STONE, J. Petitioner seeks to restrain the Superior Court of Fresno County from proceeding with a criminal prosecution against her. An information was filed June 24, 1968, charging her with grand theft in violation of Penal Code section 487. The question here is whether petitioner may claim immunity from prosecution upon said charge by reason of an intervening proceeding under the Unemployment Insurance Code. Petitioner, who refused to answer questions in a proceeding before the appeals board upon the ground the answers [731]would incriminate her, was ordered to answer by the referee. She now claims immunity under Unemployment Insurance Code section 1955. The pertinent facts are as follows:
Petitioner and her husband, Francisco Escamilla, worked at the Farmers Supply Market in Reedley; she was arrested on May 2 upon suspicion of grand theft from her employer; the next day Francisco was discharged from his employment as a box boy, and he applied for unemployment insurance. When notified of the application, his employer objected, claiming that Francisco had been guilty of misconduct in that he had not been a dependable employee and that in the market owner ’s belief Francisco knew of his wife’s defalcations.
The Department of Employment ruled that Francisco was entitled to unemployment insurance benefits upon the ground that he was not discharged for acts amounting to misconduct. Farmers Supply Market filed a notice of appeal, and on August 16, 1968, a hearing was held before a referee acting on behalf of the Unemployment Insurance Appeals Board. The employer contended that Francisco would have been discharged for acts of misconduct much earlier but it was feared this might impair the criminal investigation of his wife’s activities at the market.
Petitioner voluntarily appeared at the hearing, acting as interpreter for her husband. However, she had her own separate counsel, and when she was called to the stand by her husband's attorney and asked questions concerning thefts from her employer, her attorney objected. For example, to the question, "Mrs. Escamilla, did your husband have knowledge of you taking some money from your employer ? ”; her attorney interposed: "I am going to advise my client not to answer that on the grounds the answer may tend to incriminate her.” The referee at first agreed that the witness need not answer, but called a conference when the husband’s attorney insisted that the language of Unemployment Insurance Code section 1955, providing that no person shall be excused from testifying on the grounds that it may incriminate him, meant only that "this testimony here could not be used in any other proceeding. ’ ’
What transpired in the conference is not reported, but the record reflects the following when the hearing resumed:
"Referee: While off the record the parties examined Section 1955 of the California Unemployment Insurance Code. Would you proceed Mr. Aycock.
"Mr. Aycock: Q. Mrs. Escamilla, did you ever tell your [732]husband, Francisco, that you had or were taking money from your employer ?
“Mr. Krum : I will assert the 5th Amendment privilege of— on behalf of my client, Esther Escamilla, on the grounds the answer may tend to incriminate her.
“Mr. Aycock : I would request Madam Referee that—
“Referee: You want a ruling on it?
“Mr. Aycock: Yes, that she be requested to answer under Section 1955. I believe Mr. Krum would probably agree under the code section as it appears that such testimony would not be admissible against her in a criminal proceeding after she is compelled to testify here and it would, I believe, be of benefit to my client.
“Referee: Would you proceed Mrs. Escamilla, answer the question.
“Mr. Krum: You’re ordering her to answer the question?
“Referee: I’m ordering her to answer the question.”
Later, when asked, “Alright, now, what did you do with that money, did you spend any of it on your husband at all, ’ ’ petitioner’s attorney said: “I will object or assert the privilege against self-incrimination on behalf of my client and advise her not to answer that question unless ordered to.” The referee stated: “You’re directed to answer.”
The effect of the referee’s order rests upon an interpretation of section 1955, which provides, in pertinent part: “No individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise.”
The facts of this case are strikingly similar to People v. King, 66 Cal.2d 633 [58 Cal.Rptr. 571, 427 P.2d 171], where the Insurance Commissioner compelled a witness to appear pursuant to Insurance Code section 1020, which makes no provision for a grant of immunity to a witness who gives incriminating testimony. The witness answered all questions put to him, without asserting the privilege against self-incrimination. Later, criminal charges were brought involving matters about which he had testified. In a proceeding under Penal Code section 995 he sought to set aside the indictment upon the ground that having been compelled to testify in hearings before the commissioner, he was entitled to immunity under the provisions of another section of the Insurance Code, namely, section 12924, subdivision (b), which provides: “. . . [733]no person shall he prosecuted or punished by any criminal action or proceeding for or on account of any act, transaction, matter or thing concerning which he is so compelled to testify under oath. ...” The lower court refused to grant the motion to set aside the indictment, but granted a subsequent motion to quash the indictment. The Supreme Court affirmed, holding that .the witness was entitled to immunity and, further, that the statute did not require him to assert his privilege against self-incrimination before testifying. (P. 637.)
We deem the case at bench much stronger, in that petitioner did assert her constitutional privilege against self-incrimination and, despite this, was ordered to testify.
