Appendix — California v. Byers

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OCTOBER TERM, 1969

Supreme Court of the United States

THE PEOPLE OF THE STATE OF CALIFORNIA,

PETITIONER

JONATHAN TODD BYERS, RESPONDENT

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF CALIFORNIA

INDEX

Page

Docket entries in the Supreme Court of the State of California

Docket entries in the Court of Appeal of the State of Califor-

nia, First Appellate District, Division Three

Docket entries, the Superior Court of the State of California,

County of Mendocino

Docket Entries in the Justice Court for the Ukiah Judicial

District, County of Mendocino.

Record from the Supreme Court of the State of California

(The Clerk’s Transcript on Appeal filed by County Clerk)

Petition for Writ of Prohibition and Exhibits.

Exhibit A . . . Criminal Complaint

Exhibit B . .. Demurrer and Memorandum of Points

and Authorities

Alternative Writ of Prohibition.

Memorandum of Points and Authorities in Support of Peti-

tion for Writ of Prohibition

Demurrer

Points and Authorities in Support of Demurrer and in Op-

position to Granting the Peremptory Writ of Prohibition

Minutes of Court.

Memorandum Opinion

Order Overruling Demurrer

Findings of Fact and Conclusions of Law.

Judgment Granting Permanent Writ of Prohibition..............

Notice of Entry of Judgment

Notice of Appeal

Opinion of the Supreme Court of the State of California filed

September 16, 1969.

Order denying Rehearing filed October 15, 1969

In the Supreme Court

of the State of California

No. S. F. 22634

Jonathan Todd Byers,

Plaintiff and Respondent,

Vv.

The Justice Court for the Ukiah Judicial

District of Mendocino County,

Defendant and Respondent ;

The People,

Real Party in Interest and

Appellant.

RELEVANT DOCKET ENTRIES

November 4, 1968—Petition for Hearing filed by The People

November 6, 1968—Petition for Hearing filed by the respon-

dent Byers

November 20, 1968—Hearing granted

February 3, 1968—Cause called and argued

September 16, 1969—-Cause submitted and judgment of

Superior Court affirmed

October 1, 1969—Petition for Rehearing filed by the People

October 15, 1969—Rehearing denied

October 17, 1969—Remittitur issued

1/Civil No. 24557

In the Court of Appeal of the State of California

First Appellate District, Division Three

Jonathan Todd Byers,

Plaintiff and Respondent,

The Justice Court for the Ukiah Judicial

District, County of Mendocino, State of

California,

Defendant and Respondent ;

The People of the State of California,

Real Party in Interest and

Appellant.

RELEVANT DOCKET ENTRIES

May 4, 1967—Clerk’s Transcript on Appeal filed

August 16, 1967—Opening brief filed by The People

March 5, 1968—Respondent’s brief filed by respondent Byers

March 25, 1968—Reply brief filed by The People

July 19, 1968—Cause called, argued and submitted

September 23, 1968—Judgment of Superior Court granting

the writ of prohibition is reversed

October 8, 1968—Petition for rehearing and/or modification

filed by The People

October 23, 1968—Rehearing and/or modification denied

The Superior Court of the State of California

County of Mendocino

No. 28366

Jonathan Todd Byers,

Petitioner,

The Justice Court for the Ukiah Judicial

District, County of Mendocino, State of

California, re

RELEVANT DOCKET ENTRIES

January 13, 1967—Petition for Writ of Prohibition and

Points and Authorities in Support filed by respondent

Byers; alternative Writ of Prohibition issued by court

January 20, 1967—Demurrer to Petition for Writ of Prohi-

bition and Points and Authorities in Support of De-

murrer and in Opposition to Granting the Peremptory

Writ of Prohibition filed by The People

January 27, 1967—Petition and Demurrer argued and sub-

mitted

February 17, 1967—Writ of Prohibition issued and Memo-

randum Opinion filed

February 24, 1967—Order overruling Demurrer filed by

court

March 21, 1967—Findings of Fact and Conclusions of Law

filed; Permanent Writ of Prohibition issued and Judg-

ment Granting Permanent Writ of Prohibition filed

March 22, 1967—Notice of Appeal filed

In the Justice Court for the Ukiah Judicial District

County of Mendocino, State of California

No. A 40692

The People of the State of California,

Plaintiff,

Jonathan Todd Byers,

Defendant.

RELEVANT DOCKET ENTRIES

August 22, 1966—Criminal complaint filed

September 8, 1966—Demurrer and Points and Authorities

filed

December 7, 1966—Demurrer overruled

District Court of Appeal

State of California

First Appellate District

1 Civ. 24557

Endorsed-Filed Apr 18 1967

Viola N. Richardson, County Clerk

Appeal from

The Superior Court of the State of California

County of Mendocino

Honorable Robert L. Winslow, Judge

Filed May 4, 1967

Court of Appeal, First App. Dist.

Lawrence R. Elkington, Clerk

Deputy

Jonathan Todd Byers

Plaintiff and Respondent

The Justice Court for the

Ukiah Judicial District, ete.

Defendants and Respondent.

People of the State of California

Real Party In Interest and Appellant.

CLERK’S TRANSCRIPT ON APPEAL

Appearances :

For the Petitioner:

Rawles, Nelson, Golden & Poulos

Attorneys at Law

P.O. Box 720

Ukiah, California 95482

For the Respondent: (Appellant):

Arthur B. Broaddus, District Attorney

P.O. Box 185

Ukiah, California 95482

Filed Jan 13, 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

For the County of Mendocino

No. 28366

Jonathan Todd Byers,

Petitioner,

vs.

The Justice Court for the Ukiah Judicial

District, County of Mendocino, State of

California,

Respondent.

PETITION FOR WRIT OF PROHIBITION

Petitioner respectfully shows:

On or about August 22, 1966, a criminal complaint was

issued and docketed in the Justice Court, for the Ukiah Ju-

dicial District, County of Mendocino, State of California,

charging your petitioner with a violation of Section 21750

and Section 20002 Subdivision (a) of the Vehicle Code of

the State of California. Said complaint was docketed in

Volume 91, Page 186 of the records of the said Court and

was assigned Case No. A40692. A true copy of said com-

plaint is attached hereto marked Exhibit A and is hereby re-

ferred to and made a part hereof as fully as though herein

set forth at length.

Petitioner was duly arrested on said charges contained

in said complaint and held in the custody of the Sheriff of

the County of Mendocino, State of California. Thereafter,

and pursuant to petitioner’s request, the Honorable Hale

McCowan, Jr., Judge of the Justice Court for the Ukiah

Judicial District, County of Mendocino, State of California,

released petitioner upon his own recognizance from the cus.

tody of the Sheriff of the County of Mendocino, and peti.

tioner is now free of his own recognizance. [2°]

Petitioner was duly arraigned in the Justice Court for

the Ukiah Judicial District, County of Mendocino, State of

California, and petitioner, within the time provided by law,

filed his written demurrer to the complaint and the charges

set forth therein urging that Vehicle Code Section 20002,

Subdivision (a) was unconstitutional both upon its face and

as applied to petitioner in Count II of said complaint. A

true copy of said demurrer is attached hereto marked Ex.

hibit B and is hereby referred to and made a part hereof

as fully as though herein set forth at length.

After filing said demurrer, the same was argued before

the Justice Court for the Ukiah Judicial District, County

of Mendocino, State of California, and at said hearing it

was stipulated by and between Timothy Stoen, Esq., Dep-

uty District Attorney and John W. Poulos, Esq., attorney

for petitioner, and so ordered by said Court that said com-

plaint be amended upon its face to add the allegation that

offenses charged in Count I and Count II of said complaint

were the same class of offenses and connected together in

their commission.

After said hearing the Justice Court for the Ukiah Ju-

dicial District, County of Mendocino, State of California,

took said matter under advisement and on or about De-

*Brackets indicate page numbering of Clerk’s Transcript on Ap-

peal and follow page materials set forth.

eember 7, 1966, the Court overruled said demurrer and set

the date for [3] the arraignment of petitioner for the pur-

poses of entering a plea upon said complaint for December

9, 1966. At the request of your petitioner said Justice Court

continued said arraignment until Friday, January 13, 1967,

at the hour of 11 o’clock A. M. for the purpose of arraigning

the petitioner for the entrance of a plea upon the charges

contained in said complaint.

The said Justice Court for the Ukiah Judicial District,

County of Mendocino, State of California, is wholly with-

out jurisdiction to proceed to arraign and try the petitioner

for an alleged violation of Section 20002 Subdivision (a)

of the Vehicle Code of the State of California, in that under

the facts of this case, and as above alleged, when the com-

plaint charges two offenses connected together in their com-

mission, said Section 20002 Subdivision (a) requires the

petitioner to give evidence against himself and destroys his

right to remain silent, contrary to the Fifth and Fourteenth

Amendments to the United States Constitution and Article

I, Section XIII of the California Constitution.

Vil

Unless restrained and prohibited by Order of this Court,

the said Justice Court for the Ukiah Judicial District,

County of Mendocino, State of California, threatens to,

intends to, and will require your petitioner to enter a plea

upon the charges contained in Count II of said complaint

and pass upon, hear and try said charges. [4]

Vill

Your petitioner has no plain, speedy, and adequate rem-

edy in the ordinary course of law. The remedy by appeal

from any judgment which might be rendered in the action

herein referred to, now pending in the Justice Court for

the Ukiah Judicial District, County of Mendocino, Staate of

California, is in no wise adequate and speedy for the reason

that the personal hardship to be suffered by your petitioner

is much greater than in a civil case and there is a strong

public interest in avoiding the waste of time and expense

of a futile trial and appeal, and in securing a prompt de

termination of the constitutionality of Section 20002, Sub.

division (a) of the Vehicle Code of the State of California,

as applied to petitioner in this case.

Your petitioner is the party having beneficial interest in

this proceeding and the names of the parties interested who

will be affected by this petition are your petitioner, the

respondent Court and the People of the State of California,

No prior application for the Writ sought by this petition

or any other Writ pertaining to this matter, has been mady

by your petitioner.

XI.

The issuance of an Alternate Writ of Prohibition ex parte,

without notice or service, will not in any way prejudice [5]

any rights of the People of the State of California, but, on

the contrary, will protect and preserve the rights of all

parties beneficially interested and will further the cause

of justice.

WHEREFORE, petitioner prays that an Alternative

Writ of Prohibition restraining respondent Court from

further proceedings on Count II of the complaint in the

case of the People of the State of California vs. Jonathan

Todd Byers, Case No. A40692, now pending in the Justice

Court for the.Ukiah Judicial District, County of Mendo-

acer arene ase one ee ne

cino, State of California, until further Order of this Court

issue immediately; that this Court enter its Order dispens-

ing with the requirements of notice and service; that the

Clerk of this Court be ordered to accept this petition for

filing; and that respondent and the People of the State of

California be ordered to appear before this Court at a date

and time set by this Court, then and there to show cause

why a peremptory Writ of Prohibition should not issue

herein.

Dated: January 12, 1967.

Raw ess, Netson, Gotpen & Povios

By /s/ Joun W. Pov1os

I hereby declare under penalty of perjury that 1 am the

petitioner in the above-entitled action; that I have reaa the

foregoing Petition for Writ of Prohibition and know the [6]

contents thereof, and that the same is true of my own knowl-

edge except as to the matters which are therein stated upon

my information and belief, and as to those matters I believe

it to be true.

Executed by me this 12th day of January 1967, at Ukiah,

California.

s/ JonatHan Topp Byers

Jonathan Todd Byers [7]

EXHIBIT “A”

In the Justice Court for the Ukiah Judicial District

County of Mendocino, State of California

Docket #91 Page 186

Case No. 91-6-A40692

The People of The State of California,

Plaintiff,

vs.

Jonathan Todd Byers,

Defendant.

COMPLAINT—CRIMINAL

(MISDEMEANOR)

COUNT ONE

The undersigned, first being duly sworn, on information

and belief, complains and says:

That said defendant ...did in the Ukiah Judicial District,

County of Mendocino, State of California, on or about the

20th day of August, 1966, commit the crime of MISDE-

MEANOR, to-wit, violation of Section 21750 of the Vehicle

Code of the State of California, in that said defendant...

did then and there while overtaking another vehicle pro-

ceeding in the same direction, fail to pass to the left ata

safe distance as required by said Section of the Vehicle

Code.

COUNT TWO

The undersigned, being further sworn, says upon infor-

mation and belief, that said defendant did in the Ukiah

Judicial District, County of Mendocino, State of California,

on or about the 20th day of August, 1966, commit the crime

of MISDEMEANOR, to-wit, violation of Subdivision (a)

of Section 20002 of the Vehicle Code of the State of Cali-

fornia, in that [8] said defendant being then and there the

driver of a vehicle involved in an accident resulting in in-

jury to property did fail to immediately stop such vehicle

at the scene of the accident, did fail to locate and notify the

owner or person in charge of such property of the name

and address of the driver and owner of the vehicle involved,

did fail to leave in a conspicuous place on the vehicle or

other property damaged a written notice giving the name

and address of the driver and of the owner of the vehicle

involved and a statement of the circumstances thereof and

did without necessary delay, fail to notify the local head-

quarters of the Department of the California Highway

Patrol.

Aug. 29, 1966

10:00

Complainant therefore prays that a Warrant issue and

that said defendant... be dealt with according to law.

Subscribed and sworn to before me this 22nd day of Au-

gust, 1966.

s/ Roy L. Burton

s/ Hatz McCowen, Jr. (SEAL)

Magistrate [9]

EXHIBIT “B”

In the Justice Court for the Ukiah Judicial District

County of Mendocino, State of California

No. A 40692

The People of The State of California,

Plaintiff,

vs.

