Opinion
Review Granted Dec. 31, 1992.
Review Dismissed Jan. 13, 1994.
Review Granted Previously published at: 15 Cal.App.4th 1029, 20 Cal.App.4th 1099, 9 Cal.App.4th 1500 [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
[12 Cal.Rptr.2d 217] Francis J. Bardsley, Public Defender, Richard P. Siref and Timothy A. Chandler, Deputy Public Defenders, for petitioner.
No appearance for respondent.
Edwin L. Miller, Jr., Dist. Atty., Paul M. Morley and Craig E. Fisher, Deputy Dist. Attys., for real parties in interest.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Louis R. Hanoian and Frederick R. Millar, Jr., Supervising Deputy Attys. Gen., for amicus curiae, on behalf of real party in interest.
OPINION
TODD, Associate Justice.
In this case, we hold the provision of Proposition 115 authorizing prosecutorial discovery does not apply to the penalty phase of a capital case before there is a guilty verdict along with a finding of special circumstance(s).
BACKGROUND
Douglas Hines, Jr., is charged with, among other things, one count of murder (Pen.Code, § 187) with three special circumstances (§ 190.2). By virtue of the special circumstance allegations, Hines is eligible for the death penalty. (§§ 190.1, 190.2, 190.3, 190.4.)
All statutory references are to the Penal Code unless otherwise specified.
On April 29, 1992, Hines filed a discovery motion. The People filed their motion in opposition on May 7, 1992, and Hines filed his reply to the opposition on May 12, 1992. On May 11, 1992, the People filed a discovery motion, seeking the names of witnesses and evidence Hines intends to present at " any stage of trial, including surrebuttal." On May 26, 1992, Hines filed a motion in opposition to the People's discovery motion. On May 29, 1992, the trial [12 Cal.Rptr.2d 218] court conducted a hearing on the motions for discovery. The trial court in large part granted Hines's discovery requests. In granting the People's discovery motion, the trial court ruled the discovery provisions of Proposition 115 (§ 1054 et seq.) applied to the penalty phase as well as the guilt phase of a capital case. Therefore, the trial court ordered the defense to disclose, before trial commenced, the witnesses it intended to call during the penalty phase. Hines challenges this order. By order of June 18, 1992, we issued an order to show cause and stayed penalty phase discovery from the defense until further order of this court.
This ruling is not being challenged here.
DISCUSSION
On June 5, 1990, the voters enacted Proposition 115, entitled by its framers as the " Crime Victims Justice Reform Act." The initiative changed criminal law in several areas, including discovery. The discovery provisions of Proposition 115 authorized prosecutorial discovery and mandated reciprocal discovery. In Izazaga v. Superior Court (1991) 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304, our Supreme Court upheld the discovery provisions of Proposition 115 against various constitutional challenges. (See also Hobbs v. Municipal Court (1991) 233 Cal.App.3d 670, 284 Cal.Rptr. 655.)
At issue here is whether section 1054.3, enacted as part of Proposition 115 to require the defense to disclose witnesses and evidence it intends to present at trial, applies to the penalty phase of a capital case before there has been a determination of guilt and a finding of special circumstance(s). Section 1054.3 provides in pertinent part:
" The defendant and his or her attorney shall disclose to the prosecuting attorney:
" (a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial.
" (b) Any real evidence which the defendant intends to offer in evidence at the trial."
Our primary task in interpreting an enactment is to determine the lawmaker's intent. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.) In the case of legislation enacted by initiative, the same principle applies and the court's task is to ascertain the intent of the voters. (Kaiser v. Hopkins (1936) 6 Cal.2d 537, 538, 58 P.2d 1278; People v. Weidert (1985) 39 Cal.3d 836, 844, 218 Cal.Rptr. 57, 705 P.2d 380.) To determine intent, the court turns first to the words themselves, giving them their ordinary and generally accepted meaning. (People v. Knowles (1950) 35 Cal.2d 175, 182, 217 P.2d 1.) If the statutory language is clear and unambiguous, the court's job is largely eliminated; there is no need to construe a statute when there is no ambiguity. (People v. Weidert, supra, 39 Cal.3d at p. 843, 218 Cal.Rptr. 57, 705 P.2d 380.) On the other hand, when the statutory language is susceptible of more than one reasonable interpretation, the court must engage in its interpretative function. (See Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918, 80 Cal.Rptr. 89, 458 P.2d 33.)
