Opinion
As Modified on Denial of Rehearing Oct. 1, 1992.
Review Granted Nov. 19, 1992.
Previously published at 9 Cal.App.4th 329
Wilbur F. Littlefield, Public Defender, in pro. per., Laurence M. Sarnoff, Alan Stuart Chapman and Albert J. Menaster, Deputy Public Defenders, for petitioner.
Ira Reiner, Dist. Atty., Donald J. Kaplan and Brentford J. Ferreira, Deputy Dist. Attys., for the People.
GRIGNON, Associate Justice.
Petitioner, Wilbur F. Littlefield, the Public Defender of Los Angeles County, challenges an order of the municipal court holding him in contempt of court for refusing to comply with a discovery order made pursuant to Penal Code section 1054.3, part of the "reciprocal discovery" provisions of Proposition 115 (Pen.Code, § 1054 et seq.).
All further statutory references are to the Penal Code unless otherwise indicated.
Unless otherwise indicated, all future statutory references are to the Penal Code.
FACTS
In a misdemeanor complaint filed May 9, 1991, Armando Orosco Montiel ("defendant") was charged with driving under the influence of alcohol or drugs, driving with a blood alcohol level of 0.08 percent or higher, and driving without a license. The following language appeared at the end of the complaint: "Pursuant to Penal Code Section 1054.5(b), the People are hereby informally requesting that defense counsel provide discovery to the People as required by Penal Code Section 1054.3."
Defendant was arraigned on the charges in the complaint on the same date it was filed. He was represented by Deputy Public Defender Chapman. On June 12, 1991, the parties appeared in court for jury trial and the case was trailed to June 17, 1991. During the June 12, 1991 proceedings, Mr. Chapman requested that a defense witness, Sandra Pavon, who was present in court, be ordered back for June 17, 1991. Ms. Pavon was placed "on call" to Mr. Chapman, who had her phone number. The prosecution made an oral motion "for discovery of any statements of the defense witness that [the defense] would intend to use." The court replied, "I will allow all discovery to be handled informally between counsel. The Court does not involve itself in discovery matters unless there is a failure to comply."
When the defense answered ready for trial on June 17, 1991, the prosecutor informed the court that the defense had not complied with the prosecution's informal discovery request. The court ordered the defense to comply with the prosecution's discovery request forthwith. Mr. Chapman, having conferred with his "supervising attorney from the appellate section," then requested a stay of any discovery order so he could file "appropriate Points and Authorities with respect to the very serious Constitutional issues involved...." After a short recess, a 29-page "Opposition to Request for Prosecution Discovery" and a "Demand For Fifteen Days Notice of Prosecution Motion" were filed by Mr. Chapman. Mr. Chapman argued that under rule 19 of the Uniform Rules of the
Since the court had already made its immediate disclosure order and the deputy public defender had declined to comply, the court presumed that "Mr. Littlefield is intending to challenge [the order] directly." The court put the matter over to the next day for further discussion of which of the sanctions authorized by section 1054.5 would be appropriate. When the parties appeared in court the next day, June 18, 1991, Mr. Chapman requested that the court not impose any sanction which would prejudice the defendant. The court then stated it was left with "no further option to consider other than a contempt proceeding." The contempt hearing was set for the next day, June 19, 1991, and apparently trailed to June 20, 1991.
Petitioner appeared in court on June 20, 1991, accompanied by his attorney, Deputy Public Defender Albert Menaster. Petitioner filed with the court a "Brief in Opposition to Contempt Citation." After extensive oral argument, the court made a finding that "there is a reasonable and likely possibility that Sandra Pavon is a witness who has material information with respect to this case, and the defense is under an obligation to provide either the witness' address or obtain the address so the prosecution may interview the witness." The court further found that the defense intended to call Ms. Pavon as a witness and was able to obtain her address, because the defense had her phone number. The court ordered the defense to provide Ms. Pavon's address to the prosecution. The court alternatively ordered that the defense make Ms. Pavon available in court the next day. Petitioner respectfully declined to obey the court's order.
The court then stated, although it held the Los Angeles County Public Defender in the highest esteem, it had considered the explanation of the defense to the contempt charge and found the explanation "pales in comparison to the aggravating aspect of this refusal to comply with a lawful Court order." The court also stated: "This is not a contempt which has occurred in the heat of trial with emotions running high or where a thoughtless remark or deed might have otherwise been avoided upon careful reflection. This is instead a contempt of contemplation, of study, and of some degree of calculation. It is in this Court's opinion a contempt which, in refusing to The court then asked petitioner if he would reconsider his position. Petitioner respectfully refused, stating that the Supreme Court had not yet ruled on the constitutionality of the reciprocal discovery provisions of Proposition 115, and "I feel it would be a gross neglect of my duty if I did not wait until the Supreme Court made a decision." The court suggested that until that provision was invalidated by the Supreme Court, it was the law. The court found beyond a reasonable doubt that petitioner was in contempt of court, fined him $1,000, and sentenced him to 5 days in jail. The court indicated it would stay the sentence for 90 days to give the defense a chance to seek relief in this court.
Defendant's trial went forward on June 27, 1991, and the jury found him not guilty of all charges. Ms. Pavon testified at the trial on June 27, 1991, on behalf of the defense. Nothing in the record indicates that the defense complied with the court's discovery order.
On July 2, 1991, Mr. Chapman asked the court to reconsider its contempt finding in view of the revelation that defense witness Ms. Pavon had been at the scene of defendant's arrest and the police could have, but did not, obtain her address at that time. The court declined to withdraw its contempt order because the above "does not, in the Court's mind, excuse the conduct of contempt by the defense who refused to abide by a lawful Court order."
The written contempt order was signed on June 24, 1991, but was not filed until July 2, 1991. On or about July 3, 1991, petitioner filed a petition for writ of habeas corpus in the superior court. The municipal court and the prosecution filed responses. The superior court denied the petition on August 29, 1991. This court summarily denied the petition by an unpublished opinion filed February 20, 1992. On April 23, 1992, the Supreme Court granted petitioner's petition for review, transferred the matter to this court, and ordered us to vacate our summary denial and issue an order "returnable before [this] court when the matter is ordered on calendar, directing the [municipal court]" to show cause why the relief prayed for should not be granted. We issued such an order on June 10, 1992, and heard oral argument on July 7, 1992.
