# Appendix — California v. Byers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0282%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 402 U.S. 424 ## Text OCTOBER TERM, 1969 Supreme Court of the United States THE PEOPLE OF THE STATE OF CALIFORNIA, PETITIONER v. 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 1 an 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, v. 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, v. 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 4 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, v. 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 By Deputy Jonathan Todd Byers Plaintiff and Respondent vs The Justice Court for the Ukiah Judicial District, ete. Defendants and Respondent. People of the State of California Real Party In Interest and Appellant. 6 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 7 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: I 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. i 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, 8 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°] it 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. IV 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. V 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. 9 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. VI 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 10 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. Ix 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, x 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 11 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] 12 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 18 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] 14 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: I 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. II 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. Ii The complaint charges more than one offense contrary to the provisions of Section 954 of the Penal Code, in that it 15 does not appear that they charge the same offense differ- ently stated. IV 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 I The exception from compulsory self-incrimination creat- ed by the Fifth Amendment to the United States Constitu- 16 tion is protected by the Fourteenth Amendment against abridgment by [11] the States. Malloy v. Hogan, 84 S.Ct. 1489 at 1493 (1964) I 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, Ii “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) 17 IV 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] 18 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 19 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) 20 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 I 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 II 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] 21 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 IV « .. 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 V 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. VI 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 22 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- 23 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 x “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.” 24 Albertson vs. Subversive Activities Control Board, sup 382 US 70, 86 S.Ct. 194, 15 L ed 2d 165 at 172 xI “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. om y 10 Ir le d. th is b n ry 8 d 2. ” 25 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] 27 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. 2. 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... 28 (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 a 29 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.” 30 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, 31 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- 32 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 33 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) 34 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] 35 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 ee 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: caused pr with anotl wise comp. such comy could be t tion of Sec appear, th Vehicle Ci situation. Vehicle Ce to inerimi clusion fol! In analy that the h California 799, and I those case States Con not applic ce nen ee en ne ETE I 37 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 38 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: 39 “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 40 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 41 ‘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 42 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 43 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 44 . 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 45 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] 46 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] 47 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, v. 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 48 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 I 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. II 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. II Count II of said complaint alleges: _.. that said defendant did in the Ukiah Judicial Dis- 49 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. IV 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] V 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 50 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. VI 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, 51 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. Ix 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. x Petitioner is the party having beneficial interest in this _ proceeding. 52 xI 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 I Petitioner has mo plain, speedy and adequate remedy in the ordinary course of the law. II 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. Ii 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- 53 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. IV 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, © 54 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- 55 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) 56 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, v. 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) 57 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, v. 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] ae 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, v. 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. 59 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. 60 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 61 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 62 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 = 1 ad er ly st al ng im m- ae - SSSAP ERS PEELS TAA Se 63 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 64 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 65 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 66 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 _. <= . 67 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 68 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- 69 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, 70 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 71 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 72 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 = i ee ee ee Sr eee’ VB eve VF oS 73 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 i v4 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 ee 75 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] es ett 76 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 PS FT aeP Tra F SS gees s —Ra StS EF 7 77 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 ss Ff S&S & 79 [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- ae 21 eh 80 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 81 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. 82 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. 83 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 privile [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0282%3A1. Public record. Not legal advice.