Opinion
As Modified on Denial of Rehearing July 23, 1984.
Hearing Granted Sept. 13, 1984.
Opinions on pages 772-796 omitted.
Cause Retransferred, see 218 Cal. Rptr. 572, 705 P.2d 1260.
John G. Cotsirilos, Defense Lawyers Club of San Diego, San Diego, Quin Denvir, State Public Defender, Paul Bell and Tom Stanley, Deputy State Public Defenders, amicus curiae for petitioner.
Susan J. Troy, David A. Juhnke, Fred Okrand, ACLU Foundation for Southern California, Los Angeles, amicus curiae for petitioner.
Gerald F. Uelmen, Los Angeles, Loyola Law School, amicus curiae for petitioner.
[204 Cal.Rptr. 219]Richard E. Erwin, Public Defender, County of Ventura, for petitioner.
No appearance for Respondent.
John Van de Kamp, Atty. Gen., Gary R. Hahn and Robert F. Katz, Deputy Attys. Gen., for respondent.
Christopher N. Heard, Crim. Justice Legal Foundation, San Jose, amicus curiae for real party in interest.
STONE, Presiding Justice.
Petitioner, Susan Olson (hereafter Olson), a deputy public defender in Ventura County, seeks review of an order finding her in contempt for failure to answer questions concerning statements made to her by a defense witness. This court has issued a writ of certiorari. (In re Coleman (1974) 12 Cal.3d 568, 572, fn. 2, 116 Cal.Rptr. 381, 526 P.2d 533.)
FACTS
Olson represented Edward Allen Swanson (hereafter Swanson) in a jury trial on a charge of robbery. (Pen.Code, § 211.) William T. Gumfory (hereafter Gumfory), a co-participant in the robbery, was called as a witness for the defendant. Prior to commencing the cross-examination of Gumfory, the deputy district attorney moved, pursuant to section 1102.5, to obtain from Olson all statements made to her by Gumfory.
Unless otherwise specified all statutory references are to the Penal Code.
Section 1102.5 provides:
Olson stated that she had obtained certain information from defendant which she used when she interviewed Gumfory. Upon the two grounds of attorney-client privilege, and her client's privilege against self-incrimination, Olson objected to the Deputy District Attorney's motion.
The court ordered an in camera hearing, out of the presence of the deputy district attorney, so that it might determine if Olson would answer questions concerning her conversations with Gumfory. Olson was ordered by the court to disclose the content of any conversation that she had had with Gumfory. Petitioner refused to answer, and was found to be guilty of contempt. The matter was continued for sentencing and the trial of Swanson was resumed. On January 25, 1983, Swanson was found guilty of the robbery charge.
Olson's sentencing hearing was held on January 27, 1983. The court stated that Olson's contempt, "was based upon her good faith view of the statute (§ 1102.5) and its applicability to the fact situation before the court previously in the matter of Swanson. I don't think her contempt was willful or in any way egregious. It was her way of asserting her client's rights and [204 Cal.Rptr. 220] arguing the applicability and constitutionality of the statute, so the Court's sentence here I intended to be, in effect, pro forma only and not punitive." Olson was fined $100.00.
1--SELF-INCRIMINATION
Of constitutional dimension is the right of society to seek the redress of wrongs committed against its citizens. (Sun Co. of San Bernardino v. Superior Court (1973) 29 Cal.App.3d 815, 822, 105 Cal.Rptr. 873.) It is, moreover, recognized that, "[t]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all facts within the framework of the rules of evidence." (United States v. Nixon (1974) 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039.) Indeed, the foundation of our cherished rights under the constitution may be severely damaged should the public lose confidence in the ability of the system of criminal justice to function in an evenhanded manner. (Snyder v. Massachusetts (1934) 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674.)