Concerning the issue presented in this case, the operative phrase in section 1054.3 is " at the trial." Hence, the threshold question for us is whether the phrase " at the trial" in section 1054.3 is clear and unambiguous in the context of a bifurcated capital case, in which the issues of guilt and punishment are tried in separate proceedings.
In other words, in capital cases is there one trial, composed of the guilt phase as well as the penalty phase? Or, in capital cases, are there two trials: a separate guilt [12 Cal.Rptr.2d 219] trial; and a separate penalty trial? That these two questions reasonably can be asked indicates the phrase " at the trial" is not unambiguous in the context of capital cases. Indeed, a sampling of recent California Supreme Court death penalty opinions shows our state's highest court is unsettled on the appropriate terminology for the penalty proceeding. In a number of cases, the Supreme Court has referred to the " penalty phase of the trial." (See, e.g., People v. Hardy (1992) 2 Cal.4th 86, 197, 5 Cal.Rptr.2d 796, 825 P.2d 781 [" penalty phase of the trial" ]; People v. Visciotti (1992) 2 Cal.4th 1, 71, 5 Cal.Rptr.2d 495, 825 P.2d 388 [" the penalty phase of the trial" ]; People v. Mincey (1992) 2 Cal.4th 408, 460, 6 Cal.Rptr.2d 822, 827 P.2d 388 [" penalty phase of his trial" ]; People v. Roberts (1992) 2 Cal.4th 271, 328, 6 Cal.Rptr.2d 276, 826 P.2d 274 [" the penalty phase of his trial" ]; People v. Mitcham (1992) 1 Cal.4th 1027, 1038, 5 Cal.Rptr.2d 230, 824 P.2d 1277 [" the penalty phase of the trial" ]; People v. Pinholster (1992) 1 Cal.4th 865, 915, 4 Cal.Rptr.2d 765, 824 P.2d 571 [" the penalty phase of trial" ].) However, in a number of other cases, the Supreme Court has referred to the " penalty trial" or the " penalty phase trial." (See, e.g., People v. Hardy, supra, 2 Cal.4th at pp. 180, 181, 5 Cal.Rptr.2d 796, 825 P.2d 781 [referring to both " penalty phase trial" and " penalty trial" ]; People v. Roberts, supra, 2 Cal.4th at p. 328, 6 Cal.Rptr.2d 276, 826 P.2d 274 [" his penalty trial" ]; People v. Sully (1991) 53 Cal.3d 1195, 1241, 283 Cal.Rptr. 144, 812 P.2d 163 [" the penalty phase trial" ]; People v. Johnson (1989) 47 Cal.3d 1194, 1249, 255 Cal.Rptr. 569, 767 P.2d 1047 [" a penalty phase trial of a capital case" ].) The fact that the penalty proceeding of a capital case is sometimes considered one of two phases of a single trial and other times viewed as a trial in its own right, separate and distinct from the guilt trial, demonstrates that the phrase " at the trial" in section 1054.3 is ambiguous in the context of a capital case.
We note recently division three of our district reached the opposite conclusion, namely the word " trial" is not ambiguous and should be interpreted to include the penalty phase. (See People v. Superior Court (Sturm) (1992) 9 Cal.App.4th 172, 11 Cal.Rptr.2d 652.)
Moreover, with respect to the word " trial," our Supreme Court in People v. Overstreet (1986) 42 Cal.3d 891, 896, 231 Cal.Rptr. 213, 726 P.2d 1288, recognized " the word is ambiguous as to whether it includes proceedings following the determination of guilt prior to sentencing." Overstreet dealt with whether a defendant who commits a felony while released on his own recognizance pending sentence for a felony is subject to the two-year enhancement under former section 12022.1 for felonies committed while released " pending trial." Amicus curiae attempts to persuade us to disregard Overstreet on the basis that the case is distinguishable. Of course it is; there are a number of differences between Overstreet and this case, including the fact that the operative phrase in former section 12022.1 was " pending trial" — not " at the trial." But neither that fact, nor the other distinctions, has anything to do with the Supreme Court's observation that the word " trial" is ambiguous because it has been " interpreted to refer to the process culminating in the determination of guilt" as well " to include the sentence or judgment in other cases." (42 Cal.3d at p. 896, 231 Cal.Rptr. 213, 726 P.2d 1288.)
