Opinion
Cr. 18088
4-14-1958
James W. TUPPER, Petitioner, v. The SUPERIOR COURT of the State of California, in and for the COUNTY OF MARIN, Respondent. *
Carl B. Shapiro, Fairfax, for petitioner. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.
James W. TUPPER, Petitioner,
v.
The SUPERIOR COURT of the State of California, in and for the COUNTY OF MARIN, Respondent. *
Carl B. Shapiro, Fairfax, for petitioner.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.
BRAY, Justice.
Petition for writ of prohibition to arrest further proceedings in the Marin County Superior Court upon an information charging petitioner with violation of section 702, Welfare and Institutions Code (contributing to the delinquency of a minor). Questions Presented.
1. Sufficiency of the evidence at the preliminary examination.
2. Was petitioner entitled to written statements given the officials by prosecution witnesses?
3. Will prohibition lie? Record.
Petitioner was charged with a violation of section 32, Penal Code (accessary to a felony) and at the preliminary hearing was held to answer. Thereafter an information was filed charging him as above stated. Thereafter petitioner moved the superior court to set aside the information on the same grounds upon which this petition is based. The motion was denied.
1. Evidence at the Preliminary. '* * * the evidence before a committing magistrate at a preliminary examination need not be such as would require a conviction. * * * 'Reasonable or probable cause' means such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. 'Reasonable and probable cause' may exist although there may be some room for doubt.' People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344, 347.
The evidence at the preliminary examination tended to show that Michael Powers, aged 16, stole three hub caps. He sold them to Edward Roche, aged 17, after telling him they were stolen. Petitioner was a clerk in an automobile accessories store. Roche told petitioner that the hub caps were stolen ones and asked petitioner to give him a bill of sale or receipt for the hub caps. Thereupon petitioner made out a store bill of sale or receipt in duplicate which indicated that Roche had purchased hub caps from the store. Petitioner dated the documents back saying 'it would look better if the date was set back.' On the duplicate for the store defendant wrote 'For estimate only' but did not write it on the original given Roche.
Section 702, Welfare and Institutions Code, provides in part: 'Any person who commits any act or omits the performance of any duty, which act or commission causes or tends to cause or encourage any person under the age of 21 years to come within the provisions of any of the subdivisions of Section 700 * * * or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause any such person to become or to remain a person within the provisions of any of the subdivisions of Section 700, is guilty of a misdemeanor * * *'
People v. Miller, 145 Cal.App.2d 473, 477, 302 P.2d 603, 606, states: 'The main purpose of Welfare and Institutions Code, Section 702, is to remove minors from immoral and evil influences which would incline them toward a state of delinquency. The purpose is accomplished by making any act or omission which would tend to cause a minor to become delinquent, a misdemeanor. [Citations.] 'We do not deem it proper to give to the foregoing provisions of the statute the narrow and restricted construction for which appellant herein contends. The evident object and main purpose of the statute is preventive, and as said in People v. DeLeon, 35 Cal.App. 467, 470, 170 P. 173, 175: 'Its intent was to put a barrier across the threshold of those entrances to downward ways which are open before the feet of youth.' It is not required that the effect of the act complained of must have an absolutely certain and unmistakable tendency to cause the minor to lead an idle, dissolute, lewd or immoral life, and in determining whether the act in question would reasonably so affect the minor, the jury may apply the teachings of human experience.' People v. Deibert, 117 Cal.App.2d 410, 415, 256 P.2d 355.
It is clear that the evidence showed probable cause. Petitioner's action in giving the minor a purported bill of sale of hub caps he knew to be stolen had a very definite tendency to encourage Roche's delinquency. The obvious purpose of the bill of sale was to enable Roche, in case of question, to make it appear that he had obtained the hub caps legitimately. It was intended to, and did, assist the juvenile in concealing his commission of the crime of receiving stolen property. It also encouraged Roche in retaining the stolen property and perhaps even to procure more stolen property. 2. Written Statements to Police.
Cross-examination of the two juveniles developed that Powers had given a statement concerning the theft of the hub caps and their sale to Roche to the officials (apparently to a deputy sheriff or a deputy district attorney) partially written in his own handwriting and partially dictated and signed by him, and that Roche had given one entirely in his own handwriting concerning his purchase of the hub caps from Powers and his obtaining the bill of sale from petitioner. Defendant moved both orally and in writing that he be shown these statements for purposes of possible impeachment. The motions were denied.
