Dustin v. Superior Court, F039023.

• Citation: 99 Cal.App.4th 1311,122 Cal.Rptr.2d 176
• Decision Date: 09 July 2002
• Docket Number: No. F039023.,F039023.
• Parties: Terry Dale DUSTIN, Petitioner, v. The SUPERIOR COURT of the State of California, Stanislaus County, Respondent. The People, Real Party in Interest.
• Court: California Court of Appeals

122 Cal.Rptr.2d 176

99 Cal.App.4th 1311

Terry Dale DUSTIN, Petitioner, v. The SUPERIOR COURT of the State of California, Stanislaus County, Respondent.

The People, Real Party in Interest.

No. F039023.

Court of Appeal, Fifth District.

July 9, 2002.

As Modified August 8, 2002.

Review Denied September 25, 2002.^*

[122 Cal.Rptr.2d 177]

[99 Cal.App.4th 1313]

Tim Bazar, Public Defender, Martha J. Carlton-Magana, Deputy Public Defender; and Krista Hart, for Petitioner.

No appearance for Respondent.

James C. Brazelton, District Attorney, and Rick Distaso, Deputy District Attorney, for Real Party in Interest.

OPINION

WISEMAN, J.

In capital cases, appellate courts and legislatures have long recognized the compelling need for ensuring reliability in determining whether death is the appropriate punishment. The reason for this disparate treatment is obvious—the death penalty is qualitatively different even when compared to a life sentence. This fundamental principle undoubtedly explains why the California Legislature enacted Penal Code section 190.9, which requires in death penalty cases that a court reporter record and transcribe all proceedings.

In this death penalty case, the prosecutor takes the art of relying on technicalities to new heights, a practice often attributed to defense counsel. Terry Dale Dustin's case began as most cases do— with the filing of a complaint. However, due to the fact Dustin's trial counsel required surgery, the preliminary hearing was continued for approximately three months. Undaunted, the prosecutor decided to proceed by grand jury indictment, which went forward approximately one week after the continuance was granted. Relying on Penal Code sections 938 and 938.1 (which essentially require the transcription of only testimony in grand jury proceedings), and in direct contradiction to Penal Code section 190.9, the prosecutor affirmatively ordered the court reporter to leave while he made his opening and closing statements before the grand jurors. When asked why he did so, the prosecutor basically replied that this is how grand jury proceedings are conducted in Stanislaus County—with no apparent thought to the fact that this is a death penalty case. Now he seeks to justify his actions by arguing this is not a "case" or a "proceeding" within the meaning of Penal Code section 190.9, apparently forgetting Dustin's case began with the filing of a complaint.

We hold this was error in violation of Penal Code section 190.9. This is a death penalty case. The prosecutor's intentional failure to have all of the grand jury proceedings reported and transcribed has resuited in the denial of a substantial right and requires reversal. Further, we reject the prosecutor's attempt to place the burden on Dustin to show harm. How could a defendant ever show he or she was prejudiced in a grand jury proceeding where not even a settled statement can be reached because no judge, defense counsel, or defendant was present? How can a defendant or the People ever have any meaningful review of the grand jury proceedings when there is no transcript because a prosecutor inexplicably did not want one? The prosecutor implores us to find there is no prejudice because this is a very strong prosecution case. If that is so, we cannot fathom why any prosecutor would want to inject error into a case that carries the potential of death, knowing that if there is a conviction, the error will follow the case for the rest of its appellate life. Now is the time to rectify the prosecutor's error while it is still relatively easy and economical to do so—not wait 20 years down the appellate road.

PROCEDURAL HISTORY

This case arises from a homicide in which the prosecution seeks the death penalty against Dustin (defendant). A complaint was filed in superior court as case No. 1001382, and set for preliminary hearing on January 10, 2001. Defendant requested and was granted a continuance to April 26, 2001. Afterward, the prosecution dismissed the complaint and proceeded by grand jury indictment, held on January 16, 2001. An indictment was returned the same day charging defendant with violations of murder under Penal Code ¹ section 187 and alleging special circumstances of robbery, kidnapping, and burglary. (§ 190, subd. (a)(17)(A), (B) & (G).) Defendant's arraignment in superior court on the indictment was completed on May 31, 2001.

On July 16, 2001, defendant filed a motion to dismiss the indictment pursuant to section 995. The motion was based on the ground the prosecutor denied him due process by ordering the court reporter out of the grand jury proceedings during critical portions of the proceedings—the prosecutor's opening and closing statements. The motion was heard on August 30, 2001. The court found that the prosecutor decided when the court reporter would be present during the grand jury proceedings.

