People v. Hertz

• Decision Date: 25 March 1980
• Docket Number: Cr. 34747
• Citation: 103 Cal.App.3d 770,163 Cal.Rptr. 233
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Barbara HERTZ, Edgar G. Hernandez, Gustavo A. Bracho, William Greenberg, Antonio Marko and William Parker, Defendants and Respondents.

Page 233

163 Cal.Rptr. 233

103 Cal.App.3d 770

The PEOPLE of the State of California, Plaintiff and Appellant, v. Barbara HERTZ, Edgar G. Hernandez, Gustavo A. Bracho, William Greenberg, Antonio Marko and William Parker, Defendants and Respondents.

Cr. 34747.

Court of Appeal, Second District, Division 3, California.

March 25, 1980.

As Modified April 4, 1980.

Hearing Denied May 29, 1980.

John K. Van De Kamp, Dist. Atty. of Los Angeles County, Donald J. Kaplan and John W. Messer, Deputy Dist. Attys., for plaintiff and appellant

Hugh R. Manes, Hollywood, for defendant and respondent Barbara Hertz.

Los Angeles Center for Law and Justice, Tom Stanley and Leo Guevara, Los Angeles, for defendant and respondent Edgar G. Hernandez.

David Weitzman, Berkeley, for defendant and respondent Gustavo A. Bracho.

Michael L. Kogan and Warren Soloski, Los Angeles, for defendant and respondent William Greenberg.

Gilbert Moret, Los Angeles, for defendant and respondent Antonio Marko.

Stephen Gilbert, Los Angeles, for defendant and respondent William Parker.

KLEIN, Presiding Justice.

The People appeal from superior court dismissals under Penal Code section 995 ¹ of nine counts of assault with a deadly weapon upon police officers (Pen. Code, § 245, subd. (b)) ² against respondents Barbara Hertz, Edgar G. Hernandez, Gustavo A. Bracho, William Greenberg, Antonio Marko, and William Parker.

STATEMENT OF THE CASE

The respondents filed motions for discovery in the municipal court prior to the preliminary hearing, to which the prosecution responded. The magistrate conducted hearings on the motions, ³ and on the Los Angeles Police Department (LAPD) claim of privilege for certain "official information" pursuant to Evidence Code sections 915, subdivisions (a) and (b) and 1040, subdivision (b). ⁴

At the close of the month-long preliminary hearing, the magistrate bound the respondents over on the crimes as charged with the exception of one count against Hernandez. The People refiled the dismissed count against Hernandez in the superior court, which count was subsequently dismissed by the superior court.

At the hearing on the 995 motions, the parties agreed that the superior court could consider the discovery proceedings conducted by the magistrate, part of which proceedings were contained in the transcript of the preliminary hearing, in its ruling.

The superior court dismissed the charge against Hertz, finding an illegal commitment, after determining that Hertz' offer of proof on the defense of discriminatory enforcement was adequate and that Hertz should have been allowed to pursue the defense at the preliminary hearing.

The superior court further dismissed the charges against all defendants because the magistrate had failed to preserve a reviewable record of the "in camera" hearing conducted during discovery proceedings held prior to the preliminary hearing, which failure resulted in illegal commitments, although the court made the observation that the "question of law . . . (is) obviously one that's not been authoritatively resolved by high appellate courts." ⁵

The People appeal the dismissals.

FACTS

Respondents are members of the Progressive Labor Party/Committee Against Racism (PLP/CAR). On February 11, 1978, they took part in a PLP/CAR demonstration near the corner of 7th Street and Grand Avenue in downtown Los Angeles. Approximately 50 to 60 people participated by marching and carrying placards affixed to two-inch by two-inch by four-foot sticks.

Los Angeles police officers on routine patrol noticed the demonstration, monitored its activities and called additional back-up units to assist. A brief scuffle occurred between members of the PLP/CAR and police officers, resulting in injuries to both sides. Twelve demonstrators who used their sticks as clubs were arrested for assaulting police officers.

CONTENTIONS

The People contend that the superior court erred in dismissing: (1) the charge against Hernandez as there was sufficient evidence adduced at the preliminary hearing to hold Hernandez for trial; (2) the charge against Hertz because the defense of discriminatory enforcement was not properly raised at the preliminary hearing; (3) the charges against respondents, since the in camera hearing was properly held pursuant to Evidence Code section 915, subdivision (b).

SUMMARY

We concur with the granting of a 995 motion as to Hertz, on the ground that the transcript disclosed the defense of discriminatory enforcement had been properly raised by an offer of proof at the preliminary hearing, and therefore Hertz should have been given the opportunity to pursue such a defense.