The recent enactment of Proposition 8 is an example of the public's ever-growing disillusion with the criminal justice system. Justice Mosk's dissent in Brosnahan v. Brown (1982) 32 Cal.3d 236, 298, 186 Cal.Rptr. 30, 65 P.2d 274 is particularly applicable: "[p] Crime is indeed a serious problem of society. But it must be approached with determination and intelligence, not by destruction of the values that have made this the greatest nation on earth. A thoughtful political observer (Tom Wicker in the New York Times) has written: 'It is a good thing that neither the Bill of Rights nor the Magna Carta is the pending business of [legislative bodies] these days.... [I]n the present mood of political panic and myopia, it would undoubtedly be voted down as a needless restraint in the war on crime.' In the same vein, Chief Justice Warren spoke about 'straws in the wind' that worried him, and 'which cause some thoughtful people to ask whether ratification of the Bill of Rights could be obtained today if we were faced squarely with the issue.' (Katcher, Earl Warren (1967) p. 332.)"
In the wake of the foregoing we must not lose sight of the fact that the privilege against self-incrimination has long been recognized as "one of the great landmarks in man's struggle to make himself civilized." (Ullmann v. United States (1956) 350 U.S. 422, 426, 76 S.Ct. 497, 500, 100 L.Ed. 511.) Under our accusatorial system of criminal prosecution the state is forbidden the use of testimony which is obtained from the accused by means of coercion. (Malloy v. Hogan (1964) 378 U.S. 1, 7-8, 84 S.Ct. 1489, 1493-1494, 12 L.Ed.2d 653.) The prosecution is required to "shoulder the entire load" of proving its case against the accused with "evidence independently secured through skillful investigation." (Watts v. Indiana (1949) 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed. 1801; Murphy v. Waterfront Commission (1964) 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678; Tehan v. United States (1966) 382 U.S. 406, 415, 86 S.Ct. 459, 464, 15 L.Ed.2d 453.)
[1970]In Prudhomme v. 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673 the California Supreme Court considered the constitutionality of a pre-trial order requiring a criminal defense attorney to disclose to the prosecution the names, addresses, and expected testimony of defense witnesses. The court found that the information sought by the prosecution "... could easily provide an essential link in the chain of evidence ..." and thereby "conceivably might lighten the prosecution's burden of proving its case in chief." ( Id., 2 Cal.3d p. 326, 85 Cal.Rptr. 129, 466 P.2d 673. Emphasis added.) As such, the court held that the discovery order violated the defendant's privilege against self-incrimination based upon the Fifth and Fourteenth Amendments as well as upon state constitutional grounds. (Cal. Const., art. I, § 15.)
Article I, section 15 provides in pertinent part: "... Persons may not ... be compelled, in a criminal cause to be a witness against themselves...."
Subsequent to Prudhomme the United States Supreme Court announced decisions that were not entirely consistent with the California high court's interpretation of the privilege against self-incrimination. (E.g., United States v. Nobles (1975) 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141; Williams v. Florida (1970) 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446.) We will not [204 Cal.Rptr. 221] dwell upon the nature of the inconsistencies between the federal and California cases. Let it suffice to say that Prudhomme placed the California Supreme Court, relying in part upon article I, section 15 of the state constitution, on record as being considerably more solicitous toward the privilege against self-incrimination than the federal high court. (Allen v. Superior Court (1976) 18 Cal.3d 520, 525, 134 Cal.Rptr. 774, 557 P.2d 65.)
The court in Allen analyzed the constitutionality of a pretrial order requiring the prosecution and accused to disclose the names of prospective witnesses in order to determine whether any of the prospective jurors were acquainted with the witnesses. It held that the trial court's seemingly innocuous order could provide "... evidence useful to the prosecution including impeachment witnesses, inconsistent statements and admissible evidence of specific instances of misconduct by prospective witnesses." (Id., at p. 526, fn. 4, 134 Cal.Rptr. 774, 557 P.2d 65.) As such, the court concluded that the order for disclosure violated the defendant's privilege against self-incrimination as contained in article I, section 15 of the California Constitution. (Id., at p. 527, 134 Cal.Rptr. 774, 557 P.2d 65.)
