People v. Paine

Opinion

THE COURT.

Arthur Raymond Paine appeals from a judgment, after trial by the court, convicting him on seven counts of passing fictitious checks (Pen. Code, § 476).

Paine does not question the sufficiency of the evidence in support of the judgment. He does challenge the use of certain documents belonging to him for handwriting comparison as being a violation of his Fifth Amendment privilege against compulsory self-incrimination.

In order to compare Paine’s handwriting with the handwriting on the fictitious checks in its possession, the prosecution sought, and obtained, a court order compelling Paine to provide handwriting exemplars. This order was proper

(United States

v.

Mara,

410 U.S. 19 [35 L.Ed.2d 99, 93 S.Ct. 774]), and is not challenged on this appeal.

Paine, however, refused to provide exemplars and the court found him to be in contempt. Because of Paine’s recalcitrance, the prosecutor moved the court to compel the sheriff to turn over certain papers in the sheriff’s possession belonging to Paine so they could be used in comparing handwriting. After having been advised of this motion, but before the motion could be heard, Paine’s attorney secured the release of Paine’s papers from

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the sheriff. (In fairness, we hasten to note Paine was not represented by his appellate counsel in proceedings below.)

Having been frustrated by the defendant and his attorney, the prosecutor moved the court for an order compelling the defense attorney to turn Paine’s papers over to the prosecutor for handwriting comparison. Defense counsel resisted the motion primarily on the ground of attorney-client privilege, a theory properly rejected by the court and not urged on this appeal. The court granted the motion with the important limitation the documents “be only used for the purpose of comparison of handwriting and not for the substance therein, either for this case or any other case.” There is no contention the documents were used in violation of the restrictions imposed by the court.