impotence; X-rays immediately injuries. We restrained the enforcing compelling prosec- trial court from order of, alia, utorial inter the state framed because it was violative constitutional privilege against self-incrimination.
A this court held that is not prosecutorial discovery bare majority Justice—later Chief absolutely prohibited by privilege. Speaking through one-way stated that “should not be a street” Justice—Traynor, they (58 60), Cal.2d at and material from allowing flow of information *32 the defendant the defendant to the also People. They to but not from People pro stated that could be ordered to rules of pursuant procedure under inherent admin mulgated orderly this court’s to for power provide legisla of even in the mandate or justice, istration absence of constitutional (Id. 59-60.) the trial tive authorization. at concluded: “Insofar as pp. They herein and addresses court’s order to reveal names requires [defendant] of he and he intends X-rays witnesses intends to call and produce reports to introduce evidence defense it does not support impotence, his of violate the ... It privilege against simply requires self-crimination. [de he reveal Such shortly anyway. disclose information that will fendant] order, however, information is The discoverable. is not limited to the discov information, of ery such and therefore cannot be enforced its present (Id. 62.) form.” at p.
In separate concurring Justice Peters and Justice dissenting opinions, Dooling declared that was barred the state prosecutorial discovery totally constitutional privilege against self-incrimination. Justice Peters’s words: “The ‘one-way street’ is The fact argument fallacious. obviously simple that our system of criminal is founded that the procedure upon principle ascertainment of the facts is a street.’ It is the constitutional ‘one-way right defendant, innocent, of who is to be to stand silent while the presumed is, state to meet attempts its burden of the defendant’s proof, prove defendant, now, guilt beyond a The reasonable doubt. until did not have up to take an active in the ascertainment part of facts. majority opinion does not merely enlarge judicial it simple principle pretrial procedure, of accused, alters fundamentally our of the of the and forces concepts rights him to come forward with information before the has presented 64-65, (58 a case against (conc. him.” Cal.2d at pp. original italics & dis. Peters, J.).) of opn. (id. (conc. Justice Peters also & concluded at 67-68 pp. Peters, J.)), dis. opn. (id. (conc. as did Justice & Dooling 68-69 dis. pp. J.)), that even if opn. Dooling, not prosecutorial discovery totally was barred, it could not be ordered absent constitutional mandate legislative authorization.
Next, in People (1969) v. Pike 71 Cal.2d 455 P.2d 595 Cal.Rptr. [78 776], a majority of this court followed rejecting Jones perfunctorily defendant’s claim that an order compelling prosecutorial discovery names, addresses, and expected testimony of defense witnesses was violative of, alia, inter the state constitutional privilege against self-incrimination. Justice Peters again dissented. Superior (1970) in Prudhomme v. Court Cal.3d 320
The following year, 129,466 673], (at we limited to its facts effectively P.2d Jones Cal.Rptr. (at 11). 323) Pike fn. disapproved p. expressly United States Su- among things, We did after other considering, so self-incrim- privilege against Court’s preme expanding interpretation Amendment, Fifth which had held states applicable ination of the been Amendment, two years the due clause of the Fourteenth through process Jones, S.Ct. v. U.S. Malloy Hogan after 1489]. we in the considerations analyze
“. . . Jones light policy [I]f *33 the federal constitutional it is that [underlying privilege], apparent demand determining element whether a for principal particular allowed whether the simply sought pertains should be is not information defense,’ an to introduce or rely ‘affirmative or whether defendant intends trial, the evidence at but whether conceivably might disclosure thereof upon (2 Cal.3d at lighten prosecution’s p. burden of its case chief.” proving omitted.) fn. however, We absolutely made was not plain, prosecutorial discovery the federal constitutional self-incrimination. prohibited by against any “We do not intend to that the from suggest should barred this, other, A factual case. reasonable demand for which, Jones, defenses, information to a defense or pertains particular trial, and seeks at only information which defendant intends to introduce (2 may present no substantial hazards of self-incrimination . . . .” Cal.3d p. italics original.) decided,
Less than three months after Prudhomme
the United States
was
Supreme Court’s theretofore
the Fifth Amend-
expanding
of
interpretation
ment’s
In
privilege against self-incrimination
to contract. Williams v.
began
1893],
Florida
“Although Due Process Clause has little to say regarding amount afforded, which the parties must be it does speak balance of forces between the accused and his accuser. The Williams Court was careful therefore to note that ‘Florida law for liberal provides discovery by State, the defendant against the and the rule carefully notice-of-alibi is itself hedged with duties reciprocal state disclosure requiring defendant.’ The same cannot be said of Oregon law. . . .