At first blush the argument of real party in interest, that where a criminal action is pending in the superior court a hearing officer for a state agency has no authority or power to grant immunity to the accused, seems persuasive. However, the argument overlooks the inherent sovereignty of the state; it may, through the Legislature, delegate to a hearing officer the power to grant immunity to a witness either before or after criminal charges are filed. The Legislature has not limited the power delegated to a hearing officer to grant immunity under Unemployment Insurance Code section 1955 to situations where no criminal proceedings are pending; we cannot read such a limitation into the plain language of the statute. As a practical matter, when a witness charged with a criminal offense claims immunity upon the ground that his testimony may tend to incriminate him, the seriousness of an order requiring him to waive his immunity and testify is patent. Where no charge is pending when the privilege is asserted, it is problematical whether a charge will be made and the privilege become significant; a pending trial removes all doubt.
Moreover, the order of the referee that Mrs. Escamilla testify, despite the assertion of her right not to incriminate herself under the Fifth Amendment to the United States Constitution, gives her claim to immunity under section 1955 constitutional overtones that transcend the jurisdiction of the superior court. The whole purpose of the Miranda v. Arizona (384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) line of cases is to ensure that an accused knows his rights under the Fifth Amendment so he can assert them if he wishes. Here, petitioner was ordered to testify despite the assertion of her right not to do so.
[734]It is argued that since petitioner voluntarily appeared at the hearing, and not under the compulsion of a subpoena, she is not entitled to the protection of section 1955. In the King case the witness not only testified voluntarily, he claimed no immunity before testifying.
Real party in interest also asserts that because the questions upon which petitioner’s right to immunity rests were asked by her husband’s attorney and followed by her own attorney’s claim of privilege, petitioner’s claim of immunity is based upon fraud or collusion.
Although the dissent appears to adopt this theory, we cannot reconcile the facts with the fundamental principles of fraud. There can be no doubt that petitioner wanted immunity, but so does every admitted criminal who turns state’s evidence. Fraud that would warrant a court in nullifying immunity once it is granted as the basis for a waiver of constitutional rights would, at the very least, require that the authority granting the immunity be misled either by a misstatement of the facts or by a withholding of facts. It is clear from the record that the attorney for petitioner’s husband, as well as her own attorney, knew that she hoped for immunity. Knowledge of the pending prosecution of petitioner was well known; as already noted, the referee held a conference to discuss the import of section 1955 after petitioner asserted her constitutional right not to testify. It was clear to everyone present, including the referee, that petitioner intended to claim immunity from the pending prosecution. There was no fraud or concealment; apparently the referee made a mistake of law in her interpretation of the import of section 1955, but that circumstance cannot be equated with fraud.
When the Legislature creates an immunity statute it acts with full knowledge that the statute may protect a wrongdoer from prosecution. With this in mind, the Legislature establishes standards by which the right to immunity is to be measured. It is not within the province of a court to alter the standards so fixed, nor in the court’s discretion to grant or deny immunity once those standards are met. To do so would be to substitute immunity according to the chancellor’s foot, for standards established by the Legislature.
Any person may knowingly and intelligently waive his constitutional rights, but no court or referee can force him to waive them without a compensating protection which, here, was the right not to be prosecuted or subjected to any penalty or forfeiture from any matter about which petitioner was [735]compelled to testify. (Unemp. Ins. Code, § 1955.) It is unfortunate that the testimony petitioner was ordered to give after claiming immunity added nothing to the unemployment case; there was really no compelling reason for the referee to order petitioner to answer. But immunity cannot rest on an after-the-fact appraisal of the circumstances, for this would be to substitute judicial discretion for legislative standards.
Real party in interest contends that since Unemployment Insurance Code section 1954 provides: “Obedience to subpenas issued in accordance with this chapter may be enforced by application to the superior court as set forth in Article 2, Chapter 2, Part 1 of Division 3 of Title 2 of the Government Code,” only the superior court can compel a witness to testify and thereby clothe him with immunity under section 1955. To so hold would do violence to the clear and unambiguous wording of section 1955. The Legislature did not condition immunity upon an order of the superior court pursuant to section 1954; neither did it place any other procedural or jurisdictional limitations upon a referee’s discretion whether to order a witness to testify.
Finally, the district attorney cannot negate the immunity provided by section 1955 by offering to stipulate not to use against petitioner in the criminal prosecution, the testimony given by her at the Unemployment Insurance Appeals Board hearing. The statutory immunity here derives from the giving of testimony under the circumstances delineated by section 1955, not upon whether the testimony once given, is or is not used against the witness. The district attorney cannot, by devising his own voluntary exclusionary rule, unring the bell. Section 1955, as heretofore pointed out, does not simply forbid the use of testimony given under order of the referee; it provides that no individual shall be prosecuted or subjected to any penalty or forfeiture.
Let a peremptory writ of prohibition issue.
Gargano, J., concurred.