Jonathan Todd Byers,

Defendant.

DEMURRER AND MEMORANDUM OF POINTS

AND AUTHORITIES

The defendant in this action demurs to County Two of

the complaint and the complaint upon the following grounds:

The complaint charges more than one offense contrary

to the provisions of Section 954 of the Penal Code, in that

the offenses charged in Counts One and Two are not of the

same class.

The complaint charges more than one offense contrary to

the provisions of Section 954 of the Penal Code, in that it

does not appear that the offenses charged in Counts One

and Two were connected together in their commission.

The complaint charges more than one offense contrary to

the provisions of Section 954 of the Penal Code, in that it

does not appear that they charge the same offense differ-

ently stated.

The facts stated in Count Two of the complaint does [10]

not constitute a public offense because to require the defend-

ant who was a driver involved in an accident resulting in in-

jury to property to immediately stop the vehicle he has driv-

ing at the scene of the accident, locate and notify the owner

or person in charge of said property of the name and address

of the driver and owner of the vehicle involved and leave

in a conspicuous place on the vehicle or other property

damaged a written notice giving the name and address of

the driver and of the owner of the vehicle involved and a

statement of circumstances thereof, and to require without

necessary delay notification of the local headquarters of the

Department of the California Highway Patrol when the

defendant is also charged with another offense arising out

of the same accident requires the defendant to give evi-

dence against himself contrary to the Fifth and Fourteenth

Amendments to the United States Constitution and Article

I Section XIII of the California Constitution.

Dated : September 8, 1966

Rawtes, Netson & Gotpen

By Attorneys for Defendant

MEMORANDUM OF POINTS AND AUTHORITIES

The exception from compulsory self-incrimination creat-

ed by the Fifth Amendment to the United States Constitu-

tion is protected by the Fourteenth Amendment against

abridgment by [11] the States.

Malloy v. Hogan, 84 S.Ct. 1489 at 1493 (1964)

The privilege against self-incrimination is fulfilled only

when the person is guaranteed the right to remain silent

unless he chooses to speak in the unfettered exercise of hig

own will.

Malloy v. Hogan, supra; Escobedo v. State of Illinois,

84 S.Ct. 1758 (1964) ; Miranda v. State of Arizona, 86 §8.Ct.

1602 (1968) ; People v. Dorado, 42 Cal. Reptr. 169 at 179,

“We turn to the petitioner’s claim that the State of Con-

necticut denied him the protection of his federal privilege,

We recently elaborated the content of the federal standard

in Hoffman:

“The privilege afforded not only extends to answers that

would in themselves support a conviction * * * but likewise

embraces those which would furnish a link in the chain of

evidence needed to prosecute. * * * (I)f the witness, upon

interposing his claim, were required to prove the hazard

* * * he would be compelled to surrender the very protec.

tion which the privilege is designed to guarantee. To sus-

tain the privilege, it need only be evident from the implica-

tions of the question, in the setting in which it is asked,

that a responsive answer to the question or an explanation

of why it cannot be answered might be dangerous because

injurious disclosure could [12] result.” 341 U.S., at 486-

487, 71 S.Ct. at 818.”

Malloy v. Hogam, 84 S.Ct. 1489 at 1495 and 1496

(1964)

Section 2002 of the Vehicle Code (as it read in 1964) has

been held to violate the Fifth and Fourteenth Amendments

to the United States Constitution where the defendant is

charged with another offense resulting from the accident in

question.

People v. Mitchell, Superior Court of the State of Cali-

fornia for the County of Mendocino, Case No. 3948-C.

Dated : September 8, 1966

Respectfully submitted,

Rawtzs, Ne.son & Gotpen

By [13]

Filed: Jan 13 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

for the County of Mendocino

(Title omitted)

ALTERNATIVE WRIT OF PROHIBITION

The People of the State of California to respondent Jus.

tice Court for the Ukiah Judicial District, County of Men-

docino, State of California:

WHEREAS, the verified petition of JONATHAN TODD

BYERS shows that you, the respondent are proceeding to

arraign and try the petitioner for an alleged violation of

Section 20002, Subdivision (a) of the Vehicle Code of the

State of California, allegedly without jurisdiction to do so;

and

WHEREAS, the said verified petition shows that petition-

er has no plain, speedy and adequate remedy at law, and that

an alternative Writ of Prohibition should issue;

THEREFORE, you are commanded to desist and refrain

from arraigning the petitioner for the entrance of a plea to

Count IT and from trying and taking any further pro-

ceedings whatsoever in connection with said Count II of

the complaint now pending in the Justice Court for the

Ukiah Judicial District, County of Mendocino, State of

California, which said complaint is docketed in Volume 91,

Page 186 of the records of said Court and assigned Case

No. A40692, until further order of this Court, and to show

cause, if any you have, before this Court at 8:30 A. M. on

January 27, 1967, in Department 1 of the above entitled

Court in the Mendocino County Court- [14] house, Ukiah,

County of Mendocino, State of California, or as soon there-

after as the matter can be heard, why you should not be

absolutely restrained from arraigning the defendant for

the purposes of entering a plea upon Count IT and from try-

ing and taking any further proceedings upon said Count

II contained in that complaint docketed in Volume 91,

Page 186 of the records of said Court and assigned Case

No. A40692.

Dated: January 13, 1967.

s/ Rosert L. Winstow

Judge of the Superior Court [15]

(Declaration of Service Omitted in Printing)

Filed : Jan 13 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

for the County of Mendocino

(Title omitted)

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF PETITION FOR

WRIT OF PROHIBITION

Petitioner submits the following points and authorities in

support of his petition for writ of prohibition

A writ of prohibition may issue on the verified petition

of the person beneficially interested to arrest the proceed-

ings of an inferior tribunal exercising judicial functions

when such proceedings are without, or in excess of, the

jurisdiction of such tribunal and there is no plain, speedy,

and adequate remedy in the ordinary course of law.

Code of Civil Procedure, Section 1102

Code of Civil Procedure, Section 1103

When the claimed constitutional infirmity appears on the

face of the statute upon which a persecution is based, pro-

hibition is an appropriate means to challenge the constitu-

tionality of the statute in question.

Canon vs. Justice Court (1964) 61 Cal. 2d 446; 39

Cal. Rptr. 228

Rescue Army vs. Municipal Court (1962) 28 Cal. 2d

460

Moore vs. Municipal Court 170 Cal. App. 2d, 548

Lambert vs. Municipal Court 53 Cal. 2d 690; 3 Cal.

Rptr. 168 [16]

iit

Prohibition is the appropriate remedy to determine

whether or not a statute is being unconstitutionally applied

in any given case when the remedy of appeal is inadequate.

Patterson vs. Muncipal Court 232 Cal. App. 2d 289;

» 42 Cal. Rptr. 769

« .. Moreover, criminal cases tried in municipal courts

get special consideration; Tobriner, J., summarized the

inadequacy of other remedies in these cases in Moore v.

Municipal Court (1959) 170 Cal. App. 2d 548, 552, 339 P.2d

196, 198: “The most recent cases recognize that the require-

ment that a defendant in a criminal case stand trial by a

court which acts without or in excess of its jurisdiction is

an imposition of personal hardship upon the defendant and

a futile expense to the public * * The burden becomes par-

ticularly acute in a situation in which the defendant must

appeal to the uppellate department of the superior court

and he has no remedy of certiorari’ ”.

Patterson vs. Municipal Court, supra 232 Cal. App.

2d 289 ; 42 Cal. Rptr. 769 at 771

The privilege from compulsory self-incrimination created

by the Fifth Amendment to the United States Constitution

is protected by the Fourteenth Amendment against abridg-

ment by the States. [17]

Malloy vs. Hogan (1964) 848.Ct. 1489 at 1493.

A State must apply Federal standards to determine

whether or not the requirements of the Fifth and Four-

teenth Amendments are being met.

Malloy vs. Hogan, supra 84 S.Ct. 1489 at 1493

VIL no,

The privilege against self-incrimination is fulfilled only

when the person is guaranteed the right to remain silent

unless he chooses to speak in the unfettered exercise of his

own will. |

Malloy vs. Hogan, supra 84 8.Ct. 1489 at 1493

Escobedo vs. State of Illinois (1964) 84 S.Ct. 1758

Miranda vs. State of Arizona (1966) 86 S.Ct. 1602

People vs. Dorado 42 Cal. Rptr. 169 at 179

Vill

“We turn to the petitioner’s claim that the State of Con-

necticut denied him the protection of his federal privilege

... We recently elaborated the content of the federal stand-

ard in Hoffman:

“The privilege afforded not only extends to answers that

would in themselves support a conviction * * * but like- [18]

wise embraces those which would furnish a link in the chain

of evidence needed to prosecute. * * * (I)f the witness, upon

interposing his claim, were required to prove the hazard

* * * he would be compelled to surrender the very protec-

tion which the privilege is designed to guarantee. To sus-

tain the privilege, it need only be evident from the implica-

tions of the question, in the setting in which it is asked, that

a responsive answer to the question or an explanation of

why it cannot be answered might be dangerous because

injurious disclosure could result.” 341 U.S., at 486-487, 71

S.Ct. at 818.”

Malloy vs. Hogan, swpra (1964) 84 S.Ct. 1489 at

1495 and 1496

The Fifth Amendment privilege against self-incrimina-

tion does not apply simply to judicial proceedings, but ren-

ders unconstitutional a statute which requires the abridg-

ment of that privilege.

Albertson vs. Subversive Activities Control Board

382 U.S. 70, 86 S.Ct. 194, 15 L.Ed. 2d 165

“Section 4(f) of the Act, the purported immunity provi-

sion, does not save the registration orders from petitioners’

Fifth Amendment challenge. In Counselman v. Hitchcock,

142 US 547, 35 L ed 1110, 12 S Ct 195, decided in 1892, the

Court held ‘That no (immunity) statute which leaves the

party or witness subject to prosecution after he answers

the criminating question put to him, can have the effect of

supplanting the privi- [19] lege . . .,’ and that such a statute

is valid only if it supplies ‘a complete protection from all

the perils against which the constitutional prohibition was

designed to guard ... .’ by affording ‘absolute immunity

against future prosecution for the offense to which the

question relates.’ Id., at 585-586, 35 L ed at 112. Measured

by these standards, the immunity granted by Sec. 4 (f) is

not complete. See Scales v United States, 367 US at 206-

219, 6 L ed 2d at 788-795. It does not preclude any use of

the information called for by Form IS-52, either as evi-

dence or as an investigatory lead. With regard to the act

of registering on Form IS-52a, Sec. 4(f) provides only

that the admission of Party membership thus required shall

not per se constitute a violation of Secs. 4 (a) and (c) or

any other criminal statute, or ‘be received in evidence’

against a registrant in any criminal prosecution; it does

not preclude the use of the admission as an investigatory

lead, a use which is barred by the privilege. Counselman v

Hitcheock, 142 US, at 564-565, 35 L ed at 1114, 1122.”

Albertson vs. Subversive Activities Control Board,

sup 382 US 70, 86 S.Ct. 194, 15 L ed 2d 165 at 172

“The words, ‘No person shall . . . be compelled, in any

criminal case, to be a witness against himself’ mean that no

person shall be compelled to make any statement, orally or

in writing, anywhere or at any time, which may be made

use of against him in any criminal prosecution, then pend-

ing or which might thereafter be brought against him. With

almost complete [20] unanimity the cases find in the words

more than is literally there. The prosecution afforded in.

cludes but goes beyond the assurance to a defendant on

trial in a criminal case that he will not be compelled to

testify against himself. The protection intended applies

even before the commencement of a criminal case and

secures one who may reasonably be expected to be a de-

fendant from furnishing amunition to be used against him.”

People vs. McCormick (1951) 102 Cal. App. 2d Supp.

954 at 957 ; 228 P.2d 349

xiI

An ordinance may not abridge the privilege against self-

incrimination contained in the California Constitution, Arti-

cle I, Section XIII and that privilege does not extend

simply to jurisdictional proceedings, but applies equally to

a statutory interference.

People vs. McCormick, supra (102 Cal. App. 2d Supp.

954

xii

Section 20002 of the Vehicle Code (as it read in 1964) has

been held to violate the Fifth and Fourteenth Amendments

to the United States Constitution where the defendant is

charged wih another offense resulting from the accident

in question.

”

People vs. Mitchell, Superior Court of the State of

California for the County of Mendocino, Case No.

3948-C.

Dated: January 13, 1967.

Respectfully submitted,

Raw1ss, Netson, Gotpen & Povios

By s/ John Poulos {21]

0 Ree Rm Cg ee am rama emma ee eam mee em

—

Banger ee EN, det PE STE OA LR EO REN

Filed: Jan 20, 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

for the County of Mendocino

(Title omitted)

DEMURRER

Comes now the Respondent and demurs to the Petition

on file herein on the grounds that the Petition for Writ of

Prohibition fails to state facts sufficient to constitute a

cause of action.

Dated : January 19, 1967.

Aztuvur B. Broappus

District Attorney

By s/ Tomas B. Sawyer

Thomas B. Sawyer

Deputy District Attorney

Attorney for Respondent [32]

Filed: January 20, 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

for the County of Mendocino

(Title omitted)

POINTS AND AUTHORITIES IN SUPPORT OF

DEMURRER AND IN OPPOSITION TO GRANTING

THE PEREMPTORY WRIT OF PROHIBITION

; 3

The respondent may demur to a petition which is insuffi-

cient as a matter of law.

Faulkner v. Cal. Toll Bridge Authority (1953) 40

Cal. 2d 317 ; 364 P.2d 659.

