In re: Francisco M.

• Decision Date: 31 January 2001
• Citation: 103 Cal.Rptr.2d 794
• Court: California Court of Appeals
• Parties: (Cal.App. 2 Dist. 2001) In re FRANCISCO M., a Minor, on Habeas Corpus. In re JESUS G., a Minor, on Habeas Corpus. B146747, B146905 Filed

103 Cal.Rptr.2d 794 (Cal.App. 2 Dist. 2001)

In re FRANCISCO M., a Minor, on Habeas Corpus.

In re JESUS G., a Minor, on Habeas Corpus.

B146747, B146905

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Filed 1/31/01

ORIGINAL PROCEEDINGS; petitions for writ of habeas corpus.James C. Chalfant, Judge.The petitions are denied.

(Super. Ct.No. BA198010)

Bruce A. Hoffman, Alternate Public Defender, Cynthia Kairys and Richard L. Sternfield, Deputy Alternate Public Defenders, for Petitioner Francisco M.

Law Offices of Luis A. Carrillo and Luis A. Carrillo for Petitioner Jesus G.

Consul of Protection and Human Rights and Fernando Herrera Rodriguez for Consulate General of Mexico as Amicus Curiae on behalf of Petitioner Jesus G.

No appearance on behalf of RespondentSuperior Court.

Steve Cooley, District Attorney, George M. Palmer, Head Deputy District Attorney, and Juliet Schmidt, Deputy District Attorney, for Real Party in Interest.

CERTIFIED FOR PUBLICATION

WILLHITE, J.^*

The law has long recognized that "[t]he duty to disclose knowledge of crime rests upon all citizens.It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness."(Stein v. New York(1953)346 U.S. 156, 184, fn. omitted;seeBarry v. United States ex rel. Cunningham(1929)279 U.S. 597, 616-618.)In California, as applicable to witnesses deemed material for trial, this principle is embodied in Penal Code section 1332.¹Under that section, on an appropriate sworn showing, a trial court may detain a material witness when it finds good cause to believe that the witness will not attend the trial and testify.However, the statute does not confer unfettered discretion to incarcerate a material witness.In article I, section 10, the California Constitution states in relevant part that "[w]itnesses may not be unreasonably detained."

In this casewe consider petitions for writ of habeas corpus filed by two minors, declared material witnesses and detained under section 1332 in a special-circumstance murder prosecution.They allege, among other things, that their detention violates their constitutional right under article I, section 10, not to be unreasonably detained.We will deny the petitions in so far as they demand immediate release.However, we will order the superior court to conduct hearings, forthwith, as to whether petitioners should remain in custody in lieu of security, and to conduct those proceedings consistent with the views expressed in this opinion.

PROCEDURAL AND FACTUAL BACKGROUND

Petitioners Francisco M. (age 17) and Jesus G. (age 15)² have been declared material witnesses in the pending criminal prosecution of defendantAlfonso Aranda.Petitioner Francisco M. has been detained since November 22, 2000, a period of approximately ten weeks; petitioner Jesus G., since December 8, 2000, approximately eight weeks.Both have been required to post security of $100,000.After their detentions, the trial date was continued because counsel for defendant Aranda became medically unfit for trial.The trial is now scheduled to begin February 6, 2001, pending the medical fitness of defense counsel.

In the underlying prosecution, Aranda is charged by information with the murder of Israel Monge Reynoso( 187), and the attempted willful, deliberate murder of petitioner Francisco M. ( 664/187).The information alleges the special circumstance of murder by discharging a firearm from a motor vehicle ( 190.2, subd. (a)(21)), and various enhancement allegations.The People theorize that that the killing and attempted murder resulted from a feud between two rival gangs, ELA 13(to which the murder victim and both petitioners belong), and Breed Street (to which defendant Aranda belongs).

We summarize the series of events leading to our consideration of the habeas corpus petitions.

A.Detention of Petitioner Francisco M.

The People subpoenaed petitioner Francisco M. as a witness for the preliminary hearing of May 8, 2000.Although he appeared in court, he did so only under compulsion, having told police detectives assigned to the case that he would have to be dragged to court.The prosecution presented him in court handcuffed.Before being sworn as a witness, he informed the magistrate, "I ain't testifying for nothing."After being sworn, when asked by the prosecutor if he would make a solemn promise not to flee if the handcuffs were removed, he replied, "I make no promises."Finding that Francisco M. would not testify without being restrained, the magistrate ordered that he remain handcuffed during his testimony.