DISCUSSION
Several of the issues raised by petitioner have been resolved adversely to him since the contempt order was filed. These include petitioner's constitutional challenges to the reciprocal discovery provisions of Proposition 115, upheld in Izazaga v. Superior Court (1991) 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304, and the contention that these reciprocal discovery provisions do not apply in misdemeanor cases. (Hobbs v. Superior Court (1991) 233 Cal.App.3d 670, 284 Cal.Rptr. 655.)
Petitioner raises a number of objections to the contempt order itself, none of which we find to be persuasive. Petitioner contends that the order was invalid because it was not filed until 12 days after the contempt hearing. Certainly, there may be due process implications where, for example, the court does not expeditiously file its order and the contemner is immediately remanded (In re Jones (1975) 47 Cal.App.3d 879, 120 Cal.Rptr. 914 [contemner was remanded immediately for a 20-day jail sentence; written contempt order did not issue until 8 days later] ), or where the court's failure to enter an order jeopardizes the contemner's ability to seek review in a higher court (In re Easterbrook (1988) 200 Cal.App.3d 1541, 244 Cal.Rptr. 652 [written order not filed until after the contemner, an attorney, filed a petition for writ of habeas corpus].) That is not the case here, however. The contempt order was stayed for 90 days and remains stayed to this date. Petitioner has not been under immediate threat of incarceration, and, quite obviously, Petitioner also contends the order of contempt is invalid in that it expressly incorporates by reference the reporter's transcript of the relevant proceedings and the written order is inadequate without the transcript.
The following constitutes the order and judgment in its entirety: "[p] 1. On May 9, 1991, defendant Armando Orozcal Montiel was arraigned in Division 3 of the Glendale Municipal Court on numerous alleged vehicle code violations. The Office of the Los Angeles County Public Defender was appointed to represent the defendant. Deputy Public Defender Stuart Alan Chapman accepted the appointment on behalf of Wilbur F. Littlefield, Public Defender of Los Angeles County. On the same date, the prosecution requested informal pretrial discovery pursuant to Penal Code Section 1054 et seq. No objection was raised by the defense on the record to the prosecution's discovery request. [p] 2. On June 12, 1991, the Montiel case was on calendar for trial. Mr. Chapman announced 'ready for trial' on behalf of the defendant. The trial was trailed to June 17, 1991. Mr. Chapman asked the Court to order a defense witness, Ms. Sandra Pavon, to return to court on the next date. [p] 3. On June 17, 1991, the case was again called on the trial calendar. Both the People and the defense announced they were ready to proceed. The prosecutor informed the Court that the defense had failed to provided any discovery, either formally or informally, and requested discovery relating Ms. Pavon. The defense thereupon filed points and authorities respecting their opposition to the discovery request, and filed the demand for fifteen days notice of request. After reading and considering each motion, and upon hearing argument, the Court denied the defense motion to oppose discovery and ordered the defense to comply with the discovery request. Mr. Chapman stated it was the position of the Los Angeles County Public Defender to refuse to comply with any such order and thereupon refused to yield the requested information. [p] 4. The Court considered the numerous options for noncompliance with Penal Code Section 1054.5(B), and made certain findings. The transcript of those findings from June 17, 1991 are incorporated into this Order and Judgment by reference. [p] 5. On June 20, 1991, the Court held a hearing to determine whether the Los Angeles County Public Defender should be held in contempt of court for refusing to comply with the Court's discovery order. Present representing the Office of the Los Angeles County Public Defender was Public Defender Wilbur F. Littlefield (hereinafter, 'contemner'). After reviewing the history of the proceedings and upon hearing lengthy argument from contemner's counsel, the Court directly ordered contemner to comply forthwith with the discovery order. [p] 6. Contemner refused to obey the order. [p] 7. The court heard and considered contemner's explanation for his conduct and rejected it because, in light of controlling federal and state authority, contemner's position cannot be entertained in good faith. [p] 8. The Court again ordered contemner to comply with the mandate and warned contemner that any further refusal would necessitate a finding of contempt of court.
This request was overbroad. Section 1054.3, subdivision (a) only permits discovery of "written or recorded statements of those persons, or reports of the statements of those persons...." (Italics added.) The initial request appearing on the face of the complaint which sought "discovery to the People as required by Penal Code Section 1054.3" was, however, entirely proper.
Code of Civil Procedure section 1211 provides: "When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed." The purpose of the requirement of an order reciting the facts of the contempt is to permit the correctness of the order to be reviewed on appeal. (In re Battelle (1929) 207 Cal. 227, 255, 277 P. 725.) The "order adjudging a person guilty must be stated with sufficient particularity, description and detail to show without aid of speculation or reference to any extrinsic document that a contempt actually occurred." (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 125, fn. 16, 116 Cal.Rptr. 713; Raiden v. Superior Court (1949) 34 Cal.2d 83, 86, 206 P.2d 1081.)
The validity of a contempt order may not be determined on appeal by reference We have, however, been cited to and have discovered no cases which hold that a trial court's express incorporation of the reporter's transcript of the contempt proceedings into its order of contempt invalidates the order. Nor can we find any reason to so hold. As noted previously, the purpose of the order is to facilitate appellate review. Where the contempt takes place on the record, the reporter's transcript constitutes the most reliable means of such review. To invalidate the court's very detailed and particularized contempt order on this basis would be to elevate form to the level of dogma.
In any event, we conclude the order on its face, without reference to the incorporated transcripts, adequately describes with sufficient detail the facts constituting the contempt. It is clear from the order that the prosecution requested discovery pursuant to Penal Code section 1054 et seq. These sections clearly state that the prosecution is entitled to the name, address and statements of any witness the defense intends to call. It is also clear from the order that the prosecution expressly requested statutory discovery in relation to defense witness Sandra Pavon, who was on call to the defense. The order further reflects that the trial court ordered the defense to comply with this discovery request and petitioner willfully refused to provide this discovery to the prosecution. The court found petitioner to be in contempt. The court's order of contempt is particular, descriptive and detailed. It is not cursory or abbreviated. It provides a full and complete explanation of the events leading up to and constituting the contempt. Although it would have been preferable for the written order, on its face, to contain the express order of the court, its failure to do so does not make the order jurisdictionally defective. The order is stated with sufficient detail to show that a contempt occurred without the aid of extrinsic evidence.
