People v. Municipal Court (Runyan)

No. 30722. Jan. 1978.] [L.A. PEOPLE, Plaintiff and

THE Appellant, JUDICIAL THE PASADENA COURT FOR THE MUNICIPAL COUNTY, ANGELES OF LOS DISTRICT

Defendant and Respondent; RUNYAN, in Interest Real

DONALD GENE Respondent. Party Counsel Prosecutor, H. and Martin City Deputy B. Wegman,

Byron Gentry, City Prosecutor, for Plaintiff and Appellant. General, Winkler,

Evelle J. R. Chief Jack Assistant Younger, Attorney General, Moore, General, S. Clark Assistant David R. Attorney Attorney Chaffee, Millar, Jr., Swoboda, Frederick R. H. and Juliet Sandy Kreigler General, John K. de Van District Deputy Attorneys Attorney Kamp, Leonard, W. (Los B. Sondheim and Roderick Angeles), Harry Deputy Pines, District (Los Burt Mark Attorneys, Attorney City Angeles) Rosenbaum, as Amici Curiae on behalf of Plaintiff Deputy City Attorney, and Appellant.

No for Defendant and appearance Respondent. Titus, Jr., Jr., R. &

Lewis Horn Michael J. for Real Hoppe Hoppe, in Interest and Party Respondent.

Opinion RICHARDSON, J. this case we whether courts inquire may permit a defendant in a case criminal to witnesses to depose prior trial, establish, the defendant’s failure to statute despite required by Code, 1335 et that (Pen. the witnesses are about leave § the state seq.), or are to attend the trial. We conclude that courts unlikely although broad inherent cases, possess powers should decline exercise those in a manner would they powers different, limitations or which would a create ignore present statutory more extensive than deposition procedure prescribed presently statute.

In 1975 was filed in real complaint municipal charging party, Gene Code, Donald with drunk subd. (Veh. § Runyan, driving Code, officer (a)), and vandalism (Pen. 148), (Pen. § obstructing public Code, filed, subd. after the real (a)). § Shortly complaint party’s counsel filed a motion other pretrial discovery seeking, among things, involved officers in the various (Real depose police charges. intends to assert falsification evidence as evidently police brutality defenses these charges.) court,

Real motion was party’s granted by municipal despite to the effect that the conditions for objection by People statutory had not met. been The invoking procedure People thereupon a writ of court. The unsuccessfully sought prohibition superior People

527 904.1, Proc., Civ. subd. (a); have denial of the writ. Code (See § appealed 233, 235, Burrus Cal.App.3d Municipal 539].) is authorization for the “conditional examination” There statutory in criminal cases. Penal Code section 1336 witnesses provides defendant, or for the is about “When material witness.for people, state, afford leave the or is so sick or infirm as to reasonable grounds trial, he attend the defendant that will be unable to for apprehension an that the witness be examined order people may apply describe the Sections conditionally.” through procedures made for witnesses. no is such deposing Significantly, provision deposing within are not witnesses who category persons encompassed described section 1336. On contrary, expressly state, that, “If,. to leave the or is not .. witness not about provides infirm, It is not sick or . . . the examination cannot take place.” disputed did that real herein not contain statutory party’s requisite application allegations.

There are two to real argument. aspects party’s primary courts an inherent to orders criminal issue possess power discovery to cases. exercise that order the of of They depositions may power taking even has with material witnesses defendant failed to though comply those mandates of the Penal Code described above. We with real agree second, but first that these premise, party’s reject concluding powers in a not exercised manner which conflicts with express statutory provisions. 531, 535 Pitchess v. 11 Cal.3d (1974) Court Cal.Rptr. Superior [113

897, 522 P.2d we “Unlike 305], recently expressed controlling principle: California, of an civil of statutory right development discovery to a to in the course of his defense seek discovery preparing in the is a created doctrine evolving judicially A of defendant’s motion absence guiding legislation. [Citations.] court, of trial sound discretion discover addressed solely when interests has order of which inherent justice discovery power demand. Pitchess added.) so (Italics recognized expressly [Citations.]” “means it has left on the of silence subject discovery legislative 536, law of (P. to the courts the common concepts.” adaptation Justice statement Chief with similar Traynor summarizing approval 217, 475, 421 P.2d v. 479 65 Cal.2d (1966) Stewart Shively Cal.Rptr. [55 65, in Hill v. 28 A.L.R.3d We stated same 1431].) Superior principle

528

Court 10 Cal.3d footnote Cal.Rptr. [112 “This court has rules of criminal in the developed discovery 1353]: (Italics absence added.) legislation. [Citations.]” The exercise of a over criminal which inheres judicial power discovery in courts when the is silent must be and restrained Legislature tempered when the has In the matter before us the Legislature spoken. Legislature, to a constitutional itself on the pursuant grant, expressed subject in criminal cases and has declined to extend plainly those confines described deposition procedures beyond carefully in Penal Code 1336. section as will we conclude Accordingly, appear, that it would be to exercise our inherent in conflict inappropriate powers insisted, with As we have existing legislation. previously “[T]he courts exercise should those common law powers otherwise or our inconsistent with Constitution and repugnant statutes; inherent should never be exercised such a manner as to powers nullify existing legislation legitimate legislative policy.” frustrate Cal.3d P.2d (Ferguson Keays [94 added; italics 70], see Martin v. 176 Cal. P. 296-297 135].)

An examination foundations of the criminal T974, I, rules reveals that before article of the California Constitution that: “The provided pertinent part also shall have for the taking, presence counsel, accused and his in criminal witnesses cases, other than where .cases homicide there is reason believe that witness, cause, or other will not attend at trial.” inability from 13, reason of the (Italics added.) of section By foregoing language state Constitution itself in qualify depositions right “seem[ed] 739, criminal cases . . . .” v. Court 190 (Clark (1961) Cal.App.2d 741 191].) Cal.Rptr. [12 Clark, the that a a case defendant in criminal has no held to take the of in the witnesses limited situations

right depositions except the Constitution and statutes. The court further observed permitted by that the relevant cases from denied the to take other states had only right that such and “It is that the over the depositions, significant Legislature, has seen fit to for the of years, taking depositions prosecution in cases witnesses criminal limited situations set forth in the Code, 1335 before-mentioned code sections et (P. 741.) § seq.].” [Pen.

