Dalton

In this proceeding in mandate we must decide whether the apparently conflicting subdivisions of Penal Code section 1335 allow or prohibit the People to examine witnesses conditionally in death penalty cases. Based on the century-old prohibition on such examinations and the absence in legislative history of reason to depart from the prohibition, we conclude the People may not conduct conditional examinations in cases where the punishment may be death.

Procedural Background

Kerry Lyn Dalton and Sheryl Baker (petitioners) are charged with murder. (§ 187, subd. (a).) The People seek the death penalty, alleging petitioners intentionally killed the victim while lying in wait (§ 190.2, subd. (a)(15)) and the killing involved the infliction of torture (§ 190.2, subd. (a)(18)). The People applied for an order to examine conditionally witness Patricia Collins (Collins) under section 1335 et seq. on the grounds Collins is terminally ill and that she had received a threatening note. Collins purportedly has knowledge about the victim’s disappearance and murder. The court found Collins’s life was in jeopardy due to illness and ordered she be examined conditionally.

Petitioners seek…