Moreover, petitioner does not assert he did not completely understand the discovery order of the court. The order and the refusal to comply are unambiguous and unequivocal. Nor has this court had any difficulty in reviewing the validity of the order.
Petitioner further contends (1) the contempt order is deficient because it does not apprise him of the specific discovery order he failed to obey, (2) the prosecution's informal demand for discovery was "not sufficiently specific," (3) the court exceeded its jurisdiction in making the discovery order because section 1054.3 does not authorize the court to direct the defense to obtain a witness's address (where the defense has only the witness's telephone number), and (4) the court had no authority to order discovery because the defense stated it did not intend to call Ms. Pavon as a witness (an untenable claim in view of the fact that Ms. Pavon was on call as a defense witness and, in fact, testified as a defense witness at defendant's jury trial, one week later).
The record in this case belies petitioner's claim that his refusal to comply with the discovery order was due to irregularities in the order itself. The record clearly establishes petitioner deliberately chose not to comply with the court's order Petitioner was well aware of the nature and scope of the discovery being sought and had the ability to comply immediately with the court's order. The prosecution sought the discovery it was entitled to pursuant to section 1054.3. That discovery included the names and addresses of persons the defense intended to call as witnesses. The defense intends to call "as witnesses all persons it reasonably anticipates it is likely to call" as witnesses. (Izazaga, supra, 54 Cal.3d at p. 376, fn. 11, 285 Cal.Rptr. 231, 815 P.2d 304.) Clearly, the defense anticipated that Ms. Pavon would be called as a defense witness, in light of its request to have the court order her to remain on call to the defense. Therefore, the defense was required to provide Ms. Pavon's name and address to the prosecution.
Although section 1054.3 specifically requires the defense to provide both the names and addresses of defense witnesses, petitioner asserts that its discovery obligations were satisfied because the prosecution knew Ms. Pavon's name, the statute did not require disclosure of her telephone number (which the defense had), and the defense did not have her address. In other words, the court's discovery order was defective because it required the defense to obtain information it did not have. Petitioner has not asserted that Ms. Pavon's address was not available to the defense. Nor, has he asserted that there was some bona fide reason for not disclosing the address to the prosecution.
Prior to the passage of Proposition 115, when the obligation to provide discovery in criminal cases rested with the prosecution only, the prosecution was required not only to disclose relevant materials in its possession, but also was obligated to make a diligent, good faith effort to obtain and make available to the defense information which it did not have, but which was readily available. (People v. Coyer (1983) 142 Cal.App.3d 839, 843, 191 Cal.Rptr. 376; Engstrom v. Superior Court (1971) 20 Cal.App.3d 240, 243-244, 97 Cal.Rptr. 484.) For example, when the defense requested the "identity" of a material witness, the prosecution was obligated to provide not only the witness's name, "but all pertinent information which might assist the defense to locate him." (Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851, 83 Cal.Rptr. 586, 464 P.2d 42.) The prosecution was not permitted to "deliberately resolve[ ] to make no effort to learn the residence of the [witness] or to establish a way by which to locate him." (Id. at p. 852, 83 Cal.Rptr. 586, 464 P.2d 42.) An acceptable alternative was to make the witness available to be subpoenaed or interviewed (see People v. Rios (1977) 74 Cal.App.3d 833, 141 Cal.Rptr. 677), an option which the municipal court offered the defense in this case.
Since "[t]he manifest intent behind [Proposition 115] was to reopen the two-way street of reciprocal discovery," (Izazaga, supra, 54 Cal.3d at p. 372, 285 Cal.Rptr. 231, 815 P.2d 304), both the letter and the spirit of section 1054.3 require the defense to conform to the same rules which bound the prosecution prior to the passage of Proposition 115. Under those rules, the prosecution is not obligated to gather evidence it does not have or conduct an investigation to assist the defense, but neither is it entitled to thwart legitimate discovery efforts by refusing to obtain information which was readily available. Likewise, the defense cannot subvert the intent of the statute by failing, inadvertently or deliberately, to obtain the readily available address of a witness.
Petitioner further contends the defense did not receive sufficient notice. Specifically, petitioner contends he was entitled to 15 days' formal notice of the prosecution's intention to seek a court order directing petitioner to comply with the informal discovery request. Petitioner's claim is based on rule 19 of the Uniform Rules of the Municipal Courts of Los Angeles County, which provides: "Except as otherwise provided by law or rule, all notices of motion in criminal cases shall conform to the requirements of sections 1010 and 1005 of the Code of Civil Procedure and California The purpose of the reciprocal discovery provisions, enacted by the voters in Proposition 115, is "[t]o save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested," and "[t]o save court time in trial...." (§ 1054, subds. (b) & (c).) The discovery provisions anticipate voluntary compliance with informal requests for discovery, but set forth flexible procedures for formal intervention by the court where necessary.
For example, if a party believes a disclosure should be denied, restricted, or deferred, the party may request that the court deny or regulate disclosure upon a showing of good cause. The court may permit the good cause showing to be made in camera. (§ 1054.7.) If a party refuses or fails to make any required disclosures within 15 days of the other party's informal request, the party seeking discovery may request court enforcement of the disclosure requirements. (§ 1054.5, subd. (b).) If the moving party shows that a party has not complied with an informal discovery request and that the moving party has complied with the informal discovery procedures, the court may enforce the discovery provisions. (Ibid.)
The discovery provisions thus contemplate as the general rule compliance with informal discovery requests and timely requests for protective orders if a party believes the request seeks privileged information or information for which there is good cause to deny or restrict disclosure. Court enforcement of the disclosure requirements is intended to be the exception to the general rule. Although not expressly required by the reciprocal discovery provisions, it is clear that prior to court enforcement of the disclosure requirements, due process requires that a party have notice and an opportunity to be heard.
