Kling v. Super. Ct. - 50 Cal. 4th 1068, 239 P.3d 670, 116 Cal. Rptr. 3d 217 S176171 - Mon, 10/18/2010

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Citation 50 Cal. 4th 1068, 239 P.3d 670, 116 Cal. Rptr. 3d 217

Kling v. Super. Ct.

Filed 10/18/10

IN THE SUPREME COURT OF CALIFORNIA

RANDOLPH CLIFTON KLING,
Petitioner,
S176171
v.
Ct.App. 2/6 B208748
THE SUPEROR COURT
OF VENTURA COUNTY,
Respondent;
Ventura County
Super. Ct. No. 2005045185
THE PEOPLE,
Real Party in Interest.
____________________________________)

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
1

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.
BACKGROUND
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.
2

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
3

“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.1
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

1
The Ventura County Superior Court has since denied Kling‟s motion for
new trial and imposed a judgment of death.

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.
DISCUSSION
“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. Blair (1979) 25 Cal.3d
640, 651; see also People v. Superior Court (Humberto S.), supra, 43 Cal.4th at p.
751 [“It is undisputed that trial courts are authorized, indeed obligated, to regulate
the use of subpoenas to obtain privileged third party discovery”].)
Thus, “[i]n a criminal action, no party, attorney or representative of a party,
may issue a subpoena commanding the custodian of records or otherwise qualified
witness of a business to provide books, papers, documents, or records, or copies
thereof, relating to a person or entity other than the subpoenaed person or entity in
any manner other than that specified in subdivision (b) of Section 1560 of the
Evidence Code” (Pen. Code, § 1326, subd. (c)), which provides for delivery of the
materials to the clerk of court. (See also Pen. Code, § 1326, subd. (b) [the option
5

of making the documents available for inspection and copying at the witness‟s
business address (Evid. Code, § 1560, subd. (e)) “shall not apply to criminal
cases”].) This restriction maintains the court‟s control over the discovery process,
for if the third party “objects to disclosure of the information sought, the party
seeking the information must make a plausible justification or a good cause
showing of the need therefor.” (Alford v. Superior Court (2003) 29 Cal.4th 1033,
1045 (lead opn. of Werdegar, J.); see also id. at p. 1057 (conc. & dis. opn. of
Moreno, J.).)
These provisions concerning third party subpoenas apply equally to the
People and the defense. The Legislature granted the defense special protections,
however, in the last two sentences of Penal Code section 1326, subdivision (c):
“When a defendant has issued a subpoena to a person or entity that is not a party
for the production of books, papers, documents, or records, or copies thereof, the
court may order an in camera hearing to determine whether or not the defense is
entitled to receive the documents. The court may not order the documents
disclosed to the prosecution except as required by Section 1054.3.” (See also
Assem. Com. on Public Safety, Concurrence in Sen. Amends. on Assem. Bill No.
1249 (2003-2004 Reg. Sess.) as amended June 9, 2004, p. 1.) Consequently, “the
defense is not required, on pain of revealing its possible defense strategies and
work product, to provide the prosecution with notice of its theories of relevancy of
the materials sought, but instead may make an offer of proof at an in camera
hearing.” (Alford v. Superior Court, supra, 29 Cal.4th at pp. 1045-1046 (lead opn.
of Werdegar, J.); see also id. at p. 1056 (conc. & dis. opn. of Baxter, J.); id. at p.
1057 (conc. & dis. opn. of Moreno, J.).) We have subsequently clarified that
sealing the defense filings is appropriate only if there is “a risk of revealing
privileged information” and a showing “that filing under seal is the only feasible
way to protect that required information.” (Garcia v. Superior Court (2007) 42
6

