McCain v. Superior Court

California Court of Appeal Sep 23, 1960 No. Civ. 24831Published

Before: Kincaid

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Holding. The court held that the petitioner waived his privilege against self-incrimination by failing to object to the discovery order and voluntarily complying with it before attempting to register an objection. Consequently, the trial court acted within its jurisdiction in denying the motion to dismiss the criminal proceedings.

Issues

Whether the petitioner waived his privilege against self-incrimination by failing to object to a reciprocal discovery order and voluntarily complying with it.
Whether the trial court acted in excess of its jurisdiction in denying the petitioner's motion to dismiss the information.

Disposition. denied

Quotations verified verbatim against the opinion

“Neither petitioner nor his counsel claimed the privilege prior to the time the trial court granted both motions on a “reciprocal contemporaneous basis” and in fact have waived any claim of privilege”

“The subsequent attempt of defendant’s attorney to register his objections to the granting of the People’s motion came too late to be effective for the order had already been executed.”

“In denying petitioner’s motion to dismiss the information on file against him the trial court acted within and not in excess of its jurisdiction.”

KINCAID, J. pro tem.

Petitioner seeks writ of prohibition to prevent respondent court from proceeding with a pending trial except to dismiss the information on file against him.

On March 25, 1960, defendant-petitioner was charged with the violation of section 288, Penal Code. On March 28, 1960, he was arraigned, pleaded not guilty and a jury trial was had on April 22, 1960, whereby he was convicted of such charge. On May 27, his motion for a new trial was granted and retrial was set for June 20.

On June 8, 1960, petitioner filed a “Notice of Motion for Order Permitting Pretrial Discovery and Inspection” in

[815]

which he sought inspection of certain data in the hands of the prosecution and to hear any recordings of conversations or statements made to police officers by defendant.

On June 13, the People filed a “Motion for Order Permitting Pretrial Discovery and Inspection on Behalf of Plaintiff” in which, as a condition precedent to the granting of the foregoing motion of defendant, the latter be ordered to produce for inspection prior to trial any and all original notes or documents or writings which contain statements or portions of statements of witnesses or any tape recordings or writings by witnesses or any documents or photographs expected to be used as evidence in the trial, specifically excluding any document or memorandum which consists of a communication between the defendant and his attorney that is within the purview of the attorney-client privilege.

When the matter of the respective motions to permit pretrial discovery came on for hearing the court inquired of the petitioner’s attorney as to whether the defendant had any objection to the granting of the People’s motion in conjunction with the granting of defendant’s motion. Petitioner’s attorney responded: “I know of no authority whereby the plaintiff is entitled to pretrial inspection and discovery of the defendant’s statements, reports, work.” A continuance of several days was then requested in order that the matter be given further consideration. On June 16, 1960, the motions were again called for consideration by the court and in response to the court’s inquiry, petitioner’s attorney reported he had found no additional authorities and stated that the defendant was ready to submit to whatever orders the court made.

McCain v. Superior Court

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