Opinion
Page __
__ Cal.App.2d __321 P.2d 106Martha MITCHELL and Milton Flynn, Petitioners,v.The SUPERIOR COURT of the State of California, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO, Respondent.Civ. 17638.California Court of Appeals, First District, First DivisionJan. 27, 1958Hearing Granted March 26, 1958.
Opinion, 313 P.2d 170, vacated.
[321 P.2d 108] Arthur D. Klang, San Francisco, for petitioner.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.
FRED B. WOOD, Justice.
When arraigned upon informations charging them with violations of sections 11500 and 11557 of the Health and Safety Code (possession of heroin, two sales of heroin, and maintenance of a place for the sale of narcotics) the defendants moved to set aside the informations upon the ground that before the filing thereof the defendants had not been legally committed by a magistrate (Pen.Code, §§ 995-996), assigning violation of their constitutional rights to due process as the basis of the illegality. Upon denial of the motion defendants petitioned this court for a writ of prohibition restraining further proceedings upon any of the informations.
They do not claim that there is a lack of competent evidence to support the magistrate's findings that it appears to him that the offenses charged have been committed and that there is sufficient cause to believe the defendants guilty thereof. See Penal Code, § 872.
They predicate the asserted illegality of the commitment upon the refusal of the magistrate, during the preliminary examination, to allow them to ask the prosecuting witnesses the names of or other means of identifying two informant-participants.
At the preliminary examination, police officers testified to being informed by two 'reliable informers' that defendants were selling narcotics in their apartment. After stripping and searching the informants and removing all articles in their clothing, the officers gave each $20 in bills, the serial numbers of which were recorded, and escorted the informants tod efendants' apartment. The bills were dusted with fluorescent powder invisible to the naked eye. Separately the informants entered the apartment and in a few minutes returned. They were then searched. The bills were gone and each had a bindle of heroin. The officers then waited in front of the apartment door for approximately 10 to 15 minutes. It was opened by defendant Mitchell, who was immediately placed under arrest. She dropped a package from her hand to the floor. It contained heroin. In the bedroom they arrested defendant Flynn. Four bindles were found on his person. Behind one of the dresser drawers they found the bills given to the first informant. They did not find those given the second informant. With a black box they [321 P.2d 109] observed fluorescent powder on both hands of Mitchell and on the fingertips and shirt of Flynn. On cross-examination the officers refused to divulge the names of the informant-participants.
Defendants' counsel asked such questions as these: (1) I want to know the name of the man who gave you the information that narcotics could be obtained at this place from these defendants. Objection: It calls for confidential and privileged information. Sustained. (2) Will you give me the name of the man to whom you gave the marked money in the first instance and who came out and surrendered a package to you? Objection: The same. Defense counsel's response: This is not an informer, now. We are talking about the person who participated. Sustained. (3) Is that person Joseph Fonteno? Objection: It tends to disclose his identity. Sustained. (4) On this second occasion, what is the name of the man you searched at Page and Masonic at 11:00 o'clock in the evening? Objection: It tends to disclose the confidential informant and privileged information. Sustained. (5) Where does he live? Objection: The same. Sustained. (6) Is his name Joseph Fonteno? Same objection and ruling. (7) Does he live at 1226 Masonic Street (the building in which defendants' apartment was situated)? Same objection and ruling.
The petitioning defendants have made no showing that they lack the information thus sought. Indeed, they insist that there is no requirement that they make such a showing. The judge who presided at the preliminary examination said to defense counsel: 'You haven't shown the Court, excepting by your own statement, that it would be useful.' Counsel replied: 'Now, these cases hold that it is not necessary to make a specific showing. That, automatically, is useful to the defendant. In other words, the mere fact that the defendant pleads 'not guilty,' and denies that these sales took place, then it automatically becomes useful, and the cases so hold. We don't have to get up here and make a specific showing as long as we have denied that the sales took place.'
We are not impressed by the prosecution's argument that a defendant in such a situation should make a showing that he does not know the identity or the whereabouts of the informant-participant. Nor need he show how and to what extent, if at all, that information might be useful to him. We are dealing with the prosecution's case, the presentation of its evidence tending to support its burden of proving legal cause for the arrest and seizure. In that process, through its key officer-witnesses, it presents a pivotal witness, a faceless witness, one who speaks only through the mouth of another. The right through cross-examination to ascertain the identity of this faceless witness is not dependent upon any offer of proof or showing of need for the information; no more so than is the right to counsel dependent upon an offer of proof or a showing that one needs an attorney.
Nor are we impressed by the contention that because a defendant does not have the right of cross-examination before the grand jury when it indicts he does not have it as a fundamental right when being examined before a magistrate anticipatory to the filing of an information. The framers of our Constitution prescribed different modes for prosecution by information and prosecution by indictment and the Legislature has implemented the distinctive methods thus prescribed.