Cal.4th 63, 73 [discussing sealing of “Pitchess motion” affidavits (Pitchess v.
Superior Court (1974) 11 Cal.3d 531)].)
In People v. Superior Court (Humberto S.), supra, 43 Cal.4th 737, we
addressed the role of the People at third party discovery proceedings under Penal
Code section 1326 and declared that the People had the right to notice of the
hearing and to be present. (43 Cal.4th at p. 749.) We also found that prosecutorial
participation in third party subpoena hearings “is not prohibited” (ibid.), observing
that “trial courts regularly permit prosecutorial participation in third party
discovery,” inasmuch as “ „open proceedings involving the participation of both
parties are the general rule in both criminal and civil cases.‟ ” (Id. at p. 750.)
Without deciding whether a trial court is required to do so (id. at p. 750, fn. 9), we
concluded that “a trial court is permitted to entertain argument from the opposing
party relating to third party discovery.” (Id. at p. 750, italics added.)
In this case, we once again apply these provisions where the defense in a
criminal proceeding has issued third party subpoenas. The trial court here
determined that the People were entitled to discover the identity of the subpoenaed
party and the nature of the records being subpoenaed as well as to have unsealed
those portions of the transcripts of the ex parte hearings that did not disclose
defense strategy. Kling argues, and the Court of Appeal agreed, that although the
People are entitled to notice of the hearing following the court‟s receipt of the
subpoenaed documents, the People are categorically barred from discovering the
identity of the subpoenaed party and the nature of the documents sought (unless or
until the defense decides to use them at trial) and from reviewing any portion of
the transcripts of the ex parte hearings, regardless of what was discussed. Kling‟s
arguments as to why the People are not entitled to notice of the identity of the
subpoenaed party or the nature of the documents sought, however, are based on
misconceptions as to the scope and operation of the discovery statutes.
7

Kling argues first that the identity of the subpoenaed party and the nature of
the requested documents must be concealed from the prosecution to compensate
for what he calls the “asymmetrical and non-reciprocal” provisions in Penal Code
section 1326 that “require a showing of entitlement to discovery from the defense,
but not the prosecution.” But, as stated above, the rules concerning subpoenas
duces tecum in criminal cases are not asymmetrical or nonreciprocal, at least not
in any way that disadvantages a criminal defendant. Even prior to the 2004
amendments to section 1326, the law provided that the issuance of a subpoena
duces tecum “is purely a ministerial act and does not entitle 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.”
(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1249 (2003-2004
Reg. Sess.) as amended Mar. 28, 2003, p. 2 (Assem. Analysis of Assem. Bill
1249), citing People v. Blair, supra, 25 Cal.3d at p. 651.) The 2004 amendments
to section 1326 did not weaken those protections. Rather, as the author of
Assembly Bill No. 1249 explained, the proposed amendments were designed “ „to
better protect the privacy rights of third-party citizens and litigants alike when
subpoenas are issued and served in criminal cases, and to re-establish and
strengthen judicial control over the release of privileged and confidential records
to prosecutors and criminal defendants in criminal cases.‟ ” (Assem. Analysis of
Assem. Bill 1249, supra, p. 3, italics added; see also Sen. Rules Com., Off. of Sen.
Floor Analyses, 3d reading analysis of Assem. Bill No. 1249 (2003-2004 Reg.
Sess.) as amended June 9, 2004, p. 1 [“This bill makes it clear that in a criminal
case, documents requested through a subpoena duces tecum shall be returned to
the court and not to the requesting attorney”].) The same procedures thus apply
regardless of whether the subpoena was issued by the prosecution or by the
defense—except that the defense is afforded two additional protections: (1) when
8

a defendant has issued a subpoena to a nonparty, the hearing at which the defense
seeks to justify its entitlement to the records may be conducted in camera; and (2)
the records will not be disclosed to the prosecution unless or until the defendant
intends to offer them as evidence at trial. (Pen. Code, §§ 1054.3, subd. (a), 1326,
subd. (c).) Contrary to Kling‟s assumption, there is no need to construe the
discovery statutes to bar disclosure of the fact of the third party subpoena and
surrounding circumstances simply to enable the scheme “to pass constitutional
muster” because of an “alleged lack of reciprocity.”
Kling argues next that the People are not entitled to disclosure of the
identity of the subpoenaed party or the nature of the documents sought because the
discovery provisions of Proposition 115 (Pen. Code, § 1054 et seq.) require
disclosure only of persons the defendant “intends to call as witnesses at trial” and
of documents or real evidence the defendant “intends to offer in evidence at the
trial.” (Pen. Code, § 1054.3, subd. (a)(1), (2).) Once again, Kling has
misapprehended the applicable law. As the Legislature recognized, and as
reiterated in the case law, Penal Code sections 1054 through 1054.7 “do not
regulate discovery concerning uninvolved third parties.” (Assem. Analysis of
Assem. Bill 1249, supra, p. 3; accord, Teal v. Superior Court (2004) 117
Cal.App.4th 488, 491; People v. Superior Court (Barrett), supra, 80 Cal.App.4th
at p. 1313; People v. Superior Court (Broderick) (1991) 231 Cal.App.3d 584,
594.) On the other hand, the provisions that do apply suggest that the People
would become aware of at least the subpoenaed party‟s identity when the court
opens the sealed envelope containing copies of the records “in the presence of all
parties who have appeared in person or by counsel at the trial, deposition, or
hearing.” (Evid. Code, § 1560, subd. (d); cf. People v. Superior Court (Humberto
S.), supra, 43 Cal.4th at p. 749.)
9