529 it that found court also although The Clark significant” “highly 1957, made “it had liberalized civil discovery procedures Legislature criminal cases.” in the statutes concerning depositions no change (P. considerations, that the also several relevant

Clark emphasized noting witnesses, the defendant or his that no right depose one,” be a mutual that take should and right depositions “[T]he defendant has alternative means of as reasonable such discovery, witnesses. It concluded that “If it 742-743.) interviewing prosecution (Pp. deemed advisable such a such change long-established procedure, courts, than should be made rather if change by by for no other reason than as to the manner of such provision taking must would be made. defendant be required necessarily depositions to be office or the office of the certainly present, notary public’s defendant’s in which in civil cases be attorney (places depositions would fit taken) hardly places taking cases,

defendants then in a defendants particularly jail Also would have to be penitentiary. protection provided using of a an excuse for taking junket merely trip confined defendant.” Several Court of cases (P. 743.) subsequent Appeal are in with its and with rationale. to Clark accord holding underlying v. 22 Bowen 277-280 (See (1971) People Cal.App.3d Cal.Rptr. [99 Everett v. Gordon 266 671 498]; (1968) Cal.App.2d Cal.Rptr. [72 v. 379]; 478]; People Oakley Cal.App.2d Cal.Rptr. [59 v. Mersino 821]; People Cal.Rptr. Cal.App.2d [46 Yannacone 74-75 Municipal Cal.App.2d Comment, 838]; see as a Means generally Depositions ) Criminal 7 U.S.F. L.Rev. Discovery, 245. however, It is a recent argued, change applicable evidences an the state Constitution provision expression will to courts order in criminal cases people’s permit unrestricted former constitutional limitations. In constitu amendment, 13 of article I above) tional former section (described “The 15 was form: following adopted repealed the of a of for witness may presence Legislature deposition of new The effects this defendant and the defendant’s counsel.” the are the former restriction to delete depositions provision witness that the must cases the and homicide proposed requirement unable attend trial. deemed to

530 however, new 15

It that the section is not is readily apparent, not, itself, that and it does afford criminal defendants self-executing, Rather, the additional section authorizes rights. discovery merely to we make criminal cases. As provision depositions Legislature seen, far, have the sole the on thus provisions adopted by Legislature, this are contained in the the sections conditional subject concerning Code, examination of witnesses. 1335 et we (Pen. § seq.) Accordingly, that, has, assume at this the for reasons juncture, Legislature itself, intended to restrict the of criminal satisfying availability to those situations in the Penal Code. deposition procedures specified The dissent that neither the constitutional nor argues provision enactments were of intended to foreclose use legislative depositions of we criminal cases. As have noted purposes pretrial discovery above, we that aas courts agree fully general proposition possess inherent of rules in the absence powers develop discovery of Yet, on we also have subject. legislation explained, those acted to limit of situations pretrial taking depositions has. in Penal Code 1345. described sections specifically through to the dissent these contention Contrary statutory provisions are on the use of “silent” discovery, subject pretrial and that “the examination expressly unmistakably provides take conditions cannot unless the (unavailability place” statutory witness, Were met. the courts devise etc.) illness procedure of a witness his allow taking deposition despite probable trial, such and with at would directly availability procedure flatly conflict section 1341. advances a due procedural process Real argument, urging that the is essential to fair trial. He no cites availability any cases that his claim has a however, constitutional foundation holding the law indeed As otherwise. we noted in Jones v. appears 58 Cal.2d 96 A.L.R.2d 1213], “Pretrial defendants, favor of ... is not due discovery required by when this court process. Accordingly, permitted [Citations.] advance of as as at well the trial it [citations], was not under acting constitutional but to ascertainment promote compulsion orderly Bowen, the truth.” 59-60.) court in (Pp. appellate People 267, more observed that “It has been Cal.App.3d recently generally to a did in criminal cases exist recognized right deposition [a] law, cases, it a common nor is In criminal constitutional right. right governed by foregoing statutory Code, 13; 1335 et I, Pen. Const., § art. § § formerly provisions [Cal. added.) italics although legisla- (P. Significantly, seq.]. [Citations.]” in section contained is tive presently procedure authority of in the list included is not of availability in that same section. fundamental rights specified made a real compelling

The dissent herein urges he has asserted because of need for lapse discovery, showing pretrial and needs to know the incident question memory regarding him. Such a facts showing charges against alleged regarding accused however, innocent “need,” could be satisfied assertedly by any and, crime scene denies his at the who accordingly, requires presence The circum- facts. to inform him of underlying pretrial depositions unusual, claim a similar case not stances of the being particularly present with which offenses could be made by anyone charged necessity he did not commit. allegedly not, course,

We note that an without means of wholly the facts which a criminal is based. In charge felony ascertaining upon cases, will examination or grand jury hearing transcripts preliminary addition, a valuable source of information. ordinarily provide pretrial and witnesses’ statements are discoverable readily upon police reports Court, 11 Cal.3d of need. Pitchess v. (See supra, proper showing Superior 531, 537-538 of sheriff’s records of brutality by depu- [discovery prior Furthermore, the accused from would ties].) ordinarily nothing prevent their version of witnesses to ascertáin interviewing prosecution Court, 739, 742-743; v. events. Clark (See Cal.App.2d P.2d 60 Cal.2d 246-247 People Lopez of names of witnesses].) [discovery 16] be reticent to extend