The Overstreet court cited People v. McKamy (1914) 168 Cal. 531, 535-536, 143 P. 752, and People v. Arbee (1983) 143 Cal.App.3d 351, 356, 192 Cal.Rptr. 13, as offering interpretations of the word " trial" that include the sentence or judgment and Ex Parte Voll. (1871) 41 Cal. 29, 32, as offering interpretations that a " trial" culminates in the determination of guilt. (42 Cal.3d at p. 896, 231 Cal.Rptr. 213, 726 P.2d 1288.) In a concurring opinion, Justice Mosk, who took the position " trial" is not ambiguous, cited, among other cases, People v. Turner (1870) 39 Cal. 370, 371, in which the Supreme Court stated every step " up to and including the verdict" constituted the trial. (42 Cal.3d at pp. 901-902, 231 Cal.Rptr. 213, 726 P.2d 1288.) In a dissenting opinion, Justice Grodin agreed the term " trial" is ambiguous, and cited, among other cases, People v. Mahan (1980) 111 Cal.App.3d 28, 32, 168 Cal.Rptr. 428, for the proposition that " trial" includes sentencing. (42 Cal.3d at pp. 902-903, fn. 1, 231 Cal.Rptr. 213, 726 P.2d 1288.)
[12 Cal.Rptr.2d 220] Thus, having determined there is ambiguity, our job here is to interpret section 1054.3 in the context of a bifurcated death penalty case
" in accordance with applicable rules of statutory construction, fundamental among which are those which counsel that the aim of such construction should be the ascertainment of legislative intent so that the purpose of the law may be effectuated [citation]; that a statute should be construed with reference to the entire statutory scheme of which it forms a part in such a way that harmony may be achieved among the parts [citations]; and that courts should give effect to statutes ‘ according to the usual ordinary import of the language employed in framing them.’ [Citations.]" (Merrill v. Department of Motor Vehicles, supra, 71 Cal.2d at p. 918, 80 Cal.Rptr. 89, 458 P.2d 33.)
In addition to adding a constitutional provision requiring reciprocal discovery in criminal cases " to provide for fair and speedy trials" (art. I, § 30(c)), Proposition 115 added a new Penal Code chapter on discovery (§ 1054 et seq. [hereafter the new discovery chapter]) outlining the materials and information that the prosecution and defense must jointly disclose, such as the names, addresses and statements of intended witnesses. Section 1054 provides for interpretation of the chapter to give effect to five specified purposes:
In the area of discovery, Proposition 115 also deleted language in other sections of the Penal Code requiring the prosecution to turn over police reports, and amended section 866 to provide the purpose of the preliminary hearing is to determine probable cause, not to afford the parties an opportunity for further discovery.
" (a) To promote the ascertainment of truth in trials by requiring timely pretrial discovery.
" (b) To save court time by requiring that discovery be conducted informally between and among the parties before judicial enforcement is requested.
" (c) To save court time in trial and avoid the necessity for frequent interruptions and postponements.
" (d) To protect victims and witnesses from danger, harassment, and undue delay of the proceedings.
" (e) To provide that no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States."
While the stated purposes of California's new statutory scheme for criminal discovery are clear, they do not address the specific concern of this case. The legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844, 157 Cal.Rptr. 676, 598 P.2d 836.) Proposition 115 created the statutory scheme for criminal discovery after a series of California Supreme Court cases (Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673; Reynolds v. Superior Court (1974) 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45; Allen v. Superior Court (1976) 18 Cal.3d 520, 134 Cal.Rptr. 774, 557 P.2d 65; People v. Collie (1981) 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534; In re Misener (1985) 38 Cal.3d 543, 213 Cal.Rptr. 569, 698 P.2d 637) abrogated prosecutorial discovery. (See Izazaga, supra, 54 Cal.3d at pp. 369-371, 285 Cal.Rptr. 231, 815 P.2d 304; Hobbs, supra, 233 Cal.App.3d at pp. 676-678, 284 Cal.Rptr. 655.) Proposition 115 was intended to vitiate the Prudhomme line of cases (Hobbs, supra, 233 Cal.App.3d at p. 683, 284 Cal.Rptr. 655) and make criminal discovery a " two-way street" (Izazaga, supra, 54 Cal.3d at p. 363, 285 Cal.Rptr. 231, 815 P.2d 304).