The Court of Appeal expressed concern that disclosure of basic information
concerning the third party subpoena would inhibit the defense investigation, but its
concern appears overstated. (Cf. Michigan v. Lucas (1991) 500 U.S. 145, 149-151
[upholding Mich. statute requiring the defense to give notice within 10 days after
arraignment of its intent to offer evidence of the victim‟s sexual conduct].) It is
true that allowing the prosecution to learn that certain records have been
subpoenaed from a third party may cause the defense to face the “difficult decision
whether to subpoena the records and run the risk of bringing possibly adverse
information to the attention of the prosecutor or to forgo seeking information that
could be beneficial to his defense. However difficult that decision may be, we do
not see it as impairing the policies behind [a defendant‟s] right to counsel. In
essence it is [the defense] position that the prosecution, by. . . knowing [the
records] have been subpoenaed by the defense, will have access to his attorneys‟
work product because the prosecutor will be able to „glean‟ the attorneys‟ thought
processes and determine defense strategy. There is no basis in law for interpreting
attorneys‟ work product so broadly.” (Department of Corrections v. Superior
Court (1988) 199 Cal.App.3d 1087, 1097; see generally People v. Cooper (1991)
53 Cal.3d 771, 816; accord, United States v. Fox (D. Neb. 2003) 275 F.Supp.2d
1006, 1012 [adopting “the majority view” that “generalized statements about
premature disclosure of „strategy‟ or „work product‟ will almost never be a good
reason for ex parte consideration” of a request for a subpoena duces tecum under
Fed. Rule of Crim. Proc., rule 17(c), 18 U.S.C.].)
We further agree with the People that disclosure of the identity of the
subpoenaed party and the nature of the records sought may, in many
circumstances, effectuate the People‟s right to due process under the California
Constitution. (Cal. Const., art. I, § 29; cf. Alford v. Superior Court, supra, 29
Cal.4th at p. 1044 (lead opn. of Werdegar, J.) [discussing “general due process
10

principles” governing the People‟s role when the defense seeks confidential
records of a peace officer].) Discovery proceedings involving third parties can
have significant consequences for a criminal prosecution, consequences that may
prejudice the People‟s ability even to proceed to trial. For example, a third party‟s
refusal to produce documents requested by the defense can potentially result in
sanctions being applied against the People. (Department of Corrections v.
Superior Court, supra, 199 Cal.App.3d at p. 1093, citing Dell M. v. Superior
Court (1977) 70 Cal.App.3d 782, 788.) Protracted ex parte proceedings may
result in delays, thereby interfering with the People‟s right to a speedy trial. (Cal.
Const., art. I, § 29; Pen. Code, § 1050.) The People, even if not the target of the
discovery, also generally have the right to file a motion to quash “so that
evidentiary privileges are not sacrificed just because the subpoena recipient lacks
sufficient self-interest to object” (M. B. v. Superior Court (2002) 103 Cal.App.4th
1384, 1392) or is otherwise unable to do so. (See People v. Superior Court
(Humberto S.), supra, 43 Cal.4th at p. 743.) Even where the People do not seek to
quash the subpoena, the court may desire briefing and argument from the People
about the scope of the third party discovery. (Id. at pp. 750-751.)2 Indeed, “a
canvass of the underlying proceedings in reported cases suggests trial courts
regularly permit prosecutorial participation in third party discovery.” (43 Cal.4th
at p. 750.) It is difficult to see how the People can have a meaningful opportunity
to be heard if they are categorically barred from learning the identity of the
subpoenaed party or the nature of the documents requested. (See ibid.) We
therefore reject the Court of Appeal‟s contention that “[n]o statutory or
constitutional authority permits disclosure to the prosecution of the names of the

