Ct.App. 2/6 B208748 Ventura County Super. Ct. No. 2005045185 Judge: Rebecca S. Riley.
The opinion of the court was delivered by: Baxter, J.
Under Penal Code section 1326, subdivision (c), a person or entity responding to a third party subpoena duces tecum in a criminal case must deliver the subject materials to the clerk of court so that the court can hold a hearing to determine whether the requesting party is entitled to receive them. When, as here, the defendant is the requesting party, the court may conduct that hearing in camera. (Pen. Code, § 1326, subd. (c).)
What is the People's role at such a hearing? The Court of Appeal held that the People were entitled to notice of, and to be present at, the hearing once the responsive documents have been produced, but were not permitted to learn the identity of the subpoenaed party or the nature of the documents requested. The Court of Appeal further held that, unless the prosecutor has been requested by a crime victim to enforce his or her rights under Proposition 9, the Victims' Bill of Rights Act of 2008: Marsy's Law (Cal. Const., art. I, § 28), the prosecutor is not authorized to argue or otherwise participate at the in camera hearing, except to answer any questions the trial court may have, and, furthermore, that the entire hearing may be held ex parte.
The parties now agree that the Court of Appeal erred in unduly restricting the People's role at the in camera hearing, in that the prosecutor may participate in and argue at the hearing, if the trial court so desires. (People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 750-752.) We find that the Court of Appeal also erred in categorically denying the People the right to discover the identity of the subpoenaed party and the nature of the documents sought under the third party subpoena (including the identity of the person to whom the documents pertain), inasmuch as the People's due process right to a meaningful opportunity to be heard may typically require at least that much information. The constitutional rights of the defendant can usually be protected by redacting those materials that disclose privileged information or attorney work product, by conducting portions of the in camera hearing ex parte, and by withholding disclosure to the prosecution of the records produced under the subpoena until the defense has determined that it intends to offer them in evidence at trial. (Pen. Code, §§ 1054.3, subd. (a), 1326, subd. (c).) We therefore reverse the judgment of the Court of Appeal and remand the matter for further proceedings.
A Ventura County grand jury charged petitioner Randolph Clifton Kling with the murders of Michael and William Budfuloski with the special circumstances of multiple murder, lying in wait, and financial gain, in addition to other felony counts. The statement of facts and procedural history below is drawn largely from the opinion of the Court of Appeal.
Prior to trial, the defense served subpoenas duces tecum on a number of third parties. Kling requested the trial court not to disclose information concerning the subpoenas to the prosecution, contending that such information would reveal defense strategies and work product. The prosecution responded that 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." 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." 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" and concluded that such information was not privileged.
The subpoenaed records were delivered to the clerk of the court and examined by the court in camera in the presence of defense counsel. (Pen. Code, § 1326, subd. (c).) The court released the records to the defense and ordered transcripts of the in camera hearings sealed. The People received no notice as to some of these hearings.
On May 20, 2008, relying on our recent decision in People v. Superior Court (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 portions of the transcripts that did not reveal defense theories of relevance or other privileged information. The trial court issued an order unsealing the transcripts of in camera hearings held on November 28, 2007, and March 28, April 8, April 28, and May 1, 2008, and a portion of the transcript of the proceedings on February 20, 2008. The court stated that the transcripts it had ordered unsealed contained "nothing but cursory discussions of subpoenaed records, nothing about defense strategy" and announced its intention to review the transcripts of December 27, 2007, and March 6, 2008, and to issue a ruling whether those transcripts should be unsealed as well. The trial court stayed its order unsealing the transcripts to permit defense counsel to seek writ relief.
After Kling filed the instant petition for writ of prohibition and the People filed a return, the Court of Appeal granted relief in a published opinion, declaring that "[n]o statutory or constitutional authority permits disclosure to the prosecution of the names of the third parties to whom defense subpoenas have been issued or the nature of the records produced." The court added that if, following receipt of the documents, a trial court were to conduct an in camera hearing under Penal Code section 1326, subdivision (c), the prosecution's role at such a hearing would be limited: "Unless the prosecutor has been requested by a victim to enforce rights guaranteed by Proposition 9, the prosecutor is not statutorily authorized to argue or otherwise participate in the in camera hearing, but may be available to answer any questions the trial court has."
While the writ was pending, the jury convicted Kling on all counts and found true the multiple-murder special circumstance as well as the lying-in-wait special circumstance as to one of the murders and set the punishment at death.*fn1 The Court of Appeal acknowledged that these circumstances "may render the matter moot" but elected to resolve the petition "[b]ecause the issue here is a matter of public importance and may likely recur." Indeed, after the writ issued, the Clerk of the Ventura County Superior Court directed courtroom staff that the docket in criminal cases should no longer identify the third party from whom subpoenaed records have been received.
We granted the People's petition for review.
"Documents and records in the possession of nonparty witnesses and government agencies other than the agents or employees of the prosecutor are obtainable by subpoena duces tecum." (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1318.) In civil actions, documents produced in response to a subpoena duces tecum for business records may be delivered to the clerk of the court or, at the election of the subpoenaing party, made available for inspection and copying at the witness's business address. (Evid. Code, § 1560, subds. (b), (e).) This rule does not apply, however, in criminal actions. As we have explained, "[t]he issuance of a subpoena duces tecum pursuant to section 1326 of the Penal Code . . . is purely a ministerial act and does not constitute legal process in the sense that it entitles the person on whose behalf it is issued to obtain access to the records described therein until a judicial determination has been made that the person is legally entitled to receive them." (People v. ...