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Blackburn v. Superior Court of Orange County

12/23/1993

COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE


No. G014669


1993.CA.40334 ; 21 Cal. App. 4th 414; 27 Cal. Rptr. 2d 204


Decided: December 23, 1993.


JACK ARTHUR BLACKBURN, PETITIONER,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, RESPONDENT; PAMELA KELSO, REAL PARTY IN INTEREST.


Superior Court of Orange County, No. 691165, David C. Velasquez, Judge.


Ronald D. Davis for Petitioner.


Michael Capizzi, District Attorney, Maurice Evans, Assistant District Attorney, Guy Ormes and Burl Estes, Deputy District Attorneys, for Respondent.


R. Richard Farnell and Ronald E. Norman for Real Party in Interest.


Opinion by Moore E. C., J., with Sills, P. J., and Moore (h. T.), J., Concurring.


Moore


Real party in interest, Pamela Kelso who is now 26 years old, has accused her stepfather, Jack Blackburn, the petitioner herein, of sexually molesting her while she was between 13 and 18 years old. Kelso claims that the molestations started in 1980 and continued through 1985. If true, these alleged acts would constitute violations of Penal Code sections 261, 288, and 288, subdivision (a).


Blackburn refused to answer most of the questions asked at his deposition, claiming the privilege against self-incrimination. The trial court denied his request for a protective order and he sought a writ of mandate/prohibition from this court. We stayed discovery proceedings, issued an alternative writ and heard oral argument.


At first, the trial court granted Kelso's request that Blackburn be precluded from testifying at trial as a consequence of his privilege claim, but


then reconsidered and denied that request. The court also denied Blackburn's request for immunity from prosecution regarding his testimony during discovery or trial. Notice of the request for immunity was sent to the Orange County and Los Angeles County District Attorney's offices. The Orange County District Attorney's office filed points and authorities in opposition to the immunity request. The bases for the opposition are that the statute of limitations for all possible offenses arising out of Kelso's charges is six years and since it is alleged that the last offenses were committed in 1985, any criminal prosecution would be barred after 1991. The prosecutor stated that Blackburn is no longer subject to prosecution, has no need for a grant of immunity and has no valid grounds for asserting his Fifth Amendment rights as to those offenses. The prosecutor is also concerned that, under the protection of immunity, Blackburn might testify about unrelated matters.


During the argument on the motion requesting immunity, the superior court Judge expressed concern as to whether or not there could be any real threat of prosecution in light of the expired statute of limitations. To this Blackburn's attorney stated, "Let's suppose there were another allegation of a molest of a person of the same age five days ago. And that's clearly within the statute of limitations. Now, the issue is whether or not his testimony in this proceeding would be used or could be used for common plan and scheme under Evidence Code section 1101(b). And I know this court has background in the district attorney's office and there is no statute of limitations

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