*1 Dist., First Div. Three. Jan. No. 17649. 1979.] [Crim. PEOPLE,
THE Plaintiff and Respondent, THORNTON, Defendant and
RONALD CURTIS Appellant.
Counsel Denvir, Defender, State
Quin Public under the Court of appointment by Jeffers, Defender, Clifton R. Chief Assistant State Public B. E. Appeal, Pineda, III and Defenders, Patricia Salas State Public Bergesen Deputy for Defendant and Appellant. General,
Evelle J. Jack R. Younger George Attorneys Deukmejian, O’Brien, Winkler, General, Assistant Chief Edward P. Assistant Attorney General, Raster, and Laurence W. Gerald E. Attorney Granberg Eugene General, M. for Plaintiff and May, Deputy Attorneys Respondent. Jensen, Meehan,
D. Lowell and John J. (Alameda), District Attorney Assistant District as Amici Curiae on behalf of Plaintiff and Attorney, Respondent.
Opinion FEINBERG, J. The issue statements, here is what if presented made to defense any, defense alibi witnesses can be investigators by discovered We conclude that such consti- prosecution. tutes an unconstitutional violation of a defendant’s privilege against self-incrimination even if the only the alibi witnesses and do not the defendant. directly inculpate with felonies out of robberies
Appellant charged arising alleged to have occurred 22, 1976, on 23, 1976, December December and January 10, 22, 1977. On December two men entered A. Daigger Company in Richmond and robbed two H. Bartz and Jane Ruchan. employees, Both men were at the victims. holding guns pointed During robbery one of the men held a at the neck of Bartz and ordered Ruchan to lie gun on the floor. was taken from a cash box as well as from Money company trial, Ruchan’s At Ruchan identified as the man purse. appellant holding at Bartz’ neck. She testified that the man was clean shaven. At the gun time of trial had a mustache. Bartz was not able to appellant definitely at trial. also indicated that was the identify appellant Testimony appellant one who rifled the cash box as well as the A latent purse. fingerprint, identified as that of was found on the cash box. appellant, three an
On December two men robbed individuals the robbers in San Pablo. one of robbery, apartment During building trial, held At Anna Walters identified a to one victim’s head. victim gun as one of the robbers. Victim Debra Avila thought appellant appellant robbers, not sure. Victim Avila resembled one of the but she was Joe identified one of the robbers. The was unable to reach appellant jury incident, verdict as to the four counts involved in the December 23 in a mistrial. resulting 10, 1977,
On Proffitt, Sr., two men William robbed and his January wife, Pinole, at the Gables Motel in where lived. One robber Joyce, they at Proffitt’s face from a distance two to three At feet. pointed gun trial, Proffitt robber, identified as that armed as did his wife appellant *4 one of his sons. defense incidents on December and 23 alibi.
Appellant’s Five witnesses as to testified at his mother’s home in appellant’s presence West 23, 1976; on December 22 and two of those witnesses Hollywood also testified that was at a Los club on the appellant Angeles night night of December 22.
At
witness,
the outset of cross-examination
first
alibi
appellant’s
Isom,
Cornell
the district
moved
discover
statements
attorney
any
made to defense
all of
alibi
Over
witnesses.
investigators by
appellant’s
counsel
court
was ordered
turn over to the
objection, appellant’s
an
of statements of the witness Isom. At
in
any investigator’s report
camera
out
and the
hearing
presence
jury,
prosecutor,
public,
reviewed the
notes. The court then informed
investigator’s
it
of two statements
felt
Isom’s
prosecutor
impeach
testimony.
The same
was followed
each alibi
after
witness testified.
procedure
notes,
While the
was not
he
the defense
prosecutor
given
investigator’s
was told
the court of
or
in
statements
omissions
a total of three of the
alibi witnesses’ statements to the
which seemed of
investigator
possible
value.
used those
in
statements
impeachment
attempting
cross-examination,
the alibi witnesses on
in
with
connection
two of the
witnesses.
statements and the use to which
were
they
put
detail,
is discussed in more
infra.
Can
statements
witnesses who
in
alibi
given by defense
testified
some manner
such
be
discovered
prosecu-
from
different
tion
the witnesses?
purpose
impeaching
We hold that such statements cannot be discovered.
