# Izazaga v. Superior Court

> California Supreme Court · August 30, 1991 · 54 Cal. 3d 356

URL: https://www.frixlaw.com/law-library/cases/9850777

## Case

- **Full name:** JAVIER VALLE IZAZAGA, Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; THE PEOPLE, Real Party in Interest
- **Court:** California Supreme Court
- **Decided:** August 30, 1991
- **Citations:** 54 Cal. 3d 356; 285 Cal. Rptr. 231; 91 Daily Journal DAR 10764; 815 P.2d 304; 91 Cal. Daily Op. Serv. 7072; 1991 Cal. LEXIS 3743
- **Precedential status:** Published
- **Opinion:** Dissent by Broussard
- **Judges:** Lucas, Kennard, Mosk, Broussard
- **Cited by:** 158 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Called into doubt on other grounds by Maldonado v. Superior Court, 53 Cal. 4th 1112 (2012).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9850777

## Opinion text

BROUSSARD, J.
I dissent.
Contrary to the implications in the majority opinion, the prosecutorial discovery authorized by the relevant provisions of Proposition 115 is much broader than the discovery that has been approved by any of the applicable United States Supreme Court decisions to date. Unlike the notice-of-alibi provision at issue in Williams v. Florida (1970) 399 U.S. 78 [ 26 L.Ed.2d 446 , 90 S.Ct. 1893 ] (hereafter Williams)—which simply required a defendant to disclose the identity of alibi witnesses that the defendant intended to call at trial—the discovery provisions at issue here require a defendant to disclose the identity of proposed witnesses who may testify to any aspect of the defense case, without regard to the potentially incriminating nature of the information the witnesses may possess or to the degree to which such disclosure might lighten the prosecution’s burden in its case-in-chief. Furthermore, unlike United States v. Nobles (1975) 422 U.S. 225 [ 45 L.Ed.2d 141 , 95 S.Ct. 2160 ] (hereafter Nobles), in which the Supreme Court upheld a court order, issued at trial, requiring defense counsel to disclose relevant portions of statements made to a defense investigator if the investigator testified with regard to such statements at trial, the provisions of Proposition 115 require disclosure of such statements pretrial, at a time when defense counsel cannot yet know whether counsel will in fact have to call such witnesses and when it will be impossible to limit the disclosure to those portions of the witnesses’ statements that relate to their actual testimony at trial. Although the majority hold that the Williams and Nobles decisions demonstrate that the discovery sanctioned by Proposition 115 is compatible with the Fifth and Sixth Amendments of the federal Constitution, I cannot agree.
I.
The majority read Williams, supra, 399 U.S. 78 , as standing for the broad proposition that no discovery provision that requires a defendant to disclose to the prosecution the identity of any or all witnesses that the defendant intends to call at trial can ever violate the Fifth Amendment privilege against *403 self-incrimination because such disclosure is not a “compelled” disclosure within the meaning of the Fifth Amendment. Relying on a passage in Williams in which the court stated that the notice-of-alibi rule at issue in that case “only compelled [the defendant] to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that the [defendant] from the beginning planned to divulge at trial” ( 399 U.S. at p. 85 [ 26 L.Ed.2d at p. 452 ], italics added), the majority reason that insofar as pretrial discovery pertains to witnesses or evidence that the defendant plans to disclose at trial, a “required acceleration” of the timing of the defendant’s disclosure never impinges on the defendant’s Fifth Amendment rights, apparently without regard to the potentially incriminatory nature of the disclosure.
