Jennings v. Superior Court of Contra Costa County

• Citation: 59 Cal.Rptr. 440,428 P.2d 304,66 Cal.2d 867
• Decision Date: 16 June 1967
• Docket Number: S.F. 22502
• Court: United States State Supreme Court (California)
• Parties: , 428 P.2d 304 Fred James JENNINGS, Petitioner, v. SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; The PEOPLE, Real Party in Interest. In Bank

Page 440

59 Cal.Rptr. 440

66 Cal.2d 867, 428 P.2d 304

Fred James JENNINGS, Petitioner, v. SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent;

The PEOPLE, Real Party in Interest.

S.F. 22502.

Supreme Court of California,

In Bank.

June 16, 1967.

David N. Bortin, under appointment by the Supreme Court, Concord, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Robert R. Granucci and Robert S. Shuken, Deputy Attys. Gen., for respondent and real party in interest.

MOSK, Associate Justice.

The sole question presented in this proceeding for a writ of prohibition is the scope and enforceability of a defendant's right to present an affirmative defense at his preliminary hearing if he so chooses. We have concluded that this right is guaranteed by the constitution and by statute and that its timely assertion in the case at bar requires issuance of a peremptory writ.

Petitioner was charged by complaint with illegal possession of narcotics (Health & Saf.Code, § 11500) and narcotics paraphernalia (Health & Saf.Code, § 11555). Other than a criminalist who identified the narcotic character of the substance recovered, the sole witnesses at the preliminary hearing were the two arresting officers Johnson and Bedsworth. Both testified on direct examination that at 12:30 a.m. on October 22, 1966, they were in the vicinity of the Royal Palms Motel in Concord when they observed a Chevrolet station wagon pull up and park behind the motel. A woman got out of the car and ran towards the front of the building. 'It being unusual,' the officers testified, they approached and observed petitioner get out and stand next to the car. When petitioner saw the officers he began to run. He threw a pink object over a nearby fence, and the officers heard a metallic sound when the object struck the concrete on the other side. Petitioner then stopped and waited for the officers. Officer Johnson detained him while Officer Bedsworth retrieved the object. It was found to be a narcotics injection kit, and petitioner was formally placed under arrest. Officer Johnson then asked him who the woman was, and he said her name was Sherrie Kittelson.

Petitioner concedes that the foregoing evidence taken alone, would be sufficient to constitute probable cause to hold him to answer to the charges in the complaint. At the outset of the hearing, however, and before any witness had testified, counsel for petitioner advised the court he had attempted to subpoena Miss Kittelson, but that the return had just been handed to him unserved. He further stated that the district attorney's office had informed him she was out on bail on a pending criminal charge and was due to appear in court on the following Monday (it was then Thursday morning), at which time presumably she could be served with a subpoena to appear at his preliminary hearing. He therefore moved for a continuance of the hearing for four days.

In response to the court's request for an offer of proof of the necessity for such a continuance, petitioner's counsel explained there was 'a very serious question' as to whether the contraband in issue had been in Miss Kittelson's possession or his client's. He stated, 'my understanding of the matter is that this woman called the defendant and asked him to come to pick her up at a certain place and he responded to her request and at that particular point she left the car and at that point the officers descended on the car and found the merchandise in question. I think she's vital to this particular case.' The prosecution objected to the continuance, arguing that the evidence would show petitioner had the narcotics kit in his hand and threw it away, and that the facts which he was offering to prove were simply 'a matter of defense.' The court stated that the prosecution's evidence 'would be sufficient for this preliminary stage notwithstanding any statements that might be made by Miss Kittelson,' but nevertheless took the motion under submission.

The issue quickly came up again on petitioner's cross-examination of the arresting officers. Officer Johnson testified that petitioner's car made a loud exhaust noise and it was that noise which first attracted his attention to the vehicle. He admitted, however, that he 'knew who it was' when Miss Kittelson alighted from petitioner's car and ran to the front of the motel, and knew she was out on bail at the time. Petitioner's counsel then asked whether she had been in contact with the Concord Police Department earlier that day or week; the prosecution objected on the ground of relevancy, and again an offer of proof was requested. Counsel stated that the officer's testimony on direct had been an effort to lead the court to believe that reasonable cause to arrest was based solely on the events observed at the scene, i.e., the assertedly defective exhaust and the flight of the apparently unknown woman; rather, counsel advised the court, 'I believe that I can develop on cross-examination that there was an entirely different reason for these law enforcement officers to be there and for this arrest to be made and that the lawfulness of the arrest is based, in fact, on a setup or an arrangement that was made in advance.' The objection was nevertheless sustained.