The petition alleges that Section 2002(a) of the Vehicle

Code is unconstitutional as in violation of the state and

federal constitutional provisions against self-incrimination.

The petition contains all the essential facts of the record

below and presents the constitutional question only. If the

Vehcile Code is constitutional, then the petition must fail.

It is submitted that the Vehicle Code is constitutional on

two grounds, first on the grounds that the privilege against

self-incrimination does not apply to the information re-

quested in the “hit and run” situation and secondly, driving

a vehicle on a public highway constitutes a waiver of the

constitutional right to the extent here involved.

2A.

The privilege against self-incrimination is not applicable.

Section 20002(a) as here involved reads as follows: [22]

“The driver of any vehicle involved in an accident

resulting in damage to any property ... shall...

(2) Leave in a conspicuous place on the vehicle or

other property damaged a written notice giving the

name and address of the driver and of the owner of

the vehicle involved and a statement of the circum.

stances thereof and shall without unnecessary delay

notify the police department of the city wherein the

collision occurred or, if the collision occurred in un-

incorporated territory, the local headquarters of the

Department of the California Highway Patrol.”

The requirement here does not require admission of

crime. It is equally applicable whether the driver is at

fault or is wholly innocent of crime or civil fault. All stat

utes are to be construed to be constitutional if possible.

In re Thevenins’ Adoption (1961) 189 CA2d 245; 11

Cal. Rptr. 219)

Accordingly, this statute can only mean that the driver is

required to give only essential information. Requiring

name and address and the fact that an accident had oc-

curred, does not incriminate the driver, unless there were

other circumstances not required to be reported. If a crimi-

nal case were pending and a “suspect” were under investi-

gation, then the rule would apply as set forth in the

Miranda, Escobedo, and Dorado cases. The rationale of

those cases was to prevent police or other [23] officers of

the government extracting information without advising

the suspect of his rights. This role is recent as applied to

State Courts, (see People v. Cahan, 202 P.2d 905) and was

adopted as the only way to curb police abuses. In the Vehi-

cle Code section, there is no problem of police brutality, or

eavesdropping, or in-custody harrassment. None of the

dangers mentioned in the landmark cases is present. Were

the driver is in fact innocent of negligence, civil wrong, or

erime, there is privilege to protect.

Surely it would not be fair to say that a driver must

leave his name when he is innocent, but not when he is at

fault. This situation is not like the registration cases cited

by petitioner.

A note in 3 Cal. Law Rev. 75 (1914) discusses a case

holding valid a predecessor hit and run section ag a con-

stitutional regulation of highways.

People v. Diller, 24 CA 799 ; 142 P. 797

The claim was raised of self-incrimination in violation of

Section 13, Article 1 of the Constitution of California.

Similar statutes have been upheld against this claim in

Mo-Ex parte Kneedly, 243 Mo. 632, 147 SW 983. People v.

Rosenehimer, 209 NY 115, 102 N.E. 530, NY, case held

state could prohibit operation of auto altogether and, there-

fore, could attach such conditions ag they saw fit. “The

driver of an automobile in the operation thereof exercises

a privilege and not a right and as to such privilege it is

competent for [24] the Legislature to prescribe the condi-

tions upon which it shall be exercised.” This is approved

by California decision in summarizing the Mo. and New

York cases, People v. Diller, 142 P. 797, 798. The Diller

case expressly refuses to decide the result where a crime

was committed. “Since no crime was committed, the con-

stitutional provision could have no application and in such

case the constitutional rights of defendant could not be

infringed. The Court adopts the Missouri Kneedler case

as follows :

“Requirement of identity is lawful. The law does not

make the accident a crime.”

Other examples: Chauffer and owner to register nameg

and number and display number on vehicle for obvious

purpose of identification,

Persons in charge of mines must report accidents,

Physicians show prescription lists.

Dealers must deliver for inspection foods carried in

stock.

Pawnbrokers must show book of articles received by

him.

“We are not aware of any constitutional provision

designed to protect a man’s conduct from judicial in.

quiry, or aid him in fleeing from justice.” (Mo. case)

“There can be no question but that this act including

Section 12, (requires stop and give name and address)

is a reasonable exercise of [25] the police power. The

petitioner does not contend otherwise.” (Mo. case)

People v. McCormick (1951) 102 Cal. App. 2d Supp. 954;

228 P.2d 349, relates to the constitutionality of County

ordinance requiring registration by members of so-called

Communist organizations. The Court held the requirement

a violation of the self-incrimination provisions of the State

Constitution. The case is distinguishable from the Vehicle

Code section because the membership in the organization

is a link in a chain of evidence of violation of the Criminal

Syndicalism Act, which has already taken place. The de-

cision itself distinguishes the vehicle act.

“Nor is the ordinance a simple police power regulation

requiring the identification of citizens. The require-

ment of section 482, Vehicle Code, that the driver of a

vehicle involved if an accident shall give his name,

address and the registration number of his vehicle,

does not necessarily implicate the driver in the com-

mission of a crime, for an accident is not a crime, per

se. The constitutionality of this and similar statutes is

approved in People v. Diller, 1914, 24 Cal. App. 799,

142 P. 797. The ordinance we are considering does not

come into operation, however, until a violation of the

Criminal [26] Syndicalism Act has occurred, and only

one who is violating that act is compelled to register

and by registering furnish, quite likely, some of the

clews needed to establish his guilt. No such statute as

this is looked upon with favor in the Diller case.”

Albertson v. Subversive Activities Control Bd., 382 US

10, 16 L.Ed. 2d 165 (1965) holds that the act requiring the

Communist Party members to register violated the con-

stitutional right to privilege against self-incrimination.

Here again we are not dealing with a registration require-

ment generally, but only members of a “highly select

group inherently suspect of criminal activities. Petitioners’

daims are not asserted in an essentially regulatory in-

quiry, but against an inquiry in an area permeated with

criminal statutes, where response to any of the form’s ques-

tions in context might involve the petitioners in the admis-

siion of a criminal element of a crime.” (156 Ed. P. 172).

The Court held the requirement that all persons file an

income tax return was readily distinguishable as valid,

citing the income tax case, U. S. v. Sullivan, 274 US 259, 7,

L.Ed. 1037.

The Escobedo cases (Escobedo v. Ill., 84 S.Ct. 1758, Mi-

randa v. Arizona, 86 §.Ct. 1802, People v. Dorado, 42 Cal.

Rep. 169) do not purport to affect the constitutionality of hit

and run statutes. These cases are all concerned with pro-

tecting [27] the right of a person accused, or suspected

of an offense from interrogation by police or similar off.

cers. The emphasis is on the atmosphere surrounding the

suspect and the need for protection. The Miranda case,

particularly, shows that this is the area of concern as the

following quotations show. Miranda v. Arizona, supra,

holds that “the person must be warned that he has a right

to remain silent, that any statement he does make may be

used as evidence against him, and that he has a right to the

presence of an attorney, either retained or appointed.”

“From the foregoing (discussion of interrogation

practices) we can readily perceive an intimate connec.

tion between the privilege against self-incrimination

and police custodial questioning. It is fitting to turn to

history and precedent underlying the self-incrimina.

tion clause to determine its applicability in this situ.

ation.” (16 L.Ed. 2d, p. 714)

The privilege is a

“Right to a private enclave where he may lead a

private life. That right is the hallmark of our democ-

racy.” U.S. v. Grunewald, 233 F.2d 556, reviewed 353

U.S. 391. 1 L.Ed. 2d, 931, P. 715.

“The question in these cases is whether the privilege

is fully applicable during a period of custodial interro-

gation.”. 715. [28]

Malloy v. Hogan, 378 U.S. 1, 12 L.Ed. 2d, 653, 84 S.Ct.

1489 (1964) “necessitates an examination of the scope of

the privilege in state cases as well.” p. 717

“The volitariness doctrine in the state cases, as

Malloy indicates, encompasses all interrogation prac-

tices which are likely to exert such pressure upon an

individual as to disable him from making a free and

rational choice.” p. 717

“The entire thrust of police interrogation there,

(Escobedo) as in all the cases today, was to put the

defendant in such an emotional state as to impair his

capacity for rational judgment.” p. 718

“General on the scene questioning as to facts sur-

rounding a crime or other general questioning of

citizens in the fact finding process is not affected by

our holding . . . . In such situations the compelling

atmosphere inherent in the process of in-custody inter-

rogation is not necessarily present. p. 725

In summary, the Vehicle Code Section does not violate

the privilege against self-incrimination granted by the

State and Federal Constitutions. The case law has extended

the privilege from the courtroom to include detention and

predetention interrogation, and to registration as a mem-

ber of a [29] criminal society. Thus far it has not been ex-

tended to situations requiring giving information such as

filing income tax returns, reporting on employment, busi-

ness activities, etc.

We submit that under the general police power the State

may make reasonable regulations of the non-criminal activi-

ties of its citizens, and as a concomitant thereof, require

persons to supply information. The operation of a motor

vehicle upon a highway is a dangerous activity and requires

for the safety of users, reasonable regulations. The State

may forbid the activity altogether and hence may require

as a condition of the exercise of the privilege to use the

highways of this State the reasonable requirement that

persons involved in accidents comply with Section 20002(a)

of the Vehicle Code. The requirement applies alike to those

who are innocent as to those who are guilty. The problem

of protecting the person from police brutality, psychologi-

cal pressure, trickery is not involved. The person’s right to

dignity and privacy is not infringed.

No person has a right to a “private enclave” in the

traffic lane of a busy freeway. The operation of a danger.

ous instrumentality which in fact kills more citizens each

year on our highways than are lost in warfare, requires

reasonable regulations of the operator. This regulation has

been affirmed as constitutional since the early days of the

use of the automobile.

We request the writ be denied. [30]

Respectfully sumitted,

Arruour B. Broappvus

District Attorney

By s/ Tomas B. Sawyer

Thomas B. Sawyer

Deputy District Attorney

Attorney for Respondent [31]

MINUTES AND ORDERS, SUPERIOR COURT.

DEPARTMENT No. 1, Vol. 34, page 275

January 27, 1967

Hon. Robert L. Winslow, presiding

Clerk: Myrtle Turner

Reporter: Waldo Munday

Bailiff : Ken Stewart

This action came on the petition for writ of prohibition,

John Poulos appearing for plaintiff and Tom Sawyer, Dep.

D. A., appearing for defendant. Petition argued and sub-

mitted. Demurrer argued and submitted.

DEPARTMENT No. 1, Vol. 34, page 285

February 17, 1967

Hon. Robert L. Winslow, presiding

Clerk: Myrtle Turner

Reporter: Waldo Munday

Bailiff : Richard Phelps

The Court: The writ of prohibition sought by petitioner

should be issued as prayed for. [33]

eee OAR

Filed : Feb. 17, 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

for the County of Mendocino

(Title omitted)

MEMORANDUM OPINION

Petitioner Jonathan Todd Byers seeks a writ of prohibi-

tion to prevent the Justice Court of the Ukiah Judicial

District from proceeding with a prosecution charging a

violation of Vehicle Code Section 20002 (The hit-run Stat-

ute). The complaint involved consists of two counts, the

first of which charges a violation of Vehicle Code Section

21750, and which alleges that the defendant “did then and

there while overtaking another vehicle proceeding in the

same direction fail to pass to the left at a safe distance

as required by said section of the Vehicle Code.”

At oral argument it was stipulated that the alleged vio-

lation of Vehicle Code Section 21750 resulted in an impact

between the vehicle driven by the defendant and another

vehicle and that the damage from this impact was the dam-

age referred to in Count 2 of the complaint, where it is

charged that the defendant “being then and there the

driver of a vehicle involved in an accident resulting in

injury to property did fail to immediately stop such vehicle

at the scene of the accident, did fail to locate and notify

the owner or person in charge of such property of the name

and address of the driver and owner of the vehicle in-

volved, did fail to leave in a conspicuous place on the vehi-

cle, or other B4] property damaged, a written notice

giving the name and address of the driver and of the owner

of the ve

stances tl

notify the

California

A failur

stitutes a

imprisonn

months o1

Pursuant

Vehicle Ci

both fine a

The quest:

ant who i:

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wise comp.

such comy

could be t

tion of Sec

appear, th

Vehicle Ci

situation.

Vehicle Ce

to inerimi

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In analy

that the h

California

799, and I

those case

States Con

not applic

ce nen ee en ne ETE I

vehicle involved and a statement of the circum-

s thereof, and did without necessary delay fail to

the local headquarters of the Department of the

rnia Highway Patrol.”

ilure to comply with Vehicle Code Section 20002 con-

s a misdemeanor, which is subject to punishment by

onment in the County Jail for not to exceed six

s or by a fine of not to exceed $500.00 or by both.

ant to the provisions of Section 42001 a violation of

e Code Section 21750 is subject to the possibility of

ne and imprisonment and constitutes a misdemeanor.

iestion for decision in this case is whether a defend-

10 is charged with a crime which is alleged to have

| property damage to another can also be charged

nother crime for not identifying himself and other-

mplying with the provisions of Section 20002, though

ompliance would obviously provide evidence which

be used against him in the prosecution for a viola-

Section 21750 of the Vehicle Code. As will hereafter

+, the Court has concluded the Section 20002 of the

e Code cannot be constitutionally applied in this

on. Such an application of Section 20002 of the

2 Code violates the 5th Amendment’s privilege not

iminate oneself. The Court’s reasons for this con-

follow.

nalyzing this problem we start with the fact [35]

1e hit-run statutes have been held constitutional in

nia in the case of People vs. Dillard, 24 Cal. App.

id People vs. Fardera, 33 Cal. App. 8. At the time

cases were decided the provisions of the United

Constitution set forth in the 5th Amendment were

plicable to the states by reason of the holding in

Twining vs. New Jersey, 211 U. S. 78, 53 L. Ed. 97, 29

S.Ct. 14; Adamson vs. California, 332 U. S. 46, 97 8. Ed.