However, the question remains how the discovery provisions of Proposition 115 were intended to affect death penalty cases, which are tried in two phases. (See [12 Cal.Rptr.2d 221] discussion, post.) Nowhere in the new discovery chapter are death penalty cases addressed. An examination of extrinsic aids to ascertain the intent of the lawmakers is in order if the language is susceptible to more than one reasonable interpretation. (People v. Woodhead (1987) 43 Cal.3d 1002, 1008, 239 Cal.Rptr. 656, 741 P.2d 154.) In the case of an initiative, when language is ambiguous it is appropriate to consider indicia of the voters' intent other than the language of the provision itself. (Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 250, 279 Cal.Rptr. 325, 806 P.2d 1360.) Indicia of voters' intent include " the analysis and arguments contained in the official ballot pamphlet." (Legislature v. Eu (1991) 54 Cal.3d 492, 504, 286 Cal.Rptr. 283, 816 P.2d 1309.) Among the stated purposes of Proposition 115, as recited in the initiative's preamble, is the reduction of delay in the criminal justice system. (See Prop. 115, § 1, subd. (c) [" The goals of the people in enacting this measure are to restore balance to our criminal justice system, to create a system in which justice is swift and fair...." ].) The arguments in support of Proposition 115 in the official ballot pamphlet also emphasize the need to reduce delay in criminal cases. Proposition 115 also impacts upon the death penalty, principally by expanding special circumstance murders subject to capital punishment (see § 190.2), prohibiting a judge from striking or dismissing a special circumstance finding (see § 1385.1) and making it easier to prove a felony-murder special circumstance (see § 190.41). The preamble of Proposition 115 also touches on the death penalty by stating the people find " the death penalty is a deterrent to murder." (Prop. 115, § 1, subd. (a).)
From this examination it is obvious that in enacting Proposition 115 the voters intended to institute criminal justice system reforms in the areas of delay reduction and the death penalty. While these appear to be distinct goals, there can be no doubt the voters intended the discovery provisions to apply to death penalty cases in general. The language of Proposition 115's discovery provisions is cast in terms of " trial(s)" (Cal. Const., art I, § 30(c); §§ 1054, subd. (a) and (b), 1054.1, 1054.3, 1054.7), or " criminal cases" (Cal. Const., art I, § 30(c); §§ 1054, subd. (e), 1054.5). The preamble of Proposition 115 uses the term " criminal justice system" to explain what the initiative attempts to reform. (Prop. 115, § 1.) Certainly, death penalty cases are criminal cases that are prosecuted as part of the criminal justice system in trials.
That the discovery provisions of Proposition 115 are applicable to the guilt phase of a death penalty case is not disputed here. Hines, however, argues the penalty phase of a death penalty case is not a trial but rather akin to a sentencing hearing, and, therefore, section 1054.3, with its " at the trial" language is never applicable to the penalty phase. At the very least, we disagree with Hines's premise likening a penalty phase to a sentencing hearing in a noncapital case. " The trial of penalty is indeed a trial. " (People v. Livaditis (1992) 2 Cal.4th 759, 790, 9 Cal.Rptr.2d 72, 831 P.2d 297 [Mosk, J., concurring, italics in original.].) However, the issue of whether section 1054.3 is applicable to penalty phase evidence after a guilt verdict and a finding of special circumstance(s) have been returned is not before us. Therefore, we decline to address it. (See 9 Witkin, Cal.Proc. (3d ed. 1985) Appeal, § 255, pp. 261-262.)
Also, the analysis of Proposition 115 prepared by the Legislative Analyst stated the initiative " [c]hanges the rule under which prosecutors and defense attorneys must reveal information to each other in their prospective criminal cases. " (See Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Primary Elec. (June 5, 1990) p. 33.)
