Opinion
Undеr Penal Code section 1326, subdivision (c), a person or entity responding to a third party subpoena duces tecum in a criminal case must deliver the subject materials to the clerk of court so that the court can hold a hearing to determine whether the requesting party is entitled to receive them. When, as here, the defendant is the requesting party, the court may conduct that hearing in camera. (Pen. Code, § 1326, subd. (c).)
What is the People’s role at such a hearing? The Court of Appeal held that the People werе entitled to notice of, and to be present at, the hearing once the responsive documents have been produced, but were not permitted to learn the identity of the subpoenaed party or the nature of the documents requested. The Court of Appeal further held that, unless the prosecutor has been requested by a crime victim to enforce his or her rights under Proposition
The parties now agree that the Court of Appeal erred in unduly restricting the People’s role at the in camera hearing, in that the prosecutor may participate in and argue at the hearing, if the trial court so desires.
(People v. Superior Court (Humberto S.)
(2008)
Background
A Ventura County grand jury charged petitioner Randolph Clifton Kling with the murders of Michael and William Budfuloski with the special circumstances of multiple murder, lying in wait, and financial gain, in addition to other felony counts. The statement of facts and procedural history below is drawn largely from the opinion of the Court of Appeal.
Prior to trial, the defense served subpoenas duces tecum on a number of third parties. Kling requested the trial court not to disclose information concerning the subpoenas to the prosecution, contending that such information would reveal defense strategies and work product. The prosecution responded that the People “have a right to know the items subpoenaed . . . and what the court is contemplating releasing, to determine if the People have standing to object, to alert other persons who may have standing to object, or to join the defendant’s attempt to obtain information therein.” On February 5, 2008, the trial court ordered that all documents received by the court pursuant to a defense subpoena were “to be logged in the docket, noting the date received and the party supplying the documents.” The court stated that it found “no authority supporting the defense request to have no doсumentation
The subpoenaed records were delivered to the clerk of the court and examined by the court in camera in the presence of defense counsel. (Pen. Code, § 1326, subd. (c).) The court released the records to the defense and ordered transcripts of the in camera hearings sealed. The People received no notice as to some of these hearings.
On May 20, 2008, relying on our recent decision in
People v. Superior Court (Humberto S.), supra,
After Kling filed the instant petition for writ of prohibition and the People filed a return, the Court of Appeal granted relief in a published opinion, declaring thаt “[n]o statutory or constitutional authority permits disclosure to the prosecution of the names of the third parties to whom defense subpoenas have been issued or the nature of the records produced.” The court added that if, following receipt of the documents, a trial court were to conduct an in camera hearing under Penal Code section 1326, subdivision (c), the prosecution’s role at such a hearing would be limited: “Unless the prosecutor has been requested by a victim to enforce rights guarantеed by Proposition 9, the prosecutor is not statutorily authorized to argue or otherwise participate in the in camera hearing, but may be available to answer any questions the trial court has.”
While the writ was pending, the jury convicted King on all counts and found true the multiple-murder special circumstance as well as the lying-in-wait special circumstance as to one of the murders and set the punishment at
We granted the People’s petition for review.
Discussion
“Documents and records in the possession of nonparty witnesses and government agencies other than the agents or employees of the prosecutor аre obtainable by subpoena duces tecum.”
(People
v.
Superior Court
(Barrett) (2000)
Thus, “[i]n a criminal action, no party, or attorney or representative of a party, may issue a subpoena commanding the custodian of records or other qualified witness of a business to provide books, papers, documents, or records, or copies thereof, relating to a person or entity other than the subpoenaed person or entity in any manner other than that specified in subdivision (b) of Section 1560 of the Evidence Code” (Pen. Code, § 1326, subd. (c)), which provides for delivery of the materials to the clerk of the court. (See also Pen. Code, § 1326, subd. (b) [the option of making the documents available for inspection and copying at the witness’s business address (Evid. Code, § 1560, subd. (e)) “shall not apply to criminal cases”].) This restriction maintains the court’s control over the discovery process, for if the third party
These provisions concerning third party subpoenas apply equally to the People and the defense. The Legislature granted the defense special protections, however, in the last two sentences of Penal Code section 1326, subdivision (c): “When a defendant has issued a subpoena to a person or entity that is not a party for the production of books, papers, documents, or records, or copies thereof, the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents. The court may not order the documents disclosed to the proseсution except as required by Section 1054.3.” (See also Concurrence in Sen. Amends, on Assem. Bill No. 1249 (2003-2004 Reg. Sess.) as amended June 9, 2004, p. 1.) Consequently, “the defense is not required, on pain of revealing its possible strategies and work product, to provide the prosecution with notice of its theories of relevancy of the materials sought, but instead may make an offer of proof at an in camera hearing.”
(Alford v. Superior Court, supra,
29 Cal.4th at pp. 1045-1046 (lead opn. of Werdegar, J.); see also
id.
at p. 1056 (conc. & dis. opn. of Baxter, J.);
id.
at p. 1057 (cone. & dis. opn. of Moreno, J.).) We have subsequently clarified that sealing the defense filings is appropriate only if there is “a risk of revealing privileged information” and a showing “that filing under seal is the only feasible way to protect that required information.”
(Garcia v. Superior Court
(2007)
In
People
v.
