Bowens v. Superior Court, No. S019774

• Court: United States State Supreme Court (California)
• Writing for the Court: LUCAS; MOSK
• Citation: 820 P.2d 600,1 Cal.4th 36,2 Cal.Rptr.2d 376
• Parties: , 820 P.2d 600 Robert BOWENS, Petitioner, v. The SUPERIOR COURT of Alameda County, Respondent. The PEOPLE, Real Party in Interest.
• Docket Number: No. S019774
• Decision Date: 19 December 1991

Page 376

2 Cal.Rptr.2d 376 1 Cal.4th 36, 820 P.2d 600 Robert BOWENS, Petitioner,
v.
The SUPERIOR COURT of Alameda County, Respondent.
The PEOPLE, Real Party in Interest. No. S019774. Supreme Court of California,
In Bank. Dec. 19, 1991.

Page 377

[1 Cal.4th 38] [820 P.2d 601] Jay B. Gaskill, Public Defender, Alameda, and Harold C. Friedman, Asst. Public Defender, Oakland, for petitioner.

No appearance for respondent.

[1 Cal.4th 39] Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Clifford K. Thompson and Laurence K. Sullivan, Deputy Attys. Gen., for real party in interest.

Ira Reiner, Dist. Atty., Los Angeles, Harry B. Sondheim and George G. Size, Deputy Dist. Attys., Kent S. Scheidegger and Charles L. Hobson as amici curiae on behalf of real party in interest.

LUCAS, Chief Justice.

In this case we resolve the issue of whether, in light of the June 5, 1990, adoption of an initiative measure designated on the ballot as Proposition 115 and identified as the "Crime Victims Justice Reform Act," an indicted defendant is entitled to or may receive a postindictment preliminary hearing in the courts of this state. (See also Whitman v. Superior Court (1991) 54 Cal.3d 1063, 2 Cal.Rptr.2d 160, 820 P.2d 262 [challenge to facial constitutionality of Prop. 115 provisions permitting hearsay testimony at preliminary hearings]; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 285 Cal.Rptr. 231, 815 P.2d 304 [Izazaga; challenge to facial constitutionality of Prop. 115 reciprocal discovery provisions]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434 [challenge to retroactive application of Prop. 115]; Raven v. Deukmejian (1990) 52

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[820 P.2d 602] Cal.3d 336, 276 Cal.Rptr. 326, 801 P.2d 1077 [Raven; single-subject and revision challenges to Prop. 115].)

As will appear, we conclude that a new constitutional provision enacted by Proposition 115 has abrogated the holding of Hawkins v. Superior Court (1978) 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916 (Hawkins ) and that, as such, a defendant indicted in California is no longer entitled to, and indeed may not be afforded, a postindictment preliminary hearing or any other similar procedure.

I. FACTS

On January 10, 1991, the People filed a grand jury indictment charging petitioner with two counts of selling heroin (Health & Saf.Code, § 11352), and further alleging he had suffered a prior conviction (Pen.Code, § 1203.07, subd. (a)(3)). The acts were alleged to have occurred on or about December 4, 1990, and December 7, 1990. At his arraignment, petitioner moved for a postindictment preliminary hearing, asserting that his equal protection rights had been violated under Hawkins, supra, 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916. The trial court denied petitioner's motion.

[1 Cal.4th 40] The Court of Appeal summarily denied petitioner's application for a writ of mandate and/or prohibition and request for stay. We stayed all proceedings in the trial court and issued an alternative writ of mandate to consider the important constitutional and interpretive questions presented.

II. BACKGROUND

The California Constitution expressly sanctions the prosecution of felony cases by grand jury indictment. (Cal. Const., art. I, § 14; see also Hawkins, supra, 22 Cal.3d 584, 593, 150 Cal.Rptr. 435, 586 P.2d 916.) ¹ In Hawkins, this court concluded there is a "considerable disparity in the procedural rights afforded defendants charged by the prosecutor by means of an information and defendants charged by the grand jury in an indictment. [Fn. omitted.]" (Id., at p. 587, 150 Cal.Rptr. 435, 586 P.2d 916.) We noted that although the Penal Code provided those defendants ultimately charged by information with a preliminary hearing presided over by " 'a neutral and legally knowledgeable magistrate, representation by retained or appointed counsel, the confrontation and cross-examination of hostile witnesses, and the opportunity to personally appear and affirmatively present exculpatory evidence [citations],' " the code failed to provide a similar " 'impressive array of procedural rights' " to defendants charged by indictment. (Ibid.) We held that, "an accused is denied the equal protection of the laws guaranteed by article I, section 7, of the California Constitution when prosecution is by indictment and he [or she] is deprived of a preliminary hearing and the concomitant rights which attach when prosecution is by information." (Id., at pp. 586-587, 150 Cal.Rptr. 435, 586 P.2d 916.) ²

We concluded in Hawkins that until the Legislature prescribed other appropriate procedures for defendants indicted by grand jury, the remedy for the equal protection violation was "simply to permit the indictment process to continue precisely as it [had], but to recognize the right of indicted defendants to demand a postindictment preliminary hearing prior to or at the time of entering a plea." (Hawkins, supra, 22 Cal.3d at pp. 593-594, 150 Cal.Rptr. 435, 586 P.2d 916.) If the defendant made a timely request for a preliminary hearing, the indictment would be refiled as a complaint, thereby triggering the provisions of the Penal Code providing for a preliminary hearing (Pen.Code, § 859 et seq.). (Hawkins, supra, 22 Cal.3d at p. 594, 150 Cal.Rptr. 435, 586 P.2d 916.)