There reasons many why Legislature may a constitutional criminal cases deposition procedures notwithstanding alternative authorization: the existence of sufficient means achieving to the the factor of considerable state discovery; expense relating pretrial fees, of witness and for the services of magistrate payment transcription Code, substantial Pen. counsel (see 1339), § security arrangements; ensue, trial notice adequate delays might given necessity and difficulties in and hearings, opportunity objections depositions, 15; which, Const., I, under law art. § (Cal. scheduling depositions Code, if he so Pen. must be taken in defendant’s 1340) § presence desires. has chosen to limit availability in criminal cases to it those situations which has

procedures particular doWe not is to reasons. It us to specified. speculate enough know that it has not chosen do what it do. We may constitutionally decline to exercise our inherent to achieve a different result powers conflict would with its v. legislation. (Ferguson Keays, supra, Cal.3d

Similar considerations and policy involving difficulty complexity various factors moved us v. balancing recently Reynolds competing Court 12 Cal.3d 834 45], Superior Cal.Rptr. [117 decline of a “notice-of-alibi” We ob- adoption discovery procedure. served that the issues involved and balanced “complex closely ques- tions,” the of which of our exercise counseled gravity we (P. 837.) As “It is one rule-making power. explained Reynolds, for a court some thing prescribe judicial procedure necessary protect fundamental constitutional or to effectuate some principle specific of individual It guarantee liberty. quite [Citations.] another for a which are in no thing design judicial procedures law but which seem to some way required by higher socially desirable and least to some our perhaps may permitted—at extent—by and 845-846, state federal Constitutions.” italics in (Pp. original.) We concluded in that “This court been vested with Reynolds formal, either the California quasi-legislative, rule-making power, th¿ Constitution or “due for this court’s Legislature,” regard function as constitutional and solicitude for this state’s adjudicator, scheme of shared governmental legislative judicial responsibility the sound administration of render it for us to justice, inappropriate create decision notice-of-alibi for California by judicial procedure reaffirm, We (Id., 849-850.) within the pp. courts.” context, restraint,, the wisdom of this that it principle concluding would be both and unwise for the California courts to exercise improper their inherent over matters to situations not authorized statute. presently

Indeed, a recent case on this under- demonstrates and very subject scores the wisdom of the Bailey foregoing principle. 19 Cal.3d 977-978 P.2d 394], involving

the use of we that since the videotaped depositions, carefully explained limits in “written” applicable legislation proceedings form, should devolve change procedure authorizing videotaping any action. from legislative, judicial, and the cause remanded to

The is reversed superior judgment writ. with directions to issue the peremptory Sullivan, J.,* Mosk, J., Clark, J., Manuel, J., and concurred.

BIRD, C. J. dissent. I respectfully abused its discretion court must decide whether trial court has

This in a criminal case where the discovery by by ordering accused, unconscious, been knocked is unable to remember any having arrest, all the evidence is in of the events his where nearly surrounding and the exclusive of state where possession agents, suspects him been that some of evidence have fabricated.

The holds that it would be majority grant opinion “inappropriate” factual do so would “conflict with this because to discovery setting ante, However, historical 528.) an legislation.” (Majority opn., existing and section of the California State Constitution analysis pertinent such conflict. law establish that there no careful review statutory reaches erroneous two conclusion majority by confusing separate and kinds of used for discovery depositions: depositions purposes used to for trial. preserve testimony I inherent broad As the “courts powers recognizes, possess majority cases____” ante, opn., (Majority

provide mandate or exist “even in the absence of These powers 834, 12 Cal.3d v. (1974) Court (Reynolds Superior enabling legislation” 437, because 45]), 837 among they Cal.Rptr. [117 rules of aimed court to “inherent procedure every develop power[s] of criminal administration promoting justice facilitating (Joe 3 Court (1970) of the truth.” Z. v. ascertainment Superior orderly 478 P.2d 26].) Cal.3d 801-802 Cal.Rptr. [91 * Retired Associate Justice Court under sitting assignment Supreme Judicial Council.

Chairperson

534

Since at least 1956 v. Riser 47 Cal.2d 566 P.2d 1], (People [305 den., L.Ed.2d 77 on 721], cert. U.S. 930 S.Ct. overruled other [1 v. Morse 60 Cal.2d 631 grounds People Cal.Rptr. [36 33, the trial P.2d A.L.R.3d this court has authorized courts to 810]), an exercise these accused in discovery by powers criminal case because of its belief in “the fundamental proposition he is entitled to a fair trial an defense in intelligent [the accused] of all relevant and accessible information.” v. (Pitchess light reasonably 11 Cal.3d P.2d The trial have been (Evans courts vested with “broad discretion” 305].) 121, 617, 11 Cal.3d P.2d (1974) Court Superior Cal.Rptr. [114 a these so as to facilitate “the true 681]) exercising purpose powers, trial, of the facts.” 47 Cal.2d at (Riser, the ascertainment supra, this court has a wide authorized Consequently, variety pretrial on behalf of an accused the facts of the depending upon case, a a (1) examination of particular including psychiatric complaining witness in a sex' case v. (Ballard Court 64 Cal.2d 159 (1966) Superior [49 302, 838, 410 P.2d 18 A.L.R.3d a record of the 1416]); (2) Cal.Rptr. prior convictions of a v. witness Court felony (Hill Superior 257, 10 Cal.3d 812 518 P.2d internal 1353]); (3) Cal.Rptr. [112 disciplin- of a records where an individual was ary police agency Court, on a officer v. (Pitchess 11 Cal.3d battery police Superior supra, a 531); (4) where the of the awas pretrial lineup, identity perpetrator Court, “material issue” the case v. (Evans 11 Cal.3d 617, extensive 625); (5) testimonial evidence law from documentary enforcement officers where an a accused raised facie defense of prima enforcement of the laws v. discriminatory (Murgia Municipal 15 Cal.3d a 44]); Cal.Rptr. [124 statistical aof sheriff’s records over summary department’s 14-year where an accused raised a facie defense of period prima discriminatory Court, ante, enforcement of the laws (Griffin Municipal 286, 571 P.2d In order to determine if the trial 997]). court here abused its broad discretion by ordering pretrial discovery by deposition arrest, of the officers involved in the accused’s the facts of the present case must be considered in of these well-established light precedents.

