Opinion
FEINBERG, J. The issue presented here is what statements, if any, made to defense investigators by defense alibi witnesses can be discovered by the prosecution. We conclude that such discovery constitutes an unconstitutional violation of a defendant’s privilege against self-incrimination even if the statements only impeach the testimony of the alibi witnesses and do not directly inculpate the defendant.
Appellant was charged with 14 felonies arising out of robberies alleged to have occurred on December 22, 1976, December 23, 1976, and January 10, 1977. On December 22, 1976, two men entered A. Daigger Company in Richmond and robbed two employees, H. Bartz and Jane Ruchan. Both men were holding guns pointed at the victims. During the robbery one of the men held a gun at the neck of Bartz and ordered Ruchan to lie on the floor. Money was taken from a company cash box as well as from Ruchan’s purse. At trial, Ruchan identified appellant as the man holding the gun at Bartz’ neck. She testified that the man was clean shaven. At the time of trial appellant had a mustache. Bartz was not able to definitely identify appellant at trial. Testimony also indicated that appellant was the one who rifled the cash box as well as the purse. A latent fingerprint, identified as that of appellant, was found on the cash box.
[798]On December 23, 1976, two men robbed three individuals at an apartment building in San Pablo. During the robbery, one of the robbers held a gun to one victim’s head. At trial, victim Anna Walters identified appellant as one of the robbers. Victim Debra Avila thought appellant resembled one of the robbers, but she was not sure. Victim Joe Avila identified appellant as one of the robbers. The jury was unable to reach a verdict as to the four counts involved in the December 23 incident, resulting in a mistrial.
On January 10, 1977, two men robbed William Proffitt, Sr., and his wife, Joyce, at the Gables Motel in Pinole, where they lived. One robber pointed a gun at Proffitt’s face from a distance of two to three feet. At trial, Proffitt identified appellant as that armed robber, as did his wife and one of his sons.
Appellant’s defense to the incidents on December 22 and 23 was alibi. Five witnesses testified as to appellant’s presence at his mother’s home in West Hollywood on December 22 and 23, 1976; two of those witnesses also testified that appellant was at a Los Angeles night club on the night of December 22.
At the outset of cross-examination of appellant’s first alibi witness, Cornell Isom, the district attorney moved to discover any statements made to defense investigators by all of appellant’s alibi witnesses. Over his objection, appellant’s counsel was ordered to turn over to the court any investigator’s report of statements of the witness Isom. At an in camera hearing out of the presence of prosecutor, jury, and the public, the court reviewed the investigator’s notes. The court then informed the prosecutor of two statements it felt might impeach Isom’s testimony.
The same procedure was followed after each alibi witness testified. While the prosecutor was not given the defense investigator’s notes, he was told by the court of statements or omissions in a total of three of the alibi witnesses’ statements to the investigator which seemed of possible impeachment value. The prosecutor used those statements in attempting to impeach the alibi witnesses on cross-examination, in connection with two of the witnesses. The statements and the use to which they were put by the prosecution is discussed in more detail, infra.
Can prior statements given by defense alibi witnesses who testified in some manner different from such statements be discovered by the prosecution for the purpose of impeaching the witnesses?
[799]We hold that such statements cannot be discovered.
In Prudhomme v. Superior Court (1970) 2 Cal.3d 320 [85 Cal.Rptr. 129, 466 P.2d 673], the Supreme Court held that prosecutorial pretrial discovery of the names, addresses, and anticipated testimony of the witnesses the defense intended to call violated the defendant’s privilege against self-incrimination under the Fifth Amendment to the United States Constitution binding upon the states through the Fourteenth Amendment.
However, in Prudhomme, the court was careful to say that “We do not intend to suggest that the prosecution should be barred from any discovery in this, or any other, case. A reasonable demand for factual information which .... pertains to a particular defense or defenses, and seeks only that information which defendant intends to introduce at trial, may present no substantial hazards of self-incrimination and therefore justify the trial judge in determining that under the facts and circumstances in the case before him it clearly appears that disclosure cannot possibly tend to incriminate defendant. However, unless those criteria are met, discovery should be refused.” (Fns. omitted.) (2 Cal.3d at p. 327.)
Thus, it is fair to say that the issue that confronts us here was not settled by Prudhomme.
Prudhomme was followed by Allen v. Superior Court (1976) 18 Cal.3d 520 [134 Cal.Rptr. 774, 557 P.2d 65]. In Allen, the trial court on its own motion ordered disclosure by both prosecution and defense of names of prospective witnesses, so that the names could be read to potential jurors to ascertain if any of them was acquainted with such witnesses. The court proposed to enjoin the People from contacting any individual disclosed by the defense until the name of such person was otherwise disclosed during the course of the trial. The defendant refused and sought a writ of prohibition, contending the order would violate his right against self-incrimination.