Hawkins represented the state of the law in June 1990, when the voters enacted Proposition 115, thereby amending the California

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[820 P.2d 603] Constitution. [1 Cal.4th 41] Proposition 115 added section 14.1 to article I of the California Constitution (article I, section 14.1), which expressly states: "If a felony is prosecuted by indictment, there shall be no postindictment preliminary hearing." The issue we address in this case is whether, following the enactment of Proposition 115, an indicted defendant is entitled to or may receive a postindictment preliminary hearing under the federal and state Constitutions.

III. DISCUSSION

A. Federal Constitutional Issues

We first discuss the issues raised under the United States Constitution, namely, whether the Fourteenth Amendment mandates that an indicted defendant have the opportunity to receive a postindictment preliminary hearing and the concomitant rights that attach when prosecution is by information. We conclude that the Fourteenth Amendment mandates no such procedure.

Federal courts, including the United States Supreme Court, have long held that the due process clause of the Fourteenth Amendment does not require a state to afford preliminary hearings to criminal defendants in the first instance. (See, e.g., Lem Woon v. Oregon (1913) 229 U.S. 586, 590, 33 S.Ct. 783, 784, 57 L.Ed. 1340; see also Gerstein v. Pugh (1975) 420 U.S. 103, 118-119, 95 S.Ct. 854, 864-865, 43 L.Ed.2d 54; United States v. Farries (3d Cir.1972) 459 F.2d 1057, 1061-1062; Rivera v. Government of Virgin Islands (3d Cir.1967) 375 F.2d 988, 989-990; Fed.Rules Crim.Proc., Rule 5(c), 18 U.S.C.)

Nor is the Fourteenth Amendment's guarantee of equal protection of the laws violated by a system in which defendants prosecuted by indictment are not afforded a preliminary hearing and the concomitant rights that attach when prosecution is by information. Nearly every state and federal court that has considered this federal equal protection issue has come to the same conclusion. (See, e.g., United States ex rel. Kline v. Lane (N.D.Ill.1989) 707 F.Supp. 368; United States v. Simon (E.D.Pa.1981) 510 F.Supp. 232; State v. Clark (1981) 291 Or. 231, 630 P.2d 810, cert. den. 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619; State v. Robinson (Del.1980) 417 A.2d 953; United States v. Shober (E.D.Pa.1979) 489 F.Supp. 393; People v. Franklin (1979) 80 Ill.App.3d 128, 35 Ill.Dec. 121, 398 N.E.2d 1071; Seim v. State (1979) 95 Nev. 89, 590 P.2d 1152; State v. Reiman (S.D.1979) 284 N.W.2d 860; Lataille v. District Court of Eastern Hampden (1974) 366 Mass. 525, 320 N.E.2d 877; Chung v. Ogata (1972) 53 Haw. 395, 495 P.2d 26; Commonwealth v. McCloskey (1971) 443 Pa. 117, 277 A.2d 764, cert. den. [1 Cal.4th 42] 404 U.S. 1000, 92 S.Ct. 559, 30 L.Ed.2d 552. But see People v. Duncan (1972) 388 Mich. 489, 201 N.W.2d 629 [providing all felony defendants preliminary hearings under court's inherent supervisory power in area of criminal procedure].)

In analyzing a claim based on the Fourteenth Amendment's guarantee of equal protection of the laws, we must first determine the appropriate standard of review. (Dunn v. Blumstein (1972) 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274.) The proper standard of review, as developed by the high court, depends upon the classification involved in, and interests affected by, the challenged law. (Ibid.) The challenged law will be subject to strict scrutiny only if it operates to the peculiar disadvantage of a suspect class (see, e.g., Loving v. Virginia (1967) 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010) or impinges on a fundamental right (see, e.g., Dunn v. Blumstein, supra, 405 U.S. 330, 92 S.Ct. 995).

The determination of whether a suspect class exists focuses on whether "[t]he system of alleged discrimination and the class it defines have [any] of the traditional indicia of suspectness: [such as a class] saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." (San Antonio School Dist. v. Rodriguez (1973) 411 U.S.

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[820 P.2d 604] 1, 28, 93 S.Ct. 1278, 1293, 36 L.Ed.2d 16.) Clearly, the system of prosecution contemplated by article I, sections 14 and 14.1 of the California Constitution does not single out a suspect class within the meaning of this definition. (See United States ex rel. Kline v. Lane, supra, 707 F.Supp. at p. 373.)

Nor does the denial of the preliminary hearing procedure implicate a fundamental right under...