In Prudhomme Court held that 466 P.2d 673], pretrial prosecutorial of the names, addresses, anticipated discovery defendant’s the defense intended to call violated the witnesses privilege the United Amendment self-incrimination under Fifth against Fourteenth States Constitution states through binding upon Amendment. Prudhomme, “We do not
However, careful to the court was say from should be barred intend to any suggest this, other, A demand for factual or case. reasonable defenses, or which to a information .... pertains particular trial, which defendant intends to introduce seeks that information only and therefore no hazards of self-incrimination substantial may present and circum- the trial that under the facts justify determining judge in the case him it that disclosure cannot stances before clearly appears However, incriminate tend to defendant. unless those criteria are possibly met, should be refused.” Cal.3d at omitted.) (Fns. (2
Thus, it is fair to that issue that confronts us here was not settled say Prudhomme. by
Prudhomme was followed Allen v. Court 18 Cal.3d (1976) by Superior Allen, 520 557 In P.2d the trial court on its own Cal.Rptr. [134 65]. motion ordered disclosure both and defense of names of prosecution witnesses, so that the to names could be read prospective jurors potential to ascertain if of them such witnesses. The court was with any acquainted to from individual disclosed proposed enjoin People contacting the defense until the name of such was otherwise disclosed person course of the trial. defendant refused and a writ during sought the order would violate his self- prohibition, right contending against incrimination. Prudhomme, and for reasons we need not
The Allen court reaffirmed here, on the state constitu- the constitutional put underpinning pursue I, Const., art. rather 15), tional self-incrimination (Cal. § privilege against federal and Fourteenth Amendment than on Fifth grounds. to its Allen no further than Prudhomme
While on face except point goes to disclosure at trial as well as out that Prudhomme pretrial applies 800 dicta,
disclosure,
it
that
reasons
such
among
against
suggests,
that it
lead to “other evidence useful to the
disclosure is
may
prosecution
witnesses,
statements,
.
inconsistent
. .” (Italics
including impeachment
Court,
v.
18 Cal.3d at
fn.
added.)
(Allen supra,
There were at least four
Court of
between
reported
Appeal opinions
v.
57
Prudhomme
149
(1976)
Allen—People Wiley
Cal.App.3d
[129
51
13];
(1975)
Cal.Rptr.
People Ayers
Cal.App.3d
Cal.Rptr.
[124
v. Chavez
283];
(1973)
157];
People
Cal.App.3d
v. Bais
Allen cited
[
victim testified she that had a statement to the defense given investigator but she had the contents thereof. The moved forgotten prosecution of the statement to refresh her recollection. The trial court read statement, concluded that there was in it nothing burden conceivably its case in lighten prosecution proving chief and turned the statement over to the The Court of prosecution. affirmed. The difference between and the case at bench Appeal is Wiley here, obvious. In unlike what the defense was forced disclose Wiley, was a it statement had obtained from the victim who was the pretrial chief Further, witness. there is in the Wiley, nothing opinion indicates used statement for all other any purpose than refresh the victim’s recollection she had what told the The defendant that this violated his investigator. argued confron- tation (not since it self-incrimination) right privilege against permitted witness resolve inconsistencies between her trial any potential statements. The without argument sufficiently *6 court; instead, merit that it was not addressed the the court dealt with by the case in terms of Prudhomme. court, the trial after
In Ayers, supra, Cal.App.3d screening, notes of a to the conversation between a turned over prosecution pretrial and a defense defense witness investigator. error, if was affirmed, that even there court out
The pointing appellate or irrele- contained material either the discovered statement exculpatory that in and, hence, not be It is true vant the error could Ayers prejudicial. error, no its view of there was the court was the view that basing upon that the self- States Court United privilege against Supreme holdings not and does extend defendant was incrimination [the] “personal v. Ayers, supra, called witnesses.” to statements of third (People parties undercut been extent, by has To that 379.) Ayers Cal.App.3d p. our 524-525, where Court, high 18 Cal.3d v. Allen supra, in this Court aspect.1 States to follow the United court declined Chavez, court In v. the trial granted supra, Cal.App.3d taken the motion of the for by pretrial prosecution’s of who at trial. Without defense witnesses testified screening investigator over statements, trial ordered the statements turned to the the the court for the trial court court held that it was error appellate prosecution. them available to the not to have reviewed statements before making doubt, reasonable but that error was harmless beyond what since was discovered could have conceivably lightened of in its burden conviction. discussion people securing material, if it states that the statements contained would only impeaching have been make that material available to the prosecution appropriate “under our in the conduct trials because system adversary have been entitled discover whether the statements would serve contained matter would witness’s testimony the witness at the trial. This conclusion follows because necessarily by on the stand for then and thus vouches his testimony given appearance cross-examination concomitant it to its scrutiny subjects proper in the of available matter right presentation impeachment Chavez, v. ascertainment of the truth.” supra, (People Thus, court, the Chavez the issue was not before although directly it, for the view an statement a defense alibi impeaching plumps in the hands of for witness is discoverable impeachment if the witness testifies. purposes Bais, Bais, 663. We come now People supra, witness, the of a defense alibi direct examination prosecu- following of a moved was tion purposes impeachment granted witness to a defense The trial statement investigator. given pretrial make certain that statement beforehand to court did not “screen” the serve to therein that there lighten prosecution’s nothing the defendant an alibi Whereas at trial witness burden gave proof. *7 crime the scene of the at the a location other than at him at by placing thereof, before trial that he told time apparently investigator Allen, believes that the majority Justice Richardson 1Interestingly, dissenting opinion 149, 51 57 and Cal.App.3d Ayers, Cal.App.3d overruled Wiley, supra, supra, impliedly Allen, 530.) v. Cal.3d 370. (People supra, he couldn’t remember whether the defendant was address testified to at the time in On cross-examination he question. prosecution, testified that an had talked to him but that he didn’t investigator him, remember what he had told that he told the what only investigator he, witness, knew. The statement was not received in evidence nor was the defense called as a witness. investigator
The court
held that
the failure of the trial court to “screen”
(1)
error
statement before it was
was constitutional
given
Prudhomme;
under
and
the error was reversible
(2)
by Chapman
705, 87
standard.
