Opinion
For Opinion on Hearing, see 112 Cal.Rptr. 257, 518 P.2d 1353.
Opinions on pages 365-408 omitted.
HEARINGS GRANTED
[108 Cal.Rptr. 82]Richard S. Buckley, Public Defender, Harold E. Shabo, William S. Berland and Seymour Weisberg, Deputy Public Defenders, for petitioner.
Joseph P. Busch, Dist. Atty., Harry B. Soundheim and Arnold T. Guminski, Deputy Dist. Attys., for real party in interest.
LILLIE, Associate Justice.
Petitioner seeks mandate to compel respondent court to grant discovery and make available to him the felony conviction and detention and arrest record of a prosecution witness, Harry Sillence. He relies primarily on Engstrom v. Superior Court, 20 Cal.App.3d 240, 97 Cal.Rptr. 484. We issued order to show cause and temporary stay order.
ARREST AND DETENTION RECORD
In Engstrom v. Superior Court, 20 Cal.App.3d 240, 97 Cal.Rptr. 484, petitioner was charged with murder and two counts of felonious assault; he sought detention and arrest records of the three victims relating to any act or attempted act of violent and assaultive conduct to prove they initiated the attack. In the affidavit in support of the discovery motion, defense counsel represented [108 Cal.Rptr. 83] that (1) the two assault victims testified at the preliminary hearing that Engstrom engaged in an argument with the deceased and shot them; (2) he will raise the defense of self-defense; and (3) Engstrom's version of the incident to police vas that he was attacked by the deceased and several others and someone hit him with a gun which he grabbed and it discharged three times. The court held that while discovery of these records could not be justified on impeachment grounds, specific acts of aggression by the victims may be admissible to show that they were the aggressors, and would be material when the defense is self-defense or where defendant seeks to show mitigating circumstances to reduce the charge. 'Again, because the information requested is available to the district attorney and not otherwise available to the defense, the district attorney should be required to obtain the information where a showing of good cause is made. In the present case, petitioner has disclosed his planned defense; there is no reason to doubt the good faith of his request for discovery in aid of the self-defense theory. Although the court is not required indiscriminately to allow discovery of all arrest records of all witnesses, we conclude that where a claim of self-defense is offered, and the alleged victim of an offense is claimed to have been the aggressor, information concerning arrest for specific acts of aggression by the alleged victim must be produced if available to the prosecutor.' (Engstrom v. Superior Court, 20 Cal.App.3d 240, 245, 97 Cal.Rptr. 484, 487.)
The declaration of the public defender in support of discovery motion alleged that Sillence will testify as shown in the arrest report; and his arrest and detention records are material and relevant 'as they may show that said witness perpetrated the conduct which he alleges was committed by the defendant.' Petitioner is charged with attempted burglary (§§ 664, 459, Pen.Code). The arrest report shows that Sillence worked, and defendant lived at the Warwick Hotel; Sillence saw defendant place a crowbar under his coat and, with one Moss, leave the hotel; he followed them to a business address where he saw them approach a double door and both attempt to pry the lock with the crowbar with negative results, then return to the hotel. Sillence called police. Officers went to the business establishment and observed fresh pry marks on the door and the hinges bent, formed the opinion that defendant and Moss attempted to force entry, and returned to the Warwick where the desk clerk identified defendant and Moss seated in the patio area. They observed a crowbar against the wall near where defendant was seated.
Engstrom v. Superior Court, 20 Cal.App.3d 240, 97 Cal.Rptr. 484, does not dictate discovery of the arrest and detention records of Sillence; not only is Engstrom distinguishable on its facts but petitioner has failed to make a showing of good cause. First, unlike in Engstrom, there is here no articulated theory of defense; instead, counsel advanced only highly generalized and speculative contentions and frankly stated, 'It's only speculation at this point,' [108 Cal.Rptr. 84] conceding there are no facts to indicate Sillence may have been involved other than that he claimed to witness the attempted forcible entry. Second, petitioner has not suggested how the arrest and detention records of Sillence world establish that he 'has been involved in several reports like this before.' Third, petitioner has failed to demonstrate how other past arrests could reasonably show that Sillence committed the offense with which he is charged, and is 'blaming him.' Fourth, whereas in Engstrom defense counsel by affidavit gave his client's version of the incident, nothing in the record before us shows petitioner's version of what occurred. Fifth, unlike Engstrom in which the three were alleged victims (20 Cal.App.3d 240, at p. 245, 97 Cal.Rptr. 484), Sillence is a nonvictim witness. Sixth, the court in Engstrom limited its holding to 'where a claim of self-defense is offered, and the alleged victim of an offense is claimed to have been the aggressor.' (P. 245, 97 Cal.Rptr. p. 487.) Finally, while Sillence is an eyewitness, he is not the only prosecution witness, the officers having observed the pry marks on the door and immediately thereafter a crowbar against the wall near where petitioner was seated.