But the United States Supreme Court’s subsequent decision in Brooks v. Tennessee (1972) 406 U.S. 605 [ 32 L.Ed.2d 358 , 92 S.Ct. 1891 ] (hereafter Brooks), decided only two years after the Williams decision, demonstrates, in my view, that the majority’s broad reading of Williams cannot be sustained. In Brooks , the court addressed the constitutionality of a state rule of criminal procedure that provided that if a criminal defendant was to testify in his or her own behalf, he or she was required to testify before any other defense witness testified. Defending the rule as a permissible means of furthering a legitimate state interest in preventing a defendant from tailoring his or her testimony to fit the testimony of other defense witnesses, the state argued that the rule did not “compel” the defendant to disclose any information that the defendant did not voluntarily choose to disclose, but at most provided for an “acceleration” of such disclosure by requiring the defendant to testify first or not at all. The Supreme Court squarely rejected that line of reasoning, explaining: “Pressuring the defendant to take tiie stand, by foreclosing later testimony if he refuses, is not a constitutionally permissible means of ensuring his honesty. It fails to take into account the very real and legitimate concerns that might motivate a defendant to exercise his right of silence. And it may compel even a wholly truthful defendant, who might otherwise decline to testify for legitimate reasons, to subject himself to impeachment and cross-examination at a time when the strength of his other evidence is not yet clear. For these reasons we hold that [the state rule] violates an accused’s constitutional right to remain silent insofar as it requires him to testify first for the defense or not at all.” (406 U.S. at pp. 611-612 [ 32 L.Ed.2d 363 ], italics added.)
In my view, Brooks, supra, 406 U.S. 605 , establishes that in some circumstances a rule which requires a defendant to “accelerate” the disclosure of witnesses or evidence that he may disclose at trial can impinge on the defendant’s Fifth Amendment rights, and that, contrary to the majority’s conclusion, a more sensitive analysis of both the purpose of the state law and *404 the effect of the acceleration on the defendant’s rights is needed to determine the validity of the state practice.
Further, contrary to the majority’s assertion (see maj. opn., ante, at pp. 366-367), the high court has found Fifth Amendment violations even when the state has not technically “compelled” a defendant to produce testimonial disclosures. In Griffin v. California (1965) 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ], the high court observed that comment on a defendant’s failure to testify “is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly.” (Id. at p. 614 [14 L.Ed.2d at pp. 109-110].) The court found that “cutting down” the privilege, regardless of compulsion, constituted a Fifth Amendment violation. Similarly, in Simmons v. United States (1968) 390 U.S. 377 [ 19 L.Ed.2d 1247 , 88 S.Ct. 967 ] the high court explicitly rejected the argument that a criminal defendant’s testimony at a suppression hearing was not “compelled” and therefore could be used against the defendant in the prosecution’s case-in-chief. “Those courts which have allowed the admission of testimony given to establish standing [to object to the admission of incriminating evidence] have reasoned that there is no violation of the Fifth Amendment’s Self-Incrimination Clause because the testimony was voluntary. As an abstract matter, this may well be true.'' (Id. at p. 393 [19 L.Ed.2d at pp. 1258-1259], italics added, fn. omitted.) The absence of “compulsion” notwithstanding, the high court held that “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” (Id. at p. 394 [ 19 L.Ed.2d at p. 1259 ].)
Indeed, many academic commentators who have considered the question have concluded that the broad interpretation of Williams, supra, 399 U.S. 78 , adopted by the majority, conflicts with the high court’s analysis in Brooks, supra, 406 U.S. 605 , Griffin v. California, supra, 380 U.S. 609 , or Simmons v. United States, supra, 390 U.S. 377 . (See, e.g., Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance (1986) 74 Cal.L.Rev. 1569 (hereafter Hosteller); Westen, Order of Proof: An Accused’s Right to Control the Timing and Sequence of Evidence in His De fense (1978) 66 Cal.L.Rev. 935, 947-952; Lapides, Cross-Currents in Prosecutorial Discovery: A Defense Counsel’s Viewpoint (1972) 7 U.S.F. L.Rev. 217, 227-228.) Professors LaFave and Israel, in their leading criminal procedure textbook, note that Williams has been harmonized with the Supreme Court’s other self-incrimination precedents by recognizing the generally nonincriminatory nature of the disclosure upheld in Williams: “Williams itself did not involve a situation in which the defendant even remotely suggested that his alibi witness might furnish the state with incriminating information relating to another offense. *405 Neither was there any suggestion that the alibi witness there had helped the prosecution in building his case-in-chief. Alibi witnesses, by the very nature of the defense they support, are not furnishing information that relates directly to the government’s proof of the elements of the crime. Moreover, the Williams Court noted that the prosecution there had confined its use of the deposition of the alibi witness to challenging the credibility of that witness.” (2 LaFave & Israel, Criminal Procedure (1984) § 19.4, p. 516.)
