Lee v. Superior Court

Petitioner made application for writ of prohibition/ mandate with due notice to real party in interest, and real party in interest has filed opposition. We have determined that an alternative writ or order to show cause would add nothing to the full presentation already made, and that, in light of the circumstances, a peremptory writ is proper (Code Civ. Proc., § 1088; 5 Witkin, Cal. Procedure (2d ed.), Extraordinary Writs, p. 3919; Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697 [ 96 Cal.Rptr. 165 ]).

Petitioner stands charged by indictment with two murders and a prior conviction for a third murder, allegations which invoke the mandatory death penalty pursuant to Penal Code, section 190.2, subdivision (b)(4), in the event of his conviction. In this proceeding, he seeks to prohibit the conditional examination of a witness ordered by respondent court upon averments by the People that the testimony of this witness was “absolutely necessary at the trial,” and that the witness suffers from a deteriorating heart condition which may prevent his appearance at the trial set for August 9, 1976. Petitioner contends that section 1335 of the Penal Code precludes such a…