Ghent v. Superior Court

• Decision Date: 23 March 1979
• Court: California Court of Appeals Court of Appeals
• Parties: David Luther GHENT, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 44837.

Page 720

153 Cal.Rptr. 720

90 Cal.App.3d 944

David Luther GHENT, Petitioner, v. The SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 44837.

Court of Appeal, First District, Division 4, California.

March 23, 1979.

As Modified April 19, 1979.

Hearing Denied May 17, 1979.

Terry A. Green, San Jose, for petitioner.

George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Eugene W. Kaster, Deputy Attys. Gen., San Francisco, for real party in interest.

RATTIGAN, Associate Justice.

The principal question in this proceeding is whether allegations of "special circumstances" made in an accusatory pleading charging murder, and portending punishment by death as provided in section 190 and related sections of the Penal Code, ¹ may be challenged on a motion addressed to the pleading pursuant to section 995. The proceeding has reached this court (Division Four) during an unusual sequence in which another division issued an alternative writ in compliance with an order of the Supreme Court. The ensuing review has been additionally complicated by a procedural bar raised for the first time in the People's return to the alternative writ. The full sequence calls for a chronological summary of the pertinent proceedings.

Procedural Sequence

Petitioner David Luther Ghent was initially charged by complaint with having committed a murder and several other felonies. A preliminary examination was conducted before a magistrate on two days in March, 1978. ² At its conclusion on March 10, petitioner was held to answer on all charges. A seven-count information was accordingly filed in respondent court on March 21.

Petitioner was charged in Count One with having murdered Patricia Bert, on February 21, in violation of section 187. It was "further alleged" in Count One "that the defendant was personally present during the commission of the act and acts causing death, and with intent to cause death physically aided and committed such act and acts causing the death of the victim, . . . and that the murder was willful, deliberate, and premeditated and was committed during the commission and attempted commission of rape by force and violence" in violation of section 261, subdivision 2. ³

The rape mentioned in Count One was itself charged in Count Two, which accused petitioner of having raped Patricia Bert on February 21 in violation of section 261, subdivision 2. He was charged in Count Three with having assaulted Jacqueline Preskitt with intent to commit rape, also on February 21, in violation of section 220. Count Four charged him with having committed a crime against the person of a third victim in 1977. In Counts Five, Six, and Seven, he was respectively charged with having committed three crimes against the person of a fourth victim on May 27, 1975.

Petitioner was arraigned on the information when it was filed on March 21. On his section 995 motion, which he made by filing written notice of it on May 25, ⁴ he expressly cited the statute; ⁵ sought to have the allegations of special circumstances stricken from Count One upon the ground that they were unsupported by the evidence received at the preliminary examination; and sought dismissal of Counts Two and Four on the same ground. Also on May 25, he moved for an order severing the various counts for separate trials on the charge or charges relating to each of the four victims named in the information.

In a memorandum decision filed on August 7, respondent court in effect made separate orders in which it (1) denied the section 995 motion insofar as it sought to have the allegations of special circumstances stricken from Count One, (2) denied it insofar as it sought dismissal of Count Four, (3) granted it by ordering the dismissal of Count Four, (4) granted the severance motion by ordering the three counts charging the 1975 offenses (Five, Six and Seven) severed for trial, and (5) denied it as to the other three counts not dismissed (One, Two, and Three).

On August 15, petitioner filed in this court an omnibus "Petition For Writs Of Prohibition And Mandate" in which he sought the indicated relief from the orders described above as nos. 1, 2, and 5. The petition was regularly assigned to Division Two, which denied it on August 18. The order of denial was made without opinion and without opposition having been received or requested from the People.

Petitioner filed a petition for hearing in the Supreme Court, where the Attorney General again did not appear in opposition. The Supreme Court made an order granting the petition and returning the matter to Division Two with directions to issue an alternative writ of prohibition and to calendar the matter. Division Two issued the writ as ordered. The cause was subsequently retransferred to this court (Division Four) because of the prior pendency here of a proceeding which involved at least one identical issue. (Page v. Superior Court, --- Cal.App.3d ---, 153 Cal.Rptr. 730.)