On March Prosecutor of Pasadena filed City complaint interest, real Donald Gene with charged Runyan, commission of three misdemeanors on March 1975: Vehicle Code subdivision under the influence of (a) alcohol), (driving Penal Code section 148 officer (resisting, delaying obstructing peace of his and Penal Code section subdivision performance duty), (vandalism). (a)

Defense counsel moved for pretrial discovery, seeking, part, the officers who arrested and who administered a depose Runyan test to him.1 counsel asserted that his client did breathalyzer Runyan’s have sufficient information his concerning charges prepare defense. were so that the Defen- Consequently, depositions “necessary dant learn the nature and facts of the made specific charges him.” defense counsel filed an affidavit support discovery request, and belief the a result of a traffic information

alleging upon following: 2, 1975, collision on March was thrown from his automobile and Runyan knocked unconscious. He remained unconscious until revived by para- medics who to the accident. As he was to start his responded attempting automobile, the Pasadena arrived. was ordered from his police Runyan and, car removed, when he was him to protested, forcibly causing again strike head his on the He was handcuffed and in a pavement. placed vehicle without informed of the reason for his arrest. When police being car, kicked at the several Runyan police causing unspecified damage, officers from the vehicle and threw him dragged.him police against side, further One became officer abusive. producing injuries. verbally When that the handcuffs on his Runyan wrists were complained placed too an officer them further. was taken tight, to the tightened Runyan station and a test was The police results of the test breathalyzer given. indicated a blood alcohol content of 0.23 percent. affidavit

The further that defense counsel believed the alleged test results were falsified breathalyzer officers in order deliberately by arrest. He (1) that were justify “[tjhere no recorded alleged intoxication, [j/c] but objectives several merely opinion expressed areas of the that Mr. must be intoxicat- [14-page police] report Runyan ed” and (2) witnesses indicated that had consumed an Runyan amount of alcohol to the accident that was inconsistent with a prior blood alcohol level of 0.23 percent. also Runyan moved to discover other items lab (e.g., police reports, reports, prior items, officers).

complaints against arresting was as to these and Discovery granted the state does not now contest the of those orders. validity motion, testified that as result of

At the on Runyan hearing he remember the accident was confused or could not head injury during his motion to court events. The depose granted municipal subsequent substan- had “suffered on the fact officers based Runyan apparently consciousness, what and does not know ... his tial head impairing injury ... because of “not able to here and assist lawyer [his] happened” what communicate to know what inability happened [his] ,”2 ... happened lawyer [his] order court’s review of the filing The municipal sought court court. writ of mandate superior superior petition have sufficient “does not that (1) denied the Runyan finding petition, him so the facts to the against complaints memory leading Counsel in and assist his that he preparation cooperate properly were Officers who defense”; the “Pasadena Police an intelligent rise to the criminal at the incident complaints giving can information the information and this do have [Runyan] and (3) trial the use of elicited depositions” through prior to trial if Counsel for the defense is “information must be obtained prior an defense to the This intelligent charges.” appeal properly prepare the state followed. both the superior view of the municipal findings by specific state, it is which are impossible none of disputed by judges, an abuse was the order for that discovery by deposition

conclude pretrial all of the evidence in this area. broad discretion the court’s Virtually the 594, and most of Code, 148, subd. (a)) the (Pen. §§ on two of charges of its “I now 2The court also the reasons following support ruling: municipal gave think we have before us the reasons for the reasons for request, opposition and as I I am most interested in where the case from the reasons for ruling, say, goes case, here. this because of be an case for Probably particular injuries, appropriate so, it, is I made it. If I didn’t think but this order. I so. That I wouldn’t make I hope why Court, in the attitude of would be most interested any Appellate particularly any trial, members who have been called to defend a case in a as all thereof upon knowing do,' trial while true that it is that the defendant has been with arrest judges provided information, record that the officers are not limited to what in their report police they say facts, and are recall entitled to and refresh their as to events or reports memory any circumstances which can recall and Mr. situation they happened, Runyan’s particular would make it him to his or to counsel impossible anticipate concerning inform trial, or to it at the and that is I am this possibility case because why allowing you refute the information which has been in the best of faith is no supplied supplied way binding reason, on It does not limit them in For I think that is an People. any way. (Italics added.) case.” appropriate

537 Code, 23102, are in subd. (Veh. (a)) evidence on § remaining charge to the the exclusive of the state and inaccessible possession agents 3 to the use of Some of evidence defense except through depositions. This be used at trial is to have been fabricated. showing fully alleged trial order. if it did not court’s supported, compel,4

II Nevertheless, the trial court’s order is inconsis- concludes majority I, I, tent with article section 15 art. of the California 13) § (formerly “ Constitution, which, claimed, it is the right qualify ‘seem[s] ante, criminal cases ....’” (majority opn., quoting from Clark v. 741 Court 190 Superior Cal.App.2d [12 I, Article 191]). That conclusion is incorrect. Cal.Rptr.

intended to authorize a limited to the of an solely exception right accused to confront at trial witnesses means by providing perpetuat- of a who otherwise be witness ing testimony might unavailable at trial. Both the and the of this to. testify history wording section establish that it intended was not either to on the use of impact as a means or to limit the of an pretrial discovery right ato deposition. 3The of the delivery defense counsel 14-page police report inadequate overcome deficiencies. -Not is the entitled elicit prosecution generally (see from officers what is written in fn. testimony police beyond their explicitly reports ante; but 118]), see v. but the People Campbell Cal.App.3d Cal.Rptr. [104 involved, here does not contain statements all four of the officers report apparently does not address the falsification of evidence and does not indicate to questions, Runyan of section 148violation he committed. type allegedly 4It is true that decisions this court have held that rules of prior California’s general (Jones in criminal were cases discovery v. constitutionally compelled. (1962) 58 919]; Cal.2d but see Reynolds, supra, Riser, case, Cal.3d at the landmark criminal (citing People that a court has inherent “to support proposition prescribe judicial procedures necessary some fundamental protect constitutional or to principle effectuate some of individual specific guarantee liberty.” [Italics original.]).) However, the court in Jones also that even recognized absent established rules of there would discovery, arise occasions when a criminal accused would be “permitted . . . when insure (Jones, to due 58 Cal.2d at necessary of law.” process supra, 59.) 837-838; (Accord p. Reynolds, Cal.3d at see also Hill v. Court pp. Superior 812, 257, (1974) 10 Cal.3d (“... the of Cal.Rptr. denial [discovery [112 1353] of the prior felony convictions of the in some instances would prosecution’s witnesses] 617, not an trial.”); accused of a fair deprive Evans v. . . due Court 11 Cal.3d (“. P.2d in an case process requires appropriate 681] that an accused ... be ...”).) afforded a pretrial lineup I, Constitution Was Section the

