People v. Brown

• Decision Date: 07 February 1962
• Docket Number: Cr. 1600
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Joe BROWN, Defendant and Appellant.

Page 36

19 Cal.Rptr. 36

200 Cal.App.2d 111

The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Joe BROWN, Defendant and Appellant.

Cr. 1600.

District Court of Appeal, Fourth District, California.

Feb. 7, 1962.

Nitz, Mueller & Hardin, Anaheim, and George H. Chula, Santa Ana, for appellant.

Stanley Mosk, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

Shorn of nonessentials, the facts in this case are as follows: The defendant, the appellant herein, was charged by complaint with the offense of robbery, i.e., a violation of Section 211 of the Penal Code. A preliminary hearing was held thereon. Prior to the taking of any testimony, his attorney stated: 'I would like to make a motion to exclude all unauthorized persons from the courtroom during the interval of this hearing.' Thereupon the court inquired of the district attorney and was advised that the only witness to testify on behalf of the People was the alleged victim. The court then asked the defendant's counsel: 'Do you want any of your witnesses excluded'; whereupon the latter stated: 'All unauthorized persons. The defendant is entitled to a private hearing here'; and the court replied: 'I don't think so. I have never heard of such a thing. There are a few certain types of cases where he would be entitled to a private hearing.' Counsel for defendant made no attempt to enlighten the court with respect to the basis for his motion; stated no grounds therefor; and offered no authority to support the same. It was denied. Following this, the defendant moved for production of all statements, tape recordings and transcripts made by the police and witnesses, together with the names and addresses of all witnesses interviewed; the district attorney indicated his willingness to turn his entire file over to the defense counsel; whereupon, the court instructed the latter to proceed, and to give defense counsel 'time enough to peruse your file.' Thereupon, the victim was called as a witness and testified to facts establishing that the defendant entered his store and committed the crime of robbery. At the conclusion of this testimony the defendant's attorney initiated a discussion of his previous request to exclude all 'unauthorized persons' from the courtroom; noted that such persons were present; disclosed that he was relying on the rule in People v. Elliott, 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225 and People v. Prizant, 186 Cal.App.2d 542, 9 Cal.Rptr. 282; and moved for a dismissal of the case. The remarks of the magistrate during the course of this discussion indicated that he had acted under the belief that defendant was entitled to request that all witnesses should leave the courtroom, but not all persons. A recess was taken for the obvious purpose of reading the decisions cited by counsel. When court reconvened the defendant renewed his motion to dismiss and the magistrate granted the same. ¹ Subsequently, by new complaint, the defendant was charged with burglary, i. e., a violation of Section 459 of the Penal Code, based on the same robbery incident. At the ensuing preliminary hearing the defendant moved 'to exclude all those persons not authorized by the Penal Code 868 from this hearing.' (Italics ours.) The motion was granted. The defendant then moved to dismiss the proceedings upon the ground that his motion in the previous hearing to exclude 'all unauthorized persons' had been denied. After considerable discussion, the magistrate denied the motion to dismiss upon the ground that at the previous hearing the defendant had neither stated the grounds for his motion, disclosed the basis therefor, nor cited any authority in support thereof. All parties then submitted the pending issue of probable cause upon a transcript of the testimony taken at the first hearing. The defendant was held to answer to the Superior Court. In due course, an information was filed charging him with burglary and robbery, each offense based on the same incident. Prior to plea, the defendant moved for a dismissal under Section 995 of the Penal Code, and prior to trial moved that the case be remanded to the Municipal Court for dismissal; each motion was made upon the ground that the defendant had been deprived of his right to a private preliminary hearing as provided by Section 868 of the Penal Code; and each motion was denied. Thereupon he pleaded not guilty; waived a jury trial; submitted his case to the trial judge on the preliminary transcript; was found guilty of both burglary and robbery; was sentenced to imprisonment in the state prison on both charges, the sentences to run concurrently; and appealed from the judgment entered.

There are two issues on this appeal, i. e., (1) whether the denial of the defendant's motion at the first hearing to exclude 'all unauthorized persons' constituted a denial of due process of law which has infiltrated the whole proceeding, and (2) whether the court erred in imposing sentences upon him for both robbery and burglary.