In People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534, the California Supreme Court had before it the question of whether the prosecutor is entitled to discover pretrial statements of defense witnesses. The trial court in Collie, following the conclusion of the prosecutor's case-in-chief and after the direct examination of a defense witness, ordered the defense to disclose notes prepared by a defense investigator of an interview with the witness.
The Supreme Court reviewed its past decisions on the subject as well as the "tangle" of confusing and inconsistent court of appeal decisions relating to the question of prosecutorial discovery. (Id., at pp. 52-54, 177 Cal.Rptr. 458, 634 P.2d 534.) The court concluded that, in the absence of legislative authorization, it was error for the trial court to have formulated the discovery order. (Id., at pp. 48-56, 177 Cal.Rptr. 458, 634 P.2d 534.)
Three court of appeal cases have held that disclosure of statements made by defense witnesses to investigators does not incriminate the defendant under the Prudhomme standard. (People v. Ayers (1975) 51 Cal.App.3d 370, 124 Cal.Rptr. 283; People v. Chavez (1973) 33 Cal.App.3d 454, 109 Cal.Rptr. 157; People v. Bais (1973) 31 Cal.App.3d 663, 107 Cal.Rptr. 519.) People v. Thornton (1979) 88 Cal.App.3d 795, 152 Cal.Rptr. 77, reached the opposite result and held that the discovery of statements that impeach a defense witness violate his privilege against self-incrimination. We find it significant that the Supreme Court in Collie expressly refrained from placing its imprimatur upon the Thornton case.
Citing the doctrine of judicial restraint (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 845-846, 117 Cal.Rptr. 437, 528 P.2d 45), the court refused to provide specific guidelines relating to the formulation of discovery orders in criminal cases. (Id., 30 Cal.3d, at p. 55, 177 Cal.Rptr. 458, 634 P.2d 534.) Instead, it was suggested that any attempts to formulate such rules would be best accomplished by the Legislature. The court warned, however, that 'almost insurmountable hurdles [were] likely to thwart any attempts [by the Legislature] to devise constitutionally permissible discovery rules applicable to defendant or defense material." (Id., at p. 54, 177 Cal.Rptr. 458, 634 P.2d 534.) "[p] We can do neither justice to the legitimate needs of the prosecution nor to the rights of the defendant in this context if we undertake judicial rule-making in an attempt to accommodate both ends simultaneously. Any effort to further the truth-seeking function bears considerable risk of encroaching on constitutional and other protections: as we have noted, the problem is complicated by an interrelated composite of state and federal constitutional concerns, statutory rules and common law privileges. We realize the same problems would confront the Legislature if it were to consider the issue, and we have grave doubts that a valid discovery rule affecting criminal defendants can be devised. But if the Legislature undertakes to formulate a comprehensive solution that purports to be practical in application and consistent with the public interest, any legislative error would [204 Cal.Rptr. 222] be subject to judicial review. Ours is likely to be the last word on the subject; for that reason, it should not also be the first. [Fn. omitted.] As Reynolds observed, the most appropriate course of action is to refrain from acting in the absence of word from the Legislature. We therefore hold that the trial court erroneously ordered discovery of the witness's prior statement." (Id., at p. 56, 177 Cal.Rptr. 458, 634 P.2d 534. Emphasis added.)
In an effort to provide some balance to criminal discovery, and in response to the Supreme Court's refusal to articulate a unitary principle governing discovery, section 1102.5 was enacted in 1982. The statute permits the prosecution to have limited access to defense witnesses other than the defendant. Section 1102.5 comes into play only after the defense witness has testified on direct examination and, upon the request of defendant, discovery is limited to the scope of the direct testimony.