“We do not suggest that the Due Process Clause of its own force requires Oregon to such adopt provisions. But we do hold that the absence of a strong showing of state interests to the must contrary, discovery be a two-way street. The State may not insist that trials be run as a ‘search for *34 truth’ so far as concerned, defense witnesses are while maintaining ‘poker game’ secrecy for its own witnesses. It is fundamentally unfair to a require defendant to divulge the details of his own case while at the same time him subjecting hazard of surprise concerning refutation of the very pieces of evidence which he (412 disclosed to the State.” U.S. at 474-476 pp. 87-88], L.Ed.2d at pp. citations omitted.) and fns.
In Reynolds
Superior
v.
Court
In an opinion for a unanimous court Chief Justice by we ex- Wright, pressed our view that “such a procedural innovation as requiring defendants in criminal cases to give introduced, advance notice of alibis should be if at all, only upon the considered judgment Legislature. . . . [C]omplex state and federal constitutional law are balanced closely questions
and The gravity order. of these counsels questions a notice-of-alibi presented so as to a rule-making power promulgate our notice- the exercise of against 837.) (12 Cal.3d at p. of-alibi procedure.” [Jones, in here issue is viewed light
“When the order Prudhomme, Williams, it manifest that the order presents Wardius] law, and federal. of constitutional both state delicate difficult questions rest the contention that notice-of-alibi While Williams have laid to may against with the federally guaranteed privilege are inconsistent procedures self-incrimination, of California people this is also secured to the court, Constitution, left to this informed our state whose construction is reading parallel but untrammelled the United States Court’s Supreme in Wil- did not hesitate Supreme federal Court provisions. [Citations.] ‘two-way street’ defendants with alibi defenses down liams to send claim of analogous a defendant making partially out Jones for mapped case; in Prudhomme has itself cast doubt but this court impotence rape course, Of Prudhomme's concern for analogical utility on the of Jones. an accused of revealing collaterally incriminatory consequences possible, based on trial the defense witnesses . . . was part advance of names of Nevertheless, it federal law. cannot be this court’s reading pre-Williams more being considerably that Prudhomme this court on record as gainsaid put federal law cur- self-incrimination than privilege against solicitous of Thus, we would there is answer to the foregone question no rently requires. order: face were we on the merits of the . . . court’s necessarily pass are un- permissible whether discovery procedures general notice-of-alibi der the California Constitution. us to require . court’s order would
“Consideration of the merits of
.
.
*35
law,
whether the
state
but also
far-reaching
decide not
this
issue of
only
muster
federal constitutional
order is
sufficiently reciprocal
scope
pass
842-843,
(12
at pp.
fundamental fairness.”
Cal.3d
under the Wardius test of
omitted.)
fn.
(1975)
The next
United States v. Nobles
year,
2160],
the
Court
addressed
again
95 S.Ct.
the United States Supreme
defendant’s criminal trial
of
prosecutorial discovery. During
issue
court,
key
credibility
federal
defense counsel
sought
impeach
regarding
investigator
witnesses
of a defense
prosecution
by testimony
he
them
interviews. Counsel
during
statements
had
obtained from
previously
he
have to submit
called the
The court told counsel would
investigator.
investigator’s
investigator’s
at
close
report
then ruled
he
The court
Counsel said
did not intend to
testimony.
comply.
conviction, the
After
could not
about the interviews.
investigator
testify
concluded,
alia,
Appeals
Court of
inter
Fifth Amendment’s privilege
that the
self-incrimination
the conditional disclosure
against
prohibited
imposition
The
Court held
It reasoned that the
requirement.
Supreme
contrary.
to the
to the
not extend
“personal
defendant” and as such “does
(Id.
or statements of third
witnesses at trial.”
testimony
parties
p.
called as
151].)
L.Ed.2d at Superior
Allen v.
year following,
Court
In an Chief opinion by Justice we recalled “In Wright, at the outset that Prudhomme we concluded that the element principal determining whether a compelled disclosure should be allowed is ‘whether disclosure thereof conceivably might lighten prosecution’s burden of proving its case ” (18 524.) chief.’ Cal.3d at p. Williams,
Citing Nobles we stated that we were “mindful that the trend of the federal high court’s decisions on defense questions compelled disclosure to the prosecution is not wholly consistent with our interpretation of the privilege against (18 524.) self-incrimination.” Cal.3d at p.
But we declared that “It is established that our Constitution is ‘a document [citations], independent court, force’ ‘whose construction is left to this informed but untrammeled United States Supreme [wc] Court’s reading of federal parallel provisions. [Citations.]’
“In Reynolds we noted that ‘Prudhomme put this on record as being considerably more solicitous of the privilege against self-incrimination than federal law currently requires.’ We maintain that solicitude and [Citation.] *36 affirm the continued vitality standards set forth in stringent Prud- homme for the protection of the against self-incrimination as privilege I, embodied in article (18 525.) section 15.” at Cal.3d p. Prudhomme,
Applying we the in concluded that order question could not stand.