On further cross-examination Officer Johnson admitted he and his partner had been sitting at that location for 20 to 30 minutes before petitioner and Miss Kittelson arrived; counsel for petitioner then asked, 'Was this in response to some information you had received,' and the prosecution again objected on the ground of relevancy. Counsel explained he was trying to establish that 'in point of fact * * * this was an arrest based on information given to the police in an effort to entice this defendant to a particular spot, where he would, in fact, be arrested on the basis of possession of material which they knew would then be in the car, and I think it's extremely vital to the basic defense of this case, which is, in fact, that the defendant was setup or in the vernacular framed. * * *'

The court made it clear that although it disbelieved the officer's story of a chance encounter with petitioner and Miss Kittelson, it was of the opinion that the only issue at a preliminary hearing was whether there was probable cause to hold the accused to answer to the charges filed, and that the evidence sought to be introduced by petitioner was simply not relevant to that issue. Thus the court said, 'I'm not so naive that I don't think we have police operating with information that they receive from other persons. Of course, I don't believe that this is an isolated incident whereby (the police) are parked on the street corner of Clayton Way and Queen's Road without some purpose in mind before (petitioner and Miss Kittelson) drove up in this vehicle and then that their attention was attracted by a noisy muffler and they went out of the vehicle and observed this man run and throw something over the fence but I feel that what led up to this action is hardly material to this matter at this stage of the proceeding. Now, Whether the man was, in fact, framed, or whether they took advantage of him or whatever else may have happened preceding this, I don't see how that would affect this preliminary at this stage.' (Italics added.)

In response to the court's emphasizing the fact that petitioner was seen to run with the contraband in his hand and throw it over the wall, counsel pointed out that 'if in point of fact, the defendant realizes from the circumstances that he was being framed and attempts to get out of the frame, this is quite a different situation (than) where a defendant was in fact guilty and was in fact fleeing from or taking evasive action from a consciousness of guilt. * * *' Nevertheless, the court ruled that 'maybe these things are all germane to a defense at the time of trial but at this time I don't see where they would be relevant nor come under the scope of a preliminary examination so I'm going to limit you as to what occurred here and not as to any prior communications or reasons the policy may have had for being there.'

The same rule was enforced throughout counsel's cross-examination of Officer Bedsworth. At the conclusion of the People's evidence counsel again expressed his desire to put Miss Kittelson on the stand, but for the foregoing reasons the court also denied his motion for a continuance.

Petitioner was held to answer. He moved to set aside the information under Penal Code section 995 on the ground that he had not been legally committed; the motion was denied, and petitioner instituted the present proceedings for writ of prohibition.

Section 995 provides in relevant part that upon motion the information 'must' be set aside by the court in which the defendant is arraigned if it appears 'That before the filing thereof the defendant had not been legally committed by a magistrate.' As we explained in People v. Elliot (1960) 54 Cal.2d 498, 502--503, 6 Cal.Rptr. 753, 756, 354 P.2d 225, 228, "The phrase 'legally committed,' * * * refers to the examination of the case, and the holding of the defendant to answer as prescribed by title 3, c. 7, the Pen.Code.' Exparte Baker, 88 Cal. 84, 85, 25 P. 966, 967. An information of course, will not be set aside merely because there has been some irregularity or minor error in procedure in the preliminary examination. People v. Rodrigo, 69 Cal. 601, 11 P. 481. But where it appears that, during the course of the preliminary examination, The defendant has been denied a substantial right, the commitment is unlawful within the meaning of section 995, and it must be set aside upon timely motion. (Citations.)' (Italics added.)

Applying these rules in a variety of contexts, the courts have held that an accused was not 'legally committed' when he was denied the right to the assistance of counsel at the preliminary hearing (People v. Napthaly (1895) 105 Cal. 641, 644--645; McCarthy...