The leading case, and one which reconciled earlier cases, on the right of a defendant at a trial to statements given peace officers by prosecution witnesses is People v. Riser, 47 Cal.2d 566, 305 P.2d 1. There the court pointed out that at common law the accused in a criminal action could not compel production of documents or other evidence in the possession of the prosecution for the reason that to compel the prosecution to reveal its evidence beforehand would enable the defendant to secure perjured testimony and fabricated evidence to meet the state's case, and that to allow the defendant to compel production when the prosecution could not in its turn compel production from the defendant because of the privilege against self-incrimination would unduly shift to the defendant's side a balance of advantages already heavily weighted in his favor. The court then said, 47 Cal.2d at page 585, 305 P.2d at page 13: 'Whatever the force of these arguments when directed to pretrial discovery, they have little or no application when production is sought by subpoena during trial of statements referred to on cross-examination. The question then is not whether the defendant will be allowed advance disclosure of evidence upon which the prosecution plans to base its case, but whether he will be allowed any disclosure of evidence that the prosecution does not intend to produce in court at all. See United States v. Krulewitch, 2 Cir., 145 F.2d 76, 78, 156 A.L.R. 337. Furthermore, the additional possibility that the defendant will obtain perjured testimony or fabricated evidence as a result of disclosure at this point in the proceedings is too slight to justify denying production. The decisions of this court have always impliedly recognized that on a proper showing a defendant in a criminal case can compel production when it becomes clear during the course of trial that the prosecution has in its possession relevant and material evidence.' The court referred to cases where production had been denied solely because the requirements justifying production had not been met in the particular case, and also to cases to the contrary. It then referred to cases supporting its position, stating that they were the better reasoned cases. It said, 47 Cal.2d at page 586, 305 P.2d at page 13: 'Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and in particular it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits. To deny flatly any right of production on the ground that an imbalance would be created between the advantages of prosecution and defense would be to lose sight of the true purpose of a criminal trial, the ascertainment of the facts.' To the contention that the statements if produced might not impeach the testimony of the particular witness who made it, the court said that that question could only be determined by an examination of the statement itself. 'Obviously a defendant cannot show conclusively that a document is admissible without seeing it, and yet in order to see it he is told that he must show that it is admissible. The proper test for determining whether production must be granted is not whether the evidence has been conclusively proved admissible but whether, as stated in People v. Glaze, supra, 139 Cal. 154 at page 158, 72 P. 965, 'there is good reason to believe that the document when produced would be admissible in evidence for some purpose in the case * * *.' There must be more than a mere possibility that the statements when produced will contain contradictory matter and be in such a form that they can be used to impeach, but the chance that it may turn out eventually that they cannot be used for this purpose should not block production at the threshold.' 47 Cal.2d at page 587, 305 P.2d at page 14. The court then held that as it was not claimed by the prosecution that the necessities of law enforcement required that the statements be kept confidential, the defendant was entitled to see the statements even though it might develop that there was nothing of an impeachment nature in them. See also Gordon v. United States, 344 U.S. 414, at page 418, 73 S.Ct. 369, at page 372, 97 L.Ed. 447, where the court said: '[P]roduction may sometimes be required though inspection may show that the document could properly be excluded.'
In Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698, the defendant charged in an indictment with the embezzlement of public funds, moved the trial for an order authorizing pretrial inspection of a signed statement and a typewritten transcript of the tape recording which he had made in the office of the chief of police on the ground that he could not recall what he had said and that such documents were necessary to refresh his recollection. In holding that the defendant was entitled to these documents the court quoted extensively from People v. Riser, supra, 47 Cal.2d 566, 584-586, 305 P.2d 1, and then said: 48 Cal.2d at page 707, 312 P.2d at page 699, 'In the circumstances of the present case, to deny inspection of defendant's statements would likewise be to lose sight of the objective of ascertainment of the facts, and would be out of harmony with the policy of this state that the goal of criminal prosecutions is not to secure a conviction in every case by any expedient means, however, odious, but rather, only through establishing the truth upon a public trial fair to defendant and the state alike.' Further, it quoted with approval from State v. Tippett, 1927, 317 Mo. 319, 296 S.W. 132, where it was held that the defendant charged with a crime similar to our 'hit and run' was entitled to a copy of the statement given to the prosecution by one Tucker, a witness to the accident. 'The court there stated: 'This was a document, and, provided it tended to impeach Tucker, was admissible on the part of defendant for that purpose. The general rule denying the inspection of documents in the hands of an adverse party has been greatly relaxed in modern cases. In civil cases an inspection of documents in the hands of opposing parties, such as papers, contracts, and corporation records, upon motion, have been allowed. The cases seem to hold that it is a matter of indifference whether the document to be examined may be of actual benefit to the party filing the motion to inspect. If from the motion the document may be material, the right of inspection obtains. In the instant case the request for inspection relates to a statement given by Tucker relative to Fitzpatrick losing his life. * * * The motion then shows that the statement may be material. We are unable to perceive why the privilege should not obtain in a criminal case * * * The prosecuting attorney is both an officer of the state and of the court, and his duty extends no further than an impartial, fair, and just trial of defendant. * * * That it was desired that the state's evidence remain undisclosed, partakes of the nature of a game, rather than judicial procedure. The state in its might and power ought to be and is too jealous of according a defendant a fair and impartial trial to hinder him in intelligently preparing his defense and in availing himself of all competent material and relevant evidence that tends to throw light on the subject-matter on trial.'' 48 Cal.2d at pages 708-709, 312 P.2d at page 700.
In Walker v. Superior Court, 155 Cal.App.2d 134, 317 P.2d 130, it was held that a defendant in a criminal prosecution has no absolute right to pretrial discovery of statements made to the prosecution by persons who may become witnesses at the trial but that the trial court may in the interest of justice grant such discovery for good cause shown, and has a broad discretion to grant or refuse such discovery. In holding that the defendant had failed to show sufficient reasons to justify the trial court in ordering pretrial discovery of such a statement the court said, 155 Cal.App.2d at page 140, 317 P.2d at page 134: 'It may be, as was held in People v. Riser, 47 Cal.2d 566, 305 P.2d 1, that at the trial conditions may arise giving petitioner a right to compel production and inspection of such statements.'
The denial to defendant of the statements made by the juveniles was an abuse of discretion. The establishment of probable cause depended almost exclusively on the testimony of the juveniles Powers and Roche. The statements were made by them. The demand was for these specific statements and was not one for a broad fishing expedition, nor for statements not made by witnesses. The prosecution did not assert any privilege for the documents on grounds of public security, confidential character, public interest or otherwise. The only objection to their production was that they might not be impeaching in character and therefore not admissible in evidence. This could only be determined by an examination of them, and an examination could only be had if they were produced.
In Jencks v. United States, 353 U.S. 657, 672, 77 S.Ct. 1007, 1015, 1 L.Ed. 1103, the court said: 'We hold that the criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. Accord, Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639. The burden is the Government's, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession.'
In Jencks v. United States, supra, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed. 1103, many cases theretofore decided are mentioned, clarified, distinguished or in part disapproved. There the petitioner was convicted in a federal district court of violating 18 U.S.C. § 1001 by filing, under section 9(h) of the National Labor Relations Act, 29 U.S.C.A. § 159(h), as president of a labor union, an affidavit stating falsely that he was not a member of the Communist Party or affiliated with such party. Crucial testimony against him was given by two paid undercover agents for the F.B.I., who stated on cross-examination that they had made regular oral or written reports to the F.B.I. on the matters about which they had testified. The petitioner moved for the production of these reports in court for inspection by the judge with a view to their possible use by the petitioner in impeaching such testimony. His motions were denied. The Supreme Court concluded that a denial of the motions was erroneous, and the conviction was reversed.
See also People v. Carter, 48 Cal.2d 737, 312 P.2d 665, where in upholding the defendant's right to see the entire statement made by the defendant's wife to the sheriff when the prosecution used a portion of it to refresh the wife's memory at the trial, the court quoted with approval from People v. Riser, supra, 47 Cal.2d at page 586, 305 P.2d at page 13, "the state has no interest in denying the accused access to all evidence that can throw light on issues in the case * * *." 48 Cal.2d at page 752, 312 P.2d at page 674. 3. Prohibition.
