In Re Marcario

2 Cal.3d 329 (1970) 466 P.2d 679 85 Cal. Rptr. 135 In re SILVIO J. MARCARIO on Habeas Corpus.

Docket No. Crim. 14031. Supreme Court of California. In Bank.

April 1, 1970. [330] COUNSEL

Richard S. Buckley, Public Defender, James L. McCormick and Harold E. Shabo, Deputy Public Defenders, for Petitioner.

John D. Maharg, County Counsel, and Jean Louise Webster, Deputy County Counsel, for Respondents.

OPINION

BURKE, J.

This case and two other cases presently before this court,[1] raise questions regarding discovery by the prosecution in a criminal case. Petitioner herein, a deputy public defender, seeks habeas corpus to annul an oral order of contempt made after he refused, as attorney for a defendant in a pending murder case, to obey the trial court's order compelling him to disclose to the district attorney the names, addresses and expected testimony of the witnesses defendant intends to call at trial.

Our opinion in Prudhomme v. Superior Court, supra, ante, page 320, granted to petitioner's client, Jearldine Prudhomme, a writ of prohibition to restrain further enforcement of the discovery order involved herein, on the ground that the order was beyond the court's jurisdiction, and therefore void, in that it did not clearly appear from the order or from the record below that disclosure of the information demanded therein could not possibly incriminate her.

Here, petitioner, as defendant's attorney, had standing to assert the privilege against self-incrimination on defendant's behalf. (See United States v. Judson (9th Cir.1963) 322 F.2d 460, 463-468; Moore, Criminal Discovery (1968) 19 Hastings L.J. 865, 910-917.) Since we have held that the discovery order in question was violative of defendant's constitutional rights and beyond the jurisdiction of the trial court, petitioner should not be punished for disobeying it. (See In re Berry, 68 Cal.2d 137, 147-148 [65 Cal. Rptr. 273, 436 P.2d 273].)