Escamilla v. Superior Court of Fresno County
| Citation | 76 Cal.Rptr. 704,271 Cal.App.2d 730 |
| Court | California Court of Appeals |
| Decision Date | 11 April 1969 |
| Parties | Esther ESCAMILLA, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 1116. |
Petitioner seeks to restrain the Superior Court of Fresno County from proceeding with a criminal prosecution against her. An information was filed June 24, 1968, charging her with grand theft in violation of Penal Code, section 487. The question here is whether petitioner may claim immunity from prosecution upon said charge by reason of an intervening proceeding under the Unemployment Insurance Code. Petitioner, who refused to answer questions in a proceeding before the Appeals Board upon the ground the answers would incriminate her, was ordered to answer by the referee. She now claims immunity under Unemployment Insurance Code, section 1955. The pertinent facts are as follows:
Petitioner and her husband, Francisco Escamilla, worked at the Farmers Supply Market in Reedley; she was arrested on May 2 upon suspicion of grand theft from her employer; the next day Francisco was discharged from his employment as a box boy, and he applied for unemployment insurance. When notified of the application, his employer objected, claiming that Francisco had been guilty of misconduct in that he had not been a dependable employee and that in the market owner's belief Francisco knew of his wife's defalcations.
The Department of Employment ruled that Francisco was entitled to unemployment insurance benefits upon the ground that he was not discharged for acts amounting to misconduct. Farmers Supply Market filed a notice of appeal, and on August 16, 1968, a hearing was held before a referee acting on behalf of the Unemployment Insurance Appeals Board. The employer contended that Francisco would have been discharged for acts of misconduct much earlier but it was feared this might impair the criminal investigation of his wife's activities at the market.
Petitioner voluntarily appeared at the hearing, acting as interpreter for her husband. However, she had her own separate counsel, and when she was called to the stand by her husband's attorney and asked questions concerning thefts from her employer, her attorney objected. For example, to the question, 'Mrs. Escamilla, did your husband have knowledge of you taking some money from your employer?'; her attorney interposed: 'I am going to advise my client not to answer that on the grounds the answer may tend to incriminate her.' The referee at first agreed that the witness need not answer, but called a conference when the husband's attorney insisted that the language of Unemployment Insurance Code, section 1955, providing that no person shall be excused from testifying on the grounds that it may incriminate him, meant only that 'this testimony here could not be used in any other proceeding.'
What transpired in the conference is not reported, but the record reflects the following when the hearing resumed:
Later when asked, 'Alright, now, what did you do with that money, did you spend any of it on your husband at all,' petitioner's attorney said: 'I will object or assert the privilege against self-incrimination on behalf of my client and advise her not to answer that question unless ordered to.' The referee stated: 'You're directed to answer.'
The effect of the referee's order rests upon an interpretation of section 1955, which provides, in pertinent part:
'No individual shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise.'
The facts of this case are strikingly similar to People v. King, 66 Cal.2d 633, 58 Cal.Rptr. 571, 427 P.2d 171, where the Insurance Commissioner compelled a witness to appear pursuant to Insurance Code, section 1020, which makes no provision for a grant of immunity to a witness who gives incriminating testimony. The witness answered all questions put to him without asserting the privilege against self-incrimination. Later, criminal charges were brought involving matters about which he had testified. In a proceeding under Penal Code, section 995 he sought to set aside the indictment upon the ground that having been compelled to testify in hearings before the Commissioner, he was entitled to immunity under the provisions of another section of the Insurance Code, namely, section 12924, subdivision (b), which provides:
'* * * no person shall be prosecuted or punished by any criminal action or proceeding for or on account of any act, transaction, matter or thing concerning which he is so compelled to testify under oath * * *.'
The lower court refused to grant the motion to set aside the indictment, but granted a subsequent motion to quash the indictment. The Supreme Court affirmed, holding that the witness was entitled to immunity and, further, that the statute did not require him to assert his privilege against self-incrimination before testifying. (P. 637, 58 Cal.Rptr. 571, 427 P.2d 171.)
We deem the case at bench much stronger, in that petitioner did assert her constitutional privilege against self-incrimination and, despite this, was ordered to testify.
At first blush the argument of real party in interest, that where a criminal action is pending in the superior court a hearing officer for a state agency has no authority or power to grant immunity to the accused, seems persuasive. However, the argument overlooks the inherent sovereignty of the state; it may, through the Legislature, delegate to a hearing officer the power to grant immunity to a witness either before or after criminal charges are filed. The Legislature has not limited the power delegated to a hearing officer to grant immunity under Unemployment Insurance Code, section 1955 to situations where no criminal proceedings are pending; we cannot read such a limitation into the plain language of the statute.
As a practical matter, when a witness charged with a criminal offense claims immunity upon the ground that his testimony may tend to incriminate him, the seriousness of an order requiring him to waive his immunity and testify is patent. Where no charge is pending when the privilege is asserted, it is problematical whether a charge will be made and the privilege become significant; a pending trial removes all doubt.
Moreover, the order of the referee that Mrs. Escamilla testify, despite the assertion of her right not to incriminate herself under the Fifth Amendment to the United States Constitution, gives her claim to immunity under section 1955 constitutional overtones that transcend the jurisdiction of the superior court. The whole purpose of the Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, line of cases is to ensure that an accused knows his rights under the Fifth Amendment so he can assert them if he wishes. Here, petitioner was ordered to testify despite the assertion of her right not to do so.
It is argued that since petitioner voluntarily appeared at the hearing, and not under the compulsion of a subpoena, she is not entitled to the protection of section 1955. In the King case the witness not only testified voluntarily, he claimed no immunity before testifying.
Real party in interest also asserts that because the questions upon which petitioner's right to immunity rests were asked by her husband's attorney and followed by her own attorney's claim of privilege, petitioner's claim of immunity is based upon fraud or collusion.
Although the dissent appears to adopt this theory, we cannot reconcile the facts with the fundamental principles of fraud. There can be no doubt that petitioner wanted immunity, but so does every admitted criminal who turns state's evidence. Fraud that would warrant a court in nullifying immunity once it is granted as the basis for a waiver of constitutional rights would, at the very least, require that the authority granting the immunity be misled either by a misstatement of the facts or by a withholding of facts. It is clear from the record that the attorney for petitioner's husband, as well as her own attorney, knew that she hoped for immunity. Knowledge of the pending prosecution of petitioner was well known; as already noted, the referee held a conference to discuss the import of section 1955 after petitioner asserted her constitutional right not to testify. It was clear to everyone present, including the referee, that petitioner intended to claim immunity from the pending prosecution. There was no...
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Griego v. Superior Court
...that it was Richard R., transactional immunity surely would attach and the complaint would be dismissed. (Escamilla v. Superior Court (1969) 271 Cal.App.2d 730, 735, 76 Cal.Rptr. 704.) `"Transactional immunity' immunizes the defendant from prosecution for any offense which is implicated by ......
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Griego v. Superior Court
...testified that it was Richard R., transactional immunity surely would attach and the complaint would be dismissed. (Escamilla v. Superior Court (1969) 271 Cal.App.2d 730, 735.) "'Transactional immunity' immunizes the defendant from prosecution for any offense which is implicated by the comp......
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Penny v. Review Bd.
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