The deputy public defender advised the court, '. . . it may be that he has been arrested and detained for several burglaries which would involve similar circumstances. Or it may be that he has been involved in filing several reports like this before. I just don't know at this point. It's simply speculation as to the arrest and detention records.'
The public defender told the trial court that the arrest and detention records 'may produce information which would indicate that the sole prosecution witness in this case was in fact either involved in the incident and was trying to lay it off my client, or he has other offenses which would indicate that he has been involved in this type of conduct before. I don't know. Again, I can't say, because I have not seen the sheet.'
FELONY CONVICTION RECORD
Petitioner's contention is that the following rule of Engstrom v. Superior Court, 20 Cal.App.3d 240, 97 Cal.Rptr. 484, controls: 'Therefore we conclude that the prosecution should be required, on request, to obtain and make available information concerning felony convictions of prosecution witnesses.' (P. 245, 97 Cal.Rptr. p. 487.) The court did not require a showing of good cause as in the production of arrest and detention records. We are urged by real party in interest to reject the Engstrom holding (announced by the First Appellate District) on various grounds, among them that it runs counter to the basic pretrial discovery doctrine in criminal cases which places discretion in the trial court to deny discovery in the absence of a showing of good cause. (Theodor v. Superior Court, 8 Cal.3d 77, 88, 104 Cal.Rptr. 226, 501 P.2d 234 [identity of informant]; Joe Z. v. Superior Court, 3 Cal.3d 797, 804, 806, 91 Cal.Rptr. 594, 478 P.2d 26 [statements of former codefendants in possession of police department]; Price v. Superior Court, 1 Cal.3d 836, 843, 83 Cal.Rptr. 369, 463 P.2d 721; Honore v. Superior Court, 70 Cal.2d 162, 167, 74 Cal.Rptr. 233, 449 P.2d 169 [identity of informant]; Ballard v. Superior Court, 64 Cal.2d 159, 167, 49 Cal.Rptr. 302, 410 P.2d 838 [names and addresses of all persons interviewed by police and all reports, notes and records re results of lie detector test of prosecutrix in rape case]; People v. Cooper, 53 Cal.2d 755, 770, 3 Cal.Rptr. 148, 349 P.2d 964 [statements of seven witnesses who testified at the preliminary hearing in a case involving a different murder suspect in possession of prosecution]; Powell v. Superior Court, 48 Cal.2d 704, 707, 312 P.2d 698 [defendant's confession and admission]; People v. Riser, 47 Cal.2d 566, 585, 305 P.2d 1 [written statements of witnesses]; Engstrom v. Superior Court, 20 Cal.App.3d 240, 245, 97 Cal.Rptr. 484 [arrest and detention records of victim witnesses].) The Engstrom rule requires the prosecution solely upon request by the defense to supply the felony conviction records of all prosecution witnesses. We note with interest the court's reliance on a quotation from People v. Riser, 47 Cal.2d 566, 305 P.2d 1, enunciating the theory behind criminal discovery: 'Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and in particular it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits' (47 Cal.2d at p. 586, 305 P.2d at p. 13); however, it failed to include the preceding [108 Cal.Rptr. 85] paragraph in Riser: 'The decisions of this court have always impliedly recognized that on a proper showing a defendant in a criminal case can compel production when it becomes clear during the course of trial that the prosecution has in its possession relevant and material evidence. Production has been denied, not on the grounds that there was never any right to it, but because the requirements justifying production had not been met in the particular case. [Citations.]' (Pp. 585-586, 305 P.2d p. 13.)
Without question felony conviction records potentially admissible for purposes of impeachment are discoverable. (In re Ferguson, 5 Cal.3d 525, 533, 96 Cal.Rptr. 594, 487 P.2d 1234.) Although it is true as asserted by petitioner that the court there held that no request for Miller's felony conviction and sexual offense record was necessary (pp. 532-533, 96 Cal.Rptr. 594, 487 P.2d 1234), Ferguson involved a far different situation than in either the instant case or Engstrom. Ferguson had been convicted of kidnapping Mr. and Mrs. Miller and sexual offenses against Mrs. Miller; he denied kidnapping either one and asserted Miller was guilty of pandering his wife. The cause was before the court on habeas corpus, and the court found that the prosecution intentionally suppressed evidence by failing to disclose the records of Miller; the district attorney had made his file available to defense counsel but omitted therefrom information as to the felony conviction (although he was aware of it) and his knowledge of Miller's sex offenses.