396 filed and Justice Clark separate dissenting opinions.
Justice Richardson
view, had
artificial barriers prevent-
Justice Richardson’s
“erect[ed]
(dis.
(
Next, 634 (1981) in Cal.3d 43 P.2d People Cal.Rptr. v. Collie 776], to generally we Prudhomme proceeded beyond 23 A.L.R.4th authoriza- express legislative absent disapprove prosecutorial discovery, tion, raise serious inevitably on the that such would ground Constitutions, including the under the United States and California questions (Id. 49-56.) at We pp. state charter’s self-incrimination. privilege against however, we deemed problem- that the prosecutorial made plain, (id. 7) evidence” fn. atic was such as is directed at “testimonial p. (ibid.): firmly evidence” “we leave intact established not “nontestimonial to, and privilege inapplicable that hold self-incrimination precedents of, evidence such as finger- nontestimonial mandatory production allow and handwrit- samples, appearances lineups, blood breath prints, samples, (Ibid.) and voice ing exemplars.” however, He judgment. disagreed,
Justice Richardson concurred decision blocks analysis. “Today’s entirely People’s court’s fiat, knowledge them without judicial leaving access to Street’ ‘Discovery roadblock, or if have created the any, as to what constitutional principles, (30 (conc. p. opn. how the obstruction can be cleared.” Cal.3d at Richardson, J.).) re Cal.3d 543 Cal.Rptr. In Misener
Finally, 637], violative of the P.2d we struck down Penal Code section 1102.5 as statutory against provi- state constitutional self-incrimination. privilege on their People, the defendant and his counsel to disclose to required sion direct testified on they statements defense witnesses after request, prior impeachment was to facilitate apparent purpose examination. Its sole (38 554.) more such witnesses. Cal.3d at We construed p. effect, that it barred in Prudhomme—concluding, than we had broadly the entire burden of carry that could prosecutorial discovery help People doubt, whether com- defendant a reasonable proving guilty beyond case unmake the disclosure to make the or to might People’s serve pelled (Id. 554-558.) defendant’s. at pp. criticized the court’s Justice—now Chief Justice—Lucas
Dissenting, cases,” he which claimed “holdings prior “creat[ed] case present (38 the truth.” Cal.3d at ‘roadblock’ the search for devastating Lucas, (dis. J.).) opn. of
I turn now to the before the court. When that question presently issue is above, against considered legal background following set out con- scheme, including clusion is practically compelled: statutory discovery Penal Code section 1054.3 is especially permitting discovery, prosecutorial face on its violative of a criminal defendant’s state constitutional privilege against self-incrimination.
It matters not whether the is construed Prud- narrowly, homme, noted, broadly, as Misener. As the former interpretation prohibits when the prosecutorial discovery disclosure con- compelled might case-in-chief, ceivably lighten burden of their People’s establishing whereas the latter bars such when the disclosure could help the entire People carry burden of the defendant proving guilty beyond doubt, reasonable whether by their case or making his. by unmaking It is clear that the intent underlying statutory scheme is generally assist the broadly People obtaining conviction of scheme—indeed, criminal defendants. It clearer is still that the effect necessary its effect—is to furnish just such assistance. we
Certainly, cannot reasonably construe the statutory scheme in a such manner as to avoid conflict with the state constitutional privilege against self-incrimination.
The drafters of Proposition declared Penal Code section 1054.6 “Neither the defendant nor prosecuting attorney to disclose required any materials or information . . . which are an privileged pursuant express statutory are provision, or privileged as provided by Constitution of the United States.” soBy made stating, they that the plain Constitution of the State California—including its privilege against self-incrimination— was not within their consideration. We cannot overlook their meaning or ignore its effect.
It is true that Penal Code section 1054.7 the drafters declared that a “denied, restricted, “disclosure” may be or deferred” if “good cause” is “ shown. But in that same provision added: they ‘Good cause’ is limited to witness, possible danger threats or of a safety victim or possible loss evidence, or destruction of or possible compromise of other investigations limited, law (Italics added.) enforcement.” As so cause” is “good clearly enough not broad to encompass a claim under the California Constitution under generally or its privilege against self-incrimination specifically. course, question, arises whether the passage affects foregoing analysis under the state constitutional privilege against self-incrimination. As will appear, answer is negative.
It is manifest that those who drafted 115 had Proposition a intent tripartite as to the issue under consideration.
