People v. Municipal Court (Runyan) , 20 Cal. 3d 523 ( 1978 )

Opinion

RICHARDSON, J.

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

In 1975 a complaint was filed in municipal court charging real party, Donald Gene Runyan, with drunk driving (Veh. Code, § 23102, subd. (a)), obstructing a public officer (Pen. Code, § 148), and vandalism (Pen. Code, § 594, subd. (a)). Shortly after the complaint was filed, real party’s counsel filed a pretrial discovery motion seeking, among other things, to depose the police officers involved in the various charges. (Real party evidently intends to assert police brutality and falsification of evidence as defenses to these charges.)

Real party’s motion was granted by the municipal court, despite objection by the People to the effect that the statutory conditions for invoking deposition procedure had not been met. The People thereupon unsuccessfully sought a writ of prohibition in superior court. The People have appealed denial of the writ. (See Code Civ. Proc., § 904.1, subd. (a); Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 235, 238 [111 Cal.Rptr. 539].)

There is statutory authorization for the “conditional examination” of witnesses in criminal cases. Penal Code section 1336 provides that “When a material witness.for the defendant, or for the people, is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he will be unable to attend the trial, the defendant or the people may apply for an order that the witness be examined conditionally.” Sections 1337 through 1345 describe the procedures for deposing such witnesses. Significantly, no provision is made for deposing witnesses who are not encompassed within the category of persons described in section 1336. On the contrary, section 1341 expressly provides that, “If,. .. the witness is not about to leave the state, or is not sick or infirm, . . . the examination cannot take place.” It is not disputed that real party’s application herein did not contain the requisite statutory allegations.

There are two aspects to real party’s primary argument. The courts possess an inherent power to issue discovery orders in criminal cases. They may exercise that power to order the taking of depositions of material witnesses even though defendant has failed to comply with those mandates of the Penal Code described above. We agree with real party’s first premise, but reject the second, concluding that these powers may not be exercised in a manner which conflicts with express statutory provisions.

In Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535 [113 Cal.Rptr. 897, 522 P.2d 305], we recently expressed a controlling principle: “Unlike the statutory development of civil discovery in California, the right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation. [Citations.] A defendant’s motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand. [Citations.]” (Italics added.) Pitchess expressly recognized that legislative silence on the subject of discovery “means that it has left to the courts the adaptation of common law concepts.” (P. 536, summarizing with approval a similar statement by Chief Justice Traynor in Shively v. Stewart (1966) 65 Cal.2d 475, 479 [55 Cal.Rptr. 217, 421 P.2d 65, 28 A.L.R.3d 1431].) We stated the same principle in Hill v. Superior Court (1974) 10 Cal.3d 812, 816 footnote 3 [112 Cal.Rptr. 257, 518 P.2d 1353]: “This court has developed rules of criminal discovery in the absence of legislation. [Citations.]” (Italics added.)

The exercise of a judicial power over criminal discovery which inheres in courts when the Legislature is silent must be tempered and restrained when the Legislature has spoken. In the matter before us the Legislature, pursuant to a constitutional grant, has expressed itself on the subject of depositions in criminal cases and has plainly declined to extend deposition procedures beyond those present confines carefully described in Penal Code section 1336. Accordingly, as will appear, we conclude that it would be inappropriate to exercise our inherent powers in conflict with existing legislation. As we have previously insisted, “[T]he courts should only exercise those common law powers which are not otherwise repugnant to or inconsistent with our Constitution and statutes; inherent powers should never be exercised in such a manner as to nullify existing legislation or frustrate legitimate legislative policy.” (Ferguson v. Keays (1971) 4 Cal.3d 649, 654 [94 Cal.Rptr. 398, 484 P.2d 70], italics added; see Martin v. Superior Court (1917) 176 Cal. 289, 296-297 [168 P. 135].)

An examination of the constitutional foundations of the criminal discovery rules reveals that before T974, article I, section 13, of the California Constitution provided in pertinent part that: “The Legislature also shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases, other than .cases of homicide where there is reason to believe that the witness, from inability or other cause, will not attend at the trial.” (Italics added.) By reason of the foregoing language of section 13, the state Constitution itself “seem[ed] to qualify the right to depositions in criminal cases . . . .” (Clark v. Superior Court (1961) 190 Cal.App.2d 739, 741 [12 Cal.Rptr. 191].)