The Allen court reaffirmed Prudhomme, and for reasons we need not pursue here, put the constitutional underpinning on the state constitutional privilege against self-incrimination (Cal. Const., art. I, § 15), rather than on federal Fifth and Fourteenth Amendment grounds.
While on its face Allen goes no further than Prudhomme except to point out that Prudhomme applies to disclosure at trial as well as to pretrial [800]disclosure, it suggests, by dicta, that among the reasons against such disclosure is that it may lead to “other evidence useful to the prosecution including impeachment witnesses, inconsistent statements, . . .” (Italics added.) (Allen v. Superior Court, supra, 18 Cal.3d at p. 526, fn. 4.)
There were at least four reported Court of Appeal opinions between Prudhomme and Allen—People v. Wiley (1976) 57 Cal.App.3d 149 [129 Cal.Rptr. 13]; People v. Ayers (1975) 51 Cal.App.3d 370 [124 Cal.Rptr. 283]; People v. Chavez (1973) 33 Cal.App.3d 454 [109 Cal.Rptr. 157]; People v. Bais (1973) 31 Cal.App.3d 663 [107 Cal.Rptr. 519]. Allen cited none.
In Wiley, supra, 57 Cal.App.3d 149, a prosecution witness who was the victim testified that she had given a statement to the defense investigator but she had forgotten the contents thereof. The prosecution moved for discovery of the statement to refresh her recollection. The trial court read the statement, concluded that there was nothing in it that might conceivably lighten the burden of the prosecution in proving its case in chief and turned the statement over to the prosecution. The Court of Appeal affirmed. The difference between Wiley and the case at bench is obvious. In Wiley, unlike here, what the defense was forced to disclose was a pretrial statement it had obtained from the victim who was the chief prosecution witness. Further, in Wiley, there is nothing in the opinion that indicates the prosecution used the statement for any purpose at all other than to refresh the victim’s recollection as to what she had told the defense investigator. The defendant argued that this violated his confrontation right (not his privilege against self-incrimination) since it permitted the witness to resolve any potential inconsistencies between her trial testimony and prior statements. The argument was sufficiently without merit that it was not addressed by the court; instead, the court dealt with the case in terms of Prudhomme.
In Ayers, supra, 51 Cal.App.3d 370, the trial court, after screening, turned over to the prosecution notes of a pretrial conversation between a defense witness and a defense investigator.
The appellate court affirmed, pointing out that even if there was error, the discovered statement contained material either exculpatory or irrelevant and, hence, the error could not be prejudicial. It is true that in Ayers the court was of the view that there was no error, basing its view upon United States Supreme Court holdings that the privilege against self-[801]incrimination was “personal to [the] defendant and does not extend to statements of third parties called as witnesses.” (People v. Ayers, supra, 51 Cal.App.3d at p. 379.) To that extent, Ayers has been undercut by Allen v. Superior Court, supra, 18 Cal.3d 520, 524-525, where our high court declined to follow the United States Supreme Court in this aspect.1
In People v. Chavez, supra, 33 Cal.App.3d 454, the trial court granted the prosecution’s motion for discovery of pretrial statements taken by the defense investigator of witnesses who testified at trial. Without screening the statements, the trial court ordered the statements turned over to the prosecution. The appellate court held that it was error for the trial court not to have reviewed the statements before making them available to the prosecution but that the error was harmless beyond a reasonable doubt, since what was discovered could not conceivably have lightened the burden of the people in securing a conviction. The court in its discussion states that if the statements contained only impeaching material, it would have been appropriate to make that material available to the prosecution because “under our adversary system in the conduct of trials the prosecutor would have been entitled to discover whether the statements contained any matter that would serve to impeach the witness’s testimony at the trial. This conclusion necessarily follows because the witness by his appearance on the stand vouches for his testimony then given and thus subjects it to the proper scrutiny of cross-examination and its concomitant right to the presentation of available matter of impeachment in the ascertainment of the truth.” (People v. Chavez, supra, 33 Cal.App.3d at p. 459.) Thus, the Chavez court, although the issue was not directly before it, plumps for the view that an impeaching statement by a defense alibi witness in the hands of the defense is discoverable for impeachment purposes by the prosecution if the witness testifies.
We come now to People v. Bais, supra, 31 Cal.App.3d 663. In Bais, following the direct examination of a defense alibi witness, the prosecution moved and was granted discovery for purposes of impeachment of a pretrial statement given by the witness to a defense investigator. The trial court did not “screen” the statement beforehand to make certain that there was nothing therein that might serve to lighten the prosecution’s burden of proof. Whereas at trial the witness gave the defendant an alibi by placing him at a location other than at the scene of the crime at the time thereof, he apparently told the defense investigator before trial that [802]he couldn’t remember whether the defendant was at the address testified to at the time in question. On cross-examination by the prosecution, he testified that an investigator had talked to him but that he didn’t remember what he had told him, only that he told the investigator what he, the witness, knew. The statement was not received in evidence nor was the defense investigator called as a witness.
