Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC891289
Bamattre-Manoukian, ACTING P.J.
William Eddwen Douglass, the defendant in a pending criminal proceeding in superior court, filed a motion requesting that the court order a third party to make a car involved in the incident underlying the criminal proceeding available for inspection by a defense expert. The People opposed the motion. The trial court denied the motion, finding that the court lacked jurisdiction to order the third party to produce the vehicle. Defendant has filed a petition for writ of mandate contending that the trial court erred in denying the motion. The People have informed the court that they no longer oppose defendant’s motion, but that the third party has refused make the car available for inspection. For the reasons stated below, we find that the trial court erred in denying defendant’s motion. Accordingly, we will issue a peremptory writ in the first instance directing the trial court to vacate its order denying defendant’s motion and to issue a new order granting the motion.
FACTS AND PROCEDURAL HISTORY
Defendant is charged by information with two counts of assault with a deadly weapon on Samuel Koshfam and Alan Saade (Pen. Code, § 245, subd. (a)(1); counts 1 & 3) and one count of felony vandalism (§ 594, subds. (a), (b)(1); count 2). The information further alleges that defendant personally used a dangerous and deadly weapon, a car, in the commission of the offenses in counts 1 and 3 (§§ 667, 1192.7), and that the damaged property in count 2 was also a car.
Further unspecified statutory references are to the Penal Code.
Defendant issued a subpoena duces tecum and filed a motion on August 12, 2008, requesting that the court order Dominic DiGiacomo to make a black 1996 Chevrolet Monte Carlo owned by him available for inspection by a defense expert at a time and place mutually agreed upon. Defendant contended that, contrary to the allegations in the information, defendant did not drive his car into Saade’s car but rather Saade twice drove his car into defendant’s car. Defendant further contended that Saade’s car was the Monte Carlo in question, which he has since sold to DiGiacomo; that a defense expert needs to take measurements and/or photographs of both cars involved in the collision; and that this could be done at a time and place mutually agreed upon, but a defense investigator was met with hostility by DiGiacomo while taking photographs of the Monte Carlo on July 23, 2008.
DiGiacomo appeared at the August 29, 2008 hearing on the motion, and informed the court and the parties that the Monte Carlo had not been repaired, but that he was objecting to defendant’s request to make the car available for inspection. The court stated that it did not think it had jurisdiction over DiGiacomo or the authority to order him to make his car available. It therefore denied defendant’s motion “without prejudice in the event [defense counsel] can find some authority.”
Although both parties were represented by counsel at the hearing, neither party’s counsel of record appeared.
Defendant filed a second motion on September 23, 2008. In his memorandum of points and authorities in support of the motion, he contended that a criminal defendant has the right to compel the production of evidence by a private nonparty witness pursuant to sections 1326 and 1327. At the November 7, 2008 hearing on the motion, the People contested defendant’s authorities and argued that the court had no power to order somebody who does not have anything to do with a criminal case to make a vehicle available for pictures or inspection. The court continued the matter to allow the People to file written opposition. The People filed opposition on November 14, 2008, contending that the court does not have jurisdiction under either sections 1326 and 1327 or under section 1054 et seq. to order a third party to produce a vehicle for inspection. At the continued hearing on November 21, 2008, the court denied defendant’s motion, finding that defendant’s request “is not appropriate pursuant to a subpoena duces tecum and... this Court lacks jurisdiction to order the third party to produce the vehicle.” The court further ordered that DiGiacomo was “not be subpoenaed for any purpose in this matter without the approval of the trial judge or any other superior court judge in this jurisdiction.”
On January 21, 2009, defendant filed a petition for writ of mandate in this court contending that the trial court erred in denying his motion. Defendant argued that state and federal guarantees of due process and the effective assistance of counsel entitle a criminal defendant to compel production of evidence by private nonparty witnesses by way of a subpoena duces tecum. Defendant further argued that the provisions in sections 1326 and 1327 regarding the subpoena of books, papers, documents, or records, neither expressly nor impliedly limits or prohibits the right of a defendant to discovery of other tangible objects by way of subpoena. On February 5, 2009, we issued a stay of all trial court proceedings and allowed the People time to file preliminary opposition to the petition. The People filed a letter dated February 23, 2009, stating that they do not oppose defendant’s request to examine the vehicle and were attempting to locate DiGiacomo and the car in order to facilitate that examination. In a second letter dated February 27, 2009, the People stated that they had located DiGiacomo, but that he “will not cooperatively make the car available for examination.”
On March 24, 2009, we issued a Palma notice (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180), advising the parties that the court was considering issuing a peremptory writ in the first instance and allowing the People a final opportunity to submit opposition, but the People declined to file opposition.