The broad rule of Engstrom permits indiscriminate requests without judicial action, and in light of the burden in time, effort and money such routine requests of the defense for felony conviction records of all prosecution witnesses would cast on the agency supplying the information, and the potential for abuse, we adhere to the concept that places discretion in the trial court to deny pretrial discovery in the absence of a proper showing. (See Joe Z. v. Superior Court, 3 Cal.3d 797, 801, 804, 91 Cal.Rptr. 594, 478 P.2d 26.) While it may well be, as asserted in the declaration of William L. Lewis, Chief, Bureau of Identification and Investigation, Division of Law Enforcement, California Department of Justice, attached to return and answer of real party in interest, that 400,000 criminal proceedings are initiated each year in California and that each proceeding might have an average of 10 prospective prosecution witnesses, these figures are not persuasive in light of the fact that many criminal prosecutions never reach trial as the result of dismissals, pleas of guilty and submissions on the transcript of the preliminary hearing, and of those reaching trial a large percentage of the prosecution witnesses are law enforcement officers. However, it cannot be denied, according to 1972 Judicial Counsel Report, part II, page 1181, setting forth criminal (not including misdemeanors and infraction filings) and juvenile delinquency filings, and the declaration of Lieutenant Camie L. Jarvis, Trial Liaison Section, Bureau of Investigation, Office of the District Attorney of Los Angeles County, relative to the number of witnesses subpoenaed in Los Angeles County for one month (February 1973), that the burden imposed upon the Bureau of Criminal Identification and Investigation by a rule requiring the prosecution to produce felony conviction records of all prosecution witnesses solely upon request of the defense, would be enormous if at the outset of every criminal case (regardless of whether the cause is eventually tried) defense counsel routinely asks the prosecutor for such information. There is lack of merit in the [108 Cal.Rptr. 86] claim that fingerprints of all prosecution witnesses must be taken for an accurate record which would result in an invasion of their privacy and place in jeopardy the prosecution's relation with them, and in added cost to the C.I.I. When the prosecution sees fit to obtain felony conviction records of defense witnesses no thought is given to taking fingerprints to insure accuracy of identification; to be sure, a request for fingerprints of defense witnesses would be improper. Thus the felony conviction record of a defense witness, when sought by the prosecution, is obtained by name and presumably, if a common name, by physical description; we see no reason why the felony conviction record of prosecution witnesses cannot be obtained on the same basis. However, we perceive a field of abuse allowed by the Engstrom rule if, as urged by the public defender, 'in every case the defense is entitled to the felony conviction records' of all prosecution witnesses solely upon request of the defense. Prosecution witnesses include not only victims, eyewitnesses and non-victims, but those who have no involvement in the charged crime and are called to testify on matters material but only remotely connected with the offense. Must these persons who testify to matters which the defense may not even dispute but which are necessary to the People's case, be subjected to the humiliation of having a search made for felony conviction records and, if any there are, a perusal of those records (which may or may not contain a 'rap sheet'), and being confronted with a prior felony conviction?
The deputy public defender advised the trial court 'And let me say this: That it is definitely my position that in every case the defense is entitled to the prosecution's felony conviction records.'
The declaration of the deputy public defender in support of the pre-trial discovery alleges that the felony conviction record of Sillence is material and relevant as it may be used to impeach him; and said record is not known to defendant or his attorney. At the outset it seems fairly clear that his primary purpose in seeking this record, if any exists, is not for impeachment but to attempt to show that Sillence himself committed the crime with which petitioner it charged. Nowhere in the record is there any showing that defense counsel has even a suspicion that Sillence might have a felony conviction record, and it is obvious that neither petitioner nor his counsel knows if a felony conviction record for Harry Sillence exists. Sillence was asked by no one on behalf of petitioner whether previously he had been convicted of a felony. In Joe Z. v. Superior Court, 3 Cal.3d 797, 91 Cal.Rptr. 594, 478 P.2d 26, petitioner, a minor, moved to inspect the statements of two other juveniles who were former codefendants. The court concluded that denial of the motion was proper because among other things petitioner 'offers no explanation why he could not obtain the factual information contained therein directly from the juveniles themselves.' (P. 806, 91 Cal.Rptr. p. 600, 478 P.2d p. 32.) In ruling on the discovery motion the trial court concluded, 'I am denying your motion as to the felony record, if there is one, on the grounds that there is insufficient showing that there may be a felony record.' We find no abuse of the trial court's discretion.