First, viz., had an intent drafters as to the to remove the past, alleged “roadblock” to the state prosecutorial discovery assertedly by established constitutional against self-incrimination. Consider section 3 of privilege 115, which have Proposition would added the relevant text to following I section of article of the state “In criminal a right[ charter: cases of ] defendant ... to not be to be a witness himself or compelled against herself . by . . shall be construed the courts of this state a manner consistent with Constitution of the United States. This Constitution shall not be construed the courts to afford to criminal defendants greater rights than those afforded the Constitution of the United States . . . .”
Plainly, design alleged drafters was not to breach simply “roadblock,” as by overruling judicial one or more decisions any construing Rather, the state constitutional it privilege against self-incrimination. was to remove the alleged altogether, by abrogating “roadblock” as privilege guaranty of its federal constitutional Recall Penal independent analogue. 1054.6, Code section which is above: “Neither the defendant nor the quoted prosecuting to disclose materials or information . . . attorney required any which are to an or are privileged pursuant express statutory provision, as the Constitution of the United States.” The ab- privileged provided by sence of mention of the Constitution evidences State of California was, fact, an that the state assumption abrogated. constitutional
Second, viz., the drafters had an intent as to the to enact a present, statutory discovery scheme that would for the as permit discovery People well as for the defendant. We need look no further for than to section proof 23 of which Penal Proposition purportedly adds Code sections through 1054.7.
Third, future, viz., the drafters had an intent as to the to require henceforth all discovery must be a street” with each “lane” “two-way roughly same width as the other. Section 5 of 115 adds Proposition section I (c) 30 to article of the California Constitution. Subdivision 30(c)—declares, new section 30 of article new “In I—hereafter section order trials, for fair and provide criminal cases shall be speedy nature, reciprocal Legislature prescribed by people through initiative was process.” concept reciprocity evidently notion, source, derived from Wardius.The as defined its describes both material—i.e., direction of the flow of from the People information and the defendant and from the character of the the defendant to the People—and material—i.e., flow of such balanced. information and Not is the intent of who drafted only those tripartite sought. manifest. Manifest too is the chose to attain what they they means *39 Thus, 115, section 3 of which would have added text Proposition Constitution, I above to section of article of the California would quoted discovery assertedly have removed the “roadblock” to alleged prosecutorial In established the state constitutional self-incrimination. by privilege against Raven, made before section 3 was invalidated both the arguments they In People Izazaga arguments, those impliedly recognized point. neither addressed the the state constitutional party whether question privi- have lege might survived of the measure. passage Next, 115, section 23 of which adds Penal Proposition Code purportedly 1054.7, sections 1054 would have enacted a through statutory discovery scheme would have well permitted discovery for as for the People defendant. 115, section 5
Finally, 30(c), which adds new Proposition section nature,” i.e., requires “discovery criminal “reciprocal cases” to be flowing as well as to the defendant and People also balanced character.
The discussion set out above leads to conclusion: the following passage 115 does Proposition not affect the determination that the statu- scheme, tory discovery including Penal Code section 1054.3 especially permitting prosecutorial is on its face criminal discovery, violative of a defendant’s state constitutional The rea- privilege against self-incrimination. son is plain. means chosen by drafters of the initiative measure to remove the alleged “roadblock” to prosecutorial discovery assertedly estab- above, lished failed to privilege attain what As noted they sought. Raven we invalidated section 3 of the measure.
It might be perhaps argued 30(c) that new section itself removes the alleged “roadblock.” Such an argument rejected should be out of hand. It is based evidently 30(c) on an interpretation of new section render would it redundant in pertinent to the text that part would have been added to I section of article of the state charter An section 3 of 115. interpretation of that kind should be (City County avoided. San (1982) Francisco v. Farrell 32 Cal.3d Cal.Rptr. 648 P.2d event, 935].) In any an argument such as the be preceding would unpersua- sive.
First, 30(c) new section alleged does not remove the “roadblock” ex- terms, pressly. accordance with meaning the clear of its plain provi- sion invalidates each and scheme that is not every statutory discovery But it reciprocal. does not validate scheme—whether the simply any such scheme in other—that question happens reciprocal. Simply put, it does not immunize any statutory scheme attack under against Constitution, the California including against its self-incrimination. Second, 30(c) new section does not remove the “roadblock” alleged implication. course, Wholesale,
Of as we reaffirmed in recently Kennedy Inc. v. State Bd. Equalization 53 Cal.3d 249-250 Cal.Rptr. “ *40 1360], P.2d ‘the law In- shuns . . . .’ repeals by implication [Citation.] deed, is the strong that when a presumption against implied repeals ‘[s]o new enactment conflicts with an for the existing provision, order “[i]n first, second law to or repeal supersede former must constitute revision of the entire so that the subject, that it was intended may say ’ Thus, to be a substitute for the first.” to avoid repeals by [Citation.] ‘we are bound to implication harmonize . . . constitutional provisions’ are claimed to stand in conflict.”