1903, 67 S.Ct. 1672.

Since the Dillard and Fardera cases the United States

Supreme Court has over-ruled the Twining and Adamson

cases in Malloy vs. Hogan, 12 Lawyers Edition 2nd 653,

decided June 15, 1964. The Malloy case constitutes a clear,

unequivocal holding that the privilege against self incrimi-

nation set forth in the 5th Amendment applies to the states

and that the state courts must recognize the 5th Amend-

ment and apply Federal standards in interpreting that

amendment. In view of Malloy, it is now obviously neces-

sary to reanalyze the hit-run situation and determine its

constitutionality based upon current Federal law. Before

examining the Federal cases it should be noted that most

state courts have upheld hit-run statutes against the claim

that they are self-incriminating. It should also be noted

that these state court cases all predate Malloy vs. Hogan.

These cases have, therefore, been interpreting their own

constitutional provisions by their [36] own standards and

not by Federal standards. The court in Malloy vs. Hogan,

supra, stated :

“The 14th Amendment secures against state invasion

the same privilege that the 5th Amendment guarantees

against Federal infringement—the right of a person

to remain silent unless he chooses to speak in the exer-

cise of his own will and to suffer no penalty for said

silence.”

The United States Supreme Court in Malloy vs. Hogan

cites with approval Hoffman vs. United States, 341 U. 8.

179, 95 L. Ed. 1118, 71 S. Ct. 814:

“The privilege afforded not only extends to answers

that would in themselves support a conviction . . . but

likewise embraces those which would furnish a link in

the chain of evidence needed to prosecute . . . If the

witness, upon interposing his claim, were required to

prove the hazard .. . he would be compelled to sur-

render the very protection which the privilege is de-

signed to guarantee. To sustain the privilege it need

only be evident from the implications of the question,

in the setting in which it is asked, that a responsive

answer to the question or an explanation of why it

cannot be answered might be dangerous because in-

jurious disclosures could result.”

The Malloy Court went on as follows : [37]

“We also said that in applying that test the judge

must be ‘perfectly clear’, from a careful consideration

of all the circumstances in the case, that the witness is

mistaken, and that the answer cannot possibly have

such tendency to incriminate.”

The Malloy Court characterized their holding as a return

to principles enunciated in the case of Boyd vs. The United

States, 116 U. S. 616, 29 L. Ed. 746. The Boyd Court held

unconstitutional an act authorizing a court of the United

States in revenue cases to require the defendant to produce

his books and records in court where upon his failure to do

so the allegations of the attorney for the People in support

of a motion for the production of the books would be con-

sidered as confessed. The court in holding the statute un-

constitutional said:

“Now it is elementary knowledge that one cardinal

rule of the Court of Chancery is never to decree a

discovery which might tend to convict the party of a

crime ... and a compulsory discovery by exacting the

party’s oath or compelling the production of his pri-

vate books and papers to convict him of crime, or to

forfeit his property, is contrary to the principles of

free government.”

The court continued :

“Constitutional provisions for the security of per-

sons and property should be liberally construed. A

close and literal construction deprives [38] them of

half their efficacy and leads to gradual depreciation

of the right, as if it consisted more of sound than in

substance. It is the duty of the court to be watchful for

the constitutional rights of the citizen and against any

stealthy encroachments thereon.”

In Counselman vs. Hitchcock, 35 Lawyers Edition 1110

(1892) the Court stated:

“It is impossible that the meaning of the constitu-

tional provision can only be that a person shall not be

compelled to be a witness against himself in a criminal

proceeding against himself. It would doubtless cover

such cases; but it is not limited to them. The object

was to insure that a person should not be compelled

to acting as a witness in any investigation that would

give testimony which might tend to show that he him-

self committed a crime. The privilege is limited to

criminal matters, but it is as broad as the mischief

against which it seeks to guard.”

The Court continued:

“In June, 1807, Chief Justice Marshall, in the Cir-

cuit Court of the United States for the District of

‘irginia, in Burr’s trial (1 Burr’s Trial 244), on the

uestion whether the witness was privileged not to

ecuse himself, said: ‘If the [39] question be of such

description that an answer to it may or may not

riminate the witness, according to the purport of that

nswer, it must rest with himself, who alone can tell

hat it would be, to answer the question or not. If, in

uch a case, he say upon his oath, that his answer

ould criminate himself, the Court can demand no

ther testimony of the fact . . . According to their

latement’ (The counsel for the United States) ‘a wit-

ess can never refuse to answer any question, unless

iat answer unconnected with other testimony would

2 sufficient to convict him of crime. This would be

ndering the rule almost perfectly worthless. Many

nks frequently compose that chain of testimony

hich is necessary to convict any individual of a

rime. It appears to the Court to be the true sense of

ie rule that no witness is compellable to furnish any

ne of them against himself. It is certainly not only

possible but a probable case, that a witness, by dis-

osing a single fact, may complete the testimony

gainst himself; and to every effectual purpose accuse

imself as entirely as he would by stating every cir-

umstance which would be required for his conviction.

hat fact of itself might be unavailing, but all other

ts without it would be insufficient. While that re-

ains concealed [40] within his own bosom, he is safe;

ut draw it from thence, and he is exposed to a prose-

ition. The rule which declares that no man is com-

ellable to accuse himself, would most obviously be

fringed by compelling a witness to disclose a fact of

this description. What testimony may be possessed, 0

is obtainable, against any individual, the Court ca

never know. It would seem, then, that the Court ough

never to compel a witness to give an answer which di:

closes a fact that would form a necessary and esser

tial part of a crime which is punishable by the laws.

t is hard to imagine a more damaging link in the chai

in a prosecution under Vehicle Code Section 21750 ths

that which establishes that the defendant was driving th

vehicle involved. Yet this is the very information whic

the defendant is compelled to divulge under penalty «

being charged with a violation of Vehicle Code Sectic

20002.

The District Attorney has urged that “the State ma

forebid the activity altogether and, hence, may require :

a condition of the exercise of the privilege to use the hig!

ways of this State the reasonable requirement that persor

involved in accidents comply with Section 20002, Subdiv

sion A, of the Vehicle Code. This argument is answered |

the recent opinion in Bagley vs. Washinigton Townshi

Hospital District 65 A.C. 540.

“Since no provision of constitutional or statutor

law purports to give plaintiff a right to secure or [4!

retain employment by the Board, defendant urges thi

his right to terminate her employment knows no leg;

limit.

“Despite the antiquity of this argument, its reaso

ing today stands utterly discredited. Although an i

dividual can claim no constitutional right to obta

public employment or to receive any other public

conferred benefit (the use of the highways) the go

ernment cannot condition admission to such employ-

ment or receipt of such benefits upon any terms that

it may choose to impose. As Professor Thomas Reed

Powell long ago observed, ‘Logically a thing which may

be absolutely excluded is not the same as a thing

which may be subjected to burdens of a different kind,

even though such burdens would be regarded by all as

less onerous than the burden of absolute exclusion.

The ‘power of absolute exclusion’ is a term not identi-

cal with the ‘power of relative exclusion’ or the ‘power

to impose any burdens whatsoever’ ”

(Powell, The Right to Work for the State (1961), 16

Columbia Law Review 99, 111.)

“Today courts and commentators alike recognize without

question that the power of government, Federal or State,

to withhold benefits from its citizens does not encompass a

supposed “lesser” power to grant such benefits upon an

arbitrary deprivation of constitutional right.”

“The faulty logic inherent in defendant’s [42] proffered

syllogism was rejected by this Court in Danskin vs. San

Diego Unified School District (1946), 28 Cal. 2d 536. That

case involved a school district which had undertaken to

confine the use of its buildings to organizations whose mem-

bers gave a satisfactory account of their views. In the

course of that opinion we declare:

‘The State is under no duty to make school buildings

available for public meetings (Citations). If it elects

to do so, however, it cannot arbitrarily prevent any

members of the public from holding such meetings.

(Citations) Nor can it make the privilege of holding

them dependent on conditions that would deprive any

. members of the public of their constitutional rights. A

State is without power to impose an unconstitutional

requirement as a condition for granting a privilege, ~

even though the privilege is the use of State property

(Citations) ...’”

Subsequent to the Bagley case the United States Su-

preme Court also rejected this argument in an opinion

filed January 16, 1967, in the case of Garrity vs. State of

New Jersey. In that case the United States Supreme Court

stated :

“There are rights of constitutional stature whose

exercise a State may not condition by the exaction of

a@ price.”

The Court thereafter indicates that the 14th Amendment

prohibition against coerced confessions is such a right. [43]

It is obvious, therefore, that a criminal culpability by rea-

son of having been a driver of the vehicle involved under

Count 1 of the Complaint in this case is enough of a risk

that a confession made to avoid prosecution under Vehicle

Code Section 20002 would not be admissible as being a

coerced confession under the compulsion of the statute. It

is clear, therefore, that the defendant had the right to not

incriminate himself by acknowledging that he was the driver

of the vehicle. In this connection see also Spevack vs. Klein,

35 L. W. 4140. Another interesting case is Hinchcliff vs.

Clark, 230 F. Supp. 91, where the Court held that a tax-

payer can refuse to supply information that would incrimi-

nate him. In United States vs. Silverstein, 314 Federal

Reporter 789, 790, the Court held that an appearance

before a Special Internal Revenue Agent is in the nature

of an appearance in a criminal investigation and that the

claim of privilege against a summons directing production

of an individual’s papers was proper. If it is proper to

withhold the information under the 5th Amendment privi-

lege one can certainly not be prosecuted for so doing.

This Court has previously decided the problem before it

in the case of People vs. James Mitchell, Mendocino County

Action No. 3948-C. In that case the Court concluded that

the provisions of Vehicle Code Section 20002 “cannot be

constitutionally applied to the defendant under the circum-

stances of this case where he is charged with another

offense resulting from the accident in question. It seems

[44] clear that the statute attempts to require him to sup-

ply information which will complete the chain of circum-

stances necessary to convict him of the charge set forth in

Count 1 of the Information. Even if we were to hold that

the information supplied in compliance with those Vehicle

Code sections could not be used in evidence against the

defendant, the above cases indicate that this is not suffi-

cient to preclude his assertion of the 5th Amendment. Any

information supplied by him in compliance with those sec-

tions can certainly be used to develop other information,

which could then be used to convict him of the charge set

forth in Count 1. This is enough of a risk to authorize the

defendant to assert the 5th Amendment and to, therefore,

fail to comply with the provisions of Section 20002.”

From the foregoing it follows that the Writ of Prohibi-

tion sought by the petitioner should be issued as prayed

for.

Dated this 17th day of February, 1967.

8/ Roseat L. Winstow

Judge [45]

Filed: February 24, 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

for the County of Mendocino

No. 28366

Jonathan Todd Byers,

Petitioner,

Vs.

The Justice Court for the Ukiah Judicial

District, County of Mendocino, State of

California,

Respondent.

ORDER OVERRULING DEMURRER

The demurrer in the above entitled matter came on regu-

larly to be heard in Department 1 of the above-entitled

Court at 8:30 a.m. on January 27, 1967, RAWLES, NEL-

SON, GOLDEN & POULOS, by JOHN W. POULOS,-ESQ,

appeared as attorney for Petitioner and ARTHUR B.

BROADDUS, District Attorney, by THOMAS B. SAW-

YER, Deputy District Attorney, appeared as attorney for

Respondent. The matter having been fully argued and sub-

mitted to the Court for decision, and the Court having

filed herein its written opinion on Friday, February 17,

1967, and good cause appearing therefore:

IT IS HEREBY ORDERED that said demurrer be, and

the same hereby is, overruled.

Dated: February 24, 1967.

s/ Rosert L. WinsLow

Robert L. Winslow, Judge

of the Superior Court [46]

Filed: March 21, 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

for the County of Mendocino

No. 28366

Jonathan Todd Byers,

Petitioner,

The Justice Court for the Ukiah Judicial

District, County of Mendocino, State of

California,

Respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above entitled matter came on regularly for trial

at 8:30 a.m. on January 27, 1967, in Department I of the

above entitled Court, the Honorable Robert L. Winslow,

Judge, presiding, without a jury, and was actually tried

on said date.

RAWLES, NELSON, GOLDEN & POULOS by JOHN

W. POULOS, ESQ. appeared as attorneys for Petitioner

and ARTHUR B. BROADDUS, District Attorney, by

THOMAS B. SAWYER, Deputy District Attorney, ap-

peared as attorney for Respondent.

Pursuant to the stipulation of the parties, the above en-

titled matter was submitted to the Court upon the verified

Petition on file herein and the demurrer of the Respondent,

on file herein, together with certain stipulations entered

into by the parties at said hearing, and the Court having

Se a

considered the evidenec, and said cause having been sub-

mitted for decision, and the Court having filed its written

opinion hereim oa February 17, 1967, in favor of Petitioner

and against Respondent now makes the following Findings

of Fact and Conclusions of Law:

FINDINGS OF FACT

On August 22, 1966, a criminal complaint was issued and

docketed in the Respondent Justice Court for the Ukiah [48]

Judicial District, County of Mendocino, State of California,

charging Petitioner JONATHAN TODD BYERS in Count

I with a violation of Section 21750 of the California Vehicle

Code and in Count II with a violation of Section 20002,

Subdivision (a) of the Vehicle Code of the State of Cali-

fornia. Said complaint was thereafter amended on its face

to add the allegation that the offenses charged in Count I

and Count II of said complaint were the same class of

offense and connected together in their commission.