The state suggests that defendants demonstrated knowledge of the identity of one of the informer-participants when their counsel asked if his name is Joseph Fonteno and if he lives at 1226 Masonic Street, even though he got no answer. That is an obvious non-sequitur.
We entertain no doubt of the right of a defendant, at a preliminary examination, to confront the prosecution's witnesses and cross-examine them. Pen.Code, § 865.
The only basis urged by the prosecutor for his objection to the questions asked at the preliminary is the policy of nondisclosure of 'Communications made' to a public officer 'in official confidence, when the public interest would suffer by the disclosure.' Code Civ.Proc., § 1881, subd.
[321 P.2d 110] 5. That policy does not prevail in the case of informant-participants. In this case we have informant-participants. They did not merely point their fingers at the defendants, leaving to the officers the task of finding evidence of crime. They participated with the defendants in effecting the very sales which the informations later filed charge the defendants of having made in violation of law; alleged sales concerning which only they and the defendants could testify as eye-witnesses.
The policy of nondisclosure does not obtain in such a case. It was held in People v. Lawrence, 149 Cal.App.2d 435, 450, 308 P.2d 821, 830, that upon the trial of a case this policy yields to the right of a defendant to defend himself: 'To deny the defendant the right to examine an officer regarding the name of or to ask other material questions concerning an informant-participant would be to suppress an essential element of the res gestae. The crime is committed when the sale is made and not when the informant delivers the contraband to the officers and tells them about the sale.'
The reasoning by which the court in the Lawrence case applied this principle to a hearing on voir dire held out of the presence of the jury, is persuasive of its applicability to the preliminary examination: 'Although the question of the guilt of the defendant is not before the court, nevertheless, the defendant has the same right to present his defense at the hearing to determine the reasonableness of an arrest or search as he does on the question of his guilt. The fact that the hearing is held before the court in the absence of the jury makes it no less a criminal proceeding. Due process applies and all the rights the defendant may have at the trial proper apply with equal force and dignity to the proceedings before the court sitting in the absence of a jury.' At page 451 of 149 Cal.App.2d, at page 831 of 308 P.2d.
One of the latest cases on this subject is People v. Castiel, 153 Cal.App.2d 653, 315 P.2d 79, 81 (hearing by Supreme Court denied), reversing a conviction because of the prosecution's refusal to disclose the identity of an informer-participant. In a cogently reasoned opinion Mr. Justice Dooling exhaustively reviews the pertinent authorities and says in part: 'The possible importance of this person's identity to the defense is just as great whether he happens to be a government informer or not. In either event, if the defendants had the opportunity to interview him and call him as a witness, he might contradict the testimony of the officers completely or in part. He might deny that he was present at all, or participated in any of the transactions. He might corroborate the officers as to the telephone calls and the purchases of narcotics but testify that the persons to whom he talked and from whom he made the purchases were persons other than the appellants. It would be intolerable if the government could convict its citizens of crime and thereby deprive them of their liberty and civil rights while denying them the opportunity to produce a witness or witnesses to the alleged crime, whose identity is known to the witnesses who testify against him. The defendant is entitled as a matter of due process of law to be allowed to interview and produce any witness who might give evidence favorable to his defense, and when a witness who testifies to the commission of a crime testifies that another person or other persons were also present, and particularly where such other person or persons according to the testimony were active participants, the right of the defendant to the disclosure of the identity of such person or persons on cross-examination seems too clear for successful contradiction. If this was a case without precedents logic and the basic constitutional guaranty of due process would compel this conclusion, but it is not a case without precedents.' 153 Cal.App.2d at page 657, 315 P.2d at page 81. 'It is the deprival of the defendants of the opportunity of producing evidence which might result in their exoneration which constitutes the error in this case, and we cannot assume because the prosecution evidence may seem strong that the undisclosed evidence might not prove sufficient to overcome it in the minds of the jurors. To do [321 P.2d 111] so is to reason that in no case can a defendant suffer prejudice from the suppression of evidence which may be favorable to him if the prosecution has produced what seems to be a strong eyewitness case of the defendant's guilt.' 153 Cal.App.2d at page 659, 315 P.2d at page 82. See also People v. Mast, 155 Cal.App.2d 379, 318 P.2d 44, hearing by Supreme Court denied.
This reasoning applies with equal force when the same question is presented in the same manner at a preliminary examination. The issues at the preliminary and at the trial are identical in kind. They differ only in degree. At the trial, the alleged guilt of the defendant is the issue. At the preliminary, the sufficiency of cause to believe him guilty is the issue. In either case the proof depends upon the legality of the seizure of the evidence. When tendering that proof the prosecution in each case has withheld vital information from the defendant. Is not that withholding (against the defendant's insistent demand) a violation of a fundamental right of the defendant, equally in the one case as in the other? Is this any less a violation of due process when it occurs at the preliminary than when it occurs at the trial? We think not.
We base this conclusion upon the constitutional and statutory mandates which govern the prosecution of crime by information. They quite convincingly appear to accord the defendant all of the fundamental elements of a 'fair trial' on the question whether 'It appears * * * that a public offense has been committed' and whether there is 'sufficient cause to believe the defendant guilty.' Pen.Code, § 872.