The people and their amicus maintain that section 1102.5 is hardly "the fulfillment of the wish of many prosecutors for a truly balanced discovery scheme." (E.g., United States v. Nobles, supra, 422 U.S. p. 233, 95 S.Ct. p. 2167; Wardius v. Oregon (1973) 412 U.S. 470, 475, 93 S.Ct. 2208, 2212, 37 L.Ed.2d 82.) They nonetheless assert that the provision improves somewhat their plight in the quest for truth in criminal proceedings.
Petitioner makes the argument that section 1102.5 is violative of a defendant's federal due process rights inasmuch as the statute in question fails to allow reciprocity of discovery. (Cf. Wardius v. Oregon, supra, 412 U.S. p. 478, 93 S.Ct. p. 2213.) This proposition overlooks a wealth of California case law articulating the rule that a criminal defendant is entitled to discovery of material in possession of the prosecution upon a mere showing 'that the requested information will facilitate the ascertainment of facts and a fair trial.' (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-537, 113 Cal.Rptr. 897, 522 P.2d 305; see also Hill v. Superior Court (1974) 10 Cal.3d 812, 816, 112 Cal.Rptr. 257, 518 P.2d 1353; Funk v. Superior Court (1959) 52 Cal.2d 423, 424, 340 P.2d 593.) Indeed, 'in some circumstances the prosecution must, without request, disclose substantial material evidence favorable to the accused. [Citations.]' (In re Lessard (1965) 62 Cal.2d 497, 509, 42 Cal.Rptr. 583, 399 P.2d 39.)
Petitioner and her amici, on the other hand, argue that the measure goes far beyond providing the prosecution with evidence that may impeach a defense witness. They assert that 1102.5 may be utilized by the prosecution to provide information that could shore up a weak portion in the people's case-in-chief. Moreover, it is argued that the mere production of evidence by the defendant advises the people that such evidence exists and the examination of questions used by the defense investigator or attorney in questioning a witness may provide the prosecution with valuable insight into a defendant's protected testimony.
We are unable to conceive of any set of circumstances in which discovery under section 1102.5 would, in a real and practical sense, lighten the people's burden of proving its case-in-chief. Firstly, at the stage of the proceedings at which a section 1102.5 motion is made, the people have already established their case-in-chief. This means that the people have presented their best evidence, save for the purposes of rebuttal, lest they run the risk of the accused successfully moving for a motion for a judgment of acquittal. (§ 1118.1.)
Secondly, the existence of the statute may cause the defendant's counsel to avoid using a witness who has previously given [204 Cal.Rptr. 223] inconsistent statements to an investigator or counsel in fear that the inconsistencies might be discovered by a vigilant prosecutor. The result may be a conviction where there otherwise would have been an acquittal, or a hung jury. We are unable to find any case stating the proposition that the privilege against self-incrimination confers upon the defendant the right to present misleading, incomplete, or even perjured testimony in order to "throw dust in a juryman's eyes ... or hoodwink a judge who is not over-wise." ("Lord Chancellor's Song," Sir William Gilbert, Iolanthe (1882).)
We do not wish to suggest that defense counsel routinely allow their clients and their clients' witnesses to present false testimony. Our primary concern is to allow limited prosecutorial inquiry relating to potential inconsistencies in pre-trial statements rendered by a defense witness.
Petitioner and her amici assert that evidence garnered through the use of section 1102.5 potentially undercuts the credibility of defendant in that it causes the jury to believe that the defendant is guilty because he or she associates with liars. (Cf., People v. Woodard (1979) 23 Cal.3d 329, 338, 152 Cal.Rptr. 536, 590 P.2d 391.) We agree. However, one must not lose sight of the fact that defense counsel is troubled with this problem each time that counsel makes a tactical decision to summon a witness to testify on behalf of the accused. The only difference presented by section 1102.5 is that it now requires that counsel consider that the prosecution may discover impeachment evidence and this factor may outweigh the benefits derived from the testimony of the defense witness. In short, section 1102.5 requires that defense counsel calculate new risk factors into the calculus of decision; the basic nature of the equation remains unchanged. We conclude section 1102.5 does not infringe upon a defendant's right against self-incrimination.