In Clark, the court held that a defendant in a criminal case has no right to take the depositions of witnesses except in the limited situations permitted by the Constitution and statutes. The court further observed that the only relevant cases from other states had denied the right to take such depositions, and that “It is significant that the Legislature, over the years, has seen fit to provide for the taking of depositions of prosecution witnesses in criminal cases only in the limited situations set forth in the before-mentioned code sections [Pen. Code, § 1335 et seq.].” (P. 741.) The Clark court also found it “highly significant” that although the Legislature had liberalized civil discovery procedures in 1957, “it made no change in the statutes concerning depositions in criminal cases.” (P. 742.)

Clark also emphasized several relevant considerations, noting that the prosecution has no right to depose the defendant or his witnesses, that “[T]he right to take depositions should be a mutual one,” and that defendant has reasonable alternative means of discovery, such as interviewing prosecution witnesses. (Pp. 742-743.) It concluded that “If it is deemed advisable to change such a long-established procedure, such change should be made by the Legislature rather than by the courts, if for no other reason than that provision as to the manner of taking such depositions must be made. The defendant would be required necessarily to be present, and certainly a notary public’s office or the office of the defendant’s attorney (places in which depositions in civil cases may be taken) would hardly be fit places for the taking of the depositions of defendants in criminal cases, particularly defendants then in a jail or penitentiary. Also protection would have to be provided against using the taking of a deposition as merely an excuse for a junket trip for a confined defendant.” (P. 743.) Several Court of Appeal cases subsequent to Clark are in accord with its holding and with its underlying rationale. (See People v. Bowen (1971) 22 Cal.App.3d 267, 277-280 [99 Cal.Rptr. 498]; Everett v. Gordon (1968) 266 Cal.App.2d 667, 671 [72 Cal.Rptr. 379]; People v. Oakley (1967) 251 Cal.App.2d 520, 524 [59 Cal.Rptr. 478]; People v. Mersino (1965) 237 Cal.App.2d 265, 269 [46 Cal.Rptr. 821]; Yannacone v. Municipal Court (1963) 222 Cal.App.2d 72, 74-75 [34 Cal.Rptr. 838]; see generally Comment, Depositions as a Means of Criminal Discovery, 7 U.S.F. L.Rev. 245.)

It is argued, however, that a recent change in the applicable provision of the state Constitution evidences an expression of the people’s will to permit courts to order depositions in criminal cases unrestricted by former constitutional limitations. In 1974, by constitutional amendment, former section 13 of article I (described above) was repealed and section 15 was adopted in the following form: “The Legislature may provide for the deposition of a witness in the presence of the defendant and the defendant’s counsel.” The effects of this new provision are to delete the former restriction against depositions in homicide cases and the requirement that the proposed witness must be deemed unable to attend trial.

It is readily apparent, however, that the new section 15 is not self-executing, and that it does not, by itself, afford criminal defendants additional discovery rights. Rather, section 15 merely authorizes the Legislature to make provision for depositions in criminal cases. As we have seen, the sole provisions adopted by the Legislature, thus far, on this subject are contained in the sections concerning the conditional examination of witnesses. (Pen. Code, § 1335 et seq.) Accordingly, we may assume that, at this juncture, the Legislature has, for reasons satisfying to itself, intended to restrict the availability of criminal deposition procedures to those situations specified in the Penal Code.

The dissent argues that neither the constitutional provision nor the legislative enactments were intended to foreclose the use of depositions for purposes of pretrial discovery in criminal cases. As we have noted above, we fully agree that as a general proposition courts possess inherent powers to develop rules of criminal discovery in the absence of legislation on the subject. Yet, as we also have explained, the Legislature has. acted to limit the taking of pretrial depositions to those situations specifically described in Penal Code sections 1335 through 1345. Contrary to the contention of the dissent that these statutory provisions are “silent” on the subject of the use of depositions for pretrial discovery, section 1341 expressly and unmistakably provides that “the examination cannot take place” unless the statutory conditions (unavailability or illness of witness, etc.) are met. Were the courts to devise a procedure to allow the taking of a deposition of a witness despite his probable availability at trial, such procedure would flatly and directly conflict with section 1341.