Superior Court (Humberto S.), supra,
In this case, we once again apply these provisions where the defense in a criminal proceeding has issued third party subpoenas. The trial court here
King argues first that the identity of the subpoenaed party and the nature of the requested documents must be concealed from the prosecution to compensate for what he calls the “asymmetrical and non-reciprocal” provisions in Penal Code section 1326 that “require a showing of entitlement to discovery from the defense, but not the prosecution.” But, as stated above, the rules concerning subpoenas duces tecum in criminal cases are
not
asymmetrical or nonreciprocal, at least not in any wаy that disadvantages a criminal defendant. Even prior to the 2004 amendments to section 1326, the law provided that the issuance of a subpoena duces tecum “is purely a ministerial act and does not entitle the person on whose behalf it is issued to obtain access to the records described therein until a judicial determination has been made that the person is legally entitled to receive them.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1249 (2003-2004 Reg. Sess.) as amended Mar. 28, 2003, p. 2 (Assem. Analysis of Assem. Bill 1249), citing
People v. Blair, supra,
Kling argues next that the People are not entitled to disclosure of the identity of the subpoenaed party or the nature of the documents sought because the discovery provisions of Proposition 115 (Pen. Code, § 1054 et seq.) require disclosure only of persons the defendant “intends to call as witnesses at trial” and of documents or real evidence the defendant “intends to offer in evidence at the trial.” (Pen. Code, § 1054.3, subd. (a)(1), (2).) Once again, Kling has misapprehended the applicable law. As the Legislature recognized, and as reiterated in the case law, Penal Code sections 1054 through 1054.7 “do not regulate discovery concerning uninvolved third parties.” (Assem. Analysis of Assem. Bill 1249,
supra,
p. 3; accord,
Teal
v.
Superior Court
(2004)
The Court of Appeal expressed concern that disclosure of basic information concerning the third party subpoena would inhibit the defense investigation, but its concern appears overstated. (Cf.
Michigan v. Lucas
(1991)
We further agree with the People that disclosure of the identity of the subpoenaed party and the nature of the records sought may, in many circumstances, effectuate the People’s right to due process under the California Constitution. (Cal. Const., art. I, § 29; cf.
Alford v. Superior Court, supra,
A trial court’s role when presentеd with materials produced under a defense subpoena duces tecum to a third party, then, is to balance the People’s right to due process and a meaningful opportunity to effectively challenge the discovery request against the defendant’s constitutional rights and the need to protect defense counsel’s work product. The trial court “is not ‘bound by defendant’s naked claim of confidentiality’ ” but should, in light of all the facts and circumstances, make such orders as are appropriate to ensure that the maximum amount of information, consistent with protection of the defendant’s constitutional rights, is made available to the party opposing the motion for discovery.
(Garcia v. Superior Court, supra,
The use of these extraordinary procedures, though, should be limited to that which is necessary to safeguard the rights of the defendant or of a third party, inasmuch as ex parte proceedings are generally disfavored because of their inherent deficiencies. “ ‘The first is a shortage of factual and legal contentions. Not only are facts and law from the defendant lacking, but the moving party’s own presentation is often abbreviated because no challenge from the [opposing party] is anticipated at this point in the proceeding. The deficiency is frequently crucial, as reasonably adequate factual and legal contentions from diverse perspectives can be essential to the court’s initial decision ....’”
(People
v.
Ayala
(2000)
In this case, the trial court failed to give the People notice of the in camera hearings regarding the receipt of materials from third parties or to consider what information could be shared with the prosecution. After our decision in
Finally, we note that our interpretation of the criminal discovery statutes with respect to third party subpoenas duces tecum appears to be consistent with Proposition 9, the Victims’ Bill of Rights Act of 2008: Marsy’s Law, which—subsequent to the proceedings in the trial court here— amended the California Constitution to guarantee crime victims a number of rights, including the right “[t]o prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, which could be used to locate or harass the victim or the victim’s family or which disclose confidential communications made in the course of medical or counseling treatment, or which are otherwise privileged or confidential by law.” (Cal. Const., art. I, § 28, subd. (b)(4).) Marsy’s Law provides that this right, along with the others enumerated in subdivision (b), may be enforced by “[a] victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim.” (Id., art. I, § 28, subd. (c)(1).)
Marsy’s Law evidently contemplates that the victim and the prosecuting attorney would be aware that the defense had subpoenaed confidential records regarding the victim from third рarties. As the People have observed, “[n]either the prosecution nor the victim can attempt to address the disclosure of records if they do not know what records are being sought.” Kling is correct that this proceeding does not present an opportunity for “expansive proclamations regarding implementation of Marsy’s Law,” but we do agree with the People that a victim’s right to notice of a third party subpoena would be consistent with the prosecution’s right to due process. 3
The judgment of the Court of Appeal is reversed and the cause is remanded for proceedings consistent with our opinion.
George, C. 1, Kennard, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
On November 17, 2010, the opinion was modified to read as printed above.
Notes
The Ventura County Superior Court has since denied Kling’s motion for new trial and imposed a judgment of death.
As in
People v. Superior Court (Humberto S.), supra,
We recommend that the Judicial Council review the relevant rules of court to determine whether any revisions might be appropriate or helpful in light of our decision in the present case.