Ruiz v. Superior Court

DRAPER, P. J.

This original proceeding concerns the permissible scope of discovery by the prosecution in a criminal case.

Petitioner is charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)). The district attorney moved for “pretrial discovery.” His motion was supported by his affidavit that the alleged victim and a witness of the alleged assault had been interviewed by and had talked to an investigator for defendant or his attorneys. Defendant opposed the motion. The trial court ordered defense counsel to- (1) “make available for inspection and copying to the District Attorney . . . any and all statements in your possession or available to you obtained from” the named witnesses, another person not shown by the affidavit to have been interviewed by the defense, “and any other witnesses other than the defendant”; (2) make similarly available “the names, addresses and statements of any witnesses other than the defendant which the attorneys for the defendant intend to call for the purpose of raising an affirmative defense.” The order also provided (3) that it “is a continuing one, and in the event any material described in the above paragraphs becomes available to the defendant’s attorneys subsequent to the signing of this order” they shall “make the names, addresses and statements of the witnesses available” to the prosecution. Petitioner sought prohibition or mandate from us, and we issued both alternative writs. We have concluded that prohibition is the appropriate remedy. The alternative writ of mandate is therefore discharged.

We first reject petitioner’s attack upon those portions of the order which are not limited to an “affirmative defense.” It is quite true that the leading case

(Jones

v.

Superior Court,

58 Cal.2d 56 [22 Cal.Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213]) dealt with the “affirmative defense” of impotency, which defendant had announced he would assert in answer to a charge of rape. In a recent decision

(People

v.

Pike,

71 Cal.2d 595, 605 [78 Cal.Rptr. 672, 455 P.2d 776]) our Supreme Court makes clear that it does not view

J

ones, as being limited to affirmative defenses.