A. As in Article Enacted of the an Accused to Intended to Permit an to Solely Exception Right of the Use Witnesses at Was to Forbid Trial and Not Intended Confront in Other Contexts. Depositions of was enacted in it When California’s Constitution I, the a in article section contained authorizing Legislature provision situations; in “The in criminal cases certain to for depositions provide in the have to shall taking, presence power provide legislature counsel, of witnesses in his of accused and depositions party homicide, there reason to cases, other when is criminal than cases cause, witness, will attend at from or other believe that inability the trial.”5 to carve was to authorize the

The of this provision purpose case accused to rule that in a criminal out an the general exception him at trial. The a to be confronted the witnesses had against right in not intended to interfere with the use of was depositions any provision context. Consider the debates of the Constitutional Convention of other this one of the to the 1878-1879 on section. to According delegates Jones, convention, “the to relieve Judge object provision] [the witnesses from the manifest in cases where are unable they very hardship i6’ bail, other than where the to furnish and who reside some place Const. Convention is made.” and Cal. (Debates Proceedings, charge 1878-1879, “it another is 1188.) Judge Hager, delegate, According is not so much to take .... very important complaint convicted, that the innocent men are as escape punishment. guilty Now, side, made on other when person against any complaint for weeks and crime, is often sometimes with there delay, charged comes, months, the witnesses cannot be when trial and the period of I, enacted: “In criminal read as follows when article 5In entirety, whatever, a accused shall have right speedy the party in any prosecutions, trial; witnesses the attendance of have the Court to compel and public process defend, behalf, shall be with No person and and counsel. his and to appear person case, offense; to be nor be compelled, any the same twice put jeopardy life, himself; without due nor be or liberty, property a witness deprived against for the taking, presence shall have of law. The legislature process cases, counsel, other in criminal of witnesses his homicide, witness, inability that-the from or there is reason to believe cases of when than cause, will not attend at the trial.” other committed stranger, another “when crime is upon 6According delegate, as witness he must either bonds his give appearance been the practice past, accused, (Debates of the trial.” there until time else go jail stay 1878-1879, Cal. Const. Convention and Proceedings, are be Sometimes found. cannot they spirited got. They gone. They I will state the ends of ... and the result is defeat that they justice. away, that it is and essential in the administration again very necessary be cities, should that this justice large taking depositions privilege obtained; there will be a failure in the administration of otherwise justice cases, because the witnesses cannot be had.” (Ibid., italics many added.)

As the constitutional with originally proposed, dealing provision did not contain the homicide cases did not depositions exception the be taken “in the of the provide deposition presence party form, and his counsel.” In this aroused consider provision able because, stated, Jones its “meritorious opposition, Judge despite ... we have to abandon one of the which has been object, rights heretofore so with their confronted highly prized, right being witnesses, and their accusers face to face.” To meet this (Ibid.) meeting add the restrictions objection, Judge Hager proposed currently “Now, statute. I will ask friend there what (Ibid.) over my [Judge Jones] can be the of a witness in the objection taking presence of the . accused. . . How can he suffer He is confronted any wrong. witness; him, with the witness. can cross-examine the he He can impeach ” the same as was taken in Court. italics As added.) (Ibid., testimony if amended,7 thus the provision passed. It is clear that the of the constitutional purpose provision relating was intended a means of solely perpetuating of a witness who otherwise unavailable to testimony might testify at trial. It created an ato “fundamental” exception right of an accused. v. Ward 105 Cal. P. 33].) (People in the debates hints that the Constitution was intended touch Nothing the use of as a means of or to limit in upon any of an accused to a way right deposition.8 amendment, discussion, 7A technical irrelevant to the was also made in the (Id., of the final of the sentence.

wording portion shows, I, as a with the 8“Inasmuch ... as tenor of clearly [article whole] defendants, noted, it was intended for the there is no exception protection to authorize the taking depositions by prohibition upon legislature (Italics case.” v. Hurtado class of criminal every original.) (People defendant 292].) (1883) contrast, L.Ed. 4 S.Ct. By 63 Cal. affd. 110 U.S. 516 [28 noted, cases now be used defendant in the court cannot “depositions (Ibid., homicide.” italics in original.) Constitution, the as Used in B. Word “Deposition,” California Testi- as Conditional Covers Taken Only Depositions Out-of-Court Taken and Does Not Cover Discovery Solely Depositions mony, for Purposes. in as used of the word

An into the “deposition” meaning inquiry I, 13, clearer that this article makes even provision for intended to affect a court’s by was never deposition. had 1879, was when the section adopted, provided Penal in at least nine

for the use separate places “depositions” Code: 1335-1345 for of a Sections form

(1) provided “depositions” examination,” of his to be taken an accused one “conditional by is so if the witness “is about to leave the state or material witnesses sick infirm as to afford reasonable or apprehending grounds he to attend the trial.”9 will be unable taken,

Once was admissible at trial either “deposition” by party, that the witness is unable to attend ... .” “upon appearing the “conditional examination” Section extended type wit- 1335-1345, in sections prisoner deposition, provided nesses.10 686, 3, the use of witness’ subdivision authorized a