There is no conflict between the state constitutional of reci- requirement in procity discovery and the state constitutional self- privilege against sure, incrimination. To be the reciprocity permit be read to requirement may above, But prosecutorial discovery. as explained does privilege simply Misener, prohibit not such discovery. Even as in it broadly, construed as allows prosecutorial discovery of at least nontestimonial evidence. It follows a fortiori that the reciprocity does not amount to a requirement revision of the entire subject covered privilege.4 4The majority attempt to avoid the presumption against repeal by implication patent and its applicability in They appear this matter. presumption repeal to reason that the not cover does Such, by implication however, that is limited or pro (See tanto. Kennedy is not case. Wholesale, Inc. v. State Equalization, 249-250.) Bd. pp. 53 Cal.3d at The majority attempt also to find a conflict between the state requirement constitutional
reciprocity discovery in state constitutional privilege against They self-incrimination. shown, conclude prohibits that the latter the former. But as that conclusion is unsound. Certainly, Prudhomme, majority’s privilege, assertion that the as narrowly construed in prosecutorial bars discovery weight. falls under its own discussing the federal constitu- Prudhomme, privilege tional implied we privilege might the state constitutional be implicated compelled in a might disclosure that “conceivably lighten prosecution’s burden of proving (2 its case in added.) Cal.3d at p. implied italics But we-also that the chief.” state constitutional prohibit prosecutorial did not discovery: “We do not intend to suggest this, other, that the should be barred any discovery from case. which, Jones, A reasonable demand for factual pertains particular information as in to a defenses, defense or only and seeks that information which defendant introduce at intends to trial, may present no substantial hazards of self-incrimination . . . .” italics in {Id. original.)
An I argument, can be made to the effect that new section acknowledge, 30(c) works a restricted One read the change by implication. might perhaps intended to foster substantial “In order to provision reciprocal discovery: trials, provide speedy criminal cases shall be for fair (Italics added.) nature reciprocal reading, . . . .” Under such a provision might be deemed to broad construction impliedly reject MisenePs of the state constitutional self-incrimination. But it cer- privilege against further, could not held tainly be to extend as for to affect Prud- example homme’s narrow Prudhomme interpretation. could conceivably permit pros- 12.1, 16, ecutorial discovery not dissimilar to that which rules and 26.2 of (28 U.S.C.) Federal Rules of Criminal currently Procedure allow federal criminal Such would proceedings. surely “substantial” under any reasonable definition of the term.
I recognize that the drafters of 115 must “intended” and have “assumed” that the statutory scheme would muster under the pass California Constitution. But they must have had a similar intent and assump- tion as to section 3 of the measure—which we struck down Raven. Such *41 an intent and could not assumption validate what was invalid there. Neither can they do so here. conclusion, scheme,
In the statutory discovery Penal including especially Code section 1054.3 permitting prosecutorial is on its face viola- discovery, tive of a criminal defendant’s state constitutional self- privilege against such, incrimination. As it If is invalid. the scheme could somehow be and interpreted given effect after Penal Code section 1054.3 had been best, severed—a dubious at in proposition, light of its na- comprehensive ture—it would be 30(c), offensive to new facially section which requires in “discovery such, criminal cases shall nature . . it reciprocal . .” As would be invalid on that separate ground. independent
It follows that the challenged order compelling is prosecutorial discovery without the requisite support law: it was not issued accordance with valid legislative authorization. It is of no whether the United consequence States or California Constitution might mandate some possibly hypothetical order some compelling undefined prosecutorial discovery some conceiv- able case. This is because neither the federal nor state charter imposes any event, such mandate here. any order—as challenged very its words reveal—is broad and entered as it was unqualified, response to the broad and People’s motion to Even under unqualified compel. Prudhomme's narrow interpretation privilege against of state constitutional self-incrim- ination, it cannot stand.
III above, statutory discovery I that the conclude For all the reasons stated Further, I invalid. conclude 115 is by Proposition added purportedly scheme is unsupported prosecutorial order challenged compelling that the matter of law. as a writ, stay, vacate
I the alternative discharge would therefore to cause the issuance with directions Appeal of the Court of reverse order a writ as peremptory prayed. of
BROUSSARD, J. I dissent. the prosecutorial in the majority opinion, to the
Contrary
implications
115 much
relevant
provisions
authorized
the applicable
by any
that has been
approved
broader than the
the notice-of-alibi
date. Unlike
Court decisions to
Supreme
United States
Florida
U.S. 78
L.Ed.2d
at issue Williams v.
