Mills v. Superior Court

• Citation: 232 Cal.Rptr. 141,728 P.2d 211,42 Cal.3d 951
• Decision Date: 11 December 1986
• Docket Number: S.F. 24947
• Court: California Supreme Court
• Parties: , 728 P.2d 211 Johnnie MILLS, Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent. The PEOPLE, Real Party in Interest.

Page 141

232 Cal.Rptr. 141

42 Cal.3d 951, 728 P.2d 211

Johnnie MILLS, Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent The PEOPLE, Real Party in Interest.

S.F. 24947.

Supreme Court of California In Bank.

Dec. 11, 1986.

Rehearing Denied March 5, 1987.

Jeff Brown, Public Defender, Peter G. Keane, Chief Atty., Mark Nissenbaum and Grace Lidia Suarez, Deputy Public Defenders, San Francisco, for petitioner.

No appearance for respondent.

John K. Van de Kamp, Atty. Gen., Ronald E. Niver, Donna Chew and Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for real party in interest.

Edwin L. Miller, Jr., Dist. Atty., San Diego, Peter C. Lehman and Paul M. Morley, Deputy Dist. Attys., as amici curiae on behalf of real party in interest.

MOSK, Justice.

We granted review in this case to determine the constitutionality of Penal Code section 872, subdivisions (b) and (c), which authorize the admission at preliminary hearings of written statements in lieu of testimony of any witness who is not an eyewitness to or a victim of a crime against his person. ¹ Under the statute, a finding of probable cause may be based in whole or in part on such hearsay evidence unless the accused initiates "reasonable efforts" to secure the attendance of the witness.

Defendant's efforts in this regard were limited to a telephone call to the prosecuting attorney demanding the presence of the witness at the preliminary hearing for cross-examination. He now contends his rights to confrontation and due process were infringed when the magistrate accepted as evidence the hearsay affidavit of the owner of the vehicle he allegedly burglarized. We hold that an accused cannot, consistently with his constitutional rights at the preliminary hearing, be required to produce the prosecution's witnesses against him--in effect, his own accusers--or forfeit the opportunity to cross-examine them. Nevertheless, because there was sufficient evidence apart from the affidavit to support the magistrate's finding of probable cause in the present case, we conclude the error was harmless and that defendant's petition for writ of prohibition should be denied.

At the preliminary hearing a police officer testified that while patrolling on an "auto boosting" detail he and a fellow officer observed defendant "checking out" cars in a suspicious manner and followed him as he wandered through two parking lots. Defendant eventually approached a parked van with Montana license plates in a motel lot and, as the officer watched at a distance of 35 feet, "work[ed] on the wing window" on the passenger side of the van, pushed it open, and reached in to unlock the door. Although he entered empty-handed, defendant emerged from the van carrying a leather case and a brown paper bag containing items of personal property. He was arrested moments later; the only tool on his person was a knife.

At this point the prosecution asked the officer to identify a document as the affidavit prepared by the van's owner at the scene on the night of the alleged burglary. ² After the officer identified the exhibit, the prosecution offered it into evidence. Defendant objected, arguing that its admission in lieu of testimony would deprive him of due process, and that his demand to the prosecutor before the hearing that the witness be produced for cross- shifted the burden of production to the People under section 872, subdivision (c). He asked for a short continuance, and urged that the court compel the prosecution to bring the witness to the hearing for cross-examination or forego use of the affidavit.

The prosecutor stipulated to the fact of the telephone call from defense counsel, but disputed that a simple call could constitute "reasonable efforts" by defendant to secure the attendance of the witness: defense counsel should at least have telephoned the witness in Montana "to see if the victim would be willing to come to court without a subpoena." The prosecutor also insisted that defendant misspoke in referring to the affiant as the prosecution's witness, arguing that its "witness is the statement which has been offered by the People," and that if defendant desired cross-examination he was required to call the van owner as his own witness.

Defendant countered that he is entitled to cross-examine the owner as the prosecution's witness: it would be "the ultimate violation of due process to require the production--that Mr. Mills produce the accuser against him." The written statement, he argued, is no substitute for a live witness: he could not cross-examine an affidavit.

The magistrate ruled section 872 constitutional on its face and determined that defendant's telephone call to the prosecutor could not as a matter of law be considered "reasonable efforts" under subdivision (c). He therefore ruled the affidavit admissible to show probable cause and held defendant to answer on a charge of auto burglary. (§ 459.)