Real party advances a procedural due process argument, urging that the availability of depositions is essential to any fair trial. He cites no cases holding that his claim has a constitutional foundation however, and indeed the law appears otherwise. As we noted in Jones v. Superior Court (1962) 58 Cal.2d 56 [22 Cal.Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213], “Pretrial discovery in favor of defendants, ... is not required by due process. [Citations.] Accordingly, when this court permitted discovery in advance of as well as at the trial [citations], it was not acting under constitutional compulsion but to promote the orderly ascertainment of the truth.” (Pp. 59-60.) The appellate court in People v. Bowen, supra, 22 Cal.App.3d 267, more recently observed that “It generally has been recognized that [a] right to a deposition in criminal cases did not exist at common law, nor is it a constitutional right. In criminal cases, the right to a deposition is governed by the foregoing constitutional and statutory provisions [Cal. Const., art. I, § 15, formerly § 13; Pen. Code, § 1335 et seq.]. [Citations.]” (P. 278, italics added.) Significantly, although legislative authority for deposition procedure is presently contained in section 15, the availability of depositions is not included in the list of fundamental rights specified in that same section.

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

We note that an accused is not, of course, wholly without means of ascertaining the facts upon which a criminal charge is based. In felony cases, the preliminary examination or grand jury hearing transcripts will ordinarily provide a valuable source of pretrial information. In addition, police reports and witnesses’ statements are readily discoverable upon a proper showing of need. (See Pitchess v. Superior Court, supra, 11 Cal.3d 531, 537-538 [discovery of sheriff’s records of prior brutality by deputies].) Furthermore, nothing ordinarily would prevent the accused from interviewing prosecution witnesses to ascertáin their version of the events. (See Clark v. Superior Court, supra, 190 Cal.App.2d 739, 742-743; People v. Lopez (1963) 60 Cal.2d 223, 246-247 [32 Cal.Rptr. 424, 384 P.2d 16] [discovery of names of prosecution witnesses].)

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

The Legislature has chosen to limit the availability of deposition procedures in criminal cases to those particular situations which it has specified. We do not speculate as to its reasons. It is enough for us to know that it has not chosen to do what constitutionally it may do. We decline to exercise our inherent powers to achieve a different result which would conflict with its legislation. (Ferguson v. Keays, supra, 4 Cal.3d 649, 654.)

Similar policy considerations involving the complexity and difficulty in balancing various competing factors moved us recently in Reynolds v. Superior Court (1974) 12 Cal.3d 834 [117 Cal.Rptr. 437, 528 P.2d 45], to decline adoption of a “notice-of-alibi” discovery procedure. We observed that the issues involved “complex and closely balanced questions,” the gravity of which counseled against the exercise of our rule-making power. (P. 837.) As we explained in Reynolds, “It is one thing for a court to prescribe judicial procedure necessary to protect some fundamental constitutional principle or to effectuate some specific constitutional guarantee of individual liberty. [Citations.] It is quite another thing for a court to design judicial procedures which are in no way required by higher law but which may seem to some socially desirable and perhaps may be permitted—at least to some extent—by our state and federal Constitutions.” (Pp. 845-846, italics in original.)

We concluded in Reynolds that “This court has not been vested with formal, quasi-legislative, rule-making power, either by the California Constitution or th¿ Legislature,” and that “due regard for this court’s function as constitutional adjudicator, and solicitude for this state’s governmental scheme of shared legislative and judicial responsibility for the sound administration of justice, render it inappropriate for us to create by judicial decision a notice-of-alibi procedure for California courts.” (Id., pp. 849-850.) We reaffirm, within the present context, the wisdom of this principle of restraint,, concluding that it would be both improper and unwise for the California courts to exercise their inherent power over discovery matters to provide for depositions in situations not presently authorized by statute.

Indeed, a very recent case on this subject demonstrates and underscores the wisdom of the foregoing principle. In Bailey v. Superior Court (1977) 19 Cal.3d 970, 977-978 [140 Cal.Rptr. 669, 568 P.2d 394], involving the use of videotaped depositions, we carefully explained that since the applicable legislation limits depositions to proceedings in “written” form, any change in procedure authorizing videotaping should devolve from legislative, not judicial, action.

The judgment is reversed and the cause remanded to the superior court with directions to issue the peremptory writ.

Mosk, J., Clark, J., Manuel, J., and Sullivan, J.,^* concurred.

* Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.