DISCUSSION
“[T]he right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation. [Citations.] A defendant’s motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand. [Citations.] Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. [Citations.]” (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535 (Pitchess); see also Holman v. Superior Court (1981) 29 Cal.3d 480, 483 (Holman).) “[H]owever,... ‘[t]he exercise of a judicial power over criminal discovery which inheres in courts when the Legislature is silent must be tempered and restrained when the Legislature has spoken.... [I]t would be inappropriate to exercise our inherent powers in conflict with existing legislation. [Citation.]” (Holman, supra, 29 Cal.3d at p. 483.)
“The right of discovery in criminal cases is, of course, not absolute. The court retains wide discretion to protect against the disclosure of information that might unduly hamper the prosecution or violate some other legitimate governmental interest.” (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1316; see, e.g., Evid. Code, § 1040.) “ ‘An accused is entitled to any “ ‘pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense....’ [Citation.]” [Citations.]’ [Citation.]” (Barrett, supra, at p. 1318.) “Pretrial discovery is aimed at facilitating the swift administration of justice, not thwarting it.” (Holman, supra, 29 Cal.3d at p. 485.)
“Section 1054 et seq. applies to disclosure of materials only between the prosecutor and the defendant and/or his or her counsel. These provisions do not regulate discovery from third parties. [Citation.]” (Barrett, supra, 80 Cal.App.4th at p. 1315; see also Teal v. Superior Court (2004) 117 Cal.App.4th 488, 491.)
“Documents and records in the possession of nonparty witnesses and government agencies other than agents or employees of the prosecutor are obtainable by subpoena duces tecum. [Citation.]” (Barrett, supra, 80 Cal.App.4th at p. 1318.) “Sections 1326 and 1327 set forth the procedure for... the defendant to obtain discovery records possessed by third parties. A subpoena duces tecum does not require the party subpoenaed to provide the defendant with a copy of the materials sought, but does require that person or entity to produce the information in court for the defendant’s inspection. [Citation.]” (Id. at p. 1315.) “A criminal defendant has a right to discovery by a subpoena duces tecum of third party records by showing ‘the requested information will facilitate the ascertainment of the facts and a fair trial.’ [Citation.]” (Id. at p. 1316.) “In such case, if the custodian of records objects to disclosure of the information sought, the party seeking the information must make a plausible justification or a good cause showing of need therefor. Significantly in this context, the defense is not required, on pain of revealing its possible strategies and work product, to provide the prosecution with notice of its theories or relevancy of the materials sought, but instead may make an offer of proof at an in camera hearing. [Citation.]” (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045-1046.)
There are no statutes specifically addressing discovery by a defendant in a criminal proceeding of items in the possession of nonparties other than documents and records. Accordingly, the trial court retains its inherent power to order discovery of items other than documents and records in the possession of nonparties “when the interests of justice so demand.” (Pitchess, supra, 11 Cal.3d at p. 535.) “A ruling on a motion to compel discovery—like that here—is subject to review for abuse of discretion. [Citation.]” (People v. Ashmus (1991) 54 Cal.3d 932, 979.)
In this case, the item defendant seeks to discover is the car the alleged victim was driving during the incident underlying the charges against defendant. The car is now owned by a nonparty, who has admitted to the court and the parties that he owns the car and that the car has not been repaired since the incident at issue. Defense counsel has stated that his expert witness needs only one-half hour to measure and take pictures of the damage to the car and that this can be done at a mutually convenient time while the car is parked on the street. The inspection is needed because defendant contends that the victim hit defendant’s car and that defendant did not hit the victim’s car as alleged in the information, and the defense expert needs to see and measure the damage to both cars to render an opinion as to what the damage shows. On this record, we find that the court had the authority to order the nonparty to make the car available for inspection by the defense expert at a mutually agreeable time and place. Furthermore, the People do not now oppose defendant’s request, and have attempted to have the nonparty park his car on the street during a mutually convenient time so that the defense expert can inspect the car, but the nonparty has so far refused to cooperate. Accordingly, we conclude that a peremptory writ of mandate in the first instance is appropriate to correct the error.
All procedural requirements for issuance of the writ in the first instance have been followed. We notified the parties that we were considering issuance of a peremptory writ of mandate in the first instance, and each party had the opportunity to file a written response. The People did not file opposition to defendant’s petition and no longer oppose defendant’s motion. The applicable principles of law are well established, the relevant facts are undisputed, and the petitioner’s entitlement to relief is so obvious that plenary consideration of the issues is unwarranted. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1252-1253.)
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its November 21, 2008 order denying defendant’s request for a subpoena duces tecum and order for Dominic DiGiacomo to produce the black 1996 Chevrolet Monte Carlo owned by him at a mutually convenient time and place, and to enter a new order granting the subpoena and order. This opinion is made final as to this court seven days from the date of filing. (Cal. Rules of Court, rule 8.264(b)(3).) The stay order issued on February 5, 2009, shall remain in effect until the finality of this opinion.
WE CONCUR: MIHARA, J., MCADAMS, J.