It is not necessary that we formulate a hard and fast rule as to the type or length of notice the defense must be afforded of a prosecution discovery request. The reciprocal discovery provisions were designed to allow a court sufficient flexibility "to make any order, including immediate disclosure, necessary to enforce the discovery provisions of Proposition 115. In other words, Proposition 115 has set up a procedure to deal with problems associated with such time limits." (Hobbs, supra, 233 Cal.App.3d at p. 696, 284 Cal.Rptr. 655.) If time limits are established by local court rules, courts "have authority under section 1054.5 to issue an order to shorten time or an ex parte order to deal with any time problems posed by the local court rule" (id.), provided such rules effectuate the purposes of the reciprocal discovery provisions and are consistent with due process considerations.
Courts may adopt local rules which are not inconsistent with law establishing pleading requirements, such as written notice and time limits for filing motions. (People v. Lewis (1977) 71 Cal.App.3d 817, 820, 139 Cal.Rptr. 673; People v. Hallman (1989) 215 Cal.App.3d 1330, 1341-1342, 264 Cal.Rptr. 215; People v. Davis (1989) 215 Cal.App.3d 1348, 1349, 264 Cal.Rptr. 225.)
Section 1054.1 provides: The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [p] (a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. [p] (b) Statements of all defendants. [p] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. [p] (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. [p] (e) Any exculpatory evidence. [p] (f) Relevant written or recorded statements of witnesses or reports of statements of witnesses whom the prosecutor intends to call at trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial." Section 1054.2 limits the authority under certain circumstances not relevant to this proceeding of an attorney to reveal an address or telephone number of a victim or witness.
In this case, petitioner does not argue the defense did not receive notice, or that the defense did not receive an opportunity to be heard. The defense received the prosecution's informal request for discovery on May 9, 1991. At no time thereafter did the defense comply with the disclosure requirements or request a protective order from the court denying or restricting disclosure. On June 12, 1991, the date set for trial, the prosecution announced in open court that it had requested informal discovery and the defense had failed to comply with respect to Ms. Pavon. Mr. Chapman told the prosecutor that he refused to comply with the prosecutor's request. On June 17, 1991, the prosecutor requested court enforcement. Mr. Chapman asked for and received a short recess, in order to file opposition to the prosecutor's request. He filed a 29-page opposition. After extensive oral argument, the Nor does petitioner contend that he was prejudiced by the lack of any additional notice. This was a misdemeanor driving under the influence case; the only discovery at issue was the address of a defense witness, which was clearly available to the defense. Further, petitioner refused to comply with the court's discovery enforcement order, because he believed that the reciprocal discovery provisions were unconstitutional. The record establishes that he had no intention of complying with a court order requiring defense discovery. No amount of additional notice would have served any purpose other than delay.
Petitioner's argument that the prosecution's motion did not comply with rule 19 of the Uniform Rules of the Municipal Courts and Code of Civil Procedure section 1005, subdivision (b) is completely unpersuasive. Code of Civil Procedure section 1005, subdivision (b) provides that its time limits may be shortened by the court. Here, the court found that the defense's request for 15 days additional notice on the date set for trial, after more than a month's actual notice, was untimely. Moreover, the original request for discovery was in writing, and there were no issues as to the disclosures sought or the reason for noncompliance. We cannot say that the trial court abused its discretion, under the facts of this case, in failing to require strict compliance with the local rule. Strict compliance would have thwarted the purposes of the reciprocal discovery provisions.
This brings us to petitioner's final issue, that he should not have been held in contempt because he acted in good faith in refusing to comply with the court's order. Not only do we disagree with this contention, we take great exception to it. Petitioner, in effect, has asked us to hold that an attorney may decide which court orders he or she intends to obey, as long as the decision to disobey is made "in good faith." Such a holding would create chaos in the trial courts of this state.
We note that this case does not involve an attorney's good faith advice to a client to refuse to comply with a court order to reveal assertedly privileged information in order to obtain precompliance appellate review. (See Maness v. Meyers (1974) 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574.) Nor does this case concern the good faith urging of an erroneous legal position or the legitimate protest of a court ruling. (See Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 192 P.2d 905; Cooper v. Superior Court (1961) 55 Cal.2d 291, 10 Cal.Rptr. 842, 359 P.2d 274.) This case involves a deliberate albeit good faith refusal of an attorney to obey a lawful order of the court directed at the attorney.
Federal courts have adopted a similar view in terms of government disclosure duties under rule 16 of the Federal Rules of Criminal Procedure (18 U.S.C.). When the United States Attorney does not have information in its possession which was otherwise subject to a discovery order, no sanction need be imposed pursuant to rule 16(d)(2) of the Federal Rules of Criminal Procedure (18 U.S.C.). (United States v. Barrett (1st Cir.1985) 766 F.2d 609, 617-618; United States v. Joyner (5th Cir.1974) 494 F.2d 501, 506-507; United States v. Schembari (4th Cir.1973) 484 F.2d 931, 935; United States v. Panzar (5th Cir.1969) 418 F.2d 1239, 1240.) Other states, in enforcing their reciprocal discovery laws in criminal cases also hold that when a party does not have information in their possession, no sanction may be imposed for non-disclosure. (Henry v. State (1983) 278 Ark. 478, 647 S.W.2d 419, 424-425; People v. Pugh (1977) 49 Ill.App.3d 174, 7 Ill.Dec. 50, 54-55, 363 N.E.2d 1212, 1216-1217; Williams v. State (Fla.App.1972) 264 So.2d 106, 107-109.)
A trial attorney is required to comply with all lawful orders of a trial court. If the attorney believes an order is unlawful, he or she should seek appellate review of the order by petition for writ of mandate where appropriate. If the order is not reversed or vacated by an appellate court, the attorney must promptly comply with the order. If the order is subsequently found to be prejudicially erroneous, any judgment against the attorney's client may be reversed on appeal. An attorney willfully and deliberately violates a court order at his or her peril, thereby risking an order of contempt. (Maness, supra, 419 U.S. at pp. 458-459, 95 S.Ct. at p. 591.)
