Superior Court County of Ventura (Super. Ct. No. 2005045185)(Ventura County) Rebecca S. Riley, Judge.
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
OPINION AND ORDER GRANTING PETITION FOR WRIT OF PROHIBITION
Penal Code section 1326 requires that documents produced in response to a defendant's subpoena duces tecum in a criminal action be delivered to the clerk of the court.*fn1 The court may order an in camera hearings to determine whether the defendant is entitled to receive the documents subpoenaed. (§ 1326, subd. (c).)
In People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737 ("Humberto S."), our Supreme Court held that the prosecution must receive notice of the hearing, but left unanswered the question to what extent the prosecution may participate in the hearing. Here we answer the question.
We conclude the prosecution has a limited role. Absent exceptional circumstances, the prosecution may not know who the defense has subpoenaed or what documents were subpoenaed unless the defense decides to use them at trial. The prosecution is then entitled to discovery pursuant to the reciprocal discovery provisions of section 1054.3. At section 1326 hearings, the prosecution is often seen but not heard. The prosecution's compelled silence may be broken when the court calls upon it to "address any questions the trial court has." (Humberto S., supra, 43 Cal.4th 737, 755.) This is likely to occur when the subpoena concerns privacy rights of third parties.
Petitioner Randolph Kling seeks a writ of prohibition to compel respondent superior court to vacate its order granting the People's motion to unseal reporters' transcripts of in camera hearings conducted pursuant to section 1326, subdivision (c). We grant the petition.
A grand jury indicted Kling on seven felony counts, including two counts of first degree murder with special circumstances alleged for multiple murders, lying in wait, and financial gain. (§§ 187, subd. (a), 190.2, subd. (a)(1), (3) & (15).) During its investigation, the defense sought production of various records and served subpoenas on third parties. The subpoenaed records were delivered to the clerk of the trial court and examined by the court in camera, in the presence of defense counsel. (§ 1326, subd. (c).) Some of the in camera hearings occurred without notice to the People.
In January of 2008, Kling requested the trial court not to disclose to the prosecution information concerning the subpoenas. Kling contended that knowledge of the records subpoenaed would reveal defense strategies and work product. The prosecution argued the "People have a right to know the items subpoenaed . . . and what the court is contemplating releasing, to determine if the People have standing to object, to alert other persons who may have standing to object, or to join the defendant's attempt to obtain information therein." The prosecution did not object, however, to an in camera hearing for the court to hear defense arguments concerning the relevance of the subpoenaed items so it could determine whether to release the subpoenaed items.
On February 5, 2008, the trial court ordered that all documents received by the court pursuant to a defense subpoena were "to be logged in the docket, noting the date received and the party supplying the documents."*fn2 The court stated that it found "no authority supporting the defense request to have no documentation in the file identifying the receipt of subpoenaed documents and the agency or person from whom they were received. The Court [found] that there is no privilege that applies to this information."
The Ventura County Superior Court clerk makes docket reports available to the public in both a "short" and "long" format, with slightly more information contained in the long format. In accordance with the trial court's order of February 5, 2008, the clerk began recording in the long docket report the names of the third parties from whom the defense had subpoenaed documents.
On February 20, March 6, March 28, April 8, April 28, and May 1, 2008, the trial court conducted in camera hearings with defense counsel to review subpoenaed documents. The court released documents to the defense and ordered transcripts of the in camera hearings sealed.
On May 20, 2008, relying on the recent case of Humberto S., supra, 43 Cal.4th 737, the People requested that the trial court examine the transcripts of all previously closed hearings and unseal any ...