2
As in People v. Superior Court (Humberto S.), supra, 43 Cal.4th at page
750, footnote 9, we need not decide here whether the trial court is required to
allow argument from the People concerning third party discovery issues.
11

third parties to whom defense subpoenas have been issued or the nature of the
records produced.”
A trial court‟s role when presented with materials produced under a defense
subpoena duces tecum to a third party, then, is to balance the People‟s right to due
process and a meaningful opportunity to effectively challenge the discovery
request against the defendant‟s constitutional rights and the need to protect
defense counsel‟s work product. The trial court “is not „bound by defendant‟s
naked claim of confidentiality‟ ” but should, in light of all the facts and
circumstances, make such orders as are appropriate to ensure that the maximum
amount of information, consistent with protection of the defendant‟s constitutional
rights, is made available to the party opposing the motion for discovery. (Garcia
v. Superior Court, supra, 42 Cal.4th at p. 72; see also City of Alhambra v.
Superior Court (1988) 205 Cal.App.3d 1118, 1130-1131.) The trial court may
order an in camera review of the records produced under the subpoena duces
tecum (Pen. Code, § 1326, subd. (c)) and, as the People concede, may conduct
some or all of the hearing concerning the defendant‟s entitlement to those records
ex parte in order to safeguard privileged information or attorney work product.
(People v. Superior Court (Humberto S.), supra, 43 Cal.4th at pp. 749-750.)
The use of these extraordinary procedures, though, should be limited to that
which is necessary to safeguard the rights of the defendant or of a third party,
inasmuch as ex parte proceedings are generally disfavored because of their
inherent deficiencies. “ „The first is a shortage of factual and legal contentions.
Not only are facts and law from the defendant lacking, but the moving party‟s own
presentation is often abbreviated because no challenge from the [opposing party]
is anticipated at this point in the proceeding. The deficiency is frequently crucial,
as reasonably adequate factual and legal contentions from diverse perspectives can
be essential to the court‟s initial decision . . . .‟ ” (People v. Ayala (2000)
12

24 Cal.4th 243, 262; cf. People v. Superior Court (Humberto S.), supra, 43 Cal.4th
at p. 743 [the defense was erroneously granted pretrial discovery of the eight-year-
old complaining witness‟s psychotherapy records, in violation of People v.
Hammon (1997) 15 Cal.4th 1117, because of an ex parte subpoena procedure].)
Moreover, “with only the moving party present to assist in drafting the court‟s
order there is a danger the order may sweep „more broadly than necessary.‟ ”
(Department of Corrections v. Superior Court, supra, 199 Cal.App.3d at p. 1093.)
In this case, the trial court failed to give the People notice of the in camera
hearings regarding the receipt of materials from third parties or to consider what
information could be shared with the prosecution. After our decision in People v.
Superior Court (Humberto S.), supra, 43 Cal.4th 737 was brought to its attention,
though, the trial court sought to remedy its error by reviewing the transcripts of all
previously closed hearings and ordering unsealed those specific portions that did
not reveal defense theories of the requested materials‟ relevance or any other
privileged or protected information. The trial court thus attempted to protect
Kling‟s constitutional rights and counsel‟s work product while, to the extent
possible, still providing for open proceedings. (Department of Corrections v.
Superior Court, supra, 199 Cal.App.3d at p. 1094.) Whether the trial court
properly exercised its discretion in balancing those competing interests and in
issuing its order is beyond the scope of our grant of review, and has not yet been
considered by the Court of Appeal, which ruled categorically that the People had
no entitlement to any portion of the sealed transcripts, regardless of what they
contained. On remand, the Court of Appeal may consider whether the trial court,
under the legal standards set forth herein, properly unsealed the specified portions
of the transcripts.
Finally, we note that our interpretation of the criminal discovery statutes
with respect to third party subpoenas duces tecum appears to be consistent with
13

