(Los Angeles County Super. Ct. No. BS129740 App. Div.) (Sanjay T. Kumar, J., with Patti Jo McKay, P.J., and Gregory Keosian, J.) (Los Angeles County Super. Ct. No. 0CA01190) (Robert C. Vanderet, Judge) ORIGINAL PROCEEDINGS in mandate. Petition granted.
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
During pretrial proceedings in a misdemeanor case, the trial court held that the criminal discovery statutes (Pen. Code, § 1054 et seq.) precluded the prosecutor from obtaining production of various corporate records pertaining to corporate structure and operations from the corporate defendants. We conclude that the criminal discovery statutes do not bar production of the records, which constitute a category of non-testimonial evidence that Penal Code section 1054.4 and established precedent permit the prosecutor to obtain. Accordingly, we grant the prosecutor's petition for a writ of mandate.
In a complaint filed June 7, 2010, real parties in interest World Wide Rush, LLC (WWR); SMIII Sepulveda Center, LLC (SMIII); VDA Property Company, LLC (VDA); and MD Graphic Installers, Inc. (real parties) were charged with violating Los Angeles Municipal Code section 57.12.02, Business and Professions Code sections 5405 and 5440, and Los Angeles Municipal Code section 14.4.4, subdivision (B)(9) (charged against VDA only) by placing "supergraphic" advertising signs on two buildings in Los Angeles (People v. World Wide Rush, LLC, et al. (Super. Ct. L.A. County, 2010, No. 0CA01190)). Real parties pleaded not guilty.
On October 7, 2010, the prosecutor filed a Motion for Corporate Discovery, seeking an order requiring the custodian of records for each of the real party corporate defendants to produce for inspection and copying the following categories of documents: those "pertaining to articles of incorporation, statement of officers, statement of information, and fictitious name filings" filed by real parties; those reflecting "the ownership, management or control of" real parties; those "regarding or relating to discussions, negotiations, agreements, offers, contracts and all other communications and commercial transaction records, whether or not consummated, regarding or relating to" specifically described supergraphic signs; those "describing, regarding, referring to or relating to any consideration . . . paid or received" by real parties for specifically described supergraphic signs; and those "relating to any communications, notices of violations, complaints or inquiries received by" real parties from any government agency since April 1, 2009, along with documents "relating to responses" to such communications, notices, complaints, or inquiries.
Each of the real parties opposed the prosecutor's motion on the ground that both the prosecutor's motion and the discovery it sought fell outside the scope of the criminal discovery statutes and were thus improper. They also contended that the document requests should be evaluated in the course of the civil action filed against them by the city, rather than the criminal case. The trial court agreed that the motion sought discovery not permitted by the discovery statutes and denied the motion.
On December 15, 2010, the prosecutor filed a petition for a writ of mandate in the Appellate Division of Los Angeles Superior Court. Real parties SMIII and VDA filed a brief opposing the petition. The appellate division summarily denied the petition on January 10, 2011.
The prosecutor then filed a Motion for Leave to Serve Subpoenas Duces Tecum on Corporate Defendants. The subpoenas attached to the motion sought production in court of the same categories of documents sought in the discovery motion. SMIII and VDA opposed the motion, relying again on the exclusivity of the criminal discovery statutes and the possibility of obtaining the documents in the civil action. They also argued that under Penal Code section 1326, subpoenas duces tecum could not be used against a party. (Undesignated statutory references are to the Penal Code.) WWR joined in the opposition. The trial court denied this motion, as well. It rejected the proposition that discovery should be limited to the civil action, but agreed that section 1326 was inapplicable to a party and that the motion sought discovery beyond that permitted by the criminal discovery statutes.
On February 8, 2011, the prosecutor filed a petition for a writ of mandate in this court. SMIII and VDA filed preliminary opposition. On March 3, 2011, we ordered the superior court to show cause why a peremptory writ should not issue. Real parties SMIII and VDA filed a return, to which prosecutor replied.
The prosecutor contends that he is entitled to production of the corporate records in issue pursuant to section 1054.4 and People v. Superior Court (Keuffel & Esser Co.) (1986) 181 Cal.App.3d 785 (Keuffel). We agree because the criminal discovery statutes do not bar production of the records, which constitute a category of non-testimonial evidence that Penal Code section 1054.4 and established precedent permit the prosecutor to obtain. Accordingly, we grant the prosecutor's petition for a writ of mandate.
Up until the passage of Proposition 115 in 1990, a number of decisions by the California Supreme Court interpreted the state constitutional privilege against self-incrimination as a "roadblock to prosecutorial discovery." (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 371 (Izazaga); People v. Collie (1981) 30 Cal.3d 43, 50-51 (Collie).) In Collie, the court disapproved not only the discovery order in issue, but "all other judicial attempts to frame prosecutorial discovery orders" and declined "to articulate a unitary principle on which discovery by the People can be based." (30 Cal.3d at p. 55.) The court nevertheless expressly left "intact the firmly established precedents that hold the self-incrimination privilege inapplicable to, and allow mandatory production of, non-testimonial evidence such as fingerprints, blood samples, breath samples, appearances in lineups, and handwriting and voice exemplars." (Id. at p. 55, fn. 7.)
In Keuffel, supra, 181 Cal.App.3d 785, the corporate defendant was charged with a misdemeanor violation of an ordinance regulating the discharge of chemicals into the sewers. The prosecutor "filed a discovery motion seeking corporate records and other information relating to defendant's manufacturing process and methods of disposing of chemical waste materials during that process." (Id. at p. 787.) The municipal court granted the motion after limiting the scope of discovery to non-privileged documents that were relevant to the issues involved in the case. (Id. at p. 787, fn. 1.) The superior court granted defendant's petition for a writ of prohibition, citing Collie, supra, 30 Cal.3d 43. Division Five of this district reversed, observing that although the prosecutorial discovery restrictions in Collie were founded upon the individual defendant's Fifth Amendment privilege against self-incrimination, Collie expressly preserved the prosecutor's entitlement to the production of non-testimonial evidence. (Keuffel, at p. 788.) Because corporations do not have a privilege against self-incrimination, Division ...