In Estelle v. Smith (1981) 451 U.S. 454, 462 [ 68 L.Ed.2d 359, 368 , 101 S.Ct. 1866 ], the Supreme Court concisely captured one of the fundamental policies reflected in the Fifth Amendment’s privilege against self-incrimination: “The essence of this basic constitutional principle is ‘the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.’ ” (Italics omitted and added, citation omitted.) Like Lafave and Israel, other commentators suggest that this basic principle is, in practice, rarely violated by a notice-of-alibi statute: “Pretrial disclosure of the alibi defense is unlikely to supply the government with new leads, because if the alibi is true, an alibi witness would be unable to connect the defendant with the crime in any way. If the alibi is fabricated, it is unlikely that a witness who is willing to perjure himself for the defendant will reveal any incriminating evidence to the prosecution.” (Note, Proposed Rule 12.3: Prosecutorial Discovery and the Defense of Federal Authority (1986) 72 Va.L.Rev. 1299, 1312, fn. omitted; see also Mosteller, supra, 74 Cal.L.Rev. at pp. 1628-1631.)
The relative safety involved in disclosing an alibi defense to be used at trial stands in stark contrast to other forms of pretrial witness disclosure that will necessarily include the admission of incriminating evidence. For instance, a defendant, who anticipates calling a witness who will testify that the defendant committed a killing in self-defense, is faced with the choice of either providing the state with perhaps the sole witness to the killing or forgoing use of the witness if the defendant instead chooses to test the state’s ability to prove the defendant’s guilt beyond a reasonable doubt. It is not sufficient to assert that compelling a defendant to provide such a witness furthers the courts’ truth-finding mission; Estelle v. Smith, supra, 451 U.S. 454 , is absolutely clear in its insistence that it is the state’s sole responsibility to establish the case against a defendant without requiring that defendant’s complicity. 1
*406 Thus, I disagree with the majority’s conclusion that Williams, supra, 399 U.S. 78 , is sufficient, in itself, to demonstrate that the discovery provisions of Proposition 115 do not violate the Fifth Amendment. Insofar as Proposition 115 purports to go beyond the alibi-witness context, and to require a defendant to disclose all of the witnesses or evidence that he intends to introduce at trial, I would hold that the required “accelerated disclosure” is unconstitutional under the general Fifth Amendment principles reflected in Brooks, supra, 406 U.S. 605 , and Estelle v. Smith, supra, 451 U.S. 454 .
II.
Although, for reasons well expressed by Justice Black (see Williams, supra, 399 U.S. at pp. 106-116 [26 L.Ed.2d at pp. 479-485] (dis. opn. by Black, J.)) and Justice Peters (see Jones v. Superior Court (1962) 58 Cal.2d 56, 62-68 [ 22 Cal.Rptr. 879 , 372 P.2d 919 , 96 A.L.R.2d 1213 ] (dis. opn. by Peters, J.)), I find it hard to accept the proposition that a discovery order which compels a defense attorney or defense investigator to turn over investigative material to the prosecution does not raise Fifth Amendment problems, recent Supreme Court decisions do hold, as the majority note, that the Fifth Amendment only applies to the compelled disclosure of testimonial material from the defendant himself, rather than to the compelled disclosure of evidence that was obtained by his attorney or investigator from other sources. (See, e.g., Nobles, supra, 422 U.S. at pp. 233-234 [45 L.Ed.2d at pp. 150-151].) Under those cases, the majority are correct in finding no Fifth Amendment obstacle to the portion of Proposition 115’s discovery provisions which require defense counsel to disclose the contents of written statements in counsel’s possession of witnesses counsel intends to call at trial.
But while, under the recent Supreme Court authority, the compelled disclosure of such investigative material may raise no Fifth Amendment concerns, such disclosure, in my view, raises very serious questions with regard to the defendant’s right to the effective assistance of counsel guaranteed by the Sixth Amendment.