2--EFFECTIVE ASSISTANCE OF COUNSEL
The Sixth Amendment to the United States Constitution mandates that a criminal defendant is entitled to the assistance of competent counsel. Anders v. State of California (1967) 386 U.S. 738, 742, 87 S.Ct. 1396, 1399, 18 L.Ed.2d 493.) The California Constitution contains a similar provision that, independent of the United States Constitution, safeguards "the defendant's right to competent and vigorous legal representation. (Cal. Const., art. 1, § 15.)" (People v. Collie, supra, 30 Cal.3d at p. 55, fn. 6, 177 Cal.Rptr. 458, 634 P.2d 534; See also People v. Pope (1979) 23 Cal.3d 412, 424-425, 152 Cal.Rptr. 732, 590 P.2d 859.)
Section 1102.5 authorizes the prosecutor to obtain "all statements, oral or however preserved" made by any defense witness other than the defendant. Petitioner and her amici point to a number of circumstances in which they maintain that the discovery of oral statements of defense witnesses is only possible through the testimony of defense counsel.
They assert that in many instances, the only physical evidence of interviews between defense counsel and prospective witnesses is defense counsel's abbreviated notes of the conversations. Thus, it is argued that defense counsel would likely be required to testify in order to establish a foundation for the introduction of the notes, or to obtain further clarification of their contents.
In People v. Rodriquez (1981) 115 Cal.App.3d 1018, 171 Cal.Rptr. 798, a defense attorney, over objection, was called to testify that he had previously told the authorities that he considered a lineup to be fair. The court of appeal found that the defendant was deprived of effective assistance of counsel and stated: "To require a criminal defendant's attorney to testify against his client on a material issue so diminishes the attorney's effectiveness on behalf of his client that it infringes on the right to counsel. Once the attorney has been placed in a position adverse to his client, all his efforts on the defendant's behalf will be suspect. The jury can hardly avoid inferring the defendant's own attorney does not believe in the defense he himself is presenting. It is fundamentally unfair to a criminal defendant [204 Cal.Rptr. 224] to use his own attorney's testimony to convict him, and such a substantial infringement on the right to counsel requires reversal. [Citations.]" (People v. Rodriquez, supra, 115 Cal.App.3d at p. 1021, 171 Cal.Rptr. 798.)
A defense attorney whose testimony is used for the purposes of impeachment stands to lose his effectiveness as an advocate. As Mr. Justice Jackson, in his concurrence in Hickman v. Taylor (1947) 329 U.S. 495, 517, 67 S.Ct. 385, 396, 91 L.Ed. 451, explained: "Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is partly because it is not his role; he is almost invariably a poor witness. But he steps out of professional character to do it. He regrets it; the profession discourages it."
The need for trust and confidence between an accused and his attorney is vital in providing effective assistance of counsel. (Smith v. Superior Court (1968) 68 Cal.2d 547, 561, 68 Cal.Rptr. 1, 440 P.2d 65.) It is essential that a defendant feel free to disclose information in confidence and be assured that the attorney will represent his interests with all competence. It is well recognized that the relationship between indigents who are criminally accused and their appointed counsel is, at best, tenuous. (E.g., People v. Penrod (1980) 112 Cal.App.3d 738, 169 Cal.Rptr. 533; People v. Potter (1978) 77 Cal.App.3d 45, 143 Cal.Rptr. 379.) The indigent defendant frequently views appointed defense counsel with distrust and believes counsel is to be in league with the judge and district attorney. (In re J.G. L. (1974) 43 Cal.App.3d 447, 452, 117 Cal.Rptr. 799.) The specter of defense counsel on the witness stand for the purpose of impeaching one of the accused's witnesses does little to further the confidence required by the inherent nature of the relationship.