provision
a defendant
Williams)—which
(hereafter
simply required
I. Williams, for the broad standing U.S. read majority defendant to disclose a requires that no proposition discovery provision the defendant witnesses that or all any identity against Fifth Amendment privilege intends to call at trial can ever violate self-incrimination because such disclosure is not a disclosure “compelled” meaning within the of the Fifth Amendment. on a Relying passage Williams which the that the rule at in that court stated notice-of-alibi issue timing case to accelerate the of his disclo- “only compelled [the defendant] sure, him to at an earlier date information that the forcing divulge [defend- (399 from the at trial” beginning planned divulge p. ant] U.S. 452], added), L.Ed.2d at italics reason that insofar as majority pretrial to witnesses or evidence that the defendant pertains plans trial, disclose at a acceleration” of the the defendant’s “required timing of disclosure never impinges on defendant’s Fifth Amendment rights, ap- parently regard without to the potentially incriminatory nature of the disclo- sure.
But the United States
Court’s
Supreme
subsequent decision Brooks v.
(hereafter
Tennessee
In 605, my supra, 406 U.S. in establishes that some circum- stances a rule which requires a defendant to “accelerate” the disclosure of witnesses or evidence he may disclose at trial can the on impinge that, defendant’s Fifth Amendment rights, and the contrary majority’s conclusion, a more sensitive analysis of both the of the state purpose law and
404 the is needed to determine the effect of the acceleration on defendant’s rights the the of state validity practice. ante,
Further,
(see
at
maj.
pp.
assertion
contrary
majority’s
opn.,
366-367),
even when
the
court has
Fifth Amendment violations
high
found
defendant to
testimonial
technically
produce
the state has not
“compelled”
106,
(1965)
L.Ed.2d
85
disclosures.
v.
at italics fn. absence pp. testifies court held that “when a defendant notwithstanding, high Amendment his grounds, of a motion to evidence on Fourth support suppress him not thereafter admitted at trial on the issue testimony may against 1259].) (Id. he L.Ed.2d at guilt p. unless makes no objection.” Indeed, academic have many question commentators who considered Williams,supra, have concluded that the broad 399 U.S. interpretation Brooks, adopted by majority, high analysis conflicts court’s California, supra, 406 U.S. v. U.S. or Simmons Griffin States, Mosteller, (See, Discovery Against v. United U.S. e.g., 377. (1986) Tilting the Adversarial Balance 74 Cal.L.Rev. 1569 Defense: Westen, (hereafter Hosteller); Right An Accused’s to Control Order of Proof: Timing Sequence (1978) Evidence in De 66 Cal.L.Rev. His fense 935, 947-952; A Lapides, Discovery: Cross-Currents in Prosecutorial Defense 227-228.) Viewpoint Counsel’s 7 U.S.F. L.Rev. Professors Israel, textbook, LaFave and their note that criminal leading procedure Williamshas been harmonized with the Court’s other self-incrimi Supreme nation nature of precedents by recognizing generally nonincriminatory disclosure Williams:“Williamsitself did not involve a situation upheld in which the suggested might defendant even that his alibi witness remotely furnish the state with information to another offense. incriminating relating *44 Neither there the any suggestion was that the alibi witness there had helped witnesses, in prosecution his case-in-chief. Alibi nature building very they defense are not information that relates support, furnishing Moreover, directly of the elements government’s crime. proof the Williams Court noted that the there had confined its use the deposition of the alibi challenging credibility witness to of that Israel, 19.4, (2 witness.” & (1984) 516.) LaFave Criminal Procedure § 359, 368, In Estelle (1981) v. Smith 451 U.S. L.Ed.2d 1866], S.Ct. the Supreme Court one of the fundamental concisely captured in reflected the Fifth policies Amendment’s self-incrimina- privilege against tion: “The essence of this basic constitutional ‘the principle is requirement that the State which to convict and an individual proposes punish produce the evidence him against independent officers, labor its not by of ” cruel simple, it expedient forcing (Italics from his own lips.’ omitted added, Israel, omitted.) citation Like Lafave and other commentators suggest is, that this basic in principle violated a practice, rarely notice-of-alibi statute: “Pretrial disclosure of the alibi defense is unlikely to supply leads, true, government with new if because the alibi is an alibi witness would be unable to connect the defendant with the crime If the any way. fabricated, alibi is it is unlikely that a who witness is willing perjure himself for the defendant will reveal evidence any incriminating (Note, prosecution.” Proposed Rule Discovery 12.3: Prosecutorial 1299, 1312, omitted; Federal Authority (1986) 72 Va.L.Rev. fn. Defense of Mosteller, see also supra, 74 1628-1631.) Cal.L.Rev. at pp. The relative safety involved disclosing an alibi defense used trial stands stark contrast to other forms pretrial witness disclosure that will necessarily include the admission of in- incriminating evidence. For stance, defendant, a who anticipates calling a witness who will testify self-defense, defendant committed a killing faced is with the choice of either providing the state with perhaps sole witness to the killing forgoing use of the witness if the defendant instead chooses to test the state’s ability to prove guilt defendant’s a beyond reasonable doubt. It is not sufficient to assert that compelling a defendant to such a provide witness mission; Smith, furthers the courts’ truth-finding Estelle v. 451 U.S. 454, is absolutely clear its insistence that it state’s sole responsibil- to establish ity the case a against defendant without that defend- requiring ant’s complicity.1 1Indeed, Taylor 798, 814, v. Illinois 484 U.S. 108 S.Ct. 646], at footnote high acknowledged court has that in certain instances defendant
may refuse to disclose may witnesses: be cases “There in which a legitimate defendant has
406 Williams,
Thus,
supra, 399
that
I
with the
conclusion
disagree
majority’s
sufficient,
itself,
78,
discovery provisions
that the
to demonstrate
U.S.
