People v. Haney

• Decision Date: 21 May 1984
• Docket Number: Cr. 44308
• Citation: 202 Cal.Rptr. 579,156 Cal.App.3d 109
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Bruce Patrick HANEY, Defendant and Respondent.

Page 579

202 Cal.Rptr. 579

156 Cal.App.3d 109

The PEOPLE, Plaintiff and Appellant, v. Bruce Patrick HANEY, Defendant and Respondent.

Cr. 44308.

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

May 21, 1984.

Robert H. Philibosian, Dist. Atty. of Los Angeles County, Harry B. Sondheim, Head, Appellate Div., and Donald J. Kaplan, Deputy Dist. Atty., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender of Los Angeles County, Laurence M. Sarnoff, Howard Waco and Ronald B. Davey, Deputy Public Defenders, for defendant and respondent.

THOMPSON, Acting Presiding Justice.

This appeal involves the proper interpretation of a 1981 amendment to Penal Code section 872. ¹ Subdivisions (b) and (c) of that statute allow the prosecutor, in certain instances, to use statements under penalty of perjury at the preliminary hearing, in lieu of the live testimony of a witness. However, subdivision (c) further provides: "If the defendant makes reasonable efforts to secure the attendance of the witness but is unsuccessful ... the court shall grant a short continuance at the request of the defendant and shall require the prosecuting attorney to present the witness for cross-examination." (Italics added.)

At issue is whether defendant's efforts in this case were sufficient to compel the People to produce the witness, the alleged victim of the crime. We hold, under the circumstances of this case, the magistrate could properly find that defendant's phone calls did not constitute "reasonable efforts to secure the attendance of the witness."

Statement of Facts and Proceedings Below

At the time of defendant's arraignment on December 23, 1982, the People, pursuant to section 872, filed an affidavit by the victim of the charged burglary. The affidavit contained the victim's address. ²

At the preliminary hearing on January 7, the People asked the court to receive into evidence the affidavit in lieu of the complaining witness' personal appearance. Defense counsel objected, stating the defense wished to have all witnesses present at the preliminary hearing and he himself had tried without success to get ahold of the witness.

The magistrate then reviewed the provisions of section 872 and stated: "[I]t's apparent that the People have done their share .... [a]nd the defendant has not taken advantage of any of the ... opportunities stated in this section to be available to him to summon the witness personally for cross-examin[ation]."

Defense counsel responded that he had "personally dialed on several occasions the telephone number provided ... in the arrest reports and ... was unable to contact the victim"; he believed those were "reasonable step[s] and the only steps necessary"; and "the burden [was] now on the People to present that witness for the purpose of cross-examin[ation]." Counsel also stated that the defense had notified the prosecution of its objection to the use of statements at arraignment and was reiterating its objection to the procedure.

The magistrate responded: "[T]here is just no way I can go along with you ... based upon the statement you just presented to the Court. I will have to overrule your objection and consider the statement as the section provides."

The magistrate then heard a portion of the testimony of one prosecuting witness and subsequently continued the preliminary examination from Friday afternoon, January 7, to Monday morning, January 10.

After the People rested on Monday, defense counsel renewed his objection to the use of the complaining witness' affidavit, stating: "As I indicated originally, we objected to it at the time my client was remanded in municipal court. [p] I tried to contact the victim on several occasions and was unable to do so. We called the District Attorney's office last week and said we would object to this type of procedure under that Penal Code section. [p] We hereby request ... a continuance of [the] preliminary hearing for the purpose of having the People bring forth the alleged victim so that he or she can be cross-examined by counsel...."

In response to the court's request for the People's position, the prosecutor replied: "I believe that the People ... complied with [section] 872 and that the actions stated by counsel are insufficient to place that in issue. [p] The objection at the time of arraignment does not seem to be appropriate."

The magistrate denied the defense request to compel the People to present the witness for cross-examination. Defense counsel's subsequent motion to dismiss the complaint was also denied and defendant was held to answer.

Thereafter, defendant moved the superior court to dismiss the information (§ 995) on the basis of the magistrate's failure to require the People to produce the witness. Defense counsel described his efforts to contact the witness, indicating that he made at least three uncompleted telephone calls to the number the prosecution had given him and informed the prosecutor in advance of his objections to the procedure.

The superior court then granted the section 995 motion, stating, "the People can refile it" and "will have the opportunity to resubpoena the victim and have the victim available." Following the dismissal, the People appealed. (§ 1238, subd. (a)(1).)