Section 865, Penal Code, gives the defendant at a preliminary examination the right of cross-examination. The refusal to require the production there of the type of statements under consideration here in effect deprives the defendant of the right of cross-examination. While this right is a statutory rather than a constitutional one, it is nevertheless a step in that due process of law to which a defendant is entitled. It is somewhat analogous to the situation in In re Williams, 52 Cal.App. 566, 199 P. 347. There the preliminary examination was started before one magistrate and testimony introduced. The hearing was continued twice. On the date last set the magistrate was unable to be present, and a judge of another department of the same court proceeded to hear and determine the matter. Over the objection of the defendant, the transcript of the testimony taken before the first judge was used instead of calling the prior witnesses. On habeas corpus, after the defendant was held to answer, it was decided that the committing magistrate can only act upon testimony heard by him in the usual way in which such testimony is presented, and that to act upon evidence, the admissibility of which he has not passed upon, and upon testimony, the weight and value of which he has not measured by the appearance, the narration and the manner of testifying of the witnesses present in person before him, was not merely an error but was an essential violation of the defendant's rights. That the violation of defendant's fundamental right of cross-examination causes the commitment to be illegal and the information to be invalid is shown by an analysis of the constitutional and statutory mandates which govern the prosecution of crime by information. These accord a defendant all of the fundamental elements of a 'fair trial' on the question of whether 'it appears * * * that a public offense has been committed' and whether there is 'sufficient cause to believe the defendant guilty * * *' (Pen.Code, § 872.)
By sections 859, 865 through 871, the Legislature, in the exercise of the power expressly conferred upon it by the Constitution 1 surrounded the preliminary 'examination * * * by the magistrate' with the safeguards and minimum requirements which the Constitution itself prescribes in 'criminal prosecutions, in any court whatever' (art. I, § 13). 2 Accordingly, it is not necessary in the present inquiry to determine whether the preliminary 'examination' sanctioned by section 8 is a 'criminal prosecution' within the meaning of the latter term as used in section 13 of article I. The Legislature has with complete competence 'prescribed by law' the same fundamental safeguards for the conduct of the preliminary 'examination' as the Constitution by direct mandate has prescribed for 'criminal prosecutions, in any court whatever.'
To assure the observance of these fundamental requirements, it would seem, the Legislature, at its very first session after the adoption of the Constitution which provided for prosecution by information, amended section 995 of the Penal Code to vest in the defendant the right to have the information 'set aside by the court' in which arraigned if 'before the filing thereof the defendant had not been legally committed by a magistrate.' (Amendments to the Codes, 1880, Pen.Code, ch. 118, p. 43.) That ground of dismissal has continued without change all these years.
'Legally committed' as used in section 995 'refers to the examination of the case, and the holding of the defendant to answer as prescribed by title 3, c. 7, of the Pen.Code.' Ex parte Baker, 88 Cal. 84, 85, 25 P. 966, 967. The 'essential principles of procedure and of evidence may not be departed from by committing magistrates.' In re Schuber, 68 Cal.App.2d 424, 425-426, 156 P.2d 944, 945. 'The forms of procedure required by law in preliminary examinations establish a substantial right vested in every person charged with crime and should not be lightly waved aside.' People v. Brooks, 72 Cal.App.2d 657, 661, 165 P.2d 51, 53.
Of course, not every deviation from the requirements with which the preliminary 'examination' has been surrounded would tincture with illegality a commitment based upon that examination. The thwarting of a fundamental right of the defendant, such as the right to the benefit of counsel, the right to present witnesses, and the right to cross-examine the prosecution's witnesses, would seem to be such a deviation from those requirements as would infect with illegality any order of commitment based upon the examination.
It is already well established the deprivation of a defendant's right to the aid of counsel taints a magistrate's commitment with illegality. People v. Napthaly, 1895, 105 Cal. 641, 644 , reversing judgment of conviction and an order which denied a motion to set the information aside; People v. Salas, 1926, 80 Cal.App. 318 , affirming trial court's order setting the information aside because of magistrate's failure to inform the defendant of his right to aid of counsel, citing sections 8 and 13 of article I, Constitution, and sections 858 and 859, Penal Code; People v. Miller, 1932, 123 Cal.App. 499 , same action as in the Salas case, for the same reason; People v. Williams, 1954, 124 Cal.App.2d 32 , same action as in the Salas case, for the same reason. Significantly, the Supreme Court in People v. Napthaly, supra, 105 Cal. 641, 644, 39 P. 29, 30, said: 'An examination which denied to defendant the right guarantied him alike by the constitution and statute, of being defended by counsel, was in no sense a legal examination.