Proposition 9, the “Victims‟ Bill of Rights Act of 2008: Marsy‟s Law,” which—
subsequent to the proceedings in the trial court here—amended the California
Constitution to guarantee crime victims a number of rights, including the right
“[t]o prevent the disclosure of confidential information or records to the defendant,
the defendant‟s attorney, or any other person acting on behalf of the defendant,
which could be used to locate or harass the victim or the victim‟s family or which
disclose confidential communications made in the course of medical or counseling
treatment, or which are otherwise privileged or confidential by law.” (Cal. Const.,
art. I, § 28, subd. (b)(4).) Marsy‟s Law provides that this right, along with the
others enumerated in subdivision (b), may be enforced by “[a] victim, the retained
attorney of a victim, a lawful representative of the victim, or the prosecuting
attorney upon request of the victim.” (Id., art. I, § 28, subd. (c)(1).)
Marsy‟s Law evidently contemplates that the victim and the prosecuting
attorney would be aware that the defense had subpoenaed confidential records
regarding the victim from third parties. As the People have observed, “[n]either
the prosecution nor the victim can attempt to address the disclosure of records if
they do not know what records are being sought.” Kling is correct that this
proceeding does not present an opportunity for “expansive proclamations
regarding implementation of Marsy‟s Law,” but we do agree with the People that a
victim‟s right to notice of a third party subpoena would be consistent with the
presumption that court proceedings are open and with the prosecution‟s right to
due process.
14

DISPOSITION
The judgment of the Court of Appeal is reversed and the cause is remanded
for proceedings consistent with our opinion.

BAXTER, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
15

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Kling v. Superior Court
__________________________________________________________________________________
Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 177 Cal.App.4th 223
Rehearing Granted
__________________________________________________________________________________

Opinion No.
S176171
Date Filed: October 18, 2010
__________________________________________________________________________________
Court:
Superior
County: Ventura
Judge: Rebecca S. Riley

__________________________________________________________________________________
Counsel:

Duane Dammeyer and Steven P. Lipson, Public Defenders, and Michael C. McMahon, Chief Deputy
Public Defender, for Petitioner.
No appearance for Respondent.

Gregory D. Totten, District Attorney, Michael D. Schwartz, Special Assistant District Attorney, Cheryl M.
Temple and Michelle J. Contois, Deputy District Attorneys, for Real Party in Interest.

Bilenda Harris-Ritter for the National Crime Victim Law Institute and the California Voice for Crime
Victims, Inc., as Amici Curiae on behalf of Real Party in Interest.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael C. McMahon
Chief Deputy Public Defender
800 South Victoria Avenue, HOJ-207
Ventura, CA 93009
(805) 477-7114

Michelle J. Contois
Deputy District Attorney
800 South Victoria Avenue
Ventura, CA 93009
(805) 654-2719

Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate. This case includes the following issues: (1) What role does the prosecution have in an in camera hearing to determine whether to disclose third party documents to the defense? (2) Is the prosecution entitled to information at that time about the documents subpoenaed and from whom they were subpoenaed, or is such disclosure only required (see Pen. Code, seccion 1054.3) once the defense decides to use the documents at trial?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Mon, 10/18/2010	50 Cal. 4th 1068, 239 P.3d 670, 116 Cal. Rptr. 3d 217	S176171	Review - Criminal Original (non-H.C.)	submitted/opinion due	PEOPLE v. KLING (RANDOLPH CLIFTON) (S180711) People v. Superior Court (Humberto S.), 43 Cal.4th 737