Justice Gardner best summarized the dynamics of the tumultuous relationship between the criminally accused and counsel as follows: "For the benefit of the uninitiated, 'dump truck' is a term commonly used by criminal defendants when complaining about the public defender. The origins of the phrase are somewhat obscure. However, it probably means that in the eyes of the defendant the public defender is simply trying to dump him rather than afford him a vigorous defense. It is an odd phenomenon familiar to all trial judges who handle arraignment calendars that some criminal defendants have a deep distrust of the public defender. This erupts from time to time in savage abuse to these long-suffering but dedicated lawyers. It is almost a truism that a criminal defendant would rather have the most inept private counsel than the most skilled and capable public defender. Often the arraigning judge appoints the public defender only to watch in silent horror as the defendant's family, having hocked the family jewels, hires a lawyer for him, sometimes a marginal misfit who is allowed to represent him only because of some ghastly mistake on the part of the Bar Examiners and the ruling of the Supreme Court in Smith v. Superior Court, 68 Cal.2d 547 [68 Cal.Rptr. 1, 440 P.2d 65]." (People v. Huffman (1977) 71 Cal.App.3d 63, 70, fn. 2, 139 Cal.Rptr. 264.)
On the other side of the ledger is the right to fairly cross-examine a witness. "The search for truth is not served but hindered by the concealment of relevant and material evidence. Although our system of administering criminal justice is adversary in nature, a trial is not a game. [Fn. omitted.] Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal...." (In re Ferguson (1971) 5 Cal.3d 525, 531, 96 Cal.Rptr. 594, 487 P.2d 1234.) The conflicting imperatives of a defendant's right to effective assistance of counsel and the public's ascertainment of the truth are reasonably reconcilable. The judge has the authority, and indeed the obligation, to control the introduction of the evidence so as to preclude the necessity of defense counsel testifying before the jury.
What happens if the statements are neither written nor recorded? A mechanical application of section 1102.5 requires that defense counsel take the stand. This drastic measure, however, is not necessary if defendant's attorney discloses to the court, in camera, any conflicting statements made by the witness. The court should request that defense counsel stipulate to the introduction of any unrecorded statements. (United States v. Freeman [204 Cal.Rptr. 225] (9th Cir.1975) 519 F.2d 67, 68-69.) The statement sought to be discovered would be, of course, limited to "those matters within the scope of the direct testimony of the witness," and to matters which do not contain the attorney's impressions, conclusions, opinions, or legal research or theories." (§ 1102.5(a).) Moreover, the court is required to limit disclosure of evidence which is prejudicial under Evidence Code section 352 or which violates a defendant's right against self-incrimination. (People v. Chavez, supra, 33 Cal.App.3d pp. 459-460, 109 Cal.Rptr. 157.)
In the event that counsel refuses to stipulate, the court should advise the prosecutor of the content of any inconsistent statements made by the defense witness which have been disclosed to the court in the in camera hearing. The court's disclosure is, of course, limited by those evidentiary objections mentioned in the previous paragraph. Moreover, the prosecution would be prohibited from mentioning that the statements were obtained from any member of the defense team.
Armed with the court's disclosure, the prosecutor would presumably confront the witness with the inconsistent statement. Should the witness deny making such a statement, the court should promptly point out to the jury the existence of the inconsistent statement omitting any reference to the judge's source of information. In this manner the court preserves the accused's Fifth and Sixth Amendment rights; avoids the impressment of defense counsel to testify seemingly against the interest of his client: and provides the prosecution with limited access to prior inconsistent statements made by a defense witness.
3--ATTORNEY-CLIENT PRIVILEGE
Evidence Code section 954 provides, pertinently, that a person "... has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer...." The attorney-client privilege is applicable where information gleaned from a third party is the result of confidential communications between attorney and client. (People v. Meredith (1981) 29 Cal.3d 682, 693, 175 Cal.Rptr. 612, 631 P.2d 46; People v. Collie, supra, 30 Cal.3d p. 61, fn. 15, 177 Cal.Rptr. 458, 634 P.2d 534.)