For example, the defendant must be promptly taken before a magistrate who must immediately give him a copy of the complaint, inform him of his right to counsel and allow him a reasonable time to send for counsel and, if he is unable to and desires counsel, assign counsel to defend him (Pen.Code, § 859). At the examination, the 'witnesses must be examined in the presence of the defendant, and may be cross-examined in his behalf.' § 865. When the examination of witnesses on the part of the People is closed, 'any witnesses the defendant may produce must be sworn and examined.' § 866. The defendant may not be examined unless he is represented by counsel or unless he waives his right to aid of counsel after being advised at such examination of his right to aid of counsel. § 866.5. The magistrate may exclude witnesses who have not yet testified (§ 867) and must exclude certain persons upon request of the defendant (§ 868). 'If, after hearing the proofs, it appears either that no public offense has been committed or that there is not sufficient cause to believe the defendant guilty of a public offense, the magistrate must order the defendant to be discharged.' § 871.
Thus has the Legislature, in the exercise of the power expressly conferred upon it by the Constitution surrounded the preliminary 'examination * * * by a magistrate' with the safeguards and minimum requirements which the Constitution itself prescribes in 'criminal prosecutions, in any court whatever' (art. I, § 13). 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 [321 P.2d 112] safeguards for the conduct of the preliminary 'examination' as the Constitution by direct mandate has prescribed for 'criminal prosecutions, in any court whatever.'
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.)
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.'
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, 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. Good reason, indeed, did the Supreme Court have for saying: 'The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and the expense of a criminal trial.' Jaffe v. Stone, 18 Cal.2d 146, 150, 114 P.2d 335, 338, 135 A.L.R. 775.
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 confront and 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 that 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, 39 P. 29, reversing judgment of conviction and an order which denied a motion to set the information aside; People v. Salas, 1926, 80 Cal.App. 318, 250 P. 526, 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, 11 P.2d 884, same action as in the Salas case, for the same reason; People v. Williams, 1954, 124 Cal.App.2d 32, 268 P.2d 156, 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.'
We observe that it was not until the 1934 amendment of § 8 of article I that the Constitution expressly and specifically guaranteed the defendant the right to the aid of counsel at the preliminary examination.
These cases are persuasive of the view that violation of the equally fundamental right of confrontation and cross-examination upon a crucial issue infects the ensuing commitment with illegality. These cases, it is true, were decided upon [321 P.2d 113] 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, 121 P.2d 713. 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, 99 P. 976, 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 megistrate. 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.
Nor do we infer a change in policy upon the part of the Legislature from the fact that when in 1949 it amended section 995 of the Penal Code and added section 999a thereto (Stats.1949, ch. 1311, p. 2298) it dealt only with the subject of indictment found without reasonable or probable cause and of commitment upon an information without reasonable or probable cause. It dealt with such an indictment and with such an information in section 999a, and added the first paragraph '2' to section 995. Sec. 995 already contained the second paragraph '2.' It [321 P.2d 114] is a fair inference that in making those additions the Legislature had in mind solely the principles enunciated in Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713, 715, in respect to 'reasonable or probable cause' and aimed to give recognition to those principles in statutory form, coupled with the limitation that a defendant seeking the remedy of prohibition, when advised that there has been a lack of reasonable or probable cause, file his petition 'in the appellate court within 15 days after a motion made under Section 995' on that ground (§ 999a), and the further limitation that the district attorney be given five days' notice of the application before an alternative writ may issue. In so doing, the Legislature left intact that clause of section 995 which declares and ever since 1880 has declared that an information 'must be set aside by the court in which the defendant is arraigned, upon his motion,' when it appears that before the filing of the information 'the defendant had not been legally committed by a magistrate.'
Let the peremptory writ of prohibition issue.
PETERS, P. J., and BRAY, J., concur.
In view of this empowerment, the implementing statutes virtually have the dignity and sanction of constitutional mandates.
Accordingly, when in the cases above cited that were decided before 1934 the right to counsel at the preliminary examination was referred to as guaranteed by the Constitution, it is possible that the courts had reference to the third clause of the first sentence of § 13 of article I: 'In criminal prosecutions, in any court whatever, the party accused shall have the right * * * to appear and defend, in person and with counsel.' (Emphasis added.)
If so, those cases are authority for the view that 'criminal prosecutions, in any court whatever,' as used in § 13 embraces 'examination and commitment by a magistrate' as used in § 8 of article I.
It would follow that the constitutional guarantees expressed in § 13 are available to the defendant at his preliminary examination to the same full extent as at his trial.
We do not rest our decision upon this ground but wish to make it clear we are not holding it may not be found, when fully explored, that the first sentence of section 13 directly applies to the 'examination and commitment by a magistrate' prescribed by § 8 of article I and thereby lays down certain minimum requirements for the conduct of that examination.