If an attorney believes a court order directed at the attorney is unlawful and appellate remedies are inadequate, the attorney has an alternative to compliance. The attorney may refuse to comply with the court order in order to obtain meaningful precompliance appellate review " 'with the concomitant possibility of an adjudication of contempt if [the attorney's] claims are rejected on appeal.' " ( Maness, supra, 419 U.S. at p. 460, 95 S.Ct. at p. 592.) An attorney may be justified in refusing in good faith to comply with a court order, however, the attorney's good faith will not exonerate him or her from an order of contempt if the attorney's claims are subsequently rejected on appeal. "Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect." (Id. at p. 458, 95 S.Ct. at p. 591.) DISPOSITION
The petition for writ of habeas corpus is denied.
BOREN, J., concurs.
TURNER, Presiding Justice, concurring and dissenting.
I. INTRODUCTION
I respectfully dissent from the order denying the habeas corpus petition. Although my heart is, and always will be, with my colleagues, intellectually I am persuaded for the two reasons set forth in this concurring and dissenting opinion that the order of contempt was invalid. First, the provisions of Penal Code section 1054 et seq. 1 did not grant the trial court the power to order petitioner to either learn and disclose the address from Sandra Pavon or produce her in court for a purpose other than that of testimony. 2 Second, the order of contempt was jurisdictionally defective because it improperly incorporated by reference reporter's transcripts and, without them, it failed to recite "facts with sufficient particularity to demonstrate on its face that petitioner's conduct constituted a legal contempt. [Citations.]" (In re Buckley (1973) 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 514 P.2d 1201.)
It is axiomatic that no valid order of contempt can be entered if the underlying order which is disobeyed is invalid. (Code Civ.Proc., § 1209, subd. (a)(5); In re Misener (1985) 38 Cal.3d 543, 558, 213 Cal.Rptr. 569, 698 P.2d 637.) The scope of a defense lawyer's discovery duties are set forth in section 1054.3 which states: "The defendant and his or her attorney shall disclose to the prosecuting attorney: [p] (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. [p] (b) Any real evidence which the defendant intends to offer in evidence at the trial." In the present case, the defense did not have possession of Ms. Pavon's address. Of crucial importance is the fact that there is no evidence petitioner, Mr. Chapman, or defendant were aware of Ms. Pavon's address. There was no evidence petitioner, Mr. Chapman, or defendant advised her not to tell them her address. Further, there was no evidence Ms. Pavon had been subpoenaed or that any representative of the defense had been to her residence or place of business. On June 12, 1991, the day the case was set for trial, Mr. Chapman announced in open court in the presence of the prosecutor: "In this matter we have a witness in court, Miss Sandra Pavon. Could she be ordered back for that date?" When the court asked whether she could be on call, Mr. Chapman responded: "Yes. She has given me a phone number, and she can be on call." Code of Civil Procedure section 1990 allows a court to order a person present in court to return. The issue presented in this case is the validity of the underlying order which directed petitioner to learn the address and provide it to the prosecutor or, in the alternative, produce Ms. Pavon in court. 3 II. STATUTORY CONSTRUCTION
Because the language in sections 1054 et seq. does not unambiguously and clearly speak to the issues raised by the present case (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299), this is a matter of statutory interpretation and construction and a court's primary responsibility is to effectuate the voters' intent in the case of a law enacted pursuant to an initiative. (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798, 268 Cal.Rptr. 753, 789 P.2d 934.) This duty applies to the construction of the provisions of Proposition 115. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1072-1074, 2 Cal.Rptr.2d 160, 820 P.2d 262.) Based upon seven different statutory interpretation considerations, when considered together, section 1054.3, subdivision (a) does not permit a trial court to require defense counsel to learn and produce information not in the attorney's or client's possession or, in the alternative, to direct an on-call witness to appear in court for a reason other than to testify.
First, in interpreting a statute, a court first turns to the words of the enactment. (People v. Black (1982) 32 Cal.3d 1, 5, 184 Cal.Rptr. 454, 648 P.2d 104.) Nothing in the language of section 1054.3, subdivision (a) grants a trial judge the authority to order a lawyer to learn information which she or he does not know. Rather, all a court may do is order defense counsel to "disclose"; there is nothing in the statute which requires the attorney to learn information. Moreover, section 1054.3, subdivision (a) does not grant a judge the power to order defense counsel to produce any on-call witness in court for a purpose other than testimony, be the witness under subpoena or not.
Second, the express language of section 1054.7, which applies to disclosures made within 30 days prior to trial, indicates that the duty to reveal information only exists when the party knows or actually has possession of the data. As noted previously, there is no evidence defendant, Mr. Chapman, or petitioner knew Ms. Pavon's address. Hence, any discovery of the address by petitioner would have occurred within
4Third, as a general rule, the prosecution is under no duty to secure evidence not in its possession. As will be noted, section 1054 et seq. cannot be construed to require the defense to disclose information it does not possess. Section 1054.1, which defines the prosecutor's discovery duties only requires government disclosure of specified information "if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies." 5 Prior to the enactment of Proposition 115, there was no duty on the part of the prosecution to secure information it did not possess for delivery to the defense. The general rule of law was articulated by the California Supreme Court as follows: "It is significant, however, that the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even any affirmative action, in procuring the evidence deemed necessary to the defense of an accused. Rather it is the accused who must act to protect his interests...." (In re Koehne (1960) 54 Cal.2d 757, 759, 8 Cal.Rptr. 435, 356 P.2d 179.) In People v. Hogan (1982) 31 Cal.3d 815, 851, 183 Cal.Rptr. 817, 647 P.2d 93, the Supreme Court held that no duty exists on the part of the police to obtain evidence "or to conduct any particular tests" [fn. omitted] or to " 'gather up everything which might eventually prove useful to the defense.' [Citations.]" These general rules of law have found application in a number of circumstances. (Ibid. [no duty on the part of the authorities to take fingernail scrapings from a decedent's body]; Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 79, 81 Cal.Rptr. 348, 459 P.2d 900 [arresting officer has no obligation to advise a suspect of
6These general rules of law limiting prosecutors' duties to assist in an investigation have specific application to the state's duty to secure addresses for the benefit of criminal defendants. In People v. Avila (1967) 253 Cal.App.2d 308, 330, 61 Cal.Rptr. 441, the Court of Appeal held, "Generally it is not the duty of the district attorney or public officials to locate or to assist a defendant in locating a witness whose address is unknown to him." In People v. Sullivan (1962) 206 Cal.App.2d 36, 41, 23 Cal.Rptr. 558, the court reached the same conclusion as in Avila--the prosecution had no duty "to locate, or assist an appellant in locating, a witness whose address is unknown to appellant." In People v. Berry (1962) 199 Cal.App.2d 97, 105, 18 Cal.Rptr. 388, the court stated, "It has been held that it is not a duty of public officials to help a defendant to locate witnesses whose names or whereabouts are unknown." The prosecutor has no duty, apart from that imposed by the Constitution or section 1054.1, to assist a defendant in securing a witness's address.