is
Proposi-
Amendment. Insofar as
the Fifth
115 do not violate
of Proposition
context,
to
require
the alibi-witness
beyond
purports
go
tion
he intends to
evidence that
the witnesses or
defendant to disclose all of
trial,
disclosure”
I
that the
“accelerated
required
at
would hold
introduce
reflected
Amendment principles
under the
Fifth
general
unconstitutional
Smith,
Brooks,
supra,
With respect exhaus- in the that would penalize “there is new nothing discovery chapter counsel such otherwise chill trial of defense investigation preparation tive or effective assistance of right that criminal defendants would be denied the ante, 379.) They at under (Maj. opn., counsel the Sixth Amendment.” Code section Though witness.” Penal objections disclosing identity potential of a cause “good where to disclose information provisions 1054.7 makes for defendants to refuse deferred," denied, majority’s analysis why is shown a disclosure should be restricted use at trial” can defendant “intends to possibility forecloses the evidence the production. withheld from *46 reach in because the United States Court “has that conclusion part Supreme a as of the effective right never down scheme violative struck holding and in find for their part they support assistance of counsel” because course, Nobles, in in the Of the high court’s decision U.S. 225. fact that the court not struck down statute on Sixth high has a true, if the grounds, says nothing constitutionality Amendment about of Further, I find Penal Code section 1054 et under the Sixth Amendment. seq. Indeed, little in the a support reading Nobles for assertions. close majority’s of that run suggests Nobles 115’s actually discovery provisions the afoul of Sixth Amendment of effective of guaranty assistance counsel. Nobles, U.S. the defendant’s contention was principal that the trial had the if court violated doctrine that product ruling work the a defense called to the defense contents of investigator testify pretrial witnesses, interviews the had with investigator two the defense prosecution would be the required prosecution disclose relevant of portions contention, investigator’s written notes interviews. In this analyzing the Nobles court the recognized general of the inves- importance protecting tigative efforts of defense counsel in and defense criminal investigators The cases. court in regard: stated this the “Although doctrine work-product most asserted a frequently is as bar to in civil in its role litigation, the assuring functioning proper of the criminal justice system is even more vital. The interests and the society accused in and obtaining a accurate of fair resolution the question guilt or innocence demand adequate that of of safe- guards assure thorough the preparation presentation each side the of of core, case. At its the doctrine work-product shelters the mental processes HO of the attorney, providing a area within which privileged he can analyze one, his prepare client’s case. But the doctrine is practical an intensely in grounded the realities in litigation our One adversary of those system. realities is that attorneys often rely must on the assistance investigators and other agents compilation materials for It preparation trial. therefore that the necessary doctrine protect material prepared by for agents the attorney as well as (422 those prepared by attorney himself.” at U.S. 153-154], pp. added, 238-239 italics omitted.) [45 fns.
After noting applicability and of these importance concerns criminal however, cases generally, the Nobles ultimately court concluded case before it the defendant “by electing to as a present investigator witness, waived the to matters respect covered his testimo- (422 ny.” 154], Thus, U.S. at p. p. omitted.) L.Ed.2d at fn. on those facts, the court held that the trial had not erred in its “limited” ruling, “opening scrutiny only portion report related to discredit the witnesses’ identi investigator would offer testimony 155].) (Id. L.Ed.2d at testimony.” p. fication main Nobles related to work focus of the decision Although doctrine, challenged also the trial court’s product ruling defendant had Amendment, addressed that the Sixth and the Nobles court violation of upon claim in a “This claim is predicated footnote. court stated: *47 ability investigate and compromise prepare cases will counsel’s to similar even the limited the that thoroughly. defense case maintains Respondent in the of trust and relationship this case will required impair disclosure members the client and will inhibit other of attorney confidence between and effective essential to the prepa ‘defense team’ from information gathering (Nobles, fn 15 at ration U.S. at supra, p. of the case.” [45 because it 154].) rejected argument, per The court the defendant’s not p. Amendment the defendant’s ceived of Sixth on principles misstatement ‘the disclosure from respon but because order resulted part, [trial court’s] investigator’s election make use of his voluntary report. dent’s to testimonial waiver, Moreover, think voiced by from we that the concern apart this the limited and nature of court’s respondent recognize fails to the conditional 154-155].) (Ibid. L.Ed.2d at order.” pp. [45 defendant’s Sixth
It
from the
treatment of the
apparent
high
court’s
The
Amendment contention
it treated his concerns seriously.