3. testified that mother’s home on Tompkins appellant December and that he had a was mustache. some evidence (There victims of from the the December and robberies that December was clean shaven at the had told time.) the defense appellant Tompkins that she remember had a didn’t whether mustache investigator appellant 23. on December made no use this information on cross-examination.
Since was not convicted of the offenses on Decem- appellant charged 23, we ber need the error consider in terms evidence only relating his conviction for the Furthermore, offenses of December 22. since the never used the information with discovered prosecution regard error, if the as to her were it could Tompkins any purpose, and, hence, be we need not consider it further. possibly prejudicial We are left then with the and use of the omissions in Isom’s and Jones’ statement with events December 22. regard that, one
As to of the victims identified as one of positively appellant the two robbers and most he as was identified significantly person who handled cash box A it. latent was lifted emptied fingerprint cash from the box and it identified fingerprint expert reasonable doubt. The evidence in the beyond appellant’s only to how record as on the is the cash box evidence that got fingerprint handled it appellant during robbery. Considering strength evidence vis-á-vis the defense evidence and against appellant the cross-examination Isom Jones regarding what each had not related to the defense we are convinced investigator, a reasonable doubt the error in trial court’s beyond disclosure did not contribute to the verdicts. ruling contends, too, that the court erred
Appellant failing give instruction to Evidence Code section subdivision limiting pursuant which of a (a), evidence character provides pertinent part person’s or of his a trait character in form of evidence instances of specific *9 to conduct on a occasion. is inadmissible his
conduct specified prove 1101, the introduc- that section subdivision (a) prohibits Appellant argues as character evidence to tion of criminal offenses prove subsequent conduct, the and the same that section criminal by argues reasoning should when offenses are tried same separate together. apply was made and in v. Jackson (1975) contention People rejected no cites cases in Cal.Rptr. support Appellant [119 71]. contention, nor do we find any. the The court instructed CALJIC No. properly jury language 17.02, them that each count was a must separate charge they advising it, decide count on the unin- each evidence separately applicable their fluenced decision as other count. by jury’s inability to the crimes to have been committed on December as alleged agree that the was in fact each demonstrates considering clearly jury their uninfluenced decision as other count separately the instruction counts. The court did err requested failing give by appellant. is affirmed.
Judgment
White, J.,P. concurred. affirmed, but that the should be SCOTT, J. I concur judgment disagree with the holding permitted by majority violated the self-incrimination. appellant’s privilege against
I hold of statements made to would discovery by defense alibi witnesses does not constitute an investigators the defendant’s self- unconstitutional violation of privilege against if alibi incrimination the statements only impeach witnesses. Court Cal.3d
In Prudhomme v. reversed an order 466 P.2d Court 673], requiring names, addresses, and defendant to disclose the prosecution to call at trial. the defendant intended witnesses expected testimony Constitutional the United States The court determined that privilege Amendment, as an the Fifth under applied self-incrimination against Fourteenth Amend state actions due element of against process court held that order. The ment, an overbroad such precluded should be demand whether particular determining thereof allowed, “whether disclosure the court must decide conceivably (2 its case in chief’ burden of *10 prosecution’s proving might lighten the to The court limited 326). Cal.3d at discovery prosecution’s right p. forbids the self-incrimination that compelled privilege against by holding of evidence to serve a link in a chain disclosures which tending might Before a for establish a defendant’s guilt. prosecutor’s request the from will it must to trial court be clearly granted, appear of the consideration all the circumstances that disclosure requested to incriminate cannot have a the defendant 326). (at tendency possibly p. The Prudhomme court then made clear that is prosecutorial discovery in a case. “We do not intend to the permissible proper suggest this, should be barred from other, in or any discovery case. A reasonable demand factual which,. information . . to pertains defenses, defense or and seeks that information which particular only defendant trial, intends introduce no substantial present may hazards of self-incrimination and therefore the in trial justify judge that under the and facts circumstances in the case before determining him it that disclosure cannot tend to incriminate clearly appears possibly However, met, defendant. unless those criteria are should be refused.” Cal.3d at The clear (2 327.)1 words Prudhomme proscribe when the could disclosure incrimin- prosecutorial discovery only possibly ate or lead to evidence that would incriminate the defendant.