On September 13, 2001, the court denied the section 995 motion, finding the prosecutor did not err by choosing not to have his opening and closing statements reported. Even assuming error, the court found it was harmless, stating: "the evidence was overwhelming against both defendants, and I couldn't envision what the prosecution could have said in those ten minutes that would have compromised the independence of the grand jury."

A petition for writ of prohibition and/or mandate was filed here on October 2, 2001 and denied on October 4, 2001. A petition for review was filed in the California Supreme Court on October 16, 2001, and granted on December 19, 2001. The matter was ordered transferred here with directions to vacate our order denying mandate and "to issue an order directing respondent superior court to show cause why petitioner is not entitled to a complete transcript of the entire grand jury proceeding, and if so, whether dismissal of the indictment is an appropriate remedy for violation of that right."

On January 18, 2002, pursuant to the Supreme Court's direction, we ordered our denial of defendant's petition for writ of prohibition and/or mandate vacated and directed that an order to show cause issue.

FACTUAL HISTORY

The facts are taken from the testimony given in the grand jury proceeding and supplemented by exhibits attached to the petition.

On April 5, 1999, Gabriel Garcia went to the Gustine Police Department and reported that his brother, Santiago Garcia (Garcia), had been missing and he had last seen him on March 22, 1999. Officer James Hamera took the report and conducted an investigation. Gabriel and Hamera went to Garcia's apartment and contacted two men, Heriberto Artea and Mario Perez. Gabriel told Hamera he had seen Artea driving Garcia's automobile. Artea and Perez stated they did not know where Garcia was but had Garcia's permission to stay at the apartment. Artea also stated he had received permission to drive Garcia's car. Both Artea and Perez had last seen Garcia around March 22, 1999. Officer Hamera checked the residence and found no evidence of foul play. An inspection of Garcia's car produced negative results.

Artea stated he had seen Garcia arguing with a White male, possibly Sean Zunino. Gabriel described Garcia as a 41 year old Hispanic male, five feet eight inches tall and weighing 190 pounds. Garcia walked with a limp due to a broken right kneecap suffered about 20 years earlier. Hamera subsequently contacted Zunino. Zunino denied knowing Garcia or having an argument with a Hispanic male on March 22, 1999.

On June 3, 1999, Stanislaus Sheriffs Deputy Ralph Ghimenti investigated the discovery of a man's body at Pete Miller Road near the Delta Mendota Canal. The body was lying in an open field with the hands handcuffed behind its back. It was decomposing and appeared to have been dragged and partially eaten by animals. The head was located 26 feet away from the body. An autopsy determined the cause of death was a skull fracture and six stab wounds that were applied through Garcia's back. X-rays revealed the right kneecap had been surgically removed. There were no sharp injuries to the bones in the neck, suggesting the head may have been removed by animal activity.

Yvonne Dustin married defendant in 1988 and divorced him in 1996. She received a call from defendant in late March or early April of 1999, asking her to pick him up in Stockton because his vehicle had broken down. He sounded very hurried and wanted her to come right away. The next morning, Dustin paid her cousin Patricia Carter $100 to give her a ride to pick up defendant. On the trip back, defendant stated, "Yvonne, Yvonne, I killed a man." He also stated, "I'm telling you, Yvonne, for real," and he drew his finger across his neck.

During late March 1999, defendant was Maria Palma's boyfriend. One night, defendant came to his and Palma's residence (a camper) and asked her to get a knife for him. She did so, and defendant went into his van and cut out a portion of the rug that was bloodied and threw this piece on the camper. They left together headed for Stockton but the van broke down in Modesto. Earlier that afternoon, Palma called Garcia (known to her only as Na-Na-Na), and asked if he had speed for sale. Garcia rudely told her he did not, to not call him there, and hung up. Defendant overheard the conversation and became angry with Garcia. At about 9:00 p.m., defendant told Palma he was going to Garcia's place to rob him and invited her along. She declined. Defendant then stated he was going to pick up Sean Zunino and left. He returned around 5:00 a.m. asking for the knife. During their trip to Stockton, defendant told her he had killed Na-Na-Na. He said he hit the door and it opened. As Na-Na-Na got up, defendant hit him in the jaw with a flashlight, punched him, and then stabbed him in the heart with an ice pick. Defendant said he cut Na-Na-Na's finger off to take his ring. He put Garcia in his van while Garcia was still alive and he and Zunino drove Garcia to a canal on Interstate 5. Zunino became frightened and...