(3) Section at trial where defendant hearing preliminary “deposition” at the and had “either had been hearing person counsel, had an to cross-examine cross-examined or opportunity insane, dead, after was or unavailable and the witness witness” due exercise diligence. sections, 1872, these could take advantage defendant 9As enacted Moreover, the defendant or his counsel was no for either there provision prosecution. were these rights Not until 1905 statutory this “deposition.” at the taking be present (Stats. ch. of the accused compelled. presence extended to 540, 1-7, 702-703.) pp. §§ (Stats. It was was never to the prosecution. repealed 10This section applicable (Stats. 1132), later that same section 2622 year by ch. but § replaced 802, 4, witness 2349). not order a prisoner produced ch. If does judge § section 2622 now provides to sections 2620 criminal action pursuant 1335-1345. be taken as authorized sections of the prisoner “deposition” The section also authorized the use at trial of a section 1335 “deposition.”11 Section 882

(4) for a “conditional to be examination” taken provided “on behalf of the of their material witnesses who people” any were examined at the and who were unable to preliminary hearing bond for their court. This “conditional post appearance superior examination” was to be held “in the of the required presence defendant, him, or after notice to if on bail... .”12 Section 1204 (5) for a to be used at a convicted provided “deposition”

defendant’s “when a witness is so sick or infirm sentencing hearing as to be unable to attend .. ..” Section 702 “informer, for the

(6) of the and provided “deposition” any witness he when a bond was may produce” peace requested the threatened commission of an olfense. prevent (7) Section 811 for of “the informant provided taking “deposition” whom an arrest warrant was prosecutor” by sought.13 Sections 1390-1397 for when a provided taking “depositions”

summons was corporation sought.14 Sections 1526 (9). and of “the provided taking “deposition” witnesses he when a search complainant, any may produce” warrant was sought.15 1911, 686, 3, 11In section subdivision was broadened to authorize the use aof witness’ at'a former

testimony trial under the same conditions as for the witness’ preliminary 1911, 187, 1, (Stats. 1965, hearing testimony. 364.) ch. § section was totally 1965, 299, 139, (Stats. rewritten. 1368.) ch. § It now in relevant provides that part “[t]he of a deposition admissible witness taken in the action be read to the extent that it is otherwise Code, (Pen. 686, under the law of this state.” 3(b).) § subd. 1905, 12In that a section 882 provided be used “deposition” “may tipon defendant, homicide, the trial of the in cases of under the same except condition as 1905, 570, 2, mentioned (Stats. in section ch. § p.762.) [1345]....” 1951, Statutes Repealed by section 3834. new chapter See Penal page Code sections 806 813. 14These 1-6, sections were (Stats. rewritten in 1971. substantially ch. §§ 3206-3207.)The word pp. no “deposition” longer appears. 15,Since sections, the 1957 amendments to these the word no “deposition” longer 1882, 1, (Stats. appears. ch. § p. I, as used in article

It the word “deposition” indisputable were to cover all intended “depositions” types of the word law at the time. If the “deposition,” meaning provided broad, all the statutes listed Constitution, were that as used an for failure have been unconstitutional above would and/or cases use of homicide exception “in that the be taken presence requirement would That framers of the Constitution and his counsel.” such a result is doubtful. have intended settled which this court ago, type “deposition”

Long conclusively I, in was meant in article section 13. As out v. Clark pointed People 151 P. “the Cal. 205 549], provision [90 [article I, . section . . refers to ‘an deposition, ordinary extra-judicial 13] taken, called, it as de bene In view of the decisions esse.’ upon considered settled.” matter should be subject, finally v. was from decision The court in Clark People quoting prior was on trial 249 P. defendant 88], 116 Cal. Sierp, Sierp [48 trial, was At over his for murder. objection, permitted prosecutor of a witness examination read into evidence the testimony preliminary that the The defendant conceded who was no available to longer testify. Code, statute (Pen. § of the evidence was authorized admission 3, ante, the clause 540),but subd. contended that its admission violated “cases I, the use of in article prohibited was not This contention. clause of homicide.” rejected “[T]he to, embrace, at and does intended relate not testimony given . . . The a known as examination. preliminary judicial proceeding refers to an clause deposition question clearly ordinary extrajudicial taken, called, is, de before as it is bene esse—that conditionally oaths, commissioner, and based or officer authorized to administer some other reasons the witness certain upon theory danger dying, trial.[16]. . . able to come the court at the language [T]he being what shows in the clause constitution in question clearly employed real used. . . nature the word as then . was meant by ‘deposition’ [T]he at a examination is not changed any testimony given preliminary Indeed, it because is called in most of name. particular respect that the framers in intended to the use of 16It would indeed unlikely prohibit cases, devices in criminal since deposition discovery by 536; Court, (Pitchess at v. Cal.3d Shively unknown 1879. 1431].) Cal.2d 28 A.L.R.3d Stewart admissible, cases where such it is called a is held testimony ‘deposi ” 251-252, 254, tion.’ (Id., italics added.) pp. The in the case now before this court “deposition” sought by Runyan is not a taken for the for the deposition purpose preserving testimony On the it is for the sole prosecution. contrary, sought purpose Thus, an accused. it is manifest that the trial court’s order discovery by is not limited of our discovery by deposition by any provision Constitution, as the majority suggests.

Ill further claims that the trial court’s order majority for discovery by law, violates in addition to the Constitution. statutory to the “the According to constitutional majority, Legislature, pursuant has itself on grant, the of expressed criminal cases subject depositions and has declined to extend plainly those deposition procedures beyond confines described in Penal Code section 1336.” carefully ante, fact, however, 528.) In (Majority this contention is opn., grounded on a of intent similar to the misconception legislative misconception found in the majority’s argument.