With respect to the Sixth Amendment issue, the majority “perceives” that “there is nothing in the new discovery chapter that would penalize exhaustive investigation or otherwise chill trial preparation of defense counsel such that criminal defendants would be denied the right to effective assistance of counsel under the Sixth Amendment.” (Maj. opn., ante, at p. 379.) They *407 reach that conclusion in part because the United States Supreme Court “has never struck down a discovery scheme as violative of the right to effective assistance of counsel” and in part because they find support for their holding in the high court’s decision in Nobles, supra, 422 U.S. 225 . Of course, the fact that the high court has not struck down a discovery statute on Sixth Amendment grounds, if true, says nothing about the constitutionality of Penal Code section 1054 et seq. under the Sixth Amendment. Further, I find little support in Nobles for the majority’s assertions. Indeed, a close reading of Nobles actually suggests that Proposition 115’s discovery provisions run afoul of the Sixth Amendment guaranty of effective assistance of counsel.
In Nobles, supra, 422 U.S. 225 , the defendant’s principal contention was that the trial court had violated the work product doctrine by ruling that if the defense called a defense investigator to testify to the contents of pretrial interviews the investigator had with two prosecution witnesses, the defense would be required to disclose to the prosecution relevant portions of the investigator’s written notes of the interviews. In analyzing this contention, the Nobles court recognized the general importance of protecting the investigative efforts of defense counsel and defense investigators in criminal cases. The court stated in this regard: “Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case. HO At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.” (422 U.S. at pp. 238-239 [ 45 L.Ed.2d 153 -154], italics added, fns. omitted.)
After noting the applicability and importance of these concerns in criminal cases generally, however, the Nobles court ultimately concluded that in the case before it the defendant “by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony.” ( 422 U.S. at p. 239 [ 45 L.Ed.2d at p. 154 ], fn. omitted.) Thus, on those facts, the court held that the trial court had not erred in its “limited” ruling, “opening to prosecution scrutiny only the portion of the report that related to *408 the testimony the investigator would offer to discredit the witnesses’ identification testimony.” (Id. at p. 240 [ 45 L.Ed.2d at p. 155 ].)
Although the main focus of the Nobles decision related to the work product doctrine, the defendant had also challenged the trial court’s ruling as a violation of the Sixth Amendment, and the Nobles court addressed that claim in a footnote. The court stated: “This claim is predicated upon the assumption that disclosure of a defense investigator’s notes in this and similar cases will compromise counsel’s ability to investigate and prepare the defense case thoroughly. Respondent maintains that even the limited disclosure required in this case will impair the relationship of trust and confidence between client and attorney and will inhibit other members of the ‘defense team’ from gathering information essential to the effective preparation of the case.” (Nobles, supra, 422 U.S. at p. 240, fn 15 [ 45 L.Ed.2d at p. 154 ].) The court rejected the defendant’s argument, not because it perceived any misstatement of Sixth Amendment principles on the defendant’s part, but because ‘the [trial court’s] disclosure order resulted from respondent’s voluntary election to make testimonial use of his investigator’s report. Moreover, apart from this waiver, we think that the concern voiced by respondent fails to recognize the limited and conditional nature of the court’s order.” (Ibid. [45 L.Ed.2d at pp. 154-155].)
It is apparent from the high court’s treatment of the defendant’s Sixth Amendment contention that it treated his concerns seriously. The majority does not even attempt to sketch out the Sixth Amendment limitations to requiring pretrial disclosure of defense evidence, but instead determines that the language of Nobles, supra, 422 U.S. 225—in approving the limited and conditional order of the trial court in that case—specifically approves of the discovery provided in Proposition 115: “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.” (Maj. opn., ante, at p. 380, italics in original.)
It should be obvious from the facts of Nobles, supra, 422 U.S. 225 , that the discovery authorized by the provisions of Proposition 115 is of an entirely different magnitude than the discovery permitted by the high court in Nobles . In Nobles , the statement of the defense investigator was “limited” by, and “conditioned” on, not the defendant’s intent to call the investigator but by the fact that the discovery order in Nobles only reached “the relevant portion of the investigator’s report,” i.e., the witnesses’ statements, after the investigator had been called to testify for the defense. (See Nobles, supra, 422 U.S. at pp. 228-229 [45 L.Ed.2d at pp. 147-148].) It is simply disingenuous to compare a discovery order allowing the prosecution to review all potential *409 witness statements before trial pursuant to Penal Code section 1054.3 with the “limited and conditional” order at issue in Nobles .