The provisions of Section 868 of the Penal Code confer upon the defendant the right to have excluded from his preliminary examination all persons except those designated by that section. If he is denied this right, the proceedings are subject to dismissal. (People v. Elliott, supra, 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225.) However, the right of exclusion exists only upon his request. Implicit in the exercise thereof is the requirement that such a request must be presented in an intelligent and legally sufficient manner. Unless the defendant makes a request in the required manner the right of exclusion does not come into being, and the presence of persons at his examination who might have been excluded under the statute does not affect the validity of the proceeding.

The magistrate at the second preliminary hearing determined that the defendant had not adequately claimed his right to a private hearing at the first preliminary hearing and, therefore, waived it. The record and the law support this position. The sum total of the defendant's initial motion was to exclude 'all unauthorized persons' from the courtroom. The basis or grounds for this motion were not stated. It is apparent that the deputy district attorney and the magistrate were unfamiliar with the requirements of Penal Code, Section 868 and the decisions in People v. Elliott, supra, 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225 and People v. Prizant, supra, 186 Cal.App.2d 542, 9 Cal.Rptr. 282. It also is apparent that counsel for the defendant wilfully withheld information respecting these requirements and these decisions. In the theatrical world such tactics might be classified as clever, but the courtroom is not a theatre, and the administration of justice is not a theatrical performance. The evidence before us supports an implied finding in the order of the magistrate at the second hearing denying the defendant's motion to dismiss, in the order of the trial court denying his motion under Penal Code, Section 995, and in the further order of that court at the time of trial denying his motion to remand for lack of jurisdiction, that at the time the defendant made his original motion his action was not prompted by a desire to effect a private hearing, but with the hope that his request might be refused, and thus lay the foundation for a dismissal of all proceedings against him. Such conduct makes a mockery of justice.

It cannot be said that the defendant in this case was denied his right to a private preliminary hearing; that he was not afforded due process of law; or that his trial was in any measure unfair. When the magistrate at the first hearing was advised of the basis for the defendant's request, his motion to dismiss was granted although, in our view of the record, the magistrate was not required to honor that motion, However, as hereinafter noted, this dismissal had no effect on the subsequent proceedings.

The principles evident in certain general rules of law applicable to various areas of trial practice, support the conclusion that a legally sufficient request to a court must fairly state the basis therefor, particularly where the judge or magistrate presiding indicates that he has a mistaken concept of the law in the premises. Ordinarily an objection to evidence without clearly stating the precise grounds therefor, unless they are obvious, may not be urged as a basis for error. (People v. Owens, 123 Cal. 482, 490, 56 P. 251; Kiler v. Kimbal, 10 Cal. 267; People v. Modell, 143 Cal.App.2d 724, 730, 300 P.2d 204; People v. Fowzer, 127 Cal.App.2d 742, 746, 274 P.2d 471; People v. Renek, 105 Cal.App.2d 277, 283, 233 P.2d 43; People v. Goff, 100 Cal.App.2d 166, 172, 223 P.2d 27; People v. Agajanian, 97 Cal.App.2d 399, 405, 218 P.2d 114; People v. Calliham, 81 Cal.App.2d 928, 933, 185 P.2d 342; People v. Wright, 26 Cal.App.2d 197, 207, 79 P.2d 102); nor is it error to deny a motion to strike evidence where no grounds for the motion are stated. (People v. Nelson, 85 Cal. 421, 428, 24 P. 1006; People v. Eckman, 72 Cal. 582, 583, 14 P. 359; Singer Metals v. Industrial Management Corp., 116 Cal.App.2d 85, 253 P.2d 515; Toomes v. Nunes, 24 Cal.App.2d 395, 75 P.2d 94; Bennett v. Hoge, 108 Cal.App.2d 180, 291 P. 444.) The requirement that a party fairly inform the court respecting the grounds for his objection to evidence or his motion to strike the same is equally applicable to a situation such as the one at bar. With respect to certain errors occurring in the course of a trial, it has been laid down as a general rule that: 'Before a party may successfully take advantage of the behavior of the trial court, he must have objected, protested and assigned the conduct as prejudicial in order that the court may correct the asserted error.' (People v. Kobey, 105 Cal.App.2d 548, 560, 234 P.2d 251.) The decisions are legion in support of the statement in 4 Cal.Jur.2d 420 that: 'One who by his...