People v. Davis

• Decision Date: 09 November 1984
• Parties: The PEOPLE, Plaintiff and Appellant, v. Ronald D. DAVIS, Defendant and Respondent. Crim. B003562.
• Court: California Court of Appeals Court of Appeals

Page 846

207 Cal.Rptr. 846

161 Cal.App.3d 796

The PEOPLE, Plaintiff and Appellant, v. Ronald D. DAVIS, Defendant and Respondent.

Crim. B003562.

Court of Appeal, Second District, Division 7, California.

Nov. 9, 1984.

Edward P. George, Jr. and Albert C.S. Ramsey, Long Beach, for defendant and respondent.

Robert H. Philibosian, Dist. Atty., Ronald J. Kaplan and Sterling S. Suga, Deputy Dist. Attys., for plaintiff and appellant.

JOHNSON, Associate Justice.

This appeal challenges the order of the trial court granting the respondent's motion to dismiss the information pursuant to Penal Code section 995. The central issue raised on appeal is whether the magistrate properly exercised his discretion when he refused to allow the respondent personally to cross-examine the prosecution's sole witness at the preliminary hearing. Because we agree with the trial court the magistrate erred in this matter, we affirm.

I. FACTS AND PROCEEDINGS BELOW

On January 13, 1983, William Kingman shot Aubrey Smith, wounding him in the ear. Smith, represented by the respondent, filed a civil action against Kingman. Criminal assault charges were also filed.

On February 25, 1983, the respondent, Smith, and another co-defendant were arrested for allegedly taking a bribe from Kingman. According to the People, Smith agreed to absent himself from the jurisdiction of the court in the pending criminal trial and not be available to testify as a material witness so the trial could not proceed. In return, Smith received $45,000 from Kingman as payment for civil damages.

On June 9, 1983 through June 16, 1983, a preliminary examination was held wherein a complaint was filed against the respondent and the co-defendants, alleging in Court I, violation of Penal Code section 138 [asking for or receiving a bribe]; in Court II, violation of Penal Code section 153 [compounding and concealing a crime]; and in Court III, violation of Penal Code section 182 [conspiracy to violate Penal Code sections 138 and 153].

On June 14, 1983, during the preliminary examination, the prosecution's sole witness, William Kingman, was called to testify. He testified as to the events which led up to the acceptance of the bribe. The respondent did not cross-examine the witness but On June 15, 1983, during the respondent's presentation of his case, respondent's counsel informed the magistrate they would now like to recall Mr. Kingman. He also advised that the respondent himself would conduct the cross-examination on his own behalf. The prosecution did not object. The magistrate, however, was not certain this was a proper procedure and decided to consider the matter during the evening recess.

reserved the right to order the witness back. Counsel for one of the other defendants did ask some questions.

The next morning, the respondent's counsel again requested the respondent be allowed to conduct the cross-examination. Counsel explained the respondent had prepared for this examination in its entirety since the inception of the case. He also stated they pursued this course because the respondent had extensive experience in civil and criminal practice. As such, he had certain expertise with respect to the mechanics of the civil suit and its interrelationship with the criminal suit which counsel himself did not possess. The respondent also, of course, had a close understanding of the facts of the case.

The magistrate denied the request stating he found counsel to be most competent and to have handled the case in a very able fashion.

Counsel, at this point, further informed the magistrate he was not prepared to examine the witness himself and thus if the magistrate would not allow the respondent to examine him, they would not be able to question the witness at all. Furthermore, counsel explained, this witness was very important to the respondent's case with regard to several issues.

The magistrate again stated he found counsel quite capable. He also said counsel had had plenty of time to prepare his examination since the witness had appeared earlier in the proceedings. The magistrate's ruling stood. The respondent did not question the witness either himself or through his attorney.

Following the preliminary examination, each defendant was held to answer in the Superior Court as to Counts I, II, and III of the complaint.

On June 30, 1983, a three-count information was filed against the respondent and the co-defendants alleging violation of the Penal Code sections discussed above.

On November 3, 1983, the respondent filed a motion to dismiss Courts I, II, and III of the Information pursuant to Penal Code section 995 alleging he was improperly committed due to the denial of his right to personally cross-examine the key prosecution witness.