In Penal Code section 1335 et for seq., provided de bene esse authorized the Constitution: a deposition by “deposi- tion” form of a “conditional examination” of a material witness is state, when the witness about “is to leave the or is so sick or permitted17 infirm as to afford reasonable for that he will be grounds apprehension unable to attend the trial . . . The .” taken “deposition” purpose to sections to for the witness’ these is substitute pursuant provide “on the trial” in the unavailable as a event “the witness is testimony witness within the of Section 240 of the Evidence Code.”18 meaning Code, Code the use of These Penal silent on (Pen. 1345.) § provisions 17A on behalf state “in cases other than for deposition permitted those only Code, (Pen. which the be death.” § punishment may 18Evidence Code section 240 provides: “(a) (b), as otherwise Except subdivision ‘unavailable as a witness’ means provided that the declarant is: “(1) on the relevant; Exempted from precluded ground privilege testifying concerning matter to which his statement is “(2) matter; from to Disqualified testifying “(3) Dead or unable to attend or to at the because of then existing testify hearing or mental illness or physical infirmity; “(4) Absent from the and the court is unable his attendance by hearing compel and, therefore, for the cannot discovery,19 purpose

depositions be a bar to a court’s inherent for construed to power discovery provide deposition. by the court’s doubt about discovery

Any is a scheme where there statutory providing this court for use at trial settled evidence preserve 65 Cal.2d 475 v. Stewart (1966) than 10 more years ago Shively case, two In that doctors A.L.R.3d 1431], Board of Medical of the California State officer hearing requested on abortion to a to order Examiners discovery disciplinary hearing prior consisted four requesting sought subpoenas charges. The Adminis- of documents. and the production prehearing depositions Code, Act 11500 et trative Procedure (Gov. § seq.), governed contained taking conduct of provision hearings, disciplinary could not be was unable to or when witness compelled However, Administrative Code, 11511). (Gov. § attend the hearing with Act no Procedure contained dealing prehearing express provision with officer refused to When the comply hearing discovery by deposition. for a writ mandate the doctors compel petitioned request, discovery. writ

This issued the and mandated deposition, discovery by law “The criminal criminal law on principles. general discovery relying here,” been have the court said. “Petitioners analogy appropriate in as have the same with crimes and should opportunity charged or process; “(5) his has exercised from the and the of statement hearing proponent Absent his the but has been unable to attendance court’s procure by reasonable diligence process. the “(b) A is not unavailable as a witness if exemption, preclusion, declarant death, the or absence of the declarant was about by inability, brought disqualification, procurement of the of his statement for the proponent purpose wrongdoing declarant from or testifying.” the preventing attending an to the did. in fact manifest intent 19The asserts that majority erroneously “the 1336 when Code 1341 that bar it stated Penal section by discovery if 1335and cannot take the of sections examination place” statutory preconditions ante, 530.) to obviously not The “examination” referred have been met. (Majority opn., p. seek a for those does not is the conditional examination sections. provided by Runyan assert, does, that examination. It is a to as the simply majority conditional nonsequitur facto of a conditional examination unavailability ipso discovery precludes court confuses two distinct this legal concepts past deposition. majority to (i.e., has taken used to trial keep separate: testimony pains “depositions” preserve examination) (See, e.g., conditional used for discovery purposes. depositions Stewart, 475.) of the one evidences Cal.2d the codification Shively any legislative supra, Nothing 478-479.) (Id., intent to at other. preclude pp. criminal to their defense.” prosecutions prepare (Shively, supra, Cal.2d at 480.) pp.

This court that “in began authorizing taking analysis by noting the witness cannot be when will be unable to or compelled depositions attend, to section 11511 Code 1335 et Penal seq.] provides [like to secure evidence not for the but purpose depositions, discovery, scheme, this 478-479.) at for use at This (Id., statutory hearing.” pp. held, with to evidenced silence Legislature’s respect prehear- “[t]he mean, “does . . at This 479.) . .” silence (Id., ing discovery p. Instead, as however, it has such that discovery. Legislature] rejected [the it to the courts has left case [citation], discovery call whether administrative modern adjudication concepts question the use of the law for common rules regulate agencies’ permit added.) italics (Ibid., to secure discovery.” prehearing subpoena have been administrative augmented “[statutory procedures Noting fair law it with common rules whenever necessary promote appeared the court ordered and effective review” (Ibid.), hearings judicial to obtain documents and officer issue certain subpoenas hearing cause’ board “to determine whether there is two officers ‘good depose neither nor for the of other documents privileged production as the work (Id., protected attorney’s product.” case,

In the fail to overcome the logic majority’s arguments and force of this scheme court’s If Shively. opinion statutory evidence at trial indicated secure providing silence” with device in respect “legislative discovery token, then the same the same must be drawn conclusion Shively, here. it is well settled that silence on criminal Since “[legislative . . . that it left to the means courts adaptation 11 Cal.3d at 536), common law area (Pitchess, concepts” it clear there to a is no bar court statutory by ordering discovery as was done in case.20 deposition holding 20A Court of to limit the Shively decision Appeal subsequent purported

therein; Shively of it held that a with the “limited authorized only deposition purpose” has in his [deponent] material which the witness producing “evidentiary possession (Everett (1968) 673 Cal.Rptr. under his control.” v. Gordon 266 Cal.App.2d [72 379].) with a The that conflicted language Shively court Everett of recognized decision, (1961) v. Court of 190 Superior Cal.App.2d Clark Court pre-existing Appeal had held order 191], 739 that Cal.Rptr. discovery by no power [12 in a and held criminal case. court chose to Clark deposition adopt reasoning IV, However, will be was that was limited Clark. as in Part Clark post, seen Shively by It decided. follows that Everett was likewise decided. wrongly wrongly 546

IV is barred in In of its conclusion discovery by deposition support in Clark decision case, the Court criminal Appeal adopts majority and relies on this court’s Court, v. Cal.App.2d supra, Superior 12 Cal.3d 834 Court (1974) v. [117 Reynolds opinions Cal.3d 528 P.2d and Bailey Superior Cal.Rptr. 45] However, based on Clark was 394], result, and an unsound the Court of which led Appeal faulty premises to this set forth in the doctrines Bailey inapplicable Reynolds case. Clark, held that a the Court of Appeal Cal.App.2d in a case. to order

court has no discovery deposition “the was based on the This result Legislature, following premises: over the has seen fit to for the taking depositions years, provide criminal cases in the limited situations set witnesses in 1335, 1336, at “the Code sections (Id., 741); (2) forth 1349]” [Penal California Constitution seems to qualify right depositions I, article section 13” it is (Ibid.); criminal cases “highly [by] liberalized that “in 1957 the Legislature greatly significant” but “made no and the in civil cases” change taking depositions cases.” at statutes in criminal (Id., concerning depositions First, Penal it is incorrect Each of these is unsound. premises for were the Code séction 1335 et only statutory provisions seq. As indicated earlier (ante, 540-541), in criminal cases. depositions pp. least for hás over eight Legislature years depositions provided other Penal Code sections. ante, II,