There is no reason to believe the framers of Proposition 115 or the voters intended to abrogate this aspect of California criminal case discovery law. Nothing in the purposes stated in the preamble of Proposition 115 indicate an intent to repeal the foregoing rule of law. (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 342, 276 Cal.Rptr. 326, 801 P.2d 1077.) Further, none of the judicially enunciated general reasons for the adoption of the initiative as a whole evidence a desire to repeal the rule which excuses the prosecution from investigating on behalf of the defense. (Ibid.) Additionally, the specific purpose of section 1054 et seq. was described by our Supreme Court as follows: "The manifest intent behind the measure was to reopen the two-way street of reciprocal discovery. The preamble to Proposition 115 states that 'comprehensive reforms are needed to restore balance and fairness to our criminal justice system.' (Prop. 115, § 1(a), italics added.) In order to accomplish this goal, the voters intended to remove the roadblock to prosecutorial discovery created by our interpretations of the state constitutional privilege against self-incrimination as developed in the Prudhomme
The fact that the voters or the framers had no such intent is of crucial importance. In Izazaga, the Supreme Court emphasized that the initiative provided for "reciprocal discovery" (id. at pp. 363-364, 371-374, 378, 285 Cal.Rptr. 231, 815 P.2d 304) or reciprocity in the discovery process. (Id. at pp. 374, 376-377, 285 Cal.Rptr. 231, 815 P.2d 304.) The court further noted that "the new discovery chapter should, if possible, be interpreted as providing [for] such reciprocity." (Id. at p. 373, 285 Cal.Rptr. 231, 815 P.2d 304.) All of this is relevant to the present case for the following reasons. Petitioner was ordered to secure a witness's address so as to assist his client's adversary--something the prosecution could not be ordered to do absent some constitutionally imposed duty to do so. Unless an address is in the prosecuting attorney's possession, as noted previously, section 1054.1 does not require disclosure to defense counsel. In the alternative, petitioner was ordered to produce a witness in court so that an interview could be conducted. No prosecutor could be lawfully ordered to compel a witness to come to court unless there was some constitutional basis for such an order. Nothing in the express language of section 1054.1 empowers a court to order a prosecutor to force a witness to appear in court. There is no basis for concluding the voters or the initiative's framers intended to impose a greater burden on the defense in the discovery phase of criminal proceedings than on the prosecution. Since, there could be no duty under the terms of the initiative on the prosecution to learn an address to as to assist the defense in its investigation, it should not be construed to impose such a burden on the counsel for the accused. The same is true as to the order to produce Ms. Pavon in court.
Fourth, in construing Proposition 115, or any enactment for that matter, a court should adopt a construction "to avoid constitutional doubts." (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1074, 2 Cal.Rptr.2d 160, 820 P.2d 262; People v. Smith (1983) 34 Cal.3d 251, 259, 193 Cal.Rptr. 692, 667 P.2d 149.) If section 1054 et seq. requires the defense to secure information not within counsel's knowledge or to bring a witness to court, things a prosecutor could not be required to do, then the discovery provisions of Proposition 115, as Fifth, in interpreting section 1054 et seq. in Izazaga, the Supreme Court gave a qualified construction to the duties of defense counsel to disclose information. The court noted that the new discovery statute was valid when "[p]roperly construed." (Izazaga v. Superior Court, supra, 54 Cal.3d at p. 373, 285 Cal.Rptr. 231, 815 P.2d 304.) At one point our high court held: "Reciprocity under the due process clause requires notice that the defendant will have the opportunity to discover the prosecutor's rebuttal witnesses (and their statements) following discovery of defense witnesses by the prosecutor. [Citation.] Reciprocity requires a fair trade, defense witnesses for prosecution witnesses, and nothing more." (Id. at p. 377, 285 Cal.Rptr. 231, 815 P.2d 304; italics added.) At another point, while discussing the duty to disclose statements, the court stated, "Under the new discovery chapter, discovery is limited to relevant statements and reports of statements of defense witnesses and conditioned upon the defendant's intent to call the witnesses at trial." (Id. at p. 380, 285 Cal.Rptr. 231, 815 P.2d 304, original italics.) At another point, the court referred to section 1054 et seq. as the "limited and conditional discovery authorized by the new discovery chapter...." (Ibid.) The restricted manner in which the court in Izazaga construed the new discovery chapter is an additional factor which warrants interpreting it to preclude the issuance of the type of the order under review.
