People v. Harris

• Decision Date: 25 March 1985
• Citation: 212 Cal.Rptr. 216,165 Cal.App.3d 1246
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leonard HARRIS and Gloria A. Malandaras, Defendants and Respondents. A022241.

Page 216

212 Cal.Rptr. 216

165 Cal.App.3d 1246

The PEOPLE, Plaintiff and Respondent, v. Leonard HARRIS and Gloria A. Malandaras, Defendants and Respondents.

A022241.

Court of Appeal, First District, Division 5, California.

March 25, 1985.

John K. Van de Kamp, Atty. Gen. of the State of Cal., Martin S. Kaye, Donna B. Chew, Deputy Attys. Gen., San Francisco, for the People.

Jeff Brown, Public Defender, City and County of San Francisco, Peter G. Keane, Chief Asst. Public Defender, Alberto C. Crespo, Grace Lidia Suarez, Deputy Public Defenders, San Francisco, for defendant and respondent Leonard Harris.

Marvin Rous, San Francisco, for defendant and respondent Gloria Malandaras.

POCHE, Associate Justice. ^*

The sole issue on this appeal by the People from an order setting aside the information against defendants Leonard Harris and Gloria A. Malandaras is whether Penal Code section 872, subdivision (b) ¹, is unconstitutional on its face. We conclude that the statute can survive this challenge and that the order must accordingly be reversed.

I.

The sole witness at the preliminary examination conducted on March 10, 1983, ² was Timothy Carey, who testified in effect that on January 21st he observed defendants break a window of a parked automobile and remove two boxes therefrom. At the conclusion of Mr. Carey's testimony, the prosecutor requested that the magistrate admit in evidence "pursuant to [section] 872 ..., the statement in lieu of testimony" of John Kearney, the owner of the automobile. The attorneys for both defendants objected on the grounds that the statement was (1) hearsay; (2) failed to provide defendants with their "right of confrontation of witnesses"; and (3) because Kearney's statement "cannot be considered that of a victim" and consequently was "not in conformity with ... Section 872." After their request to file a memorandum of points and authorities was granted, defendants asked the magistrate to "exclude the statement on the grounds stated in the memorandum and oral arguments." The magistrate, noting that this matter "came out of the blue today," then took it under submission.

On March 14, the magistrate overruled defendants' objections and denied their motion to exclude the statement because "[t]he Legislature in its wisdom has allowed this particular testimony to be admissible at a preliminary hearing ...." Defendants were thereupon ordered held to answer in the superior court on a charge of violating section 459.

Defendants were jointly charged in an information filed on March 25 with a violation of section 459, in that on January 21 they did "willfully and unlawfully enter a motor vehicle, to-wit: [a] 1979 Ford, Nevada License No. WOV 568, the property of John Kearney, the doors of said motor vehicle being locked, with the intent to commit larceny." Arraigned three days later, each defendant entered a plea of not guilty.

On April 4th and 8th, defendants noticed separate motions for an order setting aside the information pursuant to section 995. Attached as Exhibits A and B, respectively, were copies of Kearney's statement ³ and the memorandum of points and authorities filed at the preliminary examination and considered by the magistrate. As pertinent here, the motions were made on the ground that defendants had been "committed without reasonable or probable cause" (see § 995, subd. (a)2(B)) in that "the written statement in lieu of testimony should not have been admitted." ⁴ Admission of the statement was challenged on "confrontation clause grounds" and because "the attempt to lighten the prosecution's burden [of proof] violates the accused's rights against self-incrimination." ⁵ The confrontation argument was developed at length in the memorandum (Exh. B), which defendants incorporated by reference in their moving papers.

The trial court conducted a hearing on the motions on April 14. During the course of oral arguments, the court advised the prosecutor of the reasons for its ruling in these terms: "I have to grant the 995, the witness wasn't there.... [T]here is no question you followed the statute .... What right does the Legislature have to say ... you can submit a preliminary examination on partially hearsay testimony and if they object to the hearsay they have to demand of you that you produce the witness.... [D]efendants were not afforded the right of cross-examination .... [T]his statute places the burden upon them to make a demand upon you to produce the witness. And I think that is your responsibility.... I'm granting it on the basis of my believe [sic: belief] that 872 B is unconstitutional. ... It is granted, but it is only granted as to the [un]constitutionality of 872 B." The following day the People filed a timely notice of appeal. ⁶

II.