Count I of said complaint alleges:

That said defendant did in the Ukiah Judicial District,

County of Mendocino, State of California, on or about

the 20th day of August, 1966, commit the crime of MIS-

DEMEANOR, to-wit, violation of Section 21750 of the

Vehicle Code of the State of California, in that said

defendant did then and there while overtaking another

vehicle proceeding in the same direction, fail to pass

to the left at a safe distance as required by said Sec-

tion of the Vehicle Code.

Count II of said complaint alleges:

_.. that said defendant did in the Ukiah Judicial Dis-

trict, County of Mendocino, State of California, on or

about the 20th day of August [49] 1966, commit the

crime of MISDEMEANOR, to-wit, violation of Subdi-

vision (a) of Section 20002 of the Vehicle Code of the

State of California, in that said defendant being then

and there the driver of a vehicle involved in an acci-

dent resulting in injury to property did fail to imme-

diately stop such vehicle at the scene of the accident,

did fail to locate and notify the owner or person in

charge of such property of the name and address of

the driver and owner of the vehicle involved, did fail

to leave in a conspicuous place on the vehicle or other

property damaged a written notice giving the name

and address of the driver and of the owner of the vehi-

cle involved and a statement of the circumstances

thereof and did without necessary delay, fail to notify

the local headquarters of the Department of the Cali-

fornia Highway Patrol.

The alleged violation of Vehicle Code Section 21750 as

alleged in Count I of said complaint resulted in an impact

between the vehicle driven by the Petitioner and another

vehicle which caused property damage and that the damage

from this impact was the resulting injury to property al-

leged in Count II of said complaint. [50]

Petitioner was duly arrested on said charges contained

in said complaint and held in the custody of the Sheriff of

the County of Mendocino, State of California. Thereafter,

and pursuant to Petitioner’s request, The Honorable Hale

McCowan, Jr., Judge of the Justice Court for the Ukiah

. cp A te a

Judicial District, County of Mendocino, State of California,

released Petitioner upon his own recognizance from the cus-

tody of the said Sheriff and Petitioner was at the time of

the filing of the Petition herein, free on his own recogni-

zance.

Petitioner was duly arraigned in the said Justice Court

and, within the time provided by law, Petitioner filed his

written Demurrer to the complaint, and the charges set

forth therein, attacking Vehicle Code Section 20002, Sub-

division (a) as being unconstitutional, both upon its face

and as applied to Petitioner in said complaint, upon the

grounds that it violated the Petitioner’s privilege against

self-incrimination and his right to remain silent, secured to

Petitioner by the Fifth and Fourteenth Amendments to the

United States Constitution and Article I, Section XIII of

the California Constitution.

VII

Said Demurrer was argued and after said hearing the

matter was taken under submission, and on December 7,

1966, the said Justice Court overruled said Demurrer and

set the date for the arraignment of Petitioner for the pur-

poses of entering a plea upon said charges contained in

said Complaint for December 9, 1966. At the request of

Petitioner, said Justice Court continued said arraignment

until January 13, 1967, at the hour of 11:00 o’clock a.m.

Vill

On January 13, 1967, at the hour of 9:30 o’clock am.

Petitioner presented his verified Petition for Writ of Pro-

hibition requesting an alternative Writ of Prohibition and

an Order to Show Cause why a peremptory Writ of Prohi-

bition should not issue and on said date and at said time,

an Alternative Writ of Prohibition issued, which Alternative

Writ of Prohibition provided as follows:

THEREFORE, you are commanded to desist and re-

frain from arraigning the petitioner for the entrance

of a plea to Count II and from trying and taking any

further proceedings whatsoever in connection with

said Count IT of the complaint now pending in the Jus-

tice Court for the Ukiah Judicial District, County of

Mendocino, State of California, which said complaint is

docketed in Volume 91, Page 186 of the records of

said Court and assigned Case No. A40692, until further

order of this Court, and to show cause, if any you

have, before this Court at 8:30 a.m. on January 27,

1967, in Department I of the above entitled Court in

the [52] Mendocino County Courthouse, Ukiah, County

of Mendocino, State of California, or as soon there-

after as the matter can be heard, why you should not

be absolutely restrained from arraigning the defend-

ant for the purposes of entering a plea upon Count IT

and from trying and taking any further proceedings

upon said Count IT contained in that complaint dock-

eted in Volume 91, Page 186 of the records of said

Court and assigned Case No. A40692.

Unless restrained and prohibited by order of this Court,

the said Justice Court threatens to and will require Peti-

tioner to enter a plea upon the charges contained in Court

II of said complaint and said Justice Court will pass upon,

hear and try said charges.

Petitioner is the party having beneficial interest in this

_ proceeding.

No prior application for the Writ sought herein or any

other writ pertaining to this matter has been made by the

Petitioner herein.

XII

In the event any fact herein found shall be deemed or

considered a conclusion of law, ti shall then be incorpor-

ated [53] in and become a part of the Conclusions of Law

hereinafter made.

And from the foregoing Findings of Fact, the Court

makes the following:

CONCLUSIONS OF LAW

Petitioner has mo plain, speedy and adequate remedy in

the ordinary course of the law.

The said Justice Court is wholly without jurisdiction and

is acting in excess of its jurisdiction, to proceed to arraign

and try the Petitioner on the charges alleged in Court II

of said complaint, to-wit, an alleged violation of Section

20002, Subdivision (a) of the Vehicle Code of the State of

California, in that under the facts hereinabove found, said

Section, 20002, Subdivision (a) violates Petitioner’s privil-

ege against self-incrimination secured to him by the Fifth

Amendment to the United States Constitution as made ap-

plicable to the State of California by the Fourteenth

Amendment to the United States Constitution.

Petitioner is emtitled to a permanent Writ of Prohibition

commanding Resspondent Justice Court for the Ukiah Ju-

dicial District, C‘ounty of Mendocino, State of California,

to absolutely andl permanently desist and refrain from ar-

raigning the Petitioner for the purposes of entering a plea

upon the charges contained in Count IT of said complaint

and from hearing, trying and taking any further proceed-

ings whatsoever on the allegations and charges contained

in Count II of said complaint.

In the event any Conclusion herein made shall be deemed

or considered a Finding of Fact, it shall then be incorpor-

ated in and become a part of the Findings of Fact herein-

above made.

Dated: March 21, 1967.

s/ Rosert L. WinsLow

Robert L. Winslow

Judge of the Superior Court [55]

A ay

A hee \wemeernewee, ©

Jungments Book 44 Page 309

Entered March 21, 1967

Filed : March 21, 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

for the County of Mendocino

No. 28366

Jonathan Todd Byers,

Petitioner,

vs.

The Justice Court for tlie Ukiah Judicial

District, County of Mendocino, State of

California,

Respondent.

JUDGMENT GRANTING PERMANENT

WRIT OF PROHIBITION

This Court having issued an Alternative Writ of Prohi-

bition and an Order to Show Cause in the above-entitled

matter on January 13, 1967, and this matter having come

on for hearing and trial on January 27, 1967, with

RAWLES, NELSON, GOLDEN & POULOS by JOHN W.

POULOS, ESQ. appearing as attorneys for Petitioner and

ARTHUR B. BROADDUS, District Attorney, by THOM-

AS B. SAWYER, ESQ., Deputy District Attorney, ap-

pearing as attorney for Respondent, and the matter being

submitted to the Court by stipulation of the parties upon

the verified Complaint and Demurrer filed herein and the

Court having considered the evidence and certain stipula-

tions entered into at said trial, and the matter having been

submitted to the Court for its decision and the Court hav-

ing filed its written Opinion herein and written Findings

of Fact and Conclusions of Law having been made and

filed, and it appearing that Petitioner has no plain, speedy

or adequate remedy at law, and that a permanent Writ of

Prohibition should issue, and good cause appearing there-

for:

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED that a Permanent Writ of Prohibition be issued

commanding Respondent, the Justice Court for the Ukiah

Judicial District, Count of Mendocino, State of Califor-

nia, to absolutely and permanently desist and refrain from

arraigning the Petitioner for the [56] entrance of a plea

to the charges contained in Count II of that certain Com-

plaint entitled, “In the Justice Court for the Ukiah Judi-

cial District, County of Mendocino, State of California,

The People of the State of California, Plaintiff vs. Jona-

than Todd Byers, Defendant,” which said Complaint was

docketed in Volume 91, Page 186 of the records of said

Court and assigned Case No. A40692 and further com-

manding said Respondent to absolutely and permanently

desist and refrain from hearing, trying any further pro-

ceedings whatsoever on the charges and allegations con-

tained in Count IT of said Complaint.

Dated: March 21, 1967.

8/ Rosert L. Winstow

Robert L. Winslow

Judge of the Superior Court [57]

(Declaration of Service Omitted in Printing)

Filed : March 22, 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of Califorma

for the County of Mendocino

No. 28366

Jonathan Tode Byers,

Petitioner,

The Justice Court for the Ukiah Judicial

District, County of Mendocino, State

of California,

Respondent.

NOTICE OF ENTRY OF JUDGMENT

TAKE NOTICE that on March 21, 1967, Judgment was

entered in the above-entitled action in favor of Petitioner

and against Respondent.

Dated : March 21, 1967.

RAWLES, NELSON, GOLDEN & POULOS

By s/ Joun W. Povtos

John W. Poulos

Attorneys for Petitioner [58]

(Declaration of Service Omitted)

Filed: March 22, 1967

Viola N. Richardson, County Clerk

The Superior Court of the State of California

County of Mendocino

No. 28366

Jonathan Todd Byers,

Petitioner,

The Justice Court for the Ukiah Judicial

District, County of Mendocino, State

of California,

Respondent.

NOTICE OF APPEAL

The Justice Court for the Ukiah Judicial District, County

of Mendocino, State of California, Defendant-Respondent,

appeals to the District Court of Appeal of the State of

California, First Appellate District, from the Judgment.

DATED: March 22, 1967.

8/ Axruur B. Broappus

Arthur B. Broaddus

District Attorney of Mendocino

County and Attorney

for Appellant. [59]

Filed Sep 16 1969

William I. Sullivan, Clerk

In the Supreme Court of the State of California

In Bank

S. F. 22634

Jonathan Todd Byers,

Plaintiff and Respondent,

The Justice Court for the Ukiah Judicial

District of Mendocino County,

Defendant and Respondent ;

The People,

Real Party in Interest and Appellant.

The People appeal from a judgment of the Superior

Court of Mendocino County granting a writ of prohibition

restraining the Justice Court for the Ukiah Judicial Dis-

trict from proceeding further against plaintiff Jonathan

Todd Byers on count two of a criminal complaint filed in

the justice court against him. Count one of the complaint

charged Byers with improper and unsafe passing in viola-

tion of section 21750 of the Vehicle Code,’ and [1°] count

two charged him with violating one of the “hit-and-run”

provisions in the Vehicle Code, section 20002, subdivision

(a),? by leaving the scene of an automobile accident result-

1. Section 21750 provides: ‘‘The driver of a vehicle overtaking

another vehicle proceeding in the seme direction shall pass to the

left at a safe distance without interfering with the safe operation

of the overtaken vehicle, subject to the limitations and exceptions

hereinafter stated.’’

2. At the time of the accident section 20002, subdivision (a),

provided: ‘‘The driver of any vehicle involved in an accident re-

sulting in damage to any property including vehicles shall immedi-

*Page numbering appearing at foot of page of original certified

opinion.

ing in property damage without furnishing his identity and

certain other information to the owner or person in charge

of the damaged property.

Byers demurred to count two on the ground that section

20002, subdivision (a), was unconstitutional as applied be-

cause it violated his privilege against self-incrimination.

It was stipulated by counsel that the two alleged Vehicle

Code violations arose out of the same [2] occurrence, ie.,

that the alleged improper passing caused the accident from

which Byers assertedly departed without providing statu-

torily required information. The justice court overruled the

demurrer.

Upon application by Byers the superior court granted a

writ of prohibition restraining further proceedings on

count two on the ground that section 20002, subdivision

(a), could not be applied against Byers under the circum-

stances of the case without infringing his privilege against

self-incrimination under the Fifth Amendment to the Con-

stitution of the United States.

The Fifth Amendment privilege against self-incrimina-

tion—a protection against state as well as federal govern-

ately stop the vehicle at the scene of the accident and shall then

and there either: (1) Locate and notify the owner or person in

charge of such property of the name and address of the driver and

owner of the vehicle involved, or; (2) Leave in a conspicuous place

on the vehicle or other property damaged a written notice giving

the name and address of the driver and of the owner of the vehicle

involved and a statement of the circumstances thereof and shall

without unnecessary delay notify the police department of the city

wherein the collision occurred or, if the collision occurred in un-

incorporated territory, the local headquarters of the Department

of the California Highway Patrol. Any person failing to stop or to

comply with said requirements under such circumstances is guilty

of a misdemeanor and upon conviction thereof shall be punished by

imprisonment in the county jail for not to exceed six months or by

a fine of not to exceed five hundred dollars ($500) or by both.’’

In 1967 this section was amended in several minor respects not

pertinent to this case.

mental action (Malloy v. Hogan, 378 U.S. 1)—ordinarily

provides a defense to prosecution for failure to supply

statutorily required information in cases where the defend.

ant has reasonable ground to apprehend a substantial

danger that such information, if supplied, would be avail.

able to prosecuting authorities and could be used as a sig.

nificant “ ‘link in a chain’” of evidence tending to estab.

lish his guilt of some criminal offense. (Marchetti v. United

States, 390 U.S. 39, 48; Grosso v. United States, 390 U8,

62, 66-67; Haynes v. United [3] States, 390 U.S. 85, 95.97,

101; Albertson v. SACB, 382 U.S. 70, 77-79, 81.)