Parties

1	Kling, Randolph Clifton (Petitioner) Represented by Michael C. McMahon Office of the Ventura County Public Defender 800 S. Victoria Avenue, Suite 207 Ventura, CA
2	Superior Court of Ventura County (Respondent) 800 S. Victoria Avenue Ventura, CA 93009
3	The People (Real Party in Interest) Represented by Michael D. Schwartz Office of the Ventura County District Attorney 800 S. Victoria Avenue Ventura, CA
4	The People (Real Party in Interest) Represented by Michelle Jeannette Contois Office of the Ventura County District Attorney 800 S. Victoria Avenue Ventura, CA
5	California Voice for Crime Victims, Inc. (Amicus curiae) Represented by Bilenda Harris-Ritter California Voice for Crime Victims, Inc. P.O. Box 1700 Carmichael, CA
6	National Crime Victim Law Institute (Amicus curiae) Represented by Bilenda Harris-Ritter California Voice for Crime Victims, Inc. P.O. Box 947 Folsom, CA
7	Office of the San Joaquin County District Attorney (Pub/Depublication Requestor) Represented by Kevin Hicks Office of the San Joaquin County District Attorney 222 E. Weber Avenue, Suite 202 Stockton, CA

Opinion Authors
Opinion	Justice Marvin R. Baxter

Dockets
Sep 10 2009	Petition for review filed Real Party in Interest: The PeopleAttorney: Michael D. Schwartz
Sep 10 2009	Record requested
Sep 14 2009	Received Court of Appeal record 1 box
Nov 3 2009	Time extended to grant or deny review The time for granting or denying review in the above-entitled matter is hereby extended to and including December 9, 2009, or the date upon which review is either granted or denied.
Sep 23 2009	Request for depublication (petition for review pending) Pub/Depublication Requestor: Office of the San Joaquin County District AttorneyAttorney: Kevin Hicks
Nov 10 2009	Petition for review granted Votes: George, C.J., Baxter, Werdegar, Chin, and Corrigan, JJ.
Nov 12 2009	Received: from counsel for aplt. copy of case minute order from superior court.
Dec 10 2009	Opening brief on the merits filed Real Party in Interest: The PeopleAttorney: Michael D. Schwartz
Dec 10 2009	Request for judicial notice filed (Grant or AA case) Real Party in Interest: The PeopleAttorney: Michael D. Schwartz
Dec 23 2009	Stay application filed (separate petition pending) for petitioner, Randall Clifton Kling, by Michael C. McMahon, chief deputy public defender
Dec 23 2009	Received: Sealed envelope of exhibits (related to request for stay), from Michael C. McMahon, chief deputy public defender
Dec 24 2009	Opposition filed Real Party in Interest: The PeopleAttorney: Michael D. Schwartz to Application for Stay.
Dec 28 2009	Application for stay denied The Request for an Immediate Stay of Proceedings, filed December 23, 2009, is denied without prejudice to petitioner seeking review by writ in the Court of Appeal of the trial court's order directing release of page 4, line 7, through page 5, line 12, of the sealed declaration.
Jan 11 2010	Request for extension of time filed Counsel for petnr. requests extension of time to February 25, 2010, to file the answer brief on the merits.
Jan 14 2010	Extension of time granted On application of petitioner and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including February 25, 2010. No further extensions of time are contemplated.
Feb 26 2010	Answer brief on the merits filed Petitioner: Kling, Randolph CliftonAttorney: Michael C. McMahon (8.25 (b))
Mar 16 2010	Reply brief filed (case fully briefed) Real Party in Interest: The PeopleAttorney: Michael D. Schwartz
Apr 16 2010	Application to file amicus curiae brief filed The National Crime Victim Law Institute and the California Voice for Crime Victims, Inc. in support of real party in interest. (8.25(b))
Apr 22 2010	Permission to file amicus curiae brief granted The application of The National Crime Victim Law Institute and The California Voice for Crime Victims, Inc. for permission to file an amicus curiae brief in support of real party in interest is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Apr 22 2010	Amicus curiae brief filed Amicus curiae: National Crime Victim Law InstituteAttorney: Bilenda Harris-Ritter The National Crime Victim Law Institute and The California Voice for Crime Victims, Inc.
May 13 2010	Response to amicus curiae brief filed Petitioner: Kling, Randolph CliftonAttorney: Michael C. McMahon (8.25(b))
Jun 14 2010	Received: brief entitled "Motion to Limit Issues to be Argued; Motion to Strike Portions of Petitioner's Answer to Amicus Curiae; Alternative Motion to Allow Additional Brief", by real party in interest, by Micahel D. Schwartz, district attorney.
Jun 14 2010	Change of contact information filed for: counsel for amicus curiae Calif. Voice for Crime Victims, Inc.
Jun 15 2010	Motion filed counsel for real party in interest. (under same cover) Motion to limit issues to be argued. Motion to strike portion of petnr's. answer to a/c brief; Alternative Motion to Allow additional Brief.
Jul 14 2010	Order filed Real Party in Interest's Motion to Limit Issues to Be Argued; Motion to Strike Portions of Petitioner's Answer to Brief of Amici Curiae; and Alternative Motion to Allow Additional Brief is denied. In granting permission to file the amicus curiae brief of The National Crime Victim Law Institute and The California Voice for Crime Victims, Inc., and in filing Petitioner's Answer to Brief of Amici Curiae, the court did not expand the issues on review beyond those specified in Real Party's petition for review, filed September 10, 2009, or request the parties to brief any issues other than those previously specified. (See Cal. Rules of Court, rule 8.520(f); see also Benefield v. Department of Corrections & Rehabilitation (2009) 171 Cal.App.4th 469, 475, fn 9.)
Aug 2 2010	Case ordered on calendar To be argued Tuesday, September 7, 2010, at 1:00p.m. in San Francisco.
Sep 7 2010	Cause argued and submitted
Sep 13 2010	Request for judicial notice granted The People's Motion for Judicial Notice, filed December 10, 2009, is granted.