But this broad language sheds little light on the voters' intent with respect to the mechanics of applying the discovery provisions of Proposition 115 to the penalty phase of a capital case. Nothing in the official ballot pamphlet— including the text of Proposition 115, the analysis of Proposition 115 prepared by the Legislative Analyst or the ballot arguments for and against Proposition 115— supports an inference that the voters intended penalty phase discovery for the prosecution to begin before the guilt phase has started. As best as we can determine from the text of the initiative and the official ballot pamphlet, the voters or " the lawmakers did not expressly contemplate the issue bothering us [12 Cal.Rptr.2d 222] here" (People v. Weatherill (1989) 215 Cal.App.3d 1569, 1581, 264 Cal.Rptr. 298 [Johnson, J., dissenting] )— namely, whether the discovery provisions of Proposition 115 should apply to the penalty phase of a capital case before a determination of guilt and a finding of special circumstance(s) have been made.
To be sure, we recognize " our solemn duty ‘ " to jealously guard" ’ the initiative power, it being ‘ " one of the most precious rights of our democratic process." ’ " (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 248, 149 Cal.Rptr. 239, 583 P.2d 1281.) Accordingly, " ... enactments should be interpreted when possible to uphold their validity ...." (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 598, 135 Cal.Rptr. 41, 557 P.2d 473.) With these principles in mind, we next consider section 1054.3's " at the trial" in the context of the unique nature of a capital case. (See, e.g., Gardner v. Florida (1977) 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 [" death is a different kind of punishment from any other which may be imposed in this country." ].)
California's statutory scheme for death penalty cases is contained in sections 190.1, 190.2, 190.3 and 190.4., which prescribe a complete and elaborate procedure for determining the penalty in a potential capital case. These statutes, adopted by initiative in 1978, involve a bifurcated trial in a potential capital case: in the first phase, the trier of fact determines if the defendant is guilty of first-degree murder and the truth of alleged special circumstance(s); in the second phase, which only takes place if the defendant is found guilty with special circumstance(s) in the first phase, the trier of fact determines if the penalty shall be death or confinement in prison for a term of life without the possibility of parole. (§§ 190.1, 190.3)
This procedural scheme was drafted to comply with United States Supreme Court decisions in 1976 upholding the death penalty in states that had a bifurcated proceeding in which the sentencing authority is provided with relevant information and standards regarding sentencing (Gregg v. Georgia (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida (1976) 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas (1976) 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929), but reversing the death penalty in states that lacked a separate sentencing proceeding in which the sentencing authority would focus on the sentence and consider some or all of the aggravating and mitigating sentences (Woodson v. North Carolina (1976) 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; Roberts v. Louisiana (1976) 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974). In these cases, the United States Supreme Court held the death penalty laws of states in the former category did not violate the Eighth Amendment's prohibition against cruel and unusual punishment while the death penalty laws of states in the latter category violated the Eighth Amendment. Just four years earlier, the United States Supreme Court in Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 had struck down the former Georgia death-penalty law that had a unitary procedure, holding it was violative of the Eighth Amendment because under this procedure the jury had untrammeled discretion to impose or withhold the death penalty.
In his plurality opinion in Gregg v. Georgia, supra, 428 U.S. 153, 195, 96 S.Ct. 2909, 2935, 49 L.Ed.2d 859, Justice Stewart wrote: " [T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information."
Thus, it is unescapable that a key factor of California's statutory death penalty scheme that has allowed it to withstand such an Eighth Amendment challenge is its bifurcated procedure that sets capital cases apart from other criminal prosecutions. It is a rule of statutory construction that " [a]statute [12 Cal.Rptr.2d 223] should be construed whenever possible so as to preserve its constitutionality." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323.) Consequently, in light of Eighth Amendment concerns, we are disinclined to view a capital case as a single, unitary proceeding or trial for purposes of interpreting section 1054.3. Rather, for such purposes, the better view is the penalty determination of a capital case is a separate trial. Accordingly, with respect to capital cases, we hold section 1054.3 does not mandate the defense disclosure of evidence it intends to present at the penalty trial until a guilty verdict and finding of special circumstance(s) have been returned in the guilt trial.