The Section 1510 Question

The Attorney General appeared in this court by filing a return to the alternative writ in which he contested the petition on its merits. At the outset, however, he contended that section 1510 bars pretrial appellate relief from the orders denying petitioner's section 995 motion (described as nos. 1 and 2 above) because the motion itself was made more than 60 days after petitioner was arraigned. ⁶ (See fn. 4.) The contention thus emerges at the last possible stage of the proceeding, but this has occurred because the Attorney General was not asked to contest the petition earlier and he did not elect to do so. We therefore consider it first.

Section 1510 does not prevent a defendant in a felony prosecution from making a section 995 motion at any time before trial; it operates only to preclude pretrial appellate relief from an order denying one which (1) was made more than 60 days after his arraignment and (2) does not fall within either of the exceptions for which section 1510 expressly provides. (See fn. 6, Ante.) The 60-day bar may therefore not be asserted in the trial court when he makes the motion, and it must be raised in the appellate court when he challenges an order of denial by filing a petition for extraordinary relief pursuant to section 999a. ⁷ Once it is raised and established in the appellate court, he bears the burden of showing that he is within one exception or the other. The stop-or-go question thus presented is whether the bar applies or one of the exceptions does, and the answer turns upon a determination of fact to be made by the appellate court.

When the Attorney General asserted the bar of section 1510 in his return to the alternative writ (at long last, as we have seen), he cited the undisputed fact that petitioner's section 995 motion had been made on the sixty-fifth day after his arraignment. (See fn. 4, Ante.) It was thereby established, prima facie, that the motion had been made three days too late to permit appellate relief from any order or orders subsequently denying it. ⁸ We requested that petitioner respond. He filed a reply memorandum in which his attorney claimed the benefit of the second section 1510 exception by alleging that he had had "no opportunity" to prepare the section 995 motion within the 60-day period for several reasons, principally the "length" of the reporter's transcript of his preliminary examination.

Counsel elaborated by telling us at oral argument that the transcript had not actually been prepared and made available to petitioner until a substantial period of time had elapsed after his arraignment. The Attorney General did not contest the fact represented, nor did he object to the competence of counsel's oral statement as evidence of it. We consequently accept it as true.

A defendant charged with homicide is entitled to a transcript of his preliminary examination by section 869, which contemplates that it will be prepared and made available to him within 10 days after the hearing. (See § 869, subds. Fifth and Sixth.) Delay in its availability may warrant delay in his ongoing prosecution in the superior court, but does not command it as a matter of law. The only protection against delay in preparation of the transcript appears in provisions of the statute which impose partial wage or salary sanctions on a court reporter responsible for it. (Id., subds. Fifth and Seventh.) We do not perceive in section 1510 a legislative intent that such delay should be counted against the defendant in the computation of the 60-day period within which a section 995 motion must be made if its denial is to be reviewable by an appellate court pursuant to section 999a. (See fn. 7 and the accompanying text, Ante.) Petitioner has therefore brought himself within the "no opportunity" exception provided in section 1510 to the extent that the period has been tolled, for purposes of this review, by the De minimis period of "delay" which actually attended his section 995 motion. (See fn. 8, Ante.)

The Section 995 Question

The Attorney General raises the further procedural argument that petitioner's section 995 motion did not reach the allegations of special circumstances because the evidentiary review it commanded was limited by the language of the statute to the question whether he had been committed for an Offense "without reasonable or probable cause" (see § 995 as quoted in fn. 5, Ante ) and the allegations speak only to "enhancement of penalty" for an Offense but do not charge one. The Attorney General also points out that the Legislature did not enlarge the scope of this review to reach allegations of special circumstances, by amending section 995 or otherwise, when it adopted death penalty statutes in 1973 and again in 1977. ⁹

The authority cited for the first argument is People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 148 Cal.Rptr....