Briefs
Dec 10 2009	Opening brief on the merits filed Real Party in Interest: The PeopleAttorney: Michael D. Schwartz
Feb 26 2010	Answer brief on the merits filed Petitioner: Kling, Randolph CliftonAttorney: Michael C. McMahon
Mar 16 2010	Reply brief filed (case fully briefed) Real Party in Interest: The PeopleAttorney: Michael D. Schwartz
Apr 22 2010	Amicus curiae brief filed Amicus curiae: National Crime Victim Law InstituteAttorney: Bilenda Harris-Ritter
May 13 2010	Response to amicus curiae brief filed Petitioner: Kling, Randolph CliftonAttorney: Michael C. McMahon

Brief Downloads
S176171_real-partys-in-interest-petition-for-review-1.pdf (301945 bytes) - Real Party's in Interest Petition for Review
S176171_real-partys-in-interest-opening-brief-on-the-merits-2.pdf (362458 bytes) - Real Party's in Interest Opening Brief on the Merits
S176171_real-partys-in-interest-motion-for-judicial-notice-3.pdf (1781167 bytes) - Real Party's in Interest Motion for Judicial Notice
S176171_petitioners-answer-brief-on-the-merits-4.pdf (171412 bytes) - Petitioner's Answer Brief on the Merits
S176171_real-partys-in-interest-reply-brief-of-the-merits-5.pdf (161742 bytes) - Real Party's in Interest Reply Brief on the Merits

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Nov 30, 2010
Annotated by stennant

FACTS

A grand jury in Ventura County charged Randolph Clifton Kling, the petitioner, with the murders of Michael and William Budfuloski. The charges against him consisted of multiple murder, lying in wait, financial gain, and other felonies. The defendant served subpoenas duces tecum on several third parties, and requested that the trial court not disclose the information to the prosecution. The prosecution (the People) responded that the people have the right to know. The trial court held that the information was not privileged and that there was no authority to support the defense claims. The subpoenaed records were sent to the court and examined in a camera hearing in the presence of the defense counsel, in accordance with Cal Pen. Code, § 1326, subd. (c). The court then released the records to the defendant and ordered the transcripts sealed, without any notice to the People.

Relying on People v. Superior Court (Humberto S. ), the People requested that the court examine the transcripts of all previously closed hearings and unseal the portions of the transcript that did nto contain privileged information. The court unsealed several dates of transcript, but still wanted to review two specific dates. The court stayed its order and allowed the defense counsel to seek writ relief.

PROCEDURAL HISTORY

The defendant filed a writ of prohibition, to which the People filed a return. The Court of Appeals granted relief, holding 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 emphasized the limited role of the prosecutor in these matters, unless requested by a victim to enforce rights under Proposition 9 in the Penal Code 1326 subsection (c).