The crucial inquiry in determining the applicability of

the privilege to a statutory disclosure-of-information re-

quirement is whether the individual seeking to avoid dis.

closure faces “substantial hazards of self-incrimination”

because in his particular case there is a substantial likeli-

hood that information disclosed by him in compliance with

the statute could by itself or in conjunction with other evi-

dence be used to secure his conviction of a criminal offense,

(Marchetti v. United States, supra, 390 U.S. 39, 61.)

In Marchetti, Grosso, Haynes, and Albertson, the registra-

tion statutes with which petitioners failed to comply re.

quired a “highly selective group” of persons “inherently

suspect” of criminal activity (Albertson v. SACB, supra,

382 U.S. 70, 79) to disclose information concerning acts or

activities which were either clearly illegal under federal

law (as in Albertson) or very likely illegal under federal

or state law. However, in each case the crime-directed

character of the registration requirement was viewed as

important only insofar as it supported the claims of the

specific petitioners that they faced “substantial hazards of

self-incrimination” justifying invocation of the privilege.

In Marchetti the court specifically recognized that there

might be circumstances in which a person subject to the

registration requirements of the federal wagering tax

could not demonstrate that compliance would create for

[4] him “substantial hazards of self-incrimination” so as

to warrant his invocation of the privilege. (Marchetti v.

United States, supra, 390 U.S. 39, 61; compare Haynes v.

United States, supra, 390 U.S. 85, 97; Grosso v. United

States, supra, 390 U.S. 62, 64.)3

Four Court of Appeal cases have considered whether the

privilege against self-incrimination precludes prosecution

under “hit-and-run” statutes. In the early case of People v.

Diller, 24 Cal. App. 799, the court rejected the argument

that the “hit-and-run” statute there in issue [5] was inher-

3. The court in Marchetti noted that ‘‘Wagering and its ancil-

lary activities are very widely prohibited under both federal and

state law.’’ (390 U.S. at p. 44.) However, the court discussed in

detail the state laws prohibiting gambling and wagering in Con-

necticut, the state where petitioner allegedly conducted his wager-

ing activities, before concluding that ‘‘Every aspect of petitioner’s

wagering activities . . . subjected him to possible state or federal

prosecution’’ (td. at p. 47) and that ‘‘In these circumstances, it

ean scarcely be denied that the obligations to register and to pay

the occupational tax created for petitioner ‘real and appreciable’

... hazards of self-inerimination’’ (id. at p. 48).

In Grosso the court also referred to ‘‘the various state and fed-

eral penalties which have been imposed upon wagering’’ but

pointed out specifically that ‘‘Pennsylvania, in which petitioner

allegedly accepted wagers, has adopted a comprehensive statutory

system for the punishment of gambling and ancillary activities’’ in

ose en) Grosso was entitled to invoke the privilege. (390

S. 62, 64.

It is possible that certain persons engaged in wagering in Nevada,

where only ‘‘lotteries and certain other wagering activities taxable

under [the federal wagering tax]’’ are prohibited (Marchetti v.

United States, supra, 390 U.S. at pp. 45-46), are not privileged to

refrain from complying with the provisions of the federal wagering

tax.

ean Ae ett eet

ently in conflict with the then-controlling state constitu.

tional prohibition against self-incrimination. There was no

evidence to show that had the defendant driver complied

with the statute he might have incriminated himself, and

the court expressly left open the question whether the

privilege could be asserted in a case where there was a

showing that, because of the particular facts surrounding

the “hit-and-run” accident, the defendant might reasonably

have feared that the disclosure of information required by

the statute would tend to incriminate him.‘ Diller was [6]

followed in People v. Fodera, 33 Cal. App. 8.

In People v. Limon, 252 Cal. App. 2d 575, a defendant

convicted of a “hit-and-run” violation (Pen. Code, § 20001

{covering accidents involving personal injury] established

that prior to the accident he had been drinking rather

4. Two leading decisions by courts in other states have similarly —

upheld the essential validity of ‘‘hit-and-run’’ statutes against —

claims that they were inherently in conflict with state constitutional

prohibitions against compulsory self-incrimination while leaving

m the question whether in certain narrow circumstances a claim

of privilege would excuse noncompliance with such statutes. (Com-

monwealth v. Joyce (1951) 326 Mass. 751, 756 [97 N.E. 2d 192];

Ex Parte Kneedler (1912) 243 Mo. 632, 640 [147 S.W. 983].)

It would appear that the recent decision of the Supreme Court

of Illinois in People v. Lucus (1968) . Ill. 2d .... [243 N.E. 2d

228], construing the federal constitutional privilege, follows the

same approach as Diller and the cases cited above. The court stated:

‘*Using the standard of Marchetti v. United States .. . the [Illinois

‘*hit-and-run’’] statute’s provisions do not present a substantial

and real hazard of [self-]incrimination.’’ (243 N.E. 2d at p. 231)

The court did not expressly leave open the question ed the

federal privilege would ever excuse noncompliance with a ‘‘hit-and-

run’”’ statute, but the statement of facts indicates that this

tion was implicitly left open. The appellant in Lucus was

convicted of nor charged with any other offense in connection with

the accident which gave rise to his statutory duty to identify him-

self. Nor is there any indication that any such charge would have

been warranted, In other words, there was no showing that the

appellant had any basis for a reasonable fear that compliance with

the ‘‘hit-and-run’’ statute would lead to self-incrimination.

maiwdaewreans F

SSSAP ERS PEELS TAA

freely, and he claimed that the “hit-and-run” statute was

unconstitutional as applied to him because by stopping and

jdentifying himself as required by the statute he might

have incriminated himself with regard to a possible charge

of driving under the influence of liquor. Although the de-

fendant thus alleged the sort of specific fear of self-incrimi-

nation carefully distinguished in Diller, the court disposed

of defendant’s claim merely by citing Diller for the prop-

osition that the “validity of the statute was established

long ago.” (252 Cal. App. 2d at p. 579.)

The later case of People v. Bammes, 265 A.C.A. 713,

722-723, rejected the claim of privilege by a defendant [7]

who was convicted of “hit-and-run” and charged with but

acquitted of vehicluar manslaughter in connection with the

accident furnishing the basis of the “hit-and-run” convic-

tion. The court sought to distinguish the cases of Marchetti,

Grosso, and Haynes on the ground that the statutes there

involved were directed almost exclusively against a highly

selective group of individuals inherently suspect of crimi-

nal activities whereas the “hit-and-run” statutes do not re-

quire the driver to admit involvement in the accident but

only to identify himself as a driver of a vehicle “which was

at or near the scene of the accident when it occurred.” (Id.

at p. 723.)

The court in Bammes inaccurately characterized the “hit-

and-run” statute involved in that case (Veh. Code, § 20001),

a statute similar in all relevant particulars to the statute

involved in the present case; it also inaccurately distin-

guished Marchetti, Grosso, and Haynes from the case be-

fore it. First, although it is true that neither section 20001

nor section 20002 explicitly requires drivers involved in

accidents to identify themselves as involved drivers, neither

—

a a

can fairly be read to require only that an involved driver

identify himself as merely having been “at or near the

scene of the accident when it occurred.” Even if these

statutes could [8] be so read, it seems clear that in almost

all circumstances it would be obvious to the person to whom

the identification was made that the person supplying

identification was a driver involved in the accident.

Second, although not all drivers involved in accidents are

lawbreakers, there is a substantial correlation between

being a driver involved in an accident and being a driver

who has contemporaneously violated one or more vehicle

laws.

“Hit-and-run” cases should be contrasted with Shapiro

v. United States, 335 U.S. 1, where the statute involved was

directed at a class of individuals not ordinarily suspect of

criminal activities, namely, dealers in commodities. The

court there held that no violation of the privilege against

self-incrimination was involved in a prosecution based in

part on information contained in records required to be

kept for price regulation purposes where the records were

of a kind customarily kept by such persons and where the

required records had assumed “public aspects” which ren-

dered them at least analogous to public documents.

Although the group subject to “hit-and-run” statutes,

drivers involved in accidents, is not inherently suspect of

criminal activities to the same extent [9] as the groups

regulated by the statutes in Marchetti, Grosso, and Haynes,

there is in the accident cases, unlike the situation in

Shapiro, a substantial shadow of suspicion cast upon the

persons regulated by the statute. Where circumstances in

addition to membership in a suspect group regulated by a

disclosure statute show that compliance with the statute

ee aw ee Oe ee ee a eee ee

RS A A CE

would involve self-incrimination, the rules set forth in

Marchetti, Grosso, and Haynes, are applicable.

Decisions of the United States Supreme Court make

clear that the privilege against self-incrimination is a per-

sonal one, and that whether the government may require

a disclosure depends upon the facts of each case. Invoca-

tion of the privilege is not limited to situations in which

the purpose of the inquiry is to get an incriminating ans-

wer. It is the effect of the answer that is determinative.

“To sustain [a claim of] privilege, it need only be evident

from the implications of the question, in the setting in

which it is asked, that a responsive answer to the question

or an explanation of why it cannot be answered might be

dangerous because injurious disclosure could result.” (Hoff-

man v. United States, 341 U.S. 479, 486-487; see Mansfield,

The Albertson Case: Conflict [10] Between the Privilege

Against Self-Incrimination and the Government’s Need for

Information, 166 Sup. Ct. Rev. 103, 147-148.)

Nor is invocation of the privilege limited to situations

in which the information requested would, without more,

support a criminal conviction. “The privilege . . . not only

extends to answers that would in themselves support a con-

viction . . . but likewise embraces those which would fur-

nish a link in the chain of evidence needed to prosecute

....” (Id. at p. 486; accord, Marchetti v. United States,

supra, 390 U.S. 39, 48; Albertson v. SACB, supra, 382 U.S.

70, 78; Malloy v. Hogan, supra, 378 U.S. 1, 11-12; see

McCormick, Evidence (1954) § 129, p. 271.) For example,

in Albertson the court held that orders compelling peti-

tioners to complete and file form IS-52 (which sought dis-

closure from members of “Communist-action organiza-

tions” of the name of the organization, place and date of

birth, and a list of offices held in the organization and

duties thereof) violated the privilege because a response

to any of the questions “might be used as evidence in or at

least supply investigatory leads to a criminal prosecution,”

(382 U.S. at p. 78.) [11]

We are satisfied that the privilege is applicable when g

driver of a motor vehicle involved in an accident is con.

fronted with a statutory requirement to stop and divulg

his identity and reasonably believes that compliance with

the statute will result in self-incrimination. (See Mansfield,

supra, 1966 Sup. Ct. Rev. 103, 121-122; McCormick, supra,

§ 134, pp. 283-284;> cf. Rembrandt v. City of Cleveland

(Ohio App. 1927) 161 N.E. 364 [ordinance requiring

drivers involved in accidents to make full report to police].)

“That [the driver’s] operation of a motor vehicle was

causally related to an injury to person or property or to

a particular incident on the highway may be crucial ina

subsequent criminal prosecution. From other information

it may be clear that whoever was driving a given vehicle

was guilty [12] of a crime, and the only question is whether

the defendant was the operator of that vehicle.” (Mansfield,

supra, 1966 Sup. Ct. Rev. 103, at p. 122.)

It does not matter, as the People appear to contend, that

in some “hit-and-run” situations prosecuting authorities

may be able to establish the driver’s identity beyond a rea-

5. McCormick asserts that ‘‘When .. . the circumstances indi-

cate reckless or wanton conduct by the person compelled to [com-

ply with a ‘‘hit-and-run”’ statute] the required statement identify-

ing himself as a person involved clearly meets the accepted test of

incrimination, that is, the existence of substantial danger that the

required statement will furnish evidence of an essential element

of acrime.’’ (P. 283.) However, MsCormick feels that since a “‘hit-

and-run”’ statute is a reasonable police power regulation the privi-

lege must yield ‘‘to the extent necessary to make effective this

power of protecting safety on the highways.’’ (P. 284.)

ae oS bal Sal al RSE we —=_aeSeolLUlC<“ WDD _. <= .

sonable doubt from other evidence such as eyewitness

jdentification of the driver, his vehicle, or its license plate.

“(T]he basic purposes that lie behind the privilege against

self-incrimination ... relate ... to preserving the integrity

of a judicial system in which even the guilty are not to be

convicted unless the prosecution ‘shoulder the entire load.’ ”

(Tehan v. Shott, 382 U.S. 406, 415.) “Governments, state

and federal, are . . . constitutionally compelled to estab-

lish guilt by evidence independently and freely secured,

and may not by coercion prove a charge against an accused

out of his own mouth.” (Jd. at p. 414.)

The People urge that the privilege may not be asserted

as a defense to compliance with section 20002 of the Penal

Code because the state may regulate the use of its highways

and the operation of motor vehicles by conditioning par-

ticipation in these activities on compliance with section

20002 and other “hit-and-run” [13] statutes even in cases

where this entails a forced waiver of the constitutional

privilege against self-incrimination. (See generally, Note,

Required Information and the Privilege Against Self-In-

crimination, 65 Colum. L. Rev. 681, 686-687.) This theory,

employed in a number of state court decisions prior to

Malloy v. Hogan, supra, 378 U.S. 1, to reject claims that

“hit-and-run” statutes violated state constitutional prohi-

bitions against compulsory self-incrimination (e.g. State

v. Razey (1929) 129 Kan. 328, 282 Pac. 755; People v.