On November 21, 1983, the trial court gave its preliminary ruling on the 995 motion. The court ruled the respondent had not been legally committed by the magistrate as required pursuant to Penal Code § 995(a)(2)(A). Relying on People v. Windham (1977) 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187, cert. den. (1977) 434 U.S. 848, 98 S.Ct. 157, 54 L.Ed.2d 116, the court stated the magistrate, when he rejected the respondent's request, failed to balance the prejudice to the legitimate interests of the defendant with the potential disruption of the proceedings. As the court stated, the magistrate improperly relied solely on counsel's ability to represent the respondent and refused to consider the complete lack of potential disruption to the proceedings. Due to this failure, the 995 motion to dismiss had to be granted.

On this same day, the trial court entered its minute order, ruling as discussed above. ¹

The appellant filed a timely notice of appeal from the order of dismissal on January 19, 1984. Briefing was completed on August 1, 1984, and argument heard November 1, 1984.

II. THE TRIAL COURT PROPERLY GRANTED THE RESPONDENT'S MOTION TO DISMISS THE INFORMATION PURSUANT TO PENAL CODE SECTION 995

Penal Code section 995 provides, in relevant part, "[T]he indictment or information shall be set aside by the court in which the defendant is arraigned ... if ... before the filing thereof the defendant has not been legally committed by a magistrate." In interpreting this provision, it has been held, "An information ... will not be set aside merely because there has been some irregularity or minor error in procedure in the preliminary examination. [cite omitted.] 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. [cites omitted]" (People v. Elliot (1960) 54 Cal.2d 498, 502-503, 6 Cal.Rptr. 753, 354 P.2d 225, disapproved on another point in People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 165 Cal.Rptr. 851, 612 P.2d 941.)

A commitment has been deemed unlawful in a variety of contexts. (People v. Elliot, supra, 54 Cal.2d at p. 504, 6 Cal.Rptr. 753, 354 P.2d 225 [defendant denied the right to have all unauthorized persons excluded from the courtroom during preliminary examination.]; Jennings v. Superior Court (1967) 66 Cal.2d 867, 879-880, 59 Cal.Rptr. 440, 428 P.2d 304 [defendant denied the right to cross-examine and present an affirmative defense.]; People v. Phillips (1964) 229 Cal.App.2d 496, 501-502, 40 Cal.Rptr. 403 [defendant denied continuance to secure counsel as required.]; McCarthy v. Superior Court (1958) 162 Cal.App.2d 755, 758-759, 328 P.2d 819 [defendant denied right to the assistance of counsel.]; Reid v. Superior Court (1983) 140 Cal.App.3d 624, 634, 189 Cal.Rptr. 644 [defendant denied right to a counsel without conflicting interests.].)

It should be apparent if the magistrate erred in not allowing the respondent to personally cross-examine the prosecution's key witness (such refusal resulting in no examination of this witness), the respondent was indeed denied a substantial right which requires the commitment be set aside.

A. The Magistrate Failed to Exercise His Discretion When He Prohibited the Respondent From Personally Questioning the Prosecution's Key Witness

A defendant neither has an absolute right to participate in the presentation of his case when he is represented by counsel nor an absolute right to the assistance of counsel when he is proceeding pro per. (People v. Mattson (1959) 51 Cal.2d 777, 789, 336 P.2d 937; People v. Hill (1969) 70 Cal.2d 678, 691-692, 76 Cal.Rptr. 225, 452 P.2d 329, cert. den. (1972) 406 U.S. 971, 92 S.Ct. 2416, 32 L.Ed.2d 671; People v. Spencer (1984) 153 Cal.App.3d 931, 938, 200 Cal.Rptr. 693.) ² As the Mattson court stated:

"These matters are within the sound discretion of the trial judge who is in a position to appraise the courtroom situation and determine what procedure will best promote orderly, prompt, and just disposition of the cause.

"The court, however, should not permit a litigant both to have counsel and to actively participate in the conduct of the case ... unless the court on a substantial showing determines that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered or delayed." (People v. Mattson, supra, 51 Cal.2d at p. 797, 336 P.2d 937, italics added.)

(See also People v. Darling (1962) 58 Cal.2d 15, 19-20, 22 Cal.Rptr. 484, 372 P.2d 316; People v. Spencer, supra, 153 Cal.App.3d at p. 939, 200 Cal.Rptr. 693.) The holding of these cases is equally applicable when a defendant is before a magistrate. (See People v. Mattson, supra, 51 Cal.2d at 794, 336 P.2d 937; People v. Mitchell (1960) 185 Cal.App.2d 507, 512, 8 Cal.Rptr. 319.)

It appears from the record the magistrate was either unaware he had the discretion to allow the respondent personally to cross-examine the prosecution's witness, (See People v. Massie (1967) 66 Cal.2d 899, 917-918, 59 Cal.Rptr. 733, ...