Since Prudhomme a number Court of cases and one Appeal have California Court case discussed prosecutorial discovery, states, 1In Prudhomme “Unless the order is which the confined information trial, defendant intends disclose at the order could also violate the attorney-client (2 without to its fn. privilege, regard effect.” Cal.3d at possible incriminatory Evidence Code section 954 that a client has a to refuse disclose a provides privilege confidential communication between client and Evidence Code section 952 lawyer. defines confidential communication as information transmitted between client and lawyer confidence, and includes a formed and the advice legal opinion given by lawyer the course of that does not relationship. attorney-client information privilege protect to an from a third who is coming attorney not a client unless such is person person acting as the client’s (1970) 715].) v. Lee agent. (People [83 Cal.Rptr. The court’s suggestion in Prudhomme that the be attorney-client privilege applicable must be read of what the prevent requested discovery light prosecutor names, addresses, in that case. The requested sought prosecutor expected of the witnesses the defendant testimony intended to call trial. If the defendant had of those given communication between names witnesses to his list of names be a would attorney, clearly client and as such could come within the attorney scope if the defendant did not intend to names privilege disclose those at trial. contrast, here the was informed court of made prosecutor trial by third to the defense While a communication between the persons investigator. attorney’s client and that the statements come within the investigator might scope attorney-client privilege, third are made persons protected. but none has answered here. In precise question presented Bais after 519], witnesses, two alibi moved to discover statements made those witnesses to defense Over defense based on investigators. objections Prudhomme, motion, the trial court neither granted apparently into the contents of the statements nor inquiring requested examining them. On the defendant’s conviction was reversed. appeal, Although discovered statement was not of the record on the court part appeal, concluded that the certain critical discovery prompted questions cross-examination, witness on and violated the defendant’s Fifth Amend *11 ment self-incrimination. The against privilege compulsory Attorney General that an alibi defense with negating argued impeachment of the in evidence was case chief and that part prosecutor’s Prudhomme did not ban of to be used in rebuttal. evidence discovery the court that held argument, Replying “prosecution denied, must be if the trial court when regardless requested, that the to be will the determines matters disclosed conceivably ‘lighten’ ‘burden’ which the bears in about a conviction the bringing result, an alibi defense’ well this accused.2 ‘Negating may very produce the medium of of the fact that it would be done through irrespective rebuttal evidence. The test and bars Prudhomme consequently applies, 672; see (Bais, the ordered here.” 31 at also p. Allen v. Court Cal.3d Cal.Rptr. [134 P.2d 65].) addition, in an alibi
The court then stated that “negating prospect no means the defense” was requested only possible consequence The court about the use the discovery. speculated possible make of the documents other than requested impeachment, stated, that the trial court “The possibilities emphasize requirement examine the discov- matters be disclosed before granting prosecution this was the essential the failure of the trial court to do ery; present error.” in the court’s statement is 673.) (Bais, recogni- p. Implicit be discoverable. tion that statements would solely impeaching in was that the trial court erred its failure in Bais holding before material examine granting discovery prosecu- requested hold that disclosure of evidence which tor. The court did not may court used the burden” Prudhomme 2Although language “lighten prosecution’s it was meant in the context of evidence describing proscribed discovery, clearly This same defendant. used Bais other cases hereinafter incriminating language, discussed, must be read as the same having meaning. an witness will result in alibi always impermissibly incriminating its reliance on Bais is the defendant. holding majority’s support therefore misplaced. 157], v. Chavez (1973) allowed,
trial court over defense objections, prosecutorial discovery certain to a nonalibi witness statements made defense witnesses public defender’s Defense counsel had offered to submit investigators. statements to the for a as to what were determination portions but offer court. On subject discovery, rejected by appeal, the court held that the trial court erred in not the statements examining concluded, however, before The court granting prosecutorial discovery. that the error was harmless a reasonable doubt under the facts of beyond the case. (Chavez, the hazards of not the statements before