majority
that
does
to
the Sixth Amendment limitations to
not even
sketch out
attempt
evidence,
that
disclosure of defense
but instead determines
requiring pretrial
Nobles,
the
225—in
the limited and
supra,
of
U.S.
language
approving
the
approves
order of the
that
of
case—specifically
conditional
trial court
“Under
new discovery
115:
the
discovery provided
chapter,
Proposition
is limited to relevant statements and
of statements of
discovery
reports
call
the defendant’s intent to
the
defense witnesses
conditioned upon
ante,
in original.)
trial.”
italics
(Maj.
p.
witnesses at
opn.,
Nobles,
422 U.S.
that
supra,
It
obvious
the facts of
should be
from
115 is
an
the
authorized
the
provisions
Proposition
the
court
magnitude
high
different
than the
entirely
permitted
Nobles,
was “limited”
Nobles.
the statement of the defense investigator
on,
by,
investigator
and “conditioned”
the defendant’s intent to call
not
but
that the
reached “the relevant
the fact
order Nobles
only
statements,
i.e.,
portion of the
the witnesses’
investigator’s report,”
after
Nobles,
(See
supra,
investigator had been
testify
called to
defense.
for
147-148].)
disingenuous
U.S. at
It is simply
228-229
L.Ed.2d at
pp.
pp.
review all
potential
compare discovery
allowing
order
1054.3 with
trial
Penal Code section
pursuant
witness statements
before
in Nobles.
order
the “limited
conditional”
at issue
Nobles,
422 U.S.
resist
only
It is not
the facts of
that
case;
the court
expansive
language
of that
majority’s
interpretation
Nobles
survive Sixth Amendment
that
cannot
suggests
Proposition
Nobles detail the
considerations
scrutiny.
policy
discussed
Sixth
no less than to
work
apply
protections
Amendment
order,
the court
the trial
but
product
Again,
doctrine.
court’s
approved
order
waiver and the fact
the court’s
was
emphasized
defendant’s
defendant,
tailored to the
needs:
narrowly
particularized
“by
state’s
witness,
waived
electing
investigator
as a
present
respect
(Nobles,
to matters
[the]investigator’s]
testimony.”
covered in
154],
added.)
Even
were
we
to
that all
potential
assume
of a
witness’s pretrial
statements were relevant
to the issues that
the trial
appear
would
before
court, the
that
fact
the
must
defense
release those statements
to trial
prior
raises
Sixth
serious
Amendment concerns.3
a defense attor-
By compelling
trial,
ney to surrender
the
fruits of
before
we
investigation
necessarily
chill an attorney’s zeal
investigate
to
potentially damaging
incriminating
instance,
leads. For
defense
hereafter
investigators will
be instructed not to
discoverable;
take
fear
witnesses’ statements for
that
be
will
without
they
yet
significant
2It is
analogous
the federal
provided
rule that is
to that
under
Nobles,
1054.3,
225,
supra,
Penal Code section
forbids all
amended
the wake of
422 U.S.
16,
Crim.Proc.,
(See
disclosure of witness
U.S.C.)
statements
trial.
before
Fed. Rules
rule
doctrine;
3Typically,
questions
these
are
and
to
pursuant
product
raised
resolved
the work
however, Proposition 115 has
product privilege
longer
so limited the work
that it no
covers
Code,
(See
1054.6.)
witness statements.
Pen.
Yet
arguments
high
that the
advances
§
support
policy
underlying
product
work
doctrine must also be considered in
a
evaluating
defense attorney’s opportunity
to fully investigate
and
an effective
present
Nobles,
(See
defense on his or her client’s behalf.
supra,
generally
pp.
III. majority interpret I not that the relied upon by do believe cases Constitution, particularly Fifth and Sixth Amendments of the United States Nobles, Williams, 422 U.S. authorize 399 U.S. trial order. to the extent court’s prosecutorial discovery provided I cannot join majority. Accordingly, for a was denied October application rehearing
Petitioner’s Mosk, J., was of opinion printed was modified to read as above. that the opinion application granted. should defense notes this and investigator’s that disclosure of a assumption