It is not only the facts of Nobles, supra, 422 U.S. 225 , that resist the majority’s expansive interpretation of that case; the language of the court in Nobles suggests that Proposition 115 cannot survive Sixth Amendment scrutiny. The Nobles court discussed in detail the policy considerations that apply to the protections of the Sixth Amendment no less than to the work product doctrine. Again, the court approved the trial court’s order, but emphasized the defendant’s waiver and the fact that the court’s order was narrowly tailored to the state’s particularized needs: the defendant, “by electing to present the investigator as a witness, waived the privilege with respect to matters covered in [the]investigator’s] testimony.” (Nobles, supra, 225 U.S. at p. 239 [ 45 L.Ed.2d at p. 154 ], italics added.)
In a typical criminal prosecution, the discovery provisions of Proposition 115 will include neither a waiver nor a narrowly tailored order for the defense to produce evidence. The majority’s definition of “intent to use at trial” (see maj. opn., ante, at p. 376, fn. 11) leaves such a strong possibility that the defense will not produce the evidence at trial that the defense’s “intent to use at trial” is certainly not tantamount to a waiver, i.e., when the defense actually uses the evidence in question. Similarly, an order to produce all statements of a witness the defense “intends to use at trial” is in no way narrowly tailored to produce only the relevant portions of the statement of a witness certain to be called at trial. 2
Even if we were to assume that all of a potential witness’s pretrial statements were relevant to the issues that would appear before the trial court, the fact that the defense must release those statements prior to trial raises serious Sixth Amendment concerns. 3 By compelling a defense attorney to surrender the fruits of the investigation before trial, we necessarily chill an attorney’s zeal to investigate potentially damaging or incriminating leads. For instance, defense investigators will hereafter be instructed not to take witnesses’ statements for fear that they will be discoverable; yet without *410 such statements, the defendant’s ability to impeach a witness’s testimony with a prior inconsistent statement is seriously impaired. Similarly, defense attorneys will be pressured not to disclose witnesses that would testify to both incriminating and exculpatory evidence (e.g., percipient witnesses that would testify to an affirmative defense), and thereby may be forced to forgo the opportunity to call such witnesses at trial. (See, e.g., Taylor v. Illinois, supra, 484 U.S. 400 .) Because the discovery provisions of Proposition 115 so tie a defense attorney’s hands, I conclude that the provisions impermissibly impinge on a defendant’s right to the effective assistance of counsel as guaranteed by the Sixth Amendment of the United States Constitution.
III.
I do not believe that the cases relied upon by the majority to interpret the Fifth and Sixth Amendments of the United States Constitution, particularly Williams, supra, 399 U.S. 68 , and Nobles, supra, 422 U.S. 225 , authorize prosecutorial discovery to the extent provided in the trial court’s order. Accordingly, I cannot join the majority.
Petitioner’s application for a rehearing was denied October 24, 1991, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the application should be granted.
Indeed, in Taylor v. Illinois (1988) 484 U.S. 400, 415 [ 98 L.Ed.2d 798, 814 , 108 S.Ct. 646 ], at footnote 20, the high court has acknowledged that in certain instances a defendant may refuse to disclose witnesses: “There may be cases in which a defendant has legitimate *406 objections to disclosing the identity of a potential witness.” Though Penal Code section 1054.7 makes provisions for defendants to refuse to disclose information where “good cause is shown why a disclosure should be denied, restricted or deferred," the majority’s analysis forecloses the possibility that any evidence the defendant “intends to use at trial” can be withheld from production.
It is significant that the federal discovery rule that is analogous to that provided under Penal Code section 1054.3, amended in the wake of Nobles, supra, 422 U.S. 225 , forbids all disclosure of witness statements before trial. (See Fed. Rules Crim.Proc., rule 16, 18 U.S.C.)
Typically, these questions are raised and resolved pursuant to the work product doctrine; however, Proposition 115 has so limited the work product privilege that it no longer covers witness statements. (See Pen. Code, § 1054.6.) Yet the arguments that the high court advances in support of the policy underlying the work product doctrine must also be considered in evaluating a defense attorney’s opportunity to fully investigate and present an effective defense on his or her client’s behalf. (See generally Nobles, supra, 422 U.S. at pp. 236-240 [45 L.Ed.2d at pp. 152-155]; see also conc. opn. of Kennard, J., ante, at pp. 384-385.)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9850777. Public record. Not legal advice.