The court held that (1) the failure of the trial court to “screen” the statement before it was given to the prosecution was constitutional error under Prudhomme; and (2) the error was reversible by Chapman standard. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065].)
As we read Bais, the reversal was due to the fact that the prosecutor used the information contained in the investigator’s report to impeach the alibi witness. Since it was a close case, by Chapman standard, the error was reversible. If it is proper to secure the prior statement for impeachment, then, though there had been error by the trial court in failing to “screen” the statement, the error should not be reversible since the prosecution had used that which it had a right to secure and use. We conclude that Bais implicitly holds that under Prudhomme, the prosecution may not discover a prior statement in the hands of a defendant for the purpose of impeaching an alibi witness and we so explicitly hold under the authority of Prudhomme, Bais and Allen.
But this does not end our inquiry. The question that remains is whether the error is reversible. Since the error is of constitutional proportion, whether reversal is required is to be determined by Chapman, supra, 386 U.S. 18, standard. (Wiley, supra, 57 Cal.App.3d 149; Chavez, supra, 33 Cal.App.3d 453; Bais, supra, 31 Cal.App.3d 663.)
1. With regard to defense witness Isom, he testified on direct that he phoned appellant’s mother’s home on December 22 and December 23, and had spoken to appellant on each occasion at a time relevant to the commission of the crimes charged on the 22d and 23d, In addition, he also testified that he had seen appellant in a night club on the evening of the 22d. Isom had previously told the defense investigator only that he talked to appellant on the 23d. When asked on cross-examination by the prosecution why he had not told the investigator about talking to and seeing appellant on the 22d, Isom explained that the investigator had awakened him early one morning to question him and he, Isom, had forgotten about the 22d until some time later.
[8032]. Jones testified that he had talked to appellant on the 22d and 23d and that he was certain of the dates because he kept a diary. Jones, in talking to the defense investigator before trial, had not mentioned a diary. On cross-examination, the prosecutor asked Jones why he hadn’t mentioned the diary to the investigator. Jones answered that he hadn’t thought it necessary. The diary was never produced.
3. Tompkins testified that she saw appellant at his mother’s home on December 23 and that he had a mustache. (There was some evidence from the victims of the December 22 and December 23 robberies that appellant was clean shaven at the time.) Tompkins had told the defense investigator that she didn’t remember whether appellant had a mustache on December 23. The prosecutor made no use of this information on cross-examination.
Since appellant was not convicted of the offenses charged on December 23, we need only consider the error in terms of the evidence relating to his conviction for the offenses of December 22. Furthermore, since the prosecution never used the information discovered with regard to Tompkins for any purpose, if the discovery as to her were error, it could not possibly be prejudicial and, hence, we need not consider it further.
We are left then with the discovery and use of the omissions in Isom’s and Jones’ prior statement with regard to the events of December 22.
As to that, one of the victims positively identified appellant as one of the two robbers and most significantly he was identified as the person who handled the cash box and emptied it. A latent fingerprint was lifted from the cash box and it was identified by a fingerprint expert as appellant’s beyond any reasonable doubt. The only evidence in the record as to how the fingerprint got on the cash box is the evidence that appellant handled it during the robbery. Considering the strength of the prosecution evidence against appellant vis-á-vis the defense evidence and the cross-examination by the prosecution of Isom and Jones regarding what each had not related to the defense investigator, we are convinced beyond a reasonable doubt that the error in the trial court’s disclosure ruling did not contribute to the verdicts.
Appellant contends, too, that the court erred in failing to give a limiting instruction pursuant to Evidence Code section 1101, subdivision (a), which provides in pertinent part that evidence of a person’s character or a trait of his character in the form of evidence of specific instances of [804]conduct is inadmissible to prove his conduct on a specified occasion. Appellant argues that section 1101, subdivision (a) prohibits the introduction of prior criminal offenses as character evidence to prove subsequent criminal conduct, and by the same reasoning argues that the section should apply when separate offenses are tried together. The same contention was made and rejected in People v. Jackson (1975) 45 Cal.App.3d 67 [119 Cal.Rptr. 71]. Appellant cites no cases in support of his contention, nor do we find any.
The court properly instructed the jury in the language of CALJIC No. 17.02, advising them that each count was a separate charge and they must decide each count separately on the evidence applicable to it, uninfluenced by their decision as to any other count. The jury’s inability to agree as to the crimes alleged to have been committed on December 23, 1976, clearly demonstrates that the jury was in fact considering each count separately and uninfluenced by their decision as to the other counts. The court did not err in failing to give the instruction requested by appellant.
Judgment is affirmed.
White, P. J., concurred.
Interestingly, Justice Richardson dissenting in Allen, believes that the majority opinion impliedly overruled Wiley, supra, 57 Cal.App.3d 149, and Ayers, supra, 51 Cal.App.3d 370. (People v. Allen, supra, 18 Cal.3d at p. 530.)