The People's sole contention on this appeal is that the trial court erred in granting defendants' motion to set aside the information because section 872, subdivisions (b) and (c), is constitutional on its face. Before proceeding to the merits of this contention, we deem it advisable to address a few comments as to its scope.

Section 872 details a procedure whereby a written statement may be used as substantive evidence in lieu of testimony at a preliminary examination. Subdivision (b) specifies the circumstances in which such a statement may be used by the prosecution. Subdivision (c) deals with rights and duties of the defense if the prosecution attempts to utilize the provisions of subdivision (b). (See fn. 1, ante.) The two subdivisions thus pertain to opposite concerns of the adversaries in a particular situation.

All of the parties have treated the constitutionality of subdivisions (b) and (c) as being at issue on this appeal. It is apparent from their moving papers that defendants were indeed challenging both subdivisions. But as shown by its remarks quoted above, the trial court decided only "that 872 B is unconstitutional" at the time it granted defendants' motion. It is nevertheless clear from the court's further remarks concerning the necessity of a "demand" for the declarant by the defense that subdivision (c) was at least considered by the trial court. We agree with the trial court that the constitutionality of subdivision (b) cannot be determined without reference to subdivision (c). We shall therefore invoke and apply the cardinal rule of statutory construction that all parts of a statute must be read and considered as a whole. (See In re Ricky H. (1981) 30 Cal.3d 176, 187, 178 Cal.Rptr. 324, 636 P.2d 13; In re Bandmann (1958) 51 Cal.2d 388, 393, 333 P.2d 339; Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 232, 273 P.2d 5; People v. Trieber (1946) 28 Cal.2d 657, 663, 171 P.2d 1; People v. Moroney (1944) 24 Cal.2d 638, 642, 150 P.2d 888; see also Code Civ.Proc., § 1858; 2A Sutherland, Statutory Construction (Sands 4th ed. 1984) § 46.05, p. 90.) This is an intra-statute variant on the familiar rule of construing statutes which are in pari materia. (See People v. Caudillo (1978) 21 Cal.3d 562, 585, 146 Cal.Rptr. 859, 580 P.2d 274; People v. Chevron Chemical Co. (1983) 143 Cal.App.3d 50, 54, 191 Cal.Rptr. 537.)

Next, it is a familiar rule of practice that courts will decide constitutional issues only if absolutely necessary and other nonconstitutional grounds for disposing of a case are not available. (See People v. Green (1980) 27 Cal.3d 1, 50, 164 Cal.Rptr. 1, 609 P.2d 468; People v. Williams (1976) 16 Cal.3d 663, 667, 128 Cal.Rptr. 888, 547 P.2d 1000; Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 66, 195 P.2d 1; Fullerton Union High School Dist. v. Riles (1983) 139 Cal.App.3d 369, 384, 188 Cal.Rptr. 897.) This rule cannot be applied in this case because there is no nonconstitutional ground in support of defendants' motion which was accepted by the trial court. As previously mentioned, the two nonconstitutional arguments urged by defendants were either rejected or mooted by the trial court's rulings, and neither has survived to this appeal. (See fn. 4, ante.) There is consequently no alternative ground for disposition and the constitutional issue must necessarily be reached. ⁷

Our final preliminary comment pertains to the scope of our inquiry. The argument made by defendants, both in the trial court and on this appeal, is that section 872, subdivisions (b) and (c), is unconstitutional on its face. The nature of this argument has important consequences regarding the showing required before the trial court's order may be upheld upon the basis specified by that court. " 'All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.' " (In re Dennis M. (1969) 70 Cal.2d 444, 453, 75 Cal.Rptr. 1, 450 P.2d 296; accord In re Ricky H. (1970) 2 Cal.3d 513, 519, 86 Cal.Rptr. 76, 468 P.2d 204; People v. Poggi (1980) 107 Cal.App.3d 581, 589, 165 Cal.Rptr. 758.) When a statute is attacked as unconstitutional on its face, the attacker "cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute"; instead, the challenger "must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions." (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180-181, 172 Cal.Rptr. 487, 624 P.2d 1215 [original emphasis deleted, emphasis added]; see County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 674, 114 Cal.Rptr. 345, 522 P.2d 1345; 1 Sutherland, Statutory Construction, op. cit. supra, § 2.06, at p. 22.) The corollary of this burden is that if this court can conceive of a situation in which section 872, subdivisions (b) and (c), could be applied without entailing an inevitable collision with the transgression of constitutional provisions, the...