Second, in Part the Constitution as discussed extensively esse, not to limit the use de bene intended to authorize solely Indeed, correct were the Court of in other areas. Appeal cases,” in criminal limits “the that the Constitution right then, noted, of the other code sections enacted all be unconstitutional would over the “depositions” years providing and/or an in cases of homicide failure to provide exception and his counsel. presence cases, without analysis. cited a number of which follow Clark 21The has majority ante, cases, Clark, 529.) These like should be disapproved. (Majority opn., p. inaction on drawn from an inference was incorrect legislative Finally, held, the correct this As court criminal repeatedly discovery. area in the criminal the silence drawn from inference Legislature’s it has the field to the courts. Cal.3d at (Pitchess, that left is supra, 536; Further, the fact 65 Cal.2d at Shively, p. supra, p. in enacted legislation comprehensive regarding this court out cases has on criminal As

civil no discovery. pointed bearing Pitchess, at “civil has no 11 Cal.3d discovery procedure supra, p. The in Clark is to criminal relevance clearly reasoning prosecutions.” and should be disapproved. wrong next relied on case by majority by denying discovery is Cal.3d 834. From

deposition Reynolds, supra, Reynolds, majority here: the court culls considerations should policy purportedly applicable when involve . . . not exercise inherent “the issues discovery powers ” ante, and 532) balanced ‘complex closely (majority questions,’ opn., “ is not and ‘necessary discovery question pro procedure tect some effectuate some fundamental constitutional principle specific rather constitutional individual merely] guarantee liberty [but seem to some desirable italics Neither of (Ibid., omitted.) ....’” socially fact these “considerations” is in involved in this case. considerations,

As to the first of these majority opinion The full somewhat from misleading. Reynolds, supra, quotation comes, Cal.3d from majority’s speaks language and state balanced constitution “complex closely questions of andfederal Thus, . .” added.) al law . . as Allen v. (Italics recognized 18 Cal.3d 557 P.2d 65], where “intricate this consideration state federal applies only case, In the it is not questions presented.”22 [are] contended that the federal Constitution bars the order for discovery court, above, as made shown there is no municipal that even the state Constitution touches upon depositions provision a means of discovery. consideration,

As to second from is taken quotation Reynolds of context. were correct that court can out If this majority promulgate Allen, divided court struck down a trial order that judge’s 22In closely names witnesses so be read to the the court had the defendant reveal the of his that they might However, were the seven unanimous jurors. justices prospective Reynolds did and that the rationale to authorize such apply power that case. rules when then there could

discovery only constitutionally “necessaiy,” California, be no created rules of since—as the judicially discovery notes elsewhere in its liberal rules are majority opinion—our discovery ante, generally 530.) constitutionally compelled. (Majority opn., p. absurd, This result would not be but would conflict with nearly decision on this court since Riser in 1956. every discovery by Surely, could not intend such a result.23 majority

The final case relied on Court, majority, Bailey Superior 19 Cal.3d is likewise There the defendant in a supra, inapplicable. civil action to record and at a sought report proceedings deposition means of After sections, code this videotape. reviewing applicable court concluded that since had directed that Legislature deposition recorded and transcribed in unless testimony stenographically writing otherwise, should determine whether parties agreed Legislature other methods of should now be recording reporting depositions authorized. (Id., 978.) pp.

Thus, in this court was with an issue on which the Bailey, presented However, had the situation is Legislature specifically spoken. quite different in the case. As III, ante, discussed in Part extensively while the has addressed issue of the use of criminal actions to trial, it has not done with preserve so testimony to the use of regard As the discovery purposes. majority area, in the criminal silence recognizes, on the “legislative subject ‘means that it has left to the courts the discovery common adaptation ” ante, law Pitchess v. concepts.’ from (Majority opn., p. quoting Court, 11 Cal.3d at 536.) supra,

V A court has not abused its discretion when it grants discovery by in a case where an individual been accused of several Reynolds 23The issue in was whether this court should create a rule for judicially by the state of an alibi defense of an accused. The court declined unanimously do so. Reynolds, from passage “in quoted by arose context majority, [limited] between dichotomy judicial of rule-making inspired required by limitations on the government, judicial would rule-making merely to the which it grant (Reynolds, government claim rights might for itself . . . .” legislatively 12Cal.3d at Thus, the set forth “when principle the court’s passage applies only common law to be invoked not so as effectuate powers sought the protections constitutional- and cannot unconscious he was knocked offenses and serious are the officers those the events remember charges; police underlying occurred; and there is what who know possibility other persons fabricated. have been the accused evidence some an could not found that The trial court prepare Runyan specifically officers. these without the defense police depose ability adequate accused, it clear our courts ensure a an is order to fair trial to possess review of A careful in the area of criminal broad discretion discovery. there no indicates is Constitution statutes state impediment Therefore, this area a trial court. the exercise of jurisdiction affirmed. the lower court should be judgment J.,

Tobriner, concurred. the real interest and rehearing respondent petition Bird, J., Tobriner, J., were of the denied March 1978. C. that the should

opinion petition granted. accused, the full benefit of but state an otherwise to give ly guaranteed helpless 847-848.) (Id., clearly It accorded it.” pp. constitutionally legislative leeway here, when, a fair his trial. right an seeks to protect inapplicable

Case Details

Case Name: People v. Municipal Court (Runyan)

Court Name: California Supreme Court

Date Published: Jan 20, 1978

Citation: 574 P.2d 425

Docket Number: L.A. 30722

Court Abbreviation: Cal.