Defendant entered a plea of not guilty at his subsequent arraignment and moved to set aside the information. (§ 995.) The motion was denied. Defendant sought a writ of prohibition from the Court of Appeal (§ 999a), which summarily denied relief. We granted review and issued an alternative writ of prohibition.

I

We have long recognized the critical importance of the preliminary hearing as a mechanism to weed out groundless claims and thereby avoid for both defendants and the People the imposition and expense of an unnecessary criminal trial: "Many an unjustifiable prosecution is stopped at that point, where the lack of probable cause is clearly disclosed." (Jaffe v. Stone (1941) 18 Cal.2d 146, 150, 114 P.2d 335; People v. Elliot (1960) 54 Cal.2d 498, 504, 6 Cal.Rptr. 753, 354 P.2d 225.) To effectuate this purpose, we have repeatedly held that the defendant must be permitted to cross-examine prosecution witnesses at the preliminary hearing in order to overcome the evidence offered to establish probable cause. (Jennings v. Superior Court (1967) 66 Cal.2d 867, 880, 59 Cal.Rptr. 440, 428 P.2d 304; Johnson v. Superior Court (1975) 15 Cal.3d 248, 256, 124 Cal.Rptr. 32, 539 P.2d 792, conc. opn. by Mosk, J.; Hawkins v. Superior Court (1978) 22 Cal.3d 584, 587, 150 Cal.Rptr. 435, 586 P.2d 916.)

In Jennings we acknowledged that the opportunity of an accused to confront witnesses is a fundamental procedural right at the preliminary hearing as it is at trial; the preliminary hearing " 'carefully considers and guards the substantial interest of the prisoner' and thus constitutes due process of law." (66 Cal.2d at p. 875, 59 Cal.Rptr. 440, 428 P.2d 304.) Only by preserving the adversarial character of the preliminary hearing can we enable the magistrate to responsibly to "weigh the evidence, resolve conflicts and give or withhold credence to particular witnesses." (Jones v. Superior Court (1971) 4 Cal.3d 660, 667, 94 Cal.Rptr. 289, 483 P.2d 1241; see also Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 671, 162 Cal.Rptr. 389.) We must therefore subject to careful scrutiny any legislation restricting the ability of defendants to cross-examine witnesses whose testimony is offered as evidence of probable cause.

At the same time, we are mindful that it is our duty to uphold a statute unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity. (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253-255, 158 Cal.Rptr. 330, 599 P.2d 636; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 229-230, 110 Cal.Rptr. 144, 514 P.2d 1224.) We may not, however, insert qualifying provisions not included or rewrite the statute to conform to an inferred intention that does not appear from its language. (See Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148; People v. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471, 475, 224 P.2d 677; People v. Haney (1984) 156 Cal.App.3d 109, 115, 202 Cal.Rptr. 579.)

The question before us, therefore, is whether section 872 inherently and inevitably places an unconstitutional burden on the rights of a defendant at a preliminary hearing. As will appear, our inquiry is two-fold, turning on our definition of what constitutes "reasonable efforts" to secure the attendance of a witness within the meaning of the statute, and our determination whether imposing such a requirement on the defendant comports with due process.

II

By its terms (fn. 1, ante ), the statute does not actually preclude a defendant from exercising his confrontation right; it does, however, qualify that right by requiring him first to take affirmative measures to safeguard his opportunity to cross-examine such affiants. If the defendant undertakes "reasonable efforts" to secure the presence of the witness, his ordinary right to confrontation is assured: the prosecution must then produce the witness or forfeit use of the affidavit testimony. The key question, then, is whether the requirement of "reasonable efforts" itself necessarily imposes an excessive burden, infringing on the due process rights of the defendant.

Two recent cases have concluded that it does not, but both have treated the requirement to be satisfied by a simple telephone call. In People v. Haney (1984) 156 Cal.App.3d 109, 117, 202 Cal.Rptr. 579, the court commented, "For example, one phone call resulting in credible information that the witness was away on vacation might suffice." Similarly, in People v. Harris (1985) 165 Cal.App.3d 1246, 212 Cal.Rptr. 216, while expressing concern that " 'reasonable efforts' might be construed in a manner which may impinge upon due process" (id. at p. 1266, 212 Cal.Rptr. 216), the court observed, "There is ... nothing which leads us to believe that a telephone call from the defense would not be all that is required to have the prosecutor produce the declarant at the preliminary examination." (Id. at p. 1265, 212 Cal.Rptr. 216.)

In the present case, defendant has...