We also observe with reference to California's statutory death penalty scheme that in essence a guilty verdict along with a true finding of at least one special circumstance at the guilt trial is a condition precedent to the penalty trial; in other words, there will not be a penalty trial unless there is a guilty verdict coupled with a special circumstance finding in the guilt trial. (See People v. Webster (1991) 54 Cal.3d 411, 455, 285 Cal.Rptr. 31, 814 P.2d 1273 [" The separate penalty phase assumes the validity of the capital conviction...." ].) Thus, to mandate defense disclosure of penalty trial witnesses before the guilt trial has commenced is somewhat akin to putting the proverbial cart before the horse. We should avoid statutory constructions that lead to absurd or anomalous results. (See In re Eric J. (1979) 25 Cal.3d 522, 537, 159 Cal.Rptr. 317, 601 P.2d 549.)
Moreover, as a practical matter, we note the qualitative difference between the guilt and penalty proceedings in a capital case and the type of evidence presented in each. (See People v. Edwards (1991) 54 Cal.3d 787, 842, 1 Cal.Rptr.2d 696, 819 P.2d 436 [" At a penalty phase, unlike the guilt phase, the jury does not engage in factfinding as such, but rather determines the appropriate penalty for the crime or crimes of which the defendant has already been convicted." ]; § 190.3, subd. (k).) We agree with Hines that in some death penalty cases the testimony of a particular witness could be helpful to the defense in the penalty proceeding but harmful in the guilt proceeding. Thus, the compelled disclosure of defense penalty witnesses before the start of the guilt trial could compromise the defense by alerting the prosecution to witnesses who would be used against the defense in the guilt trial, thereby adversely affecting a defendant's due process rights (see Brooks v. Tennessee (1972) 406 U.S. 605, 612-613, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358) and Sixth Amendment rights to counsel.
In Brooks, supra, 406 U.S. 605, 92 S.Ct. 1891, the United States Supreme Court struck down a law that prohibited a defendant from testifying in his own defense unless he was the first witness offered by the defense. In addition to finding the statute unconstitutional as violative of a defendant's Fifth Amendment rights, the Supreme Court held it infringed upon a defendant's right of due process. The high court said:
" Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right. By requiring the accused and his lawyer to make that choice without an opportunity to evaluate the actual worth of their evidence, the statute restricts the defense— particularly counsel— in the planning of its case. Furthermore, the penalty for not testifying first is to keep the defendant off the stand entirely, even though as a matter of professional judgment his lawyer might want to call him later in the trial. The accused is thereby deprived of the ‘ the guiding hand of counsel’ in the timing of this critical element of his defense." (406 U.S. at pp. 612-613, 92 S.Ct. at 1895.)
Likewise, requiring the defense, before the guilt determination has been made, to disclose witnesses it plans to use in the separate penalty proceeding, even if those witnesses would harm the defense, would infringe on important tactical decisions and restrict the defendant and counsel in the [12 Cal.Rptr.2d 224] planning of their defense in two separate proceedings.
We realize that the Supreme Court rejected a Sixth Amendment challenge to the discovery provisions of Proposition 115 in Izazaga, supra, 54 Cal.3d 356, 379-380, 285 Cal.Rptr. 231, 815 P.2d 304; however, that was not a death penalty case and did not present the special issues of a capital case with two separate proceedings on guilt and punishment. " Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation." (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d 1379, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)
In rejecting a Sixth Amendment challenge to the discovery provisions of Proposition 115, the California Supreme Court said: " [U]nder the new discovery chapter, a criminal defendant need disclose only those witnesses (and their statements) the defendant intends to call at trial. It is logical to assume that only those witnesses defense counsel deems helpful to the defense will appear on a defendant's witness list. The identity of damaging witnesses that the defense does not call at trial need not be disclosed. Thus, there is nothing in the new discovery chapter that would penalize exhaustive investigation or otherwise chill trial preparation of defense counsel such that criminal defendants would be denied the right to effective assistance of counsel under the Sixth Amendment." (Izazaga, supra, 54 Cal.3d at p. 379, 285 Cal.Rptr. 231, 815 P.2d 304, italics in original.)