Discussion

The sole issue on this appeal is whether the magistrate abused her discretion in finding that defendant had not exercised "reasonable efforts to secure the attendance of the witness" within the meaning of section 872.

The People in their briefs claim the phrase "reasonable efforts" should be construed as requiring in every case, as a minimum, a showing that the defense attempted to subpoena a witness. ³ We reject such an inflexible, constrictive interpretation as unwarranted by language or legislative history.

Where the principal problem of construction concerns the meaning of words used in the statute, a court must first look to the words themselves and must interpret them according to the usual import of the language employed in framing them. (See People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.) In construing a statute, a court cannot insert qualifying provisions not included or rewrite the statute to conform to an assumed intention which does not appear from its language. (McLaughlin v. Superior Court (1983) 140 Cal.App.3d 473, 482, 189 Cal.Rptr. 479.)

If the Legislature intended to require use of the subpoena process, it could easily have said so. For example, in Evidence Code section 240, governing unavailability of a witness for use of prior testimony, the Legislature specifically spoke in terms of "reasonable diligence" to compel a witness' "attendance by the court's process." Since the Legislature did not similarly qualify efforts to secure attendance in this statute, we must presume it did not intend to require "compulsory process." Rather, we believe the Legislature intended to accept voluntary efforts to secure the witness' presence.

There is no need to impose such a rigid subpoena rule in the guise of construction. The statutory language as it stands is clear. Moreover, when language in a penal statute is susceptible to different interpretations, the construction more favorable to a defendant should be adopted. (People v. Boyd (1979) 24 Cal.3d 285, 294-295, 155 Cal.Rptr. 367, 594 P.2d 484.)

Courts regularly determine what is "reasonable" on a case-by-case basis. Thus, for example, in the area of informant discovery, where the prosecution must show that it has made "reasonable efforts" to maintain contact with the informant, "what constitutes reasonable efforts will vary depending on the circumstances of each case." (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 366, 194 Cal.Rptr. 152, 667 P.2d 1165; Eleazer v. Superior Court (1970) 1 Cal.3d 847, 853, fn. 10, 83 Cal.Rptr. 586, 464 P.2d 42.) Similarly, in cases involving "reasonable" or "due diligence" to establish unavailability of a witness (Evid.Code, § 240), courts have held that whether due diligence has been shown is a factual question to be determined according to the circumstances of each individual case. (People v. Enriquez (1977) 19 Cal.3d 221, 235, 137 Cal.Rptr. 171, 561 P.2d 261; People v. Linder (1971) 5 Cal.3d 342, 346, 96 Cal.Rptr. 26, 486 P.2d 1226.) Indeed, in cases of due diligence, even though Evidence Code section 240 speaks of compelling attendance by the court's process, the total efforts of the proponent must be taken into consideration by the court. Rather than just imposing a rigid pro forma subpoena requirement, courts have considered such matters as whether the witness was not subpoenaed because the proponent did not know where the witness might be found ( People v. Linder, id., at p. 347, fn. 1, 96 Cal.Rptr. 26, 486 P.2d 1226; People v. Forgason (1979) 99 Cal.App.3d 356, 364, 160 Cal.Rptr. 263; Jefferson, 1 Cal.Evidence Benchbook (2d ed. 1982) § 2.5, p. 144), or reasonably believed the witness would appear voluntarily (People v. Linder, supra, 5 Cal.3d at p. 347, 96 Cal.Rptr. 26, 486 P.2d 1226; People v. Banks (1966) 242 Cal.App.2d 373, 377, 51 Cal.Rptr. 398).

Nor does the legislative history compel the adoption of an inflexible rule. The Senate Judiciary Committee's analysis of the proposed amendment did refer to the concerns of the State Public Defenders' Association about "the option of allowing defense attorneys to subpoena prosecution witnesses" (see Sen.Jud.Com.Rep. on Assem.Bill No. 1016 (1981-1982 Reg.Sess.), p. 10). But there is no mention of an affirmative subpoena requirement in the language of any of the successive versions of the bill or in any of the Legislative Counsel digests.

To adopt a "subpoena" rule might well prove unworkable and undesirable. Depending on the circumstances, efforts to secure the witness' voluntary attendance by phone calls may be the most expeditious and reasonable approach. Moreover, in view of the time constraints surrounding the typical...