Sixth, the People argue that the alternative order to either find out Ms. Pavon's address or produce her in court was appropriate because section 1054.5, subdivision (b) which sets forth the enforcement provisions of the new discovery law, states as follows: "Upon a showing that a party has Seventh, although the parties do not directly discuss the question, the fact that Ms. Pavon was on call did not grant the court the authority to order defense counsel to have her appear in court for a purpose other than testimony. As previously noted, because there was no duty of disclosure pursuant to section 1054.3, subdivision (a), the residual powers under section 1054.5, subdivision (b) did not grant the court authority to act. Further, the existence of Ms. Pavon's on call-status did not, under currently existing law, permit the trial court to order her appearance for purposes of submitting to an interview by the prosecution. The statutory purpose of a subpoena is to compel a witness to appear before a court (§ 1326) in order to "testify as a witness" or "bring any books, documents, or other things under the witness's control which the witness is bound by law to produce in evidence." (Code Civ.Proc., § 1985, subd. (a).) Cases discussing the quashing of subpoenas focus on the potential testimony of a witness. (See In re Finn (1960) 54 Cal.2d 807, 813, 8 Cal.Rptr. 741, 356 P.2d 685; Lucas v. Superior Court (1988) 203 Cal.App.3d 733, 740, 250 Cal.Rptr. 76; People v. Fernandez (1963) 222 Cal.App.2d 760, 768, 35 Cal.Rptr. 370.) Appellate court decisions have characterized the subpoena power as one relating to testimony or document production in court and its use as an "investigatory procedure" (People v. Mersino (1965) 237 Cal.App.2d 265, 269, 46 Cal.Rptr. 821) or for purposes of compelling a deposition in a misdemeanor case are prohibited. (People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523, 530-532, 143 Cal.Rptr. 609, 574 P.2d 425.) As to the inherent power of the court, the power to compel attendance is for testimonial purposes (Code Civ.Proc., § 128, subd. (a)(6)) and in civil cases "the court has no inherent power to order the physical presence of a party before it, except as a witness...." (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1008, 98 Cal.Rptr. 855.) In misdemeanor cases, the court does not even have the power to order a defendant to personally appear prior to trial. (§§ 1043, subd. (e), 977, subd. (a); see Beasley v. Municipal Court (1973) 32 Cal.App.3d 1020, 1025-1027, 108 Cal.Rptr. 637.) In the absence of specific statutory authority allowing a court to order a witness to be present to submit to an interview, it is inappropriate for courts to fashion such a remedy. (See Reynolds v. Superior Court (1974) 12 Cal.3d 834, 845-850, 117 Cal.Rptr. 437, 528 P.2d 45.)
To sum up, utilizing standard canons of judicial construction, section 1054.3, subdivision (a) should not be construed to permit a court to require a defendant to disclose information it does not have or to present a witness in court for a reason other than to testify. The language of sections 1054.3, subdivision (a) and 1054.7 do not permit such an order. No intent existed on the framers' or voters' part to abrogate the rule excusing prosecutors from investigating on behalf of the defense. As a result, no reciprocal obligation to assist the prosecution exists. To create a new responsibility for the defense to uncover information for the prosecution's benefit when the new discovery chapter cast no such obligation III. THE ORDER
The document entitled "ORDER AND JUDGMENT OF CONTEMPT" fails to comply with the jurisdictional requirement that the written contempt order recite all of the relevant facts which support the judgment of contempt. The following constitutes the order and judgment in its entirety: "[p] 1. On May 9, 1991, defendant Armando Orosco Montiel was arraigned in Division 3 of the Glendale Municipal Court on numerous alleged vehicle code violations. The Office of the Los Angeles County Public Defender was appointed to represent the defendant. Deputy Public Defender Stuart Alan Chapman accepted the appointment on behalf of Wilbur F. Littlefield, Public Defender of Los Angeles County. On the same date, the prosecution requested informal pretrial discovery pursuant to Penal Code Section 1054 et seq. No objection was raised by the defense on the record to the prosecution's discovery request. [p] 2. On June 12, 1991, the Montiel case was on calendar for trial. Mr. Chapman announced 'ready for trial' on behalf of the defendant. The trial was trailed to June 17, 1991. Mr. Chapman asked the Court to order a defense witness, Ms. Sandra Pavon, to return to court on the next date. [p] 3. On June 17, 1991, the case was again called on the trial calendar. Both the People and the defense announced they were ready to proceed. The prosecutor informed the Court that the defense had failed to provided any discovery, either formally or informally, and requested discovery relating Ms. Pavon. The defense thereupon filed points and authorities respecting their opposition to the discovery request, and filed the demand for fifteen days notice of request. After reading and considering each motion, and upon hearing argument, the Court denied the defense motion to oppose discovery and ordered the defense to comply with the discovery request. Mr. Chapman stated it was the position of the Los Angeles County Public Defender to refuse to comply with any such order and thereupon refused to yield the requested information. [p] 4. The Court considered the numerous options for noncompliance with Penal Code Section 1054.5(b), and made certain findings. The transcript of those findings from June 17, 1991 are incorporated into this Order and Judgment by reference. [p] 5. On June 20, 1991, the Court held a hearing to determine whether the Los Angeles County Public Defender should be held in contempt of court for refusing to comply with the Court's discovery order. Present representing the Office of the Los Angeles County Public Defender was Public Defender Wilbur F. Littlefield (hereinafter, 'contemner'). After reviewing the history of the proceedings and upon hearing lengthy argument from contemner's counsel, the Court directly ordered contemner to comply forthwith with the discovery order. [p] 6. Contemner refused to obey the order. [p] 7. The court heard and considered contemner's explanation for his conduct and rejected it because, in light of controlling federal and state authority, contemnor's position cannot be entertained in good faith. [p] 8. The Court again ordered contemner to comply with the mandate and warned contemner that any further refusal would necessitate a finding of contempt of court. [p] 9. In the immediate view and presence of the Court, contemner willfully failed to comply with the order of the Court by refusing to provide discovery to the prosecution. [p] 10. The Court judged contemner guilty of contempt of court beyond a reasonable doubt under In the case of a direct contempt, the trial judge has a duty to prepare an order setting forth the circumstances of the contempt. Code of Civil Procedure section 1211 states: "When a contempt is committed in the immediate view and presence of the court, or of the judge at chambers, it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed." The applicable standard of review of a written order of contempt was described by the California Supreme Court as follows: "The order adjudicating a direct contempt is