The People discount problems engendered by disclosure of defense penalty witnesses who could provide testimony harmful to the defense in the guilt trial as hypothetical situations. The People say that in any event such situations can be handled by the defense seeking in camera review for a protective order under section 1054.7, which presumably would delay disclosure to the prosecution until the guilt trial was completed. In other words, the People would leave it to the trial court's discretion in capital cases to decide whether the defense has made an adequate showing that a penalty witness would be harmful to the defense during the guilt trial.
We have serious reservations with this burdensome approach, which essentially adopts an abuse of discretion standard in an area of constitutional import. For one thing, considering the large number of capital cases in which the defense presents an essentially " mea culpa" defense during the penalty trial, we cannot lightly dismiss the potential dilemma of the defense being required to disclose, before the commencement of the guilt trial, a penalty trial witness who could present damaging guilt evidence as a mere theoretical hypothetical. Second, section 1054.7 discusses an in camera procedure in the context of a showing of " ‘ good cause,’ " which the statute defines in restrictive fashion as " limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement." (§ 1054.7.) Thus, it is not entirely clear that section 1054.7 would be applicable to these situations; certainly it does not appear the drafters of the statute contemplated such a use. In any event, to adopt a case-by-case procedure in which the trial court conducts an in camera review to determine if disclosure to the prosecution should be deferred to the completion of the guilt trial would create a totally unnecessary new round of litigation. The trial courts would be asked to determine whether defense penalty trial witness(es) can damage the defense with respect to guilt, and it would be left to their unfettered discretion to make this Hobson's choice determination. Given all this, we can see no reason why the prosecution cannot perfect its discovery rights to penalty trial evidence as soon as the guilt trial has been completed. Otherwise, the trial courts will have to engage in this type of procedure in a large number of capital cases with the concurrent potential for extraordinary writ review just before the start of the guilt trial. In contrast, our approach, which defers the disclosure of defense penalty trial evidence until the guilt trial is completed, eliminates the vagaries of trial courts exercising their discretion and establishes a consistent principle of law.
[12 Cal.Rptr.2d 225] We note that our interpretation of section 1054.3 also is in keeping with the following rule of statutory construction:
In light of our construction of section 1054.3 as not requiring the defense in a capital case to disclose penalty witnesses and evidence before a guilty verdict and a finding of special circumstance(s) have been returned, it is unnecessary for us to address other contentions raised by Hines and we express no view on them. They include: (1) section 190.3 is a more specific discovery provision with respect to capital cases and accordingly it would supersede the more general section 1054.3; (2) section 1054.3 violates a defendant's compulsory process rights; (3) section 1054.3 violates a capital defendant's equal protection rights; and (4) it is a violation of a capital defendant's Eighth Amendment rights to require the defense to give evidence to the prosecution that the prosecution may ultimately use to argue in favor of defendant's death.
" When language which is
susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute." (People v. Overstreet, supra, 42 Cal.3d 891, 896, 231 Cal.Rptr. 213, 726 P.2d 1288.)
DISPOSITION
Petition granted. The defense cannot be required to disclose penalty trial witnesses and evidence to the prosecution pursuant to section 1054.3 before a guilty verdict and a finding of special circumstance(s) have been returned.
WORK, Acting P.J., and HUFFMAN, J., concur.
With respect to the meaning of " trial," perhaps Justice Holmes, as quoted by the dissent in Overstreet summed it up best: " ‘ A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.’ " (42 Cal.3d at p. 902, fn. 1, 231 Cal.Rptr. 213, 726 P.2d 1288, quoting Towne v. Eisner (1918) 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372.)
With respect to Hines's arguments concerning section 190.3, we note recently the Sixth District considered and rejected them. (See People v. Superior Court (Mitchell) (1992) 8 Cal.App.4th 1708, 11 Cal.Rptr.2d 400.) We note the opinions in both Mitchell and Sturm, supra, flatly hold the reciprocal discovery provisions of Proposition 115 apply to the penalty trial of a capital case and do not adopt our position that these provisions are not applicable to the penalty trial until there is a guilty verdict and a finding of special circumstances. We, of course, are not bound by a decision of another district or division. (See 9 Witkin, Cal.Proc. (3d ed. 1985) Appeal, § 772, pp. 740-742.)