'It was a plain and palpable violation of a fundamental right of the defendant, which rendered the commitment illegal.'
These cases are persuasive of the view that violation of the equally fundamental right of cross-examination upon what might be a crucial issue infects the ensuing commitment with illegality. These cases, it is true, were decided upon appeal. Does the availability of the remedy of appeal after termination of a trial render the writ of prohibition inappropriate and unavailable? It would seem not, no more so than when a defendant is committed after an examination that produces no evidence of reasonable or probable cause.
There are a few cases in which statements appear that might seem to cast a doubt upon this view. Careful scrutiny dispels any such doubt, as we read those cases.
In Murphy v. Superior Court, 58 Cal. 520, the petitioner represented that the magistrate who conducted the preliminary examination "did not examine on oath or otherwise * * * any witness * * *" The writ was denied. That seems wholly inconsistent with the rationale of Greenberg v. Superior Court, 19 Cal.2d 319 . Perhaps it is explainable upon the ground that the defendant did not make a motion for dismissal in the trial court (see Pen.Code, § 996), the printed decision being silent in respect thereto.
In Western Meat Co. v. Superior Court, 9 Cal.App. 538 , the defendant-petitioner sought the writ upon the ground that he had been illegally committed, claiming that petitioner had not had a hearing at all before a magistrate. But it also appeared that the petitioner had not moved for dismissal in the trial court as required by sections 995 and 996. That was the reason for the denial of the writ. What the court said as to the adequacy of the remedy by way of appeal was pure dictum.
It is true that when the inquiry is whether or not the evidence adduced at the preliminary examination supports the magistrate's finding of reasonable and probable cause, a court in a prohibition proceeding does not undertake to weigh the evidence (if there be some supporting evidence), nor is it concerned with mere irregularities of procedure before the magistrate, nor, in general, with the correctness of his rulings on the admissibility of evidence. See Rogers v. Superior Court, 46 Cal.2d 3, 7-8, 291 P.2d 929; Badillo v. Superior Court, 46 Cal.2d 269, 271-272, 294 P.2d 23.
But when the very legality of a preliminary examination is in question, as affected by the violation of one or more of the defendant's fundamental rights, the nature and scope of the inquiry is radically different. If a person's fundamental rights are to be protected and enforced by the courts the validity of the magistrate's significant rulings is of necessity a subject of inquiry.
The purpose of a writ of prohibition is to arrest proceedings in a court when such proceedings are without or in excess of its jurisdiction (Code Civ.Proc. § 1102) and when there does not exist a plain, speedy or adequate remedy in the ordinary course of law. Code Civ.Proc. § 1103. Here the court, in refusing petitioner upon proper request the right to see the statements which might be an important part of defendant's cross-examination of the prosecution witnesses, exceeded its jurisdiction. The court has jurisdiction to hold the accused to answer only if the legally admissible evidence showed probable cause that defendant had committed the crime charged. It the statements proved to be impeaching it very well could be that the magistrate would not have found probable cause and would not have held the defendant to answer. It is not enough to say that these statements could be produced on examination of the witnesses at the trial, first, because, as we have shown, a fundamental right of the defendant was violated and hence the court violated its jurisdiction, and secondly, because, if, for any reason, either of the witnesses were not then available, a very difficult situation would arise. If his testimony at the preliminary could be read, as is usually the case, the defendant would not be able to use his statement in cross-examination for the reason that the witness would not be present. On the other hand, if it should be held that that very fact would preclude the use by the prosecution of his prior testimony, the prosecution would be greatly injured.
Let the peremptory writ of prohibition issue as prayed.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Opinion vacated 331 P.2d 977. 1 Section 8 of article I of the Constitution says that certain offenses 'shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law.' (Emphasis added.) In view of this empowerment, the implementing statutes virtually have the dignity and sanction of constitutional mandates. 2 The first sentence of section 13, article I, declares: 'In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend, in person and with counsel.'