valid only if the recital of facts therein shows acts which constitute a contempt. If the facts so recited do not constitute a contempt the order is not enforceable. [Citations.] Because of the penalties imposed a contempt is criminal in nature and presumptions or intendments may not be indulged in support of the order. The findings and judgment are strictly construed to favor the accused. [Citations.]" (Raiden v. Superior Court (1949) 34 Cal.2d 83, 86, 206 P.2d 1081.) Although documents may be incorporated by reference into a judgment under many circumstances (Flynn v. Flynn (1954) 42 Cal.2d 55, 59, 265 P.2d 865), California law prohibits the incorporation by reference of documents into an order of contempt. In the decision of In re Battelle (1929) 207 Cal. 227, 253-257, 277 P. 725, the California Supreme Court construed the language in a predecessor of Code of Civil Procedure section 1211 which, as does the present statute does require that an " 'order must be made reciting the facts as occurring in such immediate view and presence.' " (Id. at p. 254, 277 P. 725.) In Battelle, a case involving the refusal of a witness to comply with an order of a Senate committee, the contempt order stated as follows: " 'Whereas, in pursuance of said subpoenas duly and regularly issued and served, said persons appeared before said committee of investigation of this senate, and refused and declined to answer certain questions material to the issues and refused to produce proper books, papers, documents and records required of them, such being in their possession or under their control and material to said issues, all as more particularly appears from the report of said committee presented to and filed with this senate, on March 8, 1929, and from the supplemental report of said committee presented to and filed with this senate on March 11, 1929, said questions being set forth in the "Excerpts from the transcript of testimony" submitted to the senate, March 8, 1929, to which reference is hereby made....' " (Id. at p. 238, 277 P. 725.) The California Supreme Court held that the order and adjudication of contempt did not comply with the requirements of Code of Civil Procedure section 1211. Specifically, the Supreme Court held: "Bearing in mind this fundamental principal of procedure in contempt cases of this character, when we refer to the order and adjudication of contempt which the senate purported to adopt and enforce in the instant case, we find it to be entirely lacking in the precision of statement which the law requires. It is true that the order in question contains the recital that 'In pursuance of said subpoena duly and regularly issued and served said persons appear before said committee of investigation of this senate and refused and declined to answer certain questions material to the issues, and refused to produce proper books, papers, documents and records required of them, such being in their possession or under their control, and material to said issues, all as more particularly appears from the report of said committee presented to and filed with this senate Although Battelle was a case involving contempt of an order of a senate committee, it is directly relevant to the present case. In Battelle, the Supreme Court was construing the language of the then existing provisions of Code of Civil Procedure section 1211 which is the precise same language applicable to the present case. (Id. at pp. 254, 256, 277 P. 725.) Additionally, on one later occasion, the California Supreme Court has cited the language in Battelle concerning the necessity of the order showing " 'on its face acts sufficient to constitute a legal contempt' " (In re Battelle, supra, 207 Cal. at p. 255, 277 P. 725) as authority in a habeas corpus proceeding involving a direct contempt occurring before a superior court judge. (In re Wells (1946) 29 Cal.2d 200, 201-202, 173 P.2d 811.) Further, Battelle has been cited as authority in Court of Appeal decisions in cases involving direct contempts before judicial officers. (In re Blaze (1969) 271 Cal.App.2d 210, 212, 76 Cal.Rptr. 551; Nelson v. Superior Court (1955) 135 Cal.App.2d 531, 533, 287 P.2d 535; Bennett v. Superior Court (1946) 73 Cal.App.2d 203, 216, 166 P.2d 318; In re Zuker (1936) 13 Cal.App.2d 427, 431-432, 56 P.2d 1261.) Accordingly, Battelle, which prohibits incorporation by reference of a transcript, is binding California Supreme Court authority in cases involving direct contempts before judges.
Further, in Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 125, fn. 16, 116 Cal.Rptr. 713, the Court of Appeal held, "For the guidance of the trial bench we point out that in case of direct contempt, the order adjudging a person guilty must be stated with sufficient particularity, description and detail to show without aid of speculation or reference to any extrinsic document that a contempt actually occurred. [Citation.]" Finally, there is a body of decisional authority which holds that a defective direct contempt order cannot be saved by reference to the reporter's transcript or other extraneous documents in an effort to uphold an otherwise flawed order. (In re Smith (1976) 65 Cal.App.3d 291, 296, 135 Cal.Rptr. 5 [missing jurisdictional facts in written order may not be supplied by reference to record]; In re Rosen (1973) 31 Cal.App.3d 71, 73-74, 106 Cal.Rptr. 757 [reporter's transcript cannot be relied upon to supply facts in contempt order]; Merritt v. Superior Court (1928) 93 Cal.App. 177, 179-181, 269 P. 547 [contents of a bill of exceptions may not be utilized to prove that the petitioner had the ability to pay alimony when such was not included within the contempt order].) Therefore, with all due respect to the very fine trial judge who in good faith sought to fully comply with and enforce the law, it was inappropriate to incorporate by reference the contents of the reporter's transcripts of June 17, 1991, and June 24, 1991, into the contempt order.
Without those transcripts, the contempt order filed July 2, 1991, failed to recite sufficient facts to constitute a contempt of court. If the transcripts are disregarded, the following is not included in the July 2, 1991, order: the precise discovery request
Section 1054 provides in pertinent part: "This chapter [Chapter 10 of Title 6 of the Penal Code] shall be interpreted to give effect to all of the following purposes: ... (b) To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested."
Section 1054.3 provides: "The defendant and his or her attorney shall disclose to the prosecuting attorney: (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. (b) Any real evidence which the defendant intends to offer in evidence at the trial."
Page 723
[p] 9. In the immediate view and presence of the Court, contemner willfully failed to comply with the order of the Court by refusing to provide discovery to the prosecution. [p] 10. The Court judged contemner guilty of contempt of court beyond a reasonable doubt under Code of Civil Procedure Section 1209(a)(5). [p] 11. The transcript of the June 24, 1991 proceeding is incorporated by reference into this Order and Judgment. [p] GOOD CAUSE NOW APPEARING: contemner is sentenced to pay a fine in the sum of One Thousand Dollars ($1,000.00) and spend five (5) days in the county jail. [p] Execution of sentence is stayed to August 5, 1991. [p] The clerk of the court is ordered immediately to file this order and enter the contempt upon the docket of the Court and to deliver to contemner a copy of this Order and Judgment."