Discussing examining granting the court noted that it was conceivable the discovery, statements disclosed could contain matters which could aid prosecu- *12 tion’s case in chief and thus its burden of at lighten (Chavez, proof. 459.) The court then on to went state that it p. was conceivable equally the statements could serve to a defense witness. this impeach drawing By distinction, the court implication approved prosecutorial discovery limited to of value. As to such impeachment impeachment evidence, stated, the court “we that under our perceive adversary system in the conduct of trials the would have been entitled to prosecutor discover whether the statements contained matter that would serve to the witness’s at the trial. This conclusion testimony necessarily follows because the witness his on the stand vouches for appearance then and thus it to the given subjects proper scrutiny cross-examination and its concomitant to the right presentation available matter in the ascertainment of the truth.” (33 impeachment at 459) The went on to “In view of the Cal.App.3d p. say: time of its that the statements could possibility existing ruling nature, contain matters other than those of an the trial court impeaching erred without first permitting discovery determining whether such matter, could aside from the discovery provide, impeaching an essential link in a chain of evidence case underlying prosecution’s in chief and thus its burden in about a conviction of lighten bringing defendant.” (33 460.) Cal.App.3d Chavez from contention
This clearly supports respondent’s language would have been entitled statements with that the discovery prosecutor However, the fundamental error in both Bais impeachment potential. and Chavez was the trial examine court’s failure to material requested Thus, neither case answers the granting discovery. definitively case, is, whether, raised this after examination question discovered, material to be the trial court errs in requested determining the evidence which alibi witnesses is impeach appellant’s discoverable properly prosecution.
Limited has also been v. prosecutorial discovery upheld (1976) and in 13], Wiley Cal.App.3d Cal.Rptr. People Ayers [129 however, neither case 283]; involved circumstances identical to those herein. In the court Wiley the trial court’s order upheld permitting prosecutorial discovery statements a victim made to a defense The trial court had investigator. examined the statement and found in it which would nothing lighten In case, burden. contrast to the instant prosecutor’s prosecutor witness, statement of his own in order to refresh her seeking memory. The court concluded that the used the to make itself more certain of information it already possessed. (Wiley, atp. the trial court ordered statements of defense witnesses to be Ayers
turned over to the court for and indicated that it would disclose screening, of the statements on the prosecutor only portions bearing of the witnesses. On the court credibility appeal, upheld order as the trial court had screened the material and disclosed only material which the court described as or irrelevant. appellate exculpatory
The trial court in this case relied on
for its decision
Ayers
authority
evidence was discoverable after a
impeachment
proper screening.
However, further reliance on
is
The
court
Ayers
questionable.
appellate
stated that
self-incrimination is
Ayers explicitly
privilege against
and does not
defendant
extend
statements of third
personal
379,
called as witnesses.
at
United
parties
(Ayers, Cal.App.3d
p.
citing
States v. Nobles
The Allen court did not extend or elaborate Prudhomme upon except make clear that its to disclosures trial as well as holding applied during disclosures. It characterized the court’s order as pretrial “the requiring disclosure to of the names of untimely prospective witnesses,” and stated that the trial court “did not make the careful which we mandated in Prudhomme.” Cal.3d at inquiry (18 short, of Allen was to reaffirm p. Prudhomme and holding shift its foundation to “the self-incrimination as set forth privilege against in . . . the California Constitution” (id., 527).
It is between statements made possible alibi distinguish pretrial *14 witnesses which their trial and only impeach testimony, pretrial statements alibi witnesses which not their own trial only impeach but also incriminate the defendant. For if an testimony alibi example, witness a statement a defendant’s gave pretrial detailing culpability then trial, defendant an alibi at the statement would gave both the witness and incriminate the defendant. To allow inconsistent that statement would be to impermissibly lighten burden, is, that incriminate the defendant. On the prosecutor’s other hand, that he did if the witness statement the effect alibi gave pretrial time of and then recall whereabouts at the the crime not the defendant’s be trial, statement would defendant an alibi clearly gave on of that of value to to cast doubt only credibility without witness. Such has effect of the witness impeaching defendant, as Prudhomme. proscribed by incriminating here after examination divulged prosecution, Prudhomme, the court do tend to incriminate as required by of the witnesses’ but accuracy memory appellant, merely challenged statements. and should be discoverable impeaching solely I would hold that the court did not err. Scott, J., was 23, 1979.
A was denied February rehearing petition be should granted. Respondent’s petition petition opinion Clark, J., 12, 1979. Court was denied for a April hearing by be should Richardson, J., were of the opinion petition granted.