Rosenheimer, 209 N.Y. 115; see People v. Diller, supra, 24

Cal. App. 799) is untenable.

In Bagley v. Washington Township Hospital Dist., 65

Cal. 2d 499, 503-507, we held that the state may not con-

dition the enjoyment of some benefit or privilege on the

nonassertion of a constitutional right where “the utility of

imposing the conditions [does not] manifestly outweigh

any resulting impairment of constitutional rights.” As wil]

be demonstrated hereinafter, the objective underlying ge¢.

tion 20002 of the Vehicle Code can be achieved by a means

unoffensive to the privilege against self-incrimination.

Since compliance with section 20002 of the Vehicle [14]

Code may require disclosures coming within the privilege

against self-incrimination and since the purpose of that

section is to protect property owners from financial loss by

requiring drivers involved in accidents resulting in prop

erty damage to disclose their identities (People v. Stans.

berry, 242 Cal. App. 2d 199, 203; Miglierini v. Havemana,

240 Cal. App. 2d 570, 573), the present case exemplifies

a conflict much discussed by commentators in recent years,

the conflict between the individual’s right to protection

under the Fifth Amendment privilege against self-incrimi-

nation and the government’s substantial interest in having

citizens report or otherwise divulge information to effee.

tuate various regulatory measures designed to promote the

public welfare. (See, e.g., Mansfield, supra, 1966 Sup. Ct.

Rev. 103; McKay, Self-Incrimination and the New Privacy,

1967 Sup. Ct. Rev. 193, 204-224, 228-232; Note, supra, 6

Colum. L. Rev. 681.)

Obviously, “it is imperative to effect an accommodation

that will permit government to collect vitally needed infor.

mation without impairing the purposes of the privilege.”

(McKay, supra, at p. 204.) Decisions of the United States

Supreme Court suggest a form of accommodation which

provides the appropriate resolution of the conflicting in-

terests involved in the present case. In brief, these decisions

[15] provide (1) that the state may require a person to

disclose information otherwise subject to a claim of privi-

lege if in place of the protection conferred by the privi-

lege there is substituted another protection, having the

same scope and effect as the privilege, namely, immunity

from use of the information or its fruits in connection with

a criminal prosecution against the person; and (2) that,

when consistent with both legislative intent and effective

enforcement of the criminal laws, a court may hold that

such immunity exists, and therefore that disclosure is re-

quired, despite the absence of any specific legislative grant

of immunity.

In Ullmann v. United States, 350 U.S. 422, 438-439, the

United States Supreme Court stated that the “sole con-

cern” of the privilege is “with the danger to a witness

forced to give testimony leading to the infliction of ‘pen-

alties affixed to the criminal acts ... .’” which such testi-

mony may disclose and that “Once the reason for the privi-

lege ceases, the privilege ceases.” In Marchetti v. United

States, supra, 390 U.S. 39, 58, the court reaffirmed the

proposition that “the privilege against self-incrimination

may not properly be asserted if other protection is granted

which ‘is so broad as to have the [16] same extent in scope

and effect’ as the privilege itself.”

Recent decisions have made it clear that an individual

raising a valid claim of privilege need not be given com-

plete immunity from prosecution in order to be compelled

to testify. (Gardner v. Broderick, 392 U.S. 273, 276; Al-

6. Language in Counselman v. Hitchcock, 142 U.S. 547, 585

(“‘[N]o statute which leaves the party or witness subject to prose-

eution after he answers the criminating question . . . can have the

effect of supplanting the privilege ”*], justified until recently

speculation that only complete immunity from prosecution for an

offense revealed by information the disclosure of which is com-

pelled would supplant the privilege. (See Mansfield, supra, 1966

men} Rev. 103, 164; McKay, supra, 1967 Sup. Ct. Rev. 193,

bertson v. SACB, supra, 382 U.S. 70, 79-81; Murphy y,

Waterfront Comm., 378 U.S. 52, 79.) The rule is, as stated

in Gardner: “Answers may be compelled regardless of the

privilege if there is immunity from federal and state uge

of the compelled testimony or its fruits in connection with

a criminal prosecution against the person —

(Italics added.)

This rule is the logical corollary of the rule that when

information is the product of an involuntary disclosure

secured in violation of the privilege the person disclosing

the information is merely protected [17] from prosecution

on the basis of such information and the fruits thereof and

not from any and all prosecution for offenses to which the

information relates. (E.g., Garrity v. New Jersey, 385 US.

493; Miranda v. Arizona, 384 U.S. 436, 479 [majority opin.

ion], 500, 522 [dissenting opinions].)

Accordingly, if the disclosnres compelled by section

20002 of the Vehicle Code and the fruits of such disclosures

may not be used in a criminal prosecution relating to the

accident, the requirements of the privilege against self.

incrimination are met. Tnere is no statute explicitly pro.

viding for evidentiary use restrictions for persons com-

plying with section 20002, subdivision (a), in cases where

such persons would otherwise have a valid claim of privi-

lege. Therefore, we must consider whether such restrictions

may properly be imposed by this court.

There is precedent for judicial imposition of appropriate

restrictions on the use of statements in order to compe

otherwise privileged testimony. In Murphy v. Waterfront

Comm., supra, 378 U.S. 52, petitioners were subpoenaed

to testify at a hearing conducted by the bistate Waterfront

Commission Of New York Harbor concerning a work stop-

i el

page at certain piers. Although granted immunity from

prosecution under the laws of the two states [18] whose

criminal laws were potentially applicable, New York and

New Jersey, petitioners refused to respond to questions on

the ground that the answers might tend to incriminate

them under federal law, to which the grant of immunity

did not purport to extend. On certiorari, petitioners at-

tacked a decision of the New Jersey Supreme Court up-

holding civil contempt judgments rendered against peti-

tioners for their refusals to answer. The United States

Supreme Court held that (1) “a state witness may not be

compelled to give testimony which may be incriminating

under federal law unless the compelled testimony and its

fruits cannot be used in any manner by federal officials in

connection with a criminal prosecution against him” «and

(2) “in order to implement this constitutional rule . . . the

Federal Government must be prohibited from making any

such use of compelled testimony and its fruits... .” (Id. at

p. 79.)

In Marchetti v. United States, supra, 390 U.S. 39, 58, the

government urged the court to permit continued enforce-

ment of the federal occupational tax on wagerers, including

the registration provisions, by imposing restrictions from

use of self-incriminating information employed in Murphy.

The court recognized this suggestion [19] as “in principle

an attractive and apparently practical resolution of the

difficult problem before us.” Since the court explicitly as-

sumed that the principal purpose of the federal wagering

tax was “the collection of revenue, and not the punishment

of gamblers” (id. at p. 57) and recognized that the registra-

tion requirement was a regulatory requirement designed to

assure collection of the tax, the “problem” before the court

was essentially the same problem presented in the present

case, the accommodation of the individual’s right to assert

his privilege against self-incrimination and the gover.

ment’s interest in requiring the disclosure of information

to effectuate a legitimate civil regulatory measure.

Although it recognized that the judicial-imposition.of.

use-restriction approach was theoretically acceptable as a

device for reconciling conflicting private and governmenta]

interests, the court declined to use it in Marchetti. The

court felt this approach was inappropriate in the circum.

stances of that case for two reasons: (1) The very terms of

the wagering tax statute evidenced Congress’ intent that

information obtained from registration should be provided

to interested prosecuting authorities, and the Internal Rey.

enue Service evidently [20] consistently carried out this in.

tention, so that “the imposition of use-restriction would

directly preclude effectuation of a significant element of |

Congress’ purposes in adopting the wagering taxes.” (Id.

at pp. 58-59) (2) Imposition of such restrictions would

oblige state prosecuting authorities to establish in each

case of alleged illegal wagering that their evidence was

untainted by any connection with information divulged

because of the wagering tax, so that the enforcement of

state gambling laws might be seriously hampered. (I4d.)’

7. In Grosso v. United States, supra, 390 U.S. 62, a companion

case involving the federal excise tax on wagering, the court also

declined to impose use-restrictions on information obtained as a

consequence of payment of the tax. ‘‘[I]t would be inappropriate

to impose such restrictions upon one portion of a statutory system,

when we have concluded that it would be improper, for reasons

discussed in Marchetti, to do so upon ‘an integral part’ [footnote

omitted] of the same system.’’ (390 U.S. at p. 69.) In Haynes y.

United States, supra, 390 U.S. 85, a case involving a claim of

privilege as a defense to failure to register a certain firearm as

required by federal law, the court declined, ‘‘for reasons indicated

in Marchetti, supra, and Grosso, supra, to impose [use-]restric-

tions....’’ (390 U.S. at p. 100.)

fe ee aw TFT Se eS S | Ft fe =

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With regard to the second of these reasons, it must be

conceded that one result of any statutory or judicial re-

striction on the use of compulsorily divulged information

or its fruits in connection with a criminal prosecution

against the person divulging the information is that in any

such prosecution the government [21] must bear the bur-

den of establishing that its evidence was untainted by any

connection with the information divulged, i.e., that the evi-

dence came from an independent source. (Marchetti v.

United States, supra, 390 U.S. 39, 59, fn. 17.) If this fact

alone were sufficient cause to reject the use-restriction ap-

proach, the United States Supreme Court would not have

adopted it in Murphy v. Waterfront Comm., supra, 378

US. 52, 79, in solving a problem involving a state demand

for information and a federal prosecutorial interest nor

recognized ‘‘ as “in principle an attractive and apparently

practical” solution to the problem in Marchetti v. United

States, supra, at p. 58, which involved a federal demand for

information and both state and federal prosecutorial in-

terests. Indeed, an excessive concern for the government’s

burden of showing that evidence used in a prosecution is

untainted is inherently at odds with the Supreme Court’s

recently clarified basic position that immunity sufficient to

justify compelling a disclosure otherwise privileged need

not be complete immunity from prosecution.

The reason the Supreme Court pointed to the potential

burden on state prosecuting authorities as one basis for

rejecting the use-restriction approach in [22] Machetti was

most likely the court’s concern with a delicate problem of

conflicting federal and state interests. In Murphy, in order

to “accommodate the interests of the State and Federal

Governments in investigating and prosecuting crime” the

court held that a state may compel a witness to give tegtj.

mony which may be incriminating under federal law and

that if it does so “the Federal Government [is] prohibited

from making any . . . use of [such] compelled testimony

and its fruits [in connection with a criminal prosecution

against him].” (378 U.S. 52, 79, italics added.) This accom.

modation was consistent with the traditional notion that ip

our system of federalism the states and not the federg

government have primacy in the field of law enforcement,

In Marchetti, on the other hand, the imposition of use.

restrictions on state prosecuting officials, as urged by the

United States, would have involved putting a possibly

considerable burden on state prosecuting authorities in

order to serve a federal interest in obtaining information

as an incident to a purported but dubious interest in raising

revenue, information which the court felt Congress could

secure by “other methods, entirely consistent with constite-

tional limitations. . . .” (390 U.S. at p. 60.) Thus, the [23]

accommodation suggested by the federal authorities in

Marchetti would have been consistent with neither the

court’s concern for federal-state comity nor with the ruk

prohibiting infringement of constitutional rights for a

otherwise legitimate state purpose where that purpose

could be accomplished by a less onerous means. (Eg,

Aptheker v. Secretary of State, 378 U.S. 500, 512-513;

Sherbert v. Verner, 374 U.S. 398, 407.)

In the present case, on the other hand, the imposition by

this court of a restriction on the use by prosecuting az-

thorities of information supplied in compliance with sec

tion 20002, subdivision (a), of the Vehicle Code is not only

“in principle an attractive and apparently practical resol.

tion of the difficult problem before us” (Marchetti v. United

rr i ed re ee

States, supra, 390 U.S. 39, 58), but it will neither frustrate

any apparent significant legislative purpose nor unduly

hamper criminal prosecutions of drivers involved in acci-

dents resulting in damage to the property of others.

The face of the statute does not disclose any legislative

intent to use the required disclosure of information to

facilitate prosecutors for possible criminal acts occurring

in connection with automobile accidents involving property

damage. If the driver can [24] locate the owner or person

in charge of the property damaged he need only disclose

to that individual his and the automobile owner’s name and

address; if he cannot locate such person, he must leave a

written notice containing the same information and “a

statement of the circumstances” surrounding the accident

as well as “notify” local law enforcement officials, ostensibly

to make sure that the owner or person in charge of the

damaged property can contact the driver by consulting the

written notice or, if it has been removed or destroyed, such

officials.

Not only does the statute on its face fail to disclose any

| legislative concern with facilitating criminal prosecutions

but the courts have consistently recognized that the pur-

pose of the statute is to promote the satisfaction of civil

liabilities arising from automobile accidents involving prop-

erty damage by inducing all drivers involved in such acci-

dents to identify themselves to the owners or persons in

charge of any damaged property. (People v. Stansberry,

supra, 242 Cal. App. 2d 199, 203; Miglierini v. Havemann,

supra, 240 Cal. App. 2d 570, 573.) In short, in enacting sec-

tion 20002 and its predecessor sections the Legislature was

concerned only with protecting the interests of private

parties who suffer loss as the result of property damage

.ecurring in automobile accidents. [25]

ett

Nor is section 20002 part of any larger legislative sche

to facilitate criminal prosecutions. Rather, it is related ip

coverage and intent to the financial responsibility Igy

(Veh. Code, §§ 16000-16553)® the primary purpose of whid

is to protect persons who while lawfully using the public

highways suffer financial loss as a result of another’s negli.

gent use of the highways. (Mission Ins. Co. v. Feldt, @

Cal. 2d 97, 101; Interinsurance Exchange v. Ohio Cas. Ing

Co., 58 Cal. 2d 142, 153.)