Petitioner maintains that the interview with the witness was the direct product of her communication with her client. It is asserted upon her behalf that the trial judge "... may not require disclosure of information claimed to be privileged ... in order to rule on the claim of privilege...." (Evid.Code, § 915(a); Romo v. Southern Pac. Transportation Co. (1977) 71 Cal.App.3d 909, 922, 139 Cal.Rptr. 787.)
Petitioner's objection, founded upon attorney-client privilege, falls wide of the mark. Section 1102.5 does not require the production of confidential communications. It merely grants the prosecution the right to seek discovery of statements made by a non-party witness. (People v. Meredith, supra, 29 Cal.3d p. 693, fn. 5, 175 Cal.Rptr. 612, 631 P.2d 46; People v. Lee (1970) 3 Cal.App.3d 514, 527, 83 Cal.Rptr. 715.)
In the present case, the prosecution sought to discover certain statements made by Gumfory to petitioner. Gumfory was neither a client of petitioner nor was he an agent of her client. Nor did petitioner demonstrate to the trial court that the information sought by the prosecution was the direct product of her conversations with defendant. Accordingly, we find that the trial court properly refused to grant relief based upon an objection of attorney-client privilege.
The Legislature, through its enactment of section 1102.5, has determined that the trial court--not attorneys--should be the judge of whether information sought was obtained through privileged communication. Petitioner was required to disclose to the court, in camera, the factual privilege. Upon hearing her testimony concerning the source of the information, the court would be in a position to grant appropriate relief.
4--WORK PRODUCT
Amici raise the claim that section 1102.5 does not clearly address the problem of whether divulgences of "factual summaries" may be compelled if they disclose defense theories or opinions. There is no [204 Cal.Rptr. 226] question that an attorney's written summation of "what he saw fit to write down regarding witnesses' remarks" may tend to reveal the attorney's mental processes. (Hickman v. Taylor, supra, 329 U.S. pp. 516-517, 67 S.Ct. pp. 396-397, Jackson, J. concurring; see also People v. Collie, supra, 30 Cal.3d p. 60, fn. 13, 177 Cal.Rptr. 458, 634 P.2d 534.)
Section 1102.5 expressly excludes attorney work product from prosecutorial discovery. We are unable to find even the slightest hint in the language of section 1102.5 which would allow the prosecution the right to discover statements potentially revealing a defense attorney's thought processes. Section 1102.5 does not inhibit the court from sustaining an objection founded upon the work product doctrine where the court is of the view that discovery of factual summaries would in fact reveal the thought processes and stratagem of the attorney. (E.g., Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68, 166 Cal.Rptr. 274; Rodriquez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647-648, 151 Cal.Rptr. 399.) Accordingly, we find that this statute does not violate an accused's right to the protection of the work product doctrine.
5--CONTEMPT
Contempt proceedings, viewed as being criminal in nature, require that guilt must be established by proof beyond a reasonable doubt. (In re Coleman, supra, 12 Cal.3d p. 572, 116 Cal.Rptr. 381, 526 P.2d 533.) There is no presumption as to the regularity or validity of proceedings in which a judgment of contempt has resulted. (In re Scroggin (1951) 103 Cal.App.2d 281, 283, 229 P.2d 489.) "An adjudication of contempt must fail if it is not based upon specific facts found which show knowledge of the order, ability to comply with it, and conduct on the part of the accused amounting to willful violation." (In re Mancini (1963) 215 Cal.App.2d 54, 56, 29 Cal.Rptr. 796.) "It is an essential element of contempt that the conduct of the accused be willful in the sense that it is inexcusable." (In re Burns (1958) 161 Cal.App.2d 137, 141, 326 P.2d 617; see also, In re Hinman (1966) 239 Cal.App.2d 845, 850, 49 Cal.Rptr. 162; Little v. Superior Court (1968) 260 Cal.App.2d 311, 317, 67 Cal.Rptr. 77.)