In his memorandum of points and authorities attached to notice of motion for pre-trial discovery, the deputy public defender states, 'Defendant also seeks the felony conviction, arrest and detention records of Sillence for they may show that he has a bias or motive to lie in the current action. He may have prior arrests or convictions for burglary. These incidents may be similar to the current offense with which the defendant is charged. Such incidents could be used to show that Sillence may be the actual perpetrator of the offense for which defendant is now charged, thus giving him a motive to lie.'
For the foregoing reasons the petition for writ of mandate is denied, the order to show cause is discharged and temporary stay order is vacated.
WOOD, P. J., concurs.
[108 Cal.Rptr. 87]THOMPSON, Associate Justice.
I concur in that portion of the majority opinion which upholds the action of the trial court in denying petitioner discovery of the arrest record of Sillence. In view of the minimal showing made by petitioner of the worth of that information, this court must sustain the trial court's determination based, as it is, upon the broad discretion granted trial judges in matters of discovery.
For reasons articulately stated in the majority opinion, I dissent from that portion of it which denies discovery of the record of felony convictions of Sillence.
Engstrom v. Superior Court, 20 Cal.App.3d 240, 97 Cal.Rptr. 484, as noted by the majority, is indistinguishable from the case at bench on this issue. In my opinion, stare decisis is a concept of substance and not merely a rule of convenience. We should refuse to follow precedent only where there is some compelling reason. I find no strong reason here. Neither does the majority in the context of the case at bench.
The majority states, in effect, that applying the rule of Engstrom in a fashion which would permit discovery of the felony conviction record of all prosecution witnesses, including those at preliminary hearings, would impose an intolerable burden. Here, however, we deal with a trial and not a preliminary hearing. The majority states that the rule of Engstrom should not be used to subject prosecution witnesses of matters remote to the crime to the humiliation of a check of their conviction records. Here, however, we deal with the felony conviction record of Sillence, the only eyewitness to the charged crime. The majority states that the felony conviction record of a prosecution witness must be revealed to the defense if good cause is shown. Here, contrary to the key conclusion reached by the majority opinion, good cause is conclusively established in the record.
Good cause for discovery exists where he material sought will aid the party seeking it in his preparation for trial, or where the information may constitute relevant evidence. (Associated Brewers Distr. Co. v. Superior Court, 65 Cal.2d 583, 587-588, 55 Cal.Rptr. 772, 422 P.2d 322.) The party seeking information to which he is entitled only upon a showing of good cause is not required to establish the content of the information itself. (Associated Brewers Distr. Co. v. Superior Court, supra, 65 Cal.2d at p. 588, 55 Cal.Rptr. 772, 422 P.2d 332.) In the context of the case at bench, the felony conviction record of Sillence will aid petitioner's preparation for trial. That information may have direct relevance as supplying impeachment of the one eyewitness for the prosecution. It is not necessary, as the majority opinion intimates, that petitioner already know the information sought before he is entitled to it. Neither is it a prerequisite that the defense have cross-examined Sillence at the preliminary hearing on his felony convictions. Indeed, it is misconduct for counsel, not possessed of some information that such is the case, to inquire on cross-examination whether a witness has been convicted of a felony. (Jefferson, California Evidence Benchbook (Cont.Ed.Bar 1972), § 28.10, and cases there cited.) It is thus a valid purpose of pretrial discovery to inquire into facts upon which good faith impeachment at trial may proceed.
In essence, the object of criminal procedure is to afford a fair trial and not to secure the conviction of the defendant who happens to be before the court regardless of his possible innocence. (See People v. Riser, 47 Cal.2d 566, 586, 305 P.2d 1; In re Ferguson, 5 Cal.3d 525, 531, 96 Cal.Rptr. 594, 487 P.2d 1234.) That proposition alone compels me, as a judge, to the conclusion that petitioner is entitled to the state's information concerning the felony convictions of the principal witness. The economics of the situation compels me, as a taxpayer, to the same result. A public agency, the C.I.I., maintains records of felony convictions. To require that the public [108 Cal.Rptr. 88] agency make that information available to the defense, as it does to the prosecution, entails minimum expense. To deny defense discovery of information of conviction records in the hands of the C.I.I. will require that the Public Defender, who here represents petitioner, establish a parallel system of information, or otherwise engage in an unnecessarily expensive process of acquiring the necessary data. There is already too much duplication of governmental effort.
I would order that a writ of mandate be granted directing the trial court to order the prosecution to disclose the felony conviction record of Sillence.