Finally, it is instructive, in determining legislative jn.

tent, to consider an analogous field of legislation involving

a similar conflict between requiring disclosures for nop.

criminal purposes and the privilege against self-incrimina.

tion. In the statutes requiring drivers involved in accidents

resulting in personal injury or death to iile accident rm

ports, the Legislature has explicitly subordinated the

state’s prosecutorial interest to the interest [26] in obtain.

ing the disclosure.?

8. Section 16000 requires the driver of every vehicle involved in

an accident resulting from the operation of a motor vehicle on the

public highways and damaging the property of any one person in

an amount exceeding $200 to report the accident to the Depart

ment of Motor Vehicles. With certain exceptions, every such drive

must then demonstrate the financial ability to satisfy any j

ment that may be recovered against him or the owner of the

for damage to property or suffer a suspension of his driving privi-

leges. (Veh. Code, §§ 16020, 16050-16060, 16080.)

9. Section 20012 of the Vehicle Code provides that ‘‘All r

quired accident reports . . . shall be without prejudice to the indivi-

dual so reporting and shall be for the confidential use of the De

partment of Motor Vehicles and the Department of the California

Highway Patrol, except that the Department of the California

Highway Patrol or the law enforcement agency to whom the aeei-

dent was reported shall disclose the contents of the reports . . . te

any person who may have a proper interest therein, including, but

not limited to [various enumerated private parties possibly

financially and/or legally by the accident], . . .’’ (Italics added)

al te

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In the present case there is no problem of conflicting

state and federal interests; it is the state which both de-

mands disclosure of information in “hit-and-run” accidents

and prosecutes those who commit criminal acts on the high-

ways. Imposing use-restrictions in the present case merely

involves this court in making a judgment, based on an

assessment of probable legislative intent, that the Legis-

lature would prefer to have the provisions of section 20002

of the Vehicle Code upheld even in cases involving possible

criminal misconduct at the cost of some burden on prose-

cating authorities in criminal cases arising out of or re-

lated to an accidemt covered by that section rather [27]

than avoid that burden at the cost of significantly frus-

trating the important noncriminal objective of the legis-

lation. Imposition of use-restrictions in the present case

will not preclude the Legislature from overriding our de-

cision if it wishes by simply enacting legislation declaring

that information derived from disclosures required by sec-

tion 20002, subdivision (a), may be used in criminal prose-

cations, in which case the privilege could be claimed in

appropriate situatiions.

There is another significant distinction between the cir-

cumstances in Marchetti and the circumstances in the pres-

ent case. In Marchetti the imposition of use-restrictions on

information obtaimed as a result of compliance with the

federal wagering tiax would have had a much more sweep-

ing effect on state law enforcement than would the imposi-

tion of such restriictions here. It appears that most—per-

Section 20013 provides that except to prove compliance or noncom-

pliance with the requirement that an accident report be filed no

accident report may be ‘‘used as evidence in any trial, civil or

criminal, arising out of an accident, ...’’

78 .

haps almost all—violators of state criminal prohibition,

against wagering and related activities are subject to th

disclosure requirements of the federal wagering tax. (Mar.

chetti v. United States, supra, 390 U.S. 39, 44-46, fns. 54)

Thus, the imposition of use-restrictions in order to permit

Congress to compel all wagerers to comply with the wager.

ing tax law would have meant that in almost all state prose.

cutions for wagering or related illegal activities the state

would be forced, if the defendant proved [28] compliance

with the federal law, to establish that its evidence was m.

tainted. This situation might indeed seriously hamper suc

state prosecutions. By contrast, far from all criminal viol.

tions committed on the highways by drivers of motor

vehicles involved property damage. The burden resulting

from the imposition of use-restrictions in the latter site.

ation will exist only in those instances where property dam-

age occurs in the course or as a result of a criminal viols

tion committed on the highways by a driver.

We conclude that criminal prosecutions of drivers in.

volved in accidents will not be unduly hampered by rules

that prosecuting authorities may not use information &

vulged as a result of compliance with section 20002, sub

division (a), of the Vehicle Code or the fruits of such i»

formation and that in prosecutions of individuals wh

have complied with that section the state must establish

that its evidence is not the fruit of such information.

Since imposition in the present case of use-restrictions

as described above will neither frustrate any apparent

legislative purpose behind the enactment of section 2002

of the Vehicle Code nor unduly hamper criminal prosec-

tions of drivers involved in accidents; [29] and since the

imposition of such restrictions will not preclude the state

Pr POS ae OO OT OT DB OO I SS as

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[egislature from overriding our decision if it wishes, the

reasons impelling the United States Supreme Court to re-

ject the “attractive and apparently practical” suggestion

of imposing restrictions in Marchetti v. United States,

supra, 390 U.S. 39, 58, are ebsent in the present case, and

we must, in order to fulfill our responsibility to protect the

privilege against self-incrimination, hold that where com-

pliance with section 20002 of the Vehicle Code would other-

wise be excused by an assertion of the privilege, compli-

ance is, as in other cases, mandatory and state prosecuting

authorities are precluded from using the information dis-

dosed as a result of compliance or its fruits in connection

with any criminal prosecution related to the accident.

In the present case, the superior court correctly con-

duded that at the time of the accident, Byers had reason-

able ground to apprehend that if he stopped to identify

himself as required by section 20002 of the Vehicle Code he

would confront a substantial hazard of self-incrimination.

The court had before it the fact that Byers was charged

with violating section 21750 of the Vehicle Code and the

stipulation that the accident [30] giving rise to the obli-

gation under section 20002 resulted from the alleged viola-

tion of section 21750.

Although the privilege against self-incrimination was

applicable, the privilege does not furnish a defense to a

charge of violation of section 20002 because the purpose

of the privilege is satisfied by the rule we adopt today that

prosecuting authorities are precluded from using informa-

tion divulged in compliance with section 20002 and the

fruits of such information in circumstances where the

driver would otherwise be constitutionally privileged not

to comply. Thus, the judgment granting the writ of pro-

hibition cannot be affirmed on the theory, employed by the

superior court, that Byers was privileged to withhold the

information required by section 20002.

However, it does not follow that the judgment must

reversed; we must determine whether, in light of the fag

that we here announce a doctrine new to this state’s juris.

prudence, fairness dictates that Byers not be punished for

his failure to comply with section 20002.

In Murphy v. Waterfront Comm., supra, 378 US. 52

79-80, the Uniited States Supreme Court reversed the peti.

tioners’ contempt convictions because although under the

holding of the case they could be required to testify [31]

in view of the court-declared restrictions on the use of their

testimony in any federal prosecution, at the time they origi-

nally refused to answer they had a reasonable fear that

their testimomy could be used by federal authorities in a

criminal prosecution. At the time they refused to answer,

petitioners’ claim of privilege was ineffective under then.

controlling decisions. The court, in holding for the first

time that the jprivilege was applicable and that it was satis.

fied by use-restrictions, felt that fairness required that peti-

tioners be given the opportunity to avoid contempt convie

tions by answering the questions put to them in light of

the new protection afforded them as a matter of constitn-

tional right umder the holding of the case.

In the presient case, Byers is in a position substantially

similar to that of petitioners in Murphy. Byers had a rea-

sonable basis for fearing that compliance witb the “hit-and:

run” statute would produce incriminating evidence which

could be used against him in a criminal prosecution. At

the time of the accident, Byers’ claim of privilege was not

supported by then-controlling decisions.'° This court [32]

now holds that the privilege against self-incrimination is

applicable to such a case, as Byers urges, but we also

establish today for the first time restrictions on the use of

information disclosed in compliance with the “hit-and-run”

statute, and on the basis of such restrictions, we hold that

compliance with the statute is not excused by the existence

of the privilege. ;

The differences between the position of the petitioners

in Murphy and Byers in this respect are not material.

Byers did not expressly claim the privilege when he left

the scene of the accident, but if he had stopped to do so, he

would in the light of existing law thereby have rendered

nugatory any claim of privilege. Although in Murphy the

court in vacating the contempt judgment provided that the

petitioners would then be required to testify in the light of

the new protection afforded them should the state authori-

ties still wish to question them, in the instant case, it does

not appear that any valid purpose would be served by re-

quiring Byers to now comply with the “hit-and-run” stat-

ute. [33]

We conclude, on the basis of Murphy v. Waterfront

Comm., supra, that it would be unfair to hold that although

Byers correctly asserted that the Fifth Amendment privi-

lege was applicable to the question of his compliance with

10. In this respect Byers is in a better position than the peti-

tioners in Murphy. They were faced with clear decisions that the

privilege was inapplicable, whether or not their statements would

be incriminating in a subsequent federal prosecution; Malloy v.

Hogan, supra, 378 U.S. 1, holding the federal constitutional privi-

lege applicable to state proceedings, was a companion case of

Murphy. At the time of the accident, the leading California de-

cision, People v. Diller, supra, 24 Cal. App. 799, left open the

possibility that in some cases the state constitutional privilege

would excuse noncompliance with a ‘‘hit-and-run’’ statute.

the “hit-and-run” statute he should have complied becange

of use-restrictions which he could only have speculated

might exist.

The judgment is affirmed.

Perens, J.

DISSENTING OPINION BY BURKE, J.

I dissent. The majority opinion holds that the privilege

against self-incrimination, though applicable to section

20002 of the Vehicle Code, does not furnish a defense to a

charge of violation of that section since the privilege is

satisfied by precluding prosecuting authorities from using

information divulged in compliance therewith (opinion, p.

31). Nevertheless, the majority would affirm the judgment

granting the writ of prohibition to Byers on the sole ground

that “fairness dictates that Byers not be punished for his

failure to comply with section 20002,” relying upon Murphy

v. Waterfront Comm., 378 U.S. 52, 79-80 (opinion, p. 31).

I do not believe that the rationale of Murphy should be

applied to the instant case.

In Murphy, petitioners claimed the privilege and refused

to testify at a state agency hearing on the ground that

their testimony might tend to incriminate them under fed-

eral law. The court held that petitioners [1] could be com-

pelled to answer the questions propounded to them, since

the federal authorities would be prohibited from using

their testimony or its fruits against them in any subse-

quent criminal proceeding. However, the court vacated the

contempt judgment in order to afford petitioners an oppor-

tunity to testify and thereby purge themselves of contempt.

The court noted that at the time petitioners refused to

testify, they had a “reasonable fear, based on this Court’s

decision in Feldman v. United States . . . [322 U.S. 487],

that the federal authorities might use the questions against

them....” (378 U.S. at p. 79.)

The result reached in Murphy appears defensible, as it

not only gave petitioners, who had claimed the privilege

under a “reasonable fear” of federal prosecution, on op-

portunity to purge themselves of contempt by furnishing

the requested information, but also promoted the interest

of the state in obtaining that information from them. Hoy.

ever, Murphy should not be used to totally exculpate Byer,

from his violation of section 20002.

Unlike the petitioners in Murphy, Byers claimed po

privilege when he violated section 20002—instead he simply

left the scene of the accident without furnishing the rp.

quired information. Nothing in the record suggests [2]

that in so doing Byers intended to claim or exercise the

privilege against self-incrimination under a reasonable fear

of prosecution. As the majority opinion indicates, Califor.

nia decisions in existence at the time of the accident did

not recognize the application of the privilege to “hit-and.

run” cases. (Opinion, p. 32.)

Therefore, if Byers was unaware of the existence of the

privilege and was not acting in reliance upon existing state

law, how are the ends of justice met by excusing Byers

from conduct which, as the majority hold, remains unlay.

ful and unprivileged? I cannot see any element of unfair.

ness in holding Byers fully responsible for the consequences

of his deliberate violation of section 20002.

Moreover, unlike the result reached in Murphy, the ma

jority holding promotes no corresponding governmental

interest to balance a determination of leniency towards

Byers, since obviously any offer by him to comply with the

requirements of section 20002 would come several years

too late. [3]

In my view, the judgment of the superior court granting

a writ of prohibition was erroneous and should be reversed

with appropriate instructions.

‘ Burke, J.

ICONCUR:

McComs, J. [4]

Order Due

October 16, 1969

ORDER DENYING REHEARING

S. F. No. 22634

In the Supreme Court of the State of California

In Bank

BYERS, Plaintiff and Respondent

JUSTICE COURT FOR THE UKIAH JUDICIAL

DISTRICT, ETC., Defendant and Respondent;

THE PEOPLE, Real Party in Interest and Appellant

Petition of Real Party in Interest and Appellant peti-

tion for rehearing DENIED.

McComb, J., and Burke, J., are of the opinion that the

petition should be granted.

Filed—Oct 15 1969

William I. Sullivan, Clerk

By /s/ K. Hawkes

S. F. Deputy

/s/ Traynor

Chief Justice

Supreme Court of the Anited States

No. 1070 ee~ ; October Term, 19 69

California,

Petitioner,

ON CONSIDERATION of the motion of the respondent

for leave to proceed in forma pauperis,

IT I8 ORDERED by this Court that the said motion

be, end the same is hereby, granted.

April 20, 1970

Supreme Court of the United States

No. .1070.es<-......., October Term, 19 69

California,

| Petitioner,

Jonathan Todd Byers

Order allowtng certiorari. Filed April 20 ---ee<=-- iat 19 @.

The petition herein for a writ of certiorari lo the Supreme Court of the Sale of California’

is granted, and the case is placed on the summery calendar.

And it is further ordered that the duly certified copy of the transcript f the proceedings below

which accompanied the petition shall be treated as though filed in response to such writ.

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