Unpublished Disposition, 930 F.2d 27 (9th Cir. 1985)

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US Court of Appeals for the Ninth Circuit - 930 F.2d 27 (9th Cir. 1985)

No. 90-16031.

United States Court of Appeals, Ninth Circuit.

Vincent Johnson, a California state prisoner, appeals pro se the dismissal of his habeas petition. We affirm.

Johnson's first claim stems from the state trial court's order that Johnson's attorney release investigative reports concerning defense witnesses pursuant to California Penal Code Sec. 1102.5. Subsequent to Johnson's conviction, the California Supreme Court held that section 1102.5 violated the state privilege against self-incrimination (article I, section 15 of the California Constitution). In re Misener, 38 Cal. 3d 543, 213 Cal. Rptr. 569, 698 P.2d 637 (1985).

Johnson argues that section 1102.5 violated his federal constitutional rights as well. It does not. In United States v. Nobles, 422 U.S. 225, 234 (1975), the Supreme Court held that the privilege against compulsory self-incrimination does not extend to the testimony or statements of third parties called as witnesses at trial. See also Williams v. Florida, 399 U.S. 78, 81-82 (1970) (notice of alibi rule does not violate due process). Under section 1102.5, (1) disclosure took place only after the witness had testified on direct examination, (2) in camera inspection limited the disclosure to matters raised on direct and protected work product, and (3) the prosecution was required to disclose any evidence obtained as a result of the disclosure. In re Misener, 38 Cal. 3d at 560, 213 Cal. Rptr. at 581, 698 P.2d at 648 (Lucas, J., dissenting). These safeguards were sufficient to protect Johnson's federal constitutional rights. That each witness was required to remain on the stand during the in camera review did not prejudice Johnson. See United States v. Frady, 456 U.S. 152, 170 (1982).

Johnson also argues that his equal protection right was violated by the California Supreme Court's failure to apply Misener retroactively. He cites no authority for this proposition and we find no merit in it.

Johnson's second claim is that the state trial court did not properly adhere to the procedure established by the California Supreme Court for determining whether a defendant's prior conviction was improperly admitted for impeachment purposes. This procedure was established after the California Supreme Court determined that trial courts had discretion under California Evidence Code Sec. 352 to not admit certain convictions. Under People v. Collins, defendants such as Johnson who 1) were tried before March 11, 1985 and 2) elected not to testify after the denial of a motion to exclude impeachment testimony are entitled to a hearing to determine whether the trial court would have admitted the prior conviction. 42 Cal. 3d 378, 393-94, 228 Cal. Rptr. 899, 909-10 (1986). Johnson had a Collins hearing at which he made an offer of proof of what his testimony would have been. The trial court determined that the conviction was admissible. Under Collins, Johnson was entitled to no more.

Johnson's final claim is that the state court trial judge was biased against him. See In re Murchison, 349 U.S. 133, 136 (1955). Johnson has supplemented the district court record. We have reviewed it carefully. At most, the extended excerpts Johnson has supplied show only that the trial judge participated in the examination of witnesses. There is no evidence that the judge favored the prosecution over the defense. His questioning was intended to assist the trier of fact with testimony that the judge considered unclear despite counsel's examination of the witnesses.



The panel unanimously finds this case suitable for decision without oral argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by Ninth Circuit Rule 36-3