Francisco M. initially disclaimed any belief that he would be harmed if he testified.However, he later admitted that he had been labeled a "snitch" on the street, and that snitches get "handled," or "taken out."With considerable prodding by the prosecutor, he testified that he was a passenger in a car driven by Israel Reynoso when Reynoso was shot, and he described his observations of the killing.³He admitted telling the police that the gunman was Beaver, a member of the rival Breed Street Gang.However, in courthe testified that the defendant Aranda was not the shooter.Further, he testified that although he had selected Aranda's photograph, the police had pointed it out to him.He also denied identifying the driver of the car as Solo.

The prosecution impeached Francisco M. through testimony from the investigating officer, Detective Freddie Arroyo, who had surreptitiously tape recorded an interview with Francisco M. on June 24, 1999.In that interview, Francisco M. had named as the shooter a Breed Street gang member, Beaver, who lived on Ficket Street.He had also selected defendant Aranda's photograph from a lineup as that of the shooter.Further, he had also named Solo as the driver of the car.

After the preliminary hearing, the magistrate held defendant Aranda to answer for the murder of Reynoso, and attempted murder of Francisco M.The superior court held various pretrial proceedings, ultimately setting the case for December 13, 2000, as day 5 of 10 for trial.

With the trial date approaching, the People filed an ex parte motion requesting the detention of petitioner Francisco M. as a material witness.Filed November 21, the motion contained a declaration by Detective Arroyo which briefly described the crime and Francisco M.'s presence in the murder victim's car.It further stated that when detectives had arrived at Francisco M.'s residence to transport him to the preliminary hearing, he fled out the rear door.The detectives had found him at his girlfriend's house.⁴They transported him to the District Attorney's Office, where Francisco M. told Detective Arroyo he would not go to court, would not testify, and was afraid of "something" happening.The detective handcuffed Francisco M., and escorted him to court.After testifying at the preliminary hearing, Francisco M. expressed a fear of being killed if he testified.He said that if subpoenaed he would not come to court, and the police would have to find him.⁵

Based on Detective Arroyo's declaration, the superior court granted the ex parte motion.The court authorized a forthwith subpoena for Francisco M., and ordered that he be brought to court immediately.The next day, November 22, the prosecution produced Francisco M. in court, in custody.The court-appointed counsel, and held a hearing in which counsel for Francisco M. moved to have Francisco M. released on his promise to appear, or in the alternative to set bail.The court denied the requests, tentatively ruling that it had no power to set bail for a minor.The court remanded Francisco M. without bail, but set the matter for review.After the appointment of new counsel, the matter was heard on November 28.On that date, the court deemed the proceeding to be a hearing on whether to detain Francisco M. under section 1332 as a material witness pending trial.Based on the declaration in support of the motion, the court found that Francisco M. fell within the provisions of section 1332, subdivision (a).Counsel for Francisco M. argued that the court must first order Francisco M. to enter a written undertaking promising to appear and testify.Only if he refused to enter such an agreement could the court commit him to custody in lieu of bail.The People argued that Francisco M. was not entitled to bail.The court ruled that it would set bail for the parents (Francisco M. being a minor) to post on his behalf.After hearing argument, the court set bail at $100,000, and remanded Francisco M. into custody.

As required by section 1332, subdivision (c), the commitment order was reviewed by another judge two days later, November 30.In that proceeding, the judge permitted Francisco M. to address the court.Under oath, Francisco M. said that he would return to court as ordered, and was willing to submit to house arrest.Weighing Francisco M.'s statement in light of his past behavior, the court denied the request for a release on his own recognizance or a reduction in bail.At the statutory ten-day review ( 1332, subd. (d)) on December 11, the court likewise upheld the commitment order, finding no significant change in circumstances.

B.Detention of Petitioner Jesus G.

On December 7, 2000, the People filed an ex parte motion seeking the detention of petitioner Jesus G. under section 1332.The motion was filed in the same court that had considered the Francisco M. motion, and was supported by a declaration from Detective Arroyo.The declaration stated that Jesus G., an ELA 13 gang member, had spoken to a police officer 45 minutes after the shooting, and had described his observations of the shooting.⁶Within days of the killing, Jesus G. had fled to Mexico, and was unwilling to come back to be interviewed.His mother would not disclose his precise whereabouts.The declaration further stated that on December 6, 2000, Detective Arroyo had...