In order for petitioner to challenge the constitutionality of 1102.5 she was confronted with the following options:
1. Seek review by way of extraordinary writ; or
2. Refuse to obey the court order and thereby subject herself to a charge of contempt for refusal to obey the court's directive of disclosure.
There was insufficient time in which to seek relief by way of an extraordinary writ. Petitioner was thus forced to select the second option as a vehicle to test the constitutionality of section 1102.5.
Review of the question of the constitutionality of section 1102.5 by way of an extraordinary writ is, for all practical purposes, not available. By way of illustration we offer the following scenario: Following an order of disclosure under section 1102.5 counsel for defendant moves for relief by way of an extraordinary writ. In order to avoid a mootness problem this court grants a stay of the trial court's directive. The people, at this juncture, are faced with the choice of going forward and seeking a conviction without the use of the evidence that they might be entitled to under section 1102.5 or requesting a continuance of the trial. The latter option is generally not of value to the people, as delay of trial may serve to render much of their evidence stale; the potential for contamination of jurors is made more likely with the passage of time; and moreover, jurors may become restive at the prospect of resuming a trial after a delay of several months. It is therefore somewhat unlikely that the people would sit idly while an appellate court resolves the question of the constitutionality of section 1102.5. Thus, the trial will likely be long-concluded by the time this court hears oral argument in the matter.
Petitioner's motive for disobeying the order for disclosure was acknowledged by the trial court. Its order finding petitioner to be in contempt is premised upon the finding that she refused to answer a question from the court concerning conversations between herself and the defense witness. However, the trial court, in imposing a "pro forma sentence," observed that petitioner's action was neither "willful, [204 Cal.Rptr. 227] [nor] in any way egregious." We agree. It is abundantly clear from the record that petitioner's conduct was a good faith attempt to test the constitutionality of section 1102.5 (Maness v. Meyers (1975) 419 U.S. 449, 465-466, 95 S.Ct. 584, 594-595, 42 L.Ed.2d 574.) Petitioner should not be penalized for her efforts.
The trial court's order of January 27, 1983, finding petitioner to be in contempt of court, being void, must be and is hereby annulled.
ABBE and GILBERT, JJ., concur.
"(a) Upon motion, the prosecution shall be entitled to obtain from the defendant or his or her counsel, all statements, oral or however preserved, by any defense witness other than the defendant, after that witness has testified on direct examination at trial. At the request of the defendant or his or her counsel, the court shall review the statement in camera and limit the discovery to those matters within the scope of the direct testimony of the witness. As used in this section, the statement of a witness includes factual summaries, but does not include the impressions, conclusions, opinions, or legal research or theories of the defendant, his or her counsel, or agent.
"(b) The prosecution shall make available to the defendant, as soon as practicable, all evidence including the names, addresses and statement of witnesses, which was obtained or prepared as a consequence of obtaining any discovery or information pursuant to this section.
"(c) Nothing in this section shall be construed to deny either to the defendant or the people information or discovery to which either is now entitled under existing law."
Prosecutorial efforts at discovery, on the other hand, are subject to a barrage of obstacles. (E.g., People v. Collie, supra, 30 Cal.3d pp. 54-55, 177 Cal.Rptr. 458, 634 P.2d 534.) As Professor Hogan notes, '[s]trictly speaking, Prudhomme and its progeny did not restore criminal discovery in California to a one-way street. Formal discovery is still theoretically available both to the People and to the accused. However, to prosecutors it must appear that their side of that street is a bicycle lane, whereas the defense's side is a freeway. Before getting too upset about this imbalance within the present system of pretrial discovery, however, one should note that a great deal of informal discovery accrues to the prosecution as a result of permissible procedures--lineups, interrogations, samplings of arrestees' physical characteristics--that are carried out by the police while they have people in their custody. [Fn. omitted.]' (Hogan, Modern California Discovery (1981) § 15.02, p. 6.)
Petitioner suggests that section 1102.5 allows the prosecution to dispense with the requirement that discovery may be allowed only upon a showing of relevancy.