While the write was pending, a jury convicted Kling. Even though the matter surrounding the writ was now deemed to be moot, the Court of Appeals chose to resolve the matter citing that it is an issue that is likely to occur again.

The issue was brought before the Supreme Court, where the judgment of the Court of Appeals was reversed and remanded the matter for further proceedings.

ISSUES

1. What is the People's role at an in camera hearing regarding the subpoena duces tecum in a criminal case?

2. Do the People have the right to discover the identity of the subpoenaed party and the nature of documents sought? Does this conflict with the constitutional rights of the defendant?

HOLDING

1. The People may participate in and argue at the hearing if the trial court desires.

2. The People have a due process right of a meaningful opportunity to be heard, and this right typically requires the right to discover the identity of the subpoenaed party and the nature of the documents sought.

ANALYSIS

J. Baxter
In criminal cases, the issuance of a subpoena duces tecum is not a legal process and one is not entitled access to the records until a judicial determination has been made that the person requesting the documents are legally entitled to access them. The rule ensures that courts maintain control of the discovery process and the provisions concerning these types of subpoenas are applied equally to the defense and to the People. Some special protections for the defense were given by the legislature for specific situations. The Penal Code § 1326, subdivision (c) states that "when a defendant has issued a subpoena to a person or entity that is not a party...the court may order an in camera hearing to determine whether or not the defense is entitled to receive the documents. The curt may not order the documents disclosed t othe prosecution ,except as required by §1054.3." The Court previously clarified that sealing defense filings is only appropriate when there is a risk of revealing privileged information.

The Court also relies on precedent to state that the People have a right to notice of the hearing and to be present, and that prosecutorial participation is not prohibited as such and that trial courts may permit arguments from opposing parties in relation to third party discovery. The Court argues that the Court of Appeal's argument that disclosure of information in the third party subpoena would inhibit the defense investigation is overstated. While the Court acknowledges that disclosure may force the defense to face a difficult situation where they must decide whether to risk bringing potential adverse information to the attention of the prosecutor by a subpoena of a third party or choose not to pursue information that may be relevant to the case. However, the Court does not see this decision as an impairing the defense's right to counsel. While the defense claims that disclosure would expose attorney work product, the Court does not see any basis for viewing attorney work product so broadly.

Further, the Court states that the disclosure of identity and nature of records are part of the People's right to due process. The Court states that third party discovery may have significant consequences for a criminal prosecution and this could prejudice the People at trial. The Court cites to sanction on the People and the denial of a speedy trial through the delays brought about by ex-parte hearings as situations of concern. The People also have the right to file a motion to quash on the subpoena, and in the case of the hearings, a court may be interested in hearing the arguments from the prosecutorial perspective regarding the scope of third party discovery. The Court is concerned that the People's right to be heard cannot be fulfilled if they are not allowed to learn of the identity of the person or the nature of the documents that were requested.

The Court states that "a trial court's role when presented with material produced under a defense subpoena duces tecum to a third party, then, is to balance the Peoples right to due process and a meaningful opportunity to effectively challenge the discovery request against the defendant's constitutional rights and the need to protect defense counsel's work product." This does not exclude the trial court's right to conduct ex-parte hearings when privileged information or attorney work product are at issue. However, the Court explains that these measures are extraordinary and should be limited to situations where the rights of the defendant or of the third party need protection, since hearing where only one party is present can lead to orders that "sweep more broadly than necessary."

The Court also uses the intent of Marsy's Law (which prevent disclosure of victim information to defendants where harassment may take place) to bolster the holding that the People are entitled to information requested by the defense. The Court states that "Marsy's Law evidently contemplates that the victim and the prosecuting attorney would be aware that the defense had subpoenaed confidential records regarding the victim from third parties" and "neither the prosecution nor the victim can attempt to address the disclosure of records if they do not know what records are being sought." The Court states that a victims right to notice is consistent with the notions of the prosecutor's right to due process.

We Concur:
George, C.J.
Kennard, J.
Werdegar, J.
Chin, J.
Moreno, J.
Corrigan, J.

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Supreme Court of California