We also agree with the superior court rational that the failure of the magistrate to create a reviewable record of the in camera proceeding during discovery hearings caused the binding over of the respondents for trial to be illegal, requiring the granting of the 995 motions.

Although we believe that the refiled count against Hernandez was improperly dismissed on the 995 motion on the ground of insufficiency of the evidence (People v. Farley (1971) 19 Cal.App.3d 215, 221-222, 96 Cal.Rptr. 478), such perception is irrelevant in view of the proper dismissals against all respondents.

DISCUSSION

Settled case law has substantially expanded the function of the preliminary hearing from a perfunctory proceeding wherein a magistrate makes the simple determination as to whether "there is sufficient cause to believe the defendant guilty (of a public offense)" (Pen. Code, § 872) to a full-blown hearing allowing for the presentation of affirmative defenses.

In Jennings v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304, a defendant charged with possession of narcotics was denied the right to present the affirmative defense of entrapment at the preliminary hearing by the magistrate's ruling cross-examination of police officer witnesses was not relevant to the issue before the court. The Supreme Court held that restriction of defendant's cross-examination in a case wherein defendant intends to present an affirmative defense constitutes a denial of a substantial right, resulting in an unlawful commitment, despite evidence of probable cause to hold defendant for trial.

" 'The purpose of the preliminary hearing is to weed out groundless or unsupported charges of grave offenses, and to relieve the accused of the degradation and expense of a criminal trial. . . . (Citations.)' To effectuate this constitutional and statutory purpose the defendant must be permitted, if he chooses, to elicit testimony or introduce evidence tending to overcome the prosecution's case or establish an affirmative defense." (Id., at p. 880, 59 Cal.Rptr. at p. 448, 428 P.2d at p. 312.) (Saulter v. Municipal Court (1977) 75 Cal.App.3d 231, 247-248, 142 Cal.Rptr. 266; People v. Partlow (1978) 84 Cal.App.3d 540, 551, 148 Cal.Rptr. 744.)

In Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44, the Supreme Court held that discriminatory enforcement of the law could be asserted as an affirmative defense to a criminal prosecution. Consistent with the accepted expanded notion of preliminary hearings, there is no logical reason why the affirmative defense of discriminatory enforcement cannot be raised at that stage of criminal prosecutions.

The defense of discriminatory enforcement is not unlike that of entrapment in that in either situation, a defendant does not necessarily contend that he did not commit the criminal act charged with the requisite intent, but rather that because of the tainted conduct of law enforcement personnel, he should not be punished. (People v. Salas (1975) 51 Cal.App.3d 151, 158, 123 Cal.Rptr. 903.)

We note that in Jennings v. Superior Court, supra, 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304, the fact that the defendant therein was attempting to raise the specific affirmative defense of entrapment at the preliminary hearing did not concern the Supreme Court; it was rather the magistrate's refusal to allow any affirmative defense at that "stage" of criminal proceedings against the defendant. (Id., at p. 873, 59 Cal.Rptr. 440, 428 P.2d 304.)

The superior court herein found that the offers of proof made by the attorney for Hertz to the effect that Hertz was being harassed by members of the LAPD for her use of a hand-carried bullhorn, that the demonstrations of the PLP were monitored by LAPD solely because of the ideology and beliefs of the organization, and that what occurred at the February 11 incident grew out of a desire by the LAPD to get revenge on the PLP for injuries allegedly inflicted on LAPD officers unlawfully by PLP members during prior confrontations, were adequate to allow Hertz to pursue the defense of discriminatory enforcement through cross-examination.

We concur with the ruling that because the magistrate thusly precluded Hertz' attorney from cross-examination, stating, "I would point out, once again, this is a preliminary hearing; and such matters are not relevant to the issues before this Court," this caused Hertz to be unlawfully committed within the contemplation of Penal Code section 995, as interpreted by the aforementioned cases. The section itself merely states that an information must be set aside "(i)f . . . before the filing (of the information) the defendant had not been legally committed by a magistrate."

If we conclude a defendant has a right to present an affirmative defense at a preliminary hearing, which now seems clear (Jennings v. Superior Court, supra, 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304; McDaniel v. Superior Court (1976) 55 Cal.App.3d 803, 805, 126 Cal.Rptr. 136), in order for that right to be meaningful, it must include the opportunity to obtain discovery prior to the hearing. (Theodor v. Superior Court (1972) 8 Cal.3d 77, 90, 104 Cal.Rptr. 226, 501 P.2d 234; Saulter v. Municipal Court, supra, 75 Cal.App.